United States Court of Appeals 

for the Federal Circuit ______________________ 

ARNOLD J. PARKS,

Claimant-Appellant,

v.

 Eric K. Shinseki, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee.

______________________ 

2012-7089

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-2197, Judge Robert N. Davis.

______________________ 

Decided: May 3, 2013 

______________________ 

DORIS J. HINES, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC, argued for 

claimant-appellant. With her on the brief were RONALD L.

SMITH and STEPHEN L. HENNESSY. 

MARTIN F. HOCKEY, JR., Assistant Director, Commercial Litigation Branch, Classifications Unit, United States 

Department of Justice, of Washington, DC, argued for the 

respondent-appellee. With him on the brief were Stuart 

F. DELERY, Acting Assistant Attorney General, JEANNE E.
2 ARNOLD PARKS v. SHINSEKI

DAVIDSON, Director, and TODD M. HUGHES, Deputy Director. Of counsel on the brief were DAVID J. BARRANS, 

Deputy Assistant General Counsel, and JONATHAN E.

TAYLOR, Attorney, United States Department of Veterans 

Affairs, of Washington, DC. 

______________________ 

Before RADER, Chief Judge, SCHALL and BRYSON, Circuit 

Judges.

RADER, Chief Judge. 

The United States Court of Appeals for Veterans 

Claims affirmed the denial of service connection for Mr. 

Parks’ asserted medical conditions. A. 1-5. Discerning no 

reversible error, this court affirms.

I. 

Mr. Parks served in Vietnam from 1964 to 1966. A. 2. 

Along with 6,000 other soldiers, Mr. Parks volunteered for

a then-classified project called “Project 112.” Id. Mr. 

Parks participated in a part of Project 112 called Shipboard Hazard Defense (SHAD). A. 119. As part of his 

participation, the United States government intentionally 

exposed him to three chemical warfare agents.

In 2000 and again in 2002, Mr. Parks sought service 

connection for diabetes type II with peripheral neuropathy and heart disability, asserting they were secondary to 

chemical exposure. A. 2. The Regional Office (RO) denied 

these claims. Mr. Parks appealed to the Board of Veterans’ Appeals (Board).

In this time period, the United States government declassified certain details about the chemicals used in 

Project 112. Appellee’s Br. 3. The Department of Defense

reported that it did not know of any long-term effects 

caused by exposure to the chemicals that had been used 

in Project 112. However, the Department of Veterans 

Affairs (VA) stated that “specific health problems may be 
 ARNOLD PARKS v. SHINSEKI 3

linked to service-related chemical exposures on an individual basis when there is evidence of a causal link to 

military service.” A. 213. As a result, in 2004 the Veterans Health Administration issued a directive requiring 

the VA to provide to Project 112 veterans “a thorough 

clinical evaluation,” enhanced access to the VA health 

care system, and free care for “any illness possibly related

to their participation in” Project 112. A. 122. See also 38 

U.S.C. § 1710(e)(1)(E) (providing “hospital care, medical 

services, and nursing home care” for veterans who had 

participated in SHAD or Project 112).

The VA then sent Mr. Parks a letter identifying the 

chemicals to which he had been exposed and providing 

instructions on how to obtain additional medical examinations. A. 587. In 2007, the Board remanded Mr. Parks’ 

appeal to the VA for it “to provide [Mr. Parks] with a 

complete Project 112 examination.” A. 606. Carrying out 

the Board’s remand order, the VA arranged for Mr. Parks 

to have medical exams for diabetes mellitus, heart conditions, and other issues Mr. Parks believed had been 

caused by his participation in SHAD. A. 604-06. 

In May 2008, the VA selected Ms. Larson, an advanced registered nurse practitioner (ARNP), to determine whether there was a potential relationship between 

Mr. Parks’ participation in SHAD and his medical conditions. In her report, Ms. Larson described Mr. Parks’

exposure and his medical history. She then briefly described the medical literature concerning the health 

effects known to have been caused by exposure to the 

chemicals used in SHAD. She wrote that the literature 

established that there were no documented long-term 

health effects from exposure to the three chemicals, and 

that tests could not identify their presence in the human 

body long after exposure. A. 504. She ultimately stated 

that Mr. Parks’ “claimed conditions of diabetes, neuropathy, heart condition and chronic bronchitis is [sic] less 
4 ARNOLD PARKS v. SHINSEKI

likely than not secondary to his confirmed chemical 

exposures.” Id. at 505.

Later, the RO issued a supplemental statement finding no service connection. A. 172. The RO relied upon 

Ms. Larson’s report and other public medical authorities

regarding the effects of the pertinent chemicals. A. 170-

75.

With assistance of a non-lawyer from the Disabled 

American Veterans, Mr. Parks appealed to the Board. 

The Board found Mr. Parks’ claim had been properly 

evaluated. Parks v. Shinseki, No. 10-2197, 2011 WL 

6358019 (U.S. Vet. App. Dec. 20, 2011). Further, the

Board found no service connection based upon (1) the fact 

that Mr. Parks had had no symptoms for forty years after 

his participation in Project 112, (2) he was and remained 

a heavy smoker, and (3) the only competent medical 

opinion came from an ARNP, who had found no service 

connection. See id.

