On May 3, 2013, the Court of Appeals for the Federal Circuit (Fed. Cir.) issued an opinion in Parks v. Shinseki and affirmed the decision of the Court of Appeals for Veterans Claims (Veteran Court). The opinion can be accessed at Parks v. Shinseki.
The underlying nature of the claim involves Mr. Parks’ diagnosis of diabetes type II, heart condition, and peripheral neuropathy and whether his exposure to chemical warfare agents contributed to those disabilities. Mr. Parks is a Army Veteran who — at least according the opinion — served in Vietnam from 1964 through 1966. He participated in a program Shipboard Harzard Defense (SHAD), which was was part of a larger DoD Program called Project 112. In essence, this program intentionally exposed servicemembers to biological and chemical agents in order to test the effects on human subjects.
After a remand from the Board of Veterans’ Appeals in 2007, the VA conducted a medical examination by a registered nurse practitioner. The nurse practioner opined that Mr. Parks’ disabilities were not linked to his service-related chemical exposure. On appeal before the Veterans Court, Mr. Parks asserted that the nurse practitioner was not a qualified medical expert in order to conduct the VA medical opinion.
First, the Fed. Cir. noted there is a presumption that the person conducting the VA medical examination is qualified. Second, the Fed. Cir. held that Mr. Parks failed to overcome this presumption by failing to object to the nurse practitioner’s qualifications while the claim was pending before the agency.
The important learning point is that veterans need to preserve all objections in the adminstrative record so as to not waive those objections before the courts. This is a fundemental principle of adminstrative law that is commonly overlooked by pro se litigants.
The other issue that remains unresolved is why Mr. Parks, if he indeed served in Vietnam from 1964 through 1966, was was not evaluated for presumptive conditions related to herbicide exposure (specifically Agent Orange).