## United States Court of Appeals for the Federal Circuit

2009-7026

DAVID J. RIZZO, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Douglas J. Rosinski , Ogletree, Deakins, Nash, Smoak & Stewart, P.C., of Columbia, South Carolina, argue d for claimant-appellant. Allison Kidd-Miller , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. With her on the brief were Michael F. Hertz , Assistant Attorney General, Jeanne E. Davidson , Director, and Martin F. Hockey, Jr. , Assistant Director. Of counsel on the brief were David J. Barrans , Deputy Assistant General Counsel, and Y. Ken Lee , Attorney, Office of the General Counsel, Unit ed States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Chief Judge William P. Greene, Jr.

## United States Court of Appeals for the Federal Circuit

2009-7026 DAVID J. RIZZO, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee Appeal from the United States Court of Appeals for Veterans Claims in 07-0123, Chief Judge William P. Greene.

__________________ _________ DECIDED: September 8, 2009

__________________ _________ Before MICHEL, Chief Judge , LOURIE and RADER, Circuit Judges

. RADER, Circuit Judge

. The United States Court of Appeals for Veterans Clai ms affirmed the decision of the Board of Veterans’ Appea ls that denied David J. Rizzo service-connection for an eye disability. Rizzo v. Peake , No. 07-0123 (Vet. App. Aug. 26, 2008). Because the Department of Veterans Affairs (VA) has no obligati on to present affirmative evidence of a VA physician’s qualificat ions during Board proceedings , absent a challenge by the veteran, this court affirms.
I. Mr. Rizzo served honorably in the United States Air Fo rce in the late 1940s. During the summer of 1947, Mr. Rizzo traveled at least three times to the Marshall Islands’ Bikini Atoll as part of a radiation monitoring effort known as the Bikini ScientificResurvey. Mr. Rizzo asserts that he was exposed to ionizing radiation during this time. Mr. Rizzo bases his claim to service connection to those visits. In the mid-1980s Mr. Rizzo was diagnosed with retinitis pigmentosa. He later developed bilateral posterior and anterior subcapsular cataract s – other diseases of the eye. Mr. Rizzo filed a claim for disability ben efits in January 1985. He claimed a causal link between his eye conditions and his exposur e to radiation during service. A VA regional office denied Mr. Rizzo’s claim in a January 1995 decision. Rizzo appealed to the Board, which or dered several remands for additional factual development. In 2004, Mr. Rizzo offered testimony from Dr. U. Hans Behling, who has a PhD in Radiation Physics. Dr. Behl ing testified that the circ umstantial evidence strongly suggested that Mr. Rizzo’s exposure to a pot entially high dose of radiation might have caused the eye ailments. In March 2006, at VA’s request, the De fense Threat Reducti on Agency (DTRA) prepared an assessment of Mr. Rizzo’s likely exposure to r adiation. DTRA informed VA that Mr. Rizzo was not a confirmed partici pant of the 1947 Resurvey. Nonetheless, based on Mr. Rizzo’s representations regarding the details of his pa rticipation in the Bikini Scientific Resurvey, DTRA provid ed certain worst case dose estimates for potential