Represented by counsel, Mr. Parks appealed to the 

Veterans Court. Mr. Parks for the first time asserted that 

the Board had erred by basing its decision on Ms. Larson’s report because it did not constitute the required 

“competent medical evidence.” 38 C.F.R. § 3.159(a)(1). In 

response, the Veterans Court did not remand for the 

Board to consider Ms. Larson’s qualifications, but instead 

rejected Mr. Parks’ position as a matter of law. The 

Veterans Court reasoned that under Cox v. Nicholson, 20 

Vet. App. 563 (2007), “a nurse practitioner is able to 

provide a medical examination that meets the regulatory 

requirements of ‘competent medical evidence’” in terms of 

Section 3.159(a)(1). A. 3. Further, the Veterans Court

refused to consider information Mr. Parks’ lawyers had

found on the Internet after the Board’s decision, which 

ostensibly showed Ms. Larson had specialized only in 

family medicine. A. 4. The Veterans Court refused to 
 ARNOLD PARKS v. SHINSEKI 5

consider the information because it was not part of the 

record before the Board. Id.

Mr. Parks appeals. This court has jurisdiction under 

38 U.S.C. § 7292.

II. 

This court reviews questions of law de novo. 38 U.S.C. 

§ 7292(d)(1); see Chandler v. Shinseki, 676 F.3d 1045, 

1047 (Fed. Cir. 2012); Boggs v. Peake, 520 F.3d 1330, 1334 

(Fed. Cir. 2008). However, absent a constitutional issue, 

the court may not review a challenge to a factual determination or a challenge to a law or regulation as applied 

to the facts of a particular case. 38 U.S.C. § 7292(d)(2).

III.

The government challenges the jurisdiction of this 

court, contending that ruling on Mr. Parks’ arguments 

“would require this Court to apply law to facts, which it 

does not possess jurisdiction to do.” Appellee’s Br. 11. 

This court generally lacks jurisdiction to apply law to 

facts, and it will not do so here. 

The Veterans Court’s opinion did not recite any substantive facts in concluding that “a nurse practitioner is 

able to provide a medical examination that meets the 

regulatory requirements” of “competent medical evidence” 

under Section 3.159(a)(1). A. 3. Instead, it relied upon 

Cox’s statement that examinations need not always be 

conducted by physicians, the definition of “competent 

medical evidence” in Section 3.159(a)(1), and a dictionary 

definition of “nurse practitioners.” A. 3. Removing all 

doubt about the nature of the question before this court, 

the government states that “no law or regulation” requires reversal here. Appellee’s Br. 24.

The court may determine whether no law or regulation so requires without analyzing the application of those 
6 ARNOLD PARKS v. SHINSEKI

laws to these facts. To that extent, this court has jurisdiction.

IV.

The government argues that Mr. Parks waived the issue on appeal. Contrary to the approach of the Veterans 

Court and the briefing of the parties, the issue here is 

whether Mr. Parks waived his right to overcome the 

presumption that the selection of a particular medical 

professional means that the person is qualified for the 

task. The presumption is not whether all nurse practitioners are qualified to give any medical opinion because 

of how the dictionary defines their capabilities. 

Two principles combine to control here. First, the VA 

is required in some circumstances, including this one, to 

rely only on “competent medical evidence” as defined by 

Section 3.159(a)(1). “Competent medical evidence” is 

“evidence provided by a person who is qualified through 

education, training, or experience to offer medical diagnoses, statements, or opinions.” 38 C.F.R. § 3.159(a)(1). 

Second, in some circumstances, including this one, the VA 

operates under the benefit of a rebuttable presumption of 

regularity. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 

(Fed. Cir. 2009). This presumption provides that “in the 

absence of clear evidence to the contrary, the court will 

presume that public officers have properly discharged 

their duties” and that “what appears regular is regular.” 

Id. (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. 

Cir. 2004) and Butler v. Principi, 244 F.3d 1337, 1340 

(Fed. Cir. 2001)).

In the case of competent medical evidence, the VA 

benefits from a presumption that it has properly chosen a 

person who is qualified to provide a medical opinion in a 

particular case. Sickels v. Shinseki, 643 F.3d 1362, 1366

(Fed. Cir. 2011). Viewed correctly, the presumption is not 

about the person or a job title; it is about the process.
 ARNOLD PARKS v. SHINSEKI 7

A presumption exists, of course, to eliminate the burden to produce evidence. As a result, the Veterans Court

did not need to examine the dictionary definition of “nurse 

practitioner” or to require the government to proffer 

evidence about the qualifications of the medical professional in this case. Repeated unnecessary remands for 

additional evidence complicate many cases and lead to 

system-wide backlogs and delays. Requiring the Board to 

present extensive evidence on the competence of a professional presumed to be competent is not only illogical, but 

adds to those delays. See Sickels, 643 F.3d at 1365 (recognizing that the Board is not required to “give reasons 

and bases for concluding that a medical examiner is 

competent unless the issue is raised by the veteran,” 

because doing otherwise “would fault the Board for failing 

to explain its reasoning on unraised issues”). 

Even though the law presumes the VA has selected a 

qualified person, the presumption is rebuttable. See

Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) 

(explaining that a veteran challenging the qualifications 

of a VA-selected physician must set forth specific reasons 

why the veteran believes the expert is not qualified to 

give a competent opinion). The government argues that 

Mr. Parks waived any right to rebut the presumption that 

the VA has properly done its job. For the following reasons, this court holds that Mr. Parks indeed waived the 

issue.

V.

The first step to overcoming the presumption is to object even where, as here, the veteran is acting pro se. See

Bastien, 599 F.3d at 1307. While, for reasons discussed 

below, a pro se veteran’s objection to the selection of a 

particular medical professional will be read sympathetically, there must be an objection.

If an objection is raised it may be necessary for the 

veteran to provide information to overcome the presump-
8 ARNOLD PARKS v. SHINSEKI

tion. In this regard, Mr. Parks reads the court below and 

statements in Cox to support the notion that a nurse 

practitioner is always qualified to give competent medical 

opinions. This court does not endorse that reading of Cox. 

The regulations may require inquiry beyond the possession of a particular degree, or the lack of one. Section 

3.159(a)(1) requires that to be competent, a medical 

opinion must be “provided by a person who is qualified 

through education, training or experience” to offer one. 

Further, the VA’s stated purpose when adopting the 

regulation confirms what common sense and the plain 

language requires: competency requires some nexus

between qualification and opinion. Dep’t. of Veterans 

Affairs Proposed Rules, 66 FR 17834-01, 17835 (Apr. 4, 

2001) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) 

(stating that “opinions of witnesses skilled in that particular science, art or trade to which the question relates are 

admissible in evidence”), overruled on other grounds by 

King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012)).

Given that one part of the presumption of regularity is 

that the person selected by the VA is qualified by training, education, or experience in the particular field, the 

presumption can be overcome by showing the lack of those 

presumed qualifications. Thus, while the presumption is

that a nurse practitioner selected by the VA is qualified to 

perform as designated, the presumption can be overcome. 

Thus, this court offers no opinion on whether an ARNP 

experienced only in family medicine may be qualified to 

opine on causes of diabetes.

But Mr. Parks never raised any concern over Ms. Larson’s qualifications or those of an ARNP generally, let 

alone sought to overcome the presumption until his 

appeal to the Veterans Court. Instead, at the Board and 

with the assistance of a non-lawyer from the DAV, Mr. 

Parks had asserted only that the report prepared by Ms. 

Larson should have been excluded because, contrary to 
 ARNOLD PARKS v. SHINSEKI 9

VA operating procedures, a physician had not signed it. 

A. 40.

To justify raising this argument only now, Mr. Parks 

emphasizes that the record must be construed sympathetically in favor of pro se veterans, citing Comer v. Peake, 

552 F.3d 1363, 1369 (Fed. Cir. 2009). This argument

misapprehends the applicability of Comer. 

The Vietnam veteran in Comer initially filed a disability claim in 1988. He was found thirty percent disabled, 

but was not awarded any benefits. Acting pro se, he 

repeatedly asserted in subsequent proceedings in the RO

and before the Board that he was entitled to a higher 

rating and to benefits. Any claim to a higher rating is 

construed as a claim for the highest possible rating. 

Comer, 552 F.3d at 1367 n.1. He was awarded benefits 

and his rating was repeatedly increased, eventually to

seventy percent, though neither was made effective back 

to 1988. On appeal, the Veterans Court held that Comer 

had waived any argument that he was entitled to benefits 

effective as of 1988. This court reversed, holding that 

because he had argued that he was entitled to an earlier 

effective date at a higher rating, a sympathetic reading of 

the record showed that he had asserted he was entitled to 

TDIU benefits as of 1988. Id. at 1366-67.

In contrast, Mr. Parks never suggested that there was 

anything improper with the VA’s selection of an ARNP, 

let alone raised objection to Ms. Larson specifically. Had 

Mr. Parks raised some objection—had he suggested that 

no nurse practitioner was competent to provide the opinion, or that Ms. Larson herself was in some way incompetent—then Comer would apply. But it is one thing to read 

a record sympathetically, as required by Comer; it is quite 

another to read into the record an argument that had 

never been made. 

Finally, Mr. Parks argues that the Veterans Court 

abused its discretion in not remanding the case to consid-
10 ARNOLD PARKS v. SHINSEKI

er his competency objection. On this record, the Veterans 

Court did not abuse its discretion in deciding not to 

remand. 

VI. 

This court has considered Mr. Parks’ other arguments 

and finds them unpersuasive. Accordingly, the judgment 

of the Veterans Court is affirmed.

AFFIRMED