Sickels v. Shinseki
2011 U.S. App. LEXIS 9453
| Fed. Cir. | 2011Background
- Sickels served in the U.S. Army (1948–1950) and sustained a right knee injury in 1949 with minimal initial pathology; x-rays showed no bone/joint pathology.
- Sickels filed a disability claim in 1999; VA treatment notes suggested MRI if symptoms persisted.
- The RO denied in 2002 for lack of service connection; he appealed and the Board remanded to obtain a nexus opinion based on the record.
- AMC instructed examiners in 2005 and 2007 without requiring an examiner’s physical examination unless necessary; opinions were based on record review.
- Two VA medical opinions (2005, 2007) concluded it is less likely than not that the current knee condition is related to the in-service injury; Board denied benefits; Veterans Court affirmed the Board’s compliance with 7104(d)(1) and the absence of a MRI, given no challenge by Sickels.
- Sickels appealed, arguing the Board failed to provide adequate reasons and bases and that examiners’ instructions were confusing; the court held the Board need not explicitly address competency or MRI absent challenge, and relied on Rizzo and the presumption of regularity to uphold the Board’s action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 7104(d)(1) requires explicit written reasons for relying on VA medical opinions | Sickels contends the Board must explicitly explain why each opinion is adequate. | Board may implicitly rely on opinions and need not detail every adequacy finding unless challenged. | Affirmed: implicit reliance on medical opinions complies with 7104(d)(1). |
| Whether a veteran must challenge a medical examiner’s competence before Board reliance is permitted | Sickels argues examiner competence must be affirmatively established. | Rizzo v. Shinseki permits reliance without pre-emptive competency findings unless raised by the veteran. | Affirmed: no affirmative competency finding required unless challenged. |
| Whether presumption of regularity and nonadversarial system require explicit MRI/testing instructions to be considered adequate | Lack of MRI evidence renders opinions uninformed; instructions were confusing. | No challenge raised; examiners were authorized to perform additional testing if necessary; regularity applies. | Affirmed: presumption of regularity and lack of raised challenge sustain the Board’s actions. |
Key Cases Cited
- Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (no strict requirement to affirmatively establish examiner competency unless challenged)
- Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004) (limits review of factual determinations; governs jurisdiction)
- Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (Board may consider issues independently suggested by the record)
- Miley v. Principi, 366 F.3d 1343 (Fed. Cir. 2004) (presumption of regularity for public officers; burden on challenger to show otherwise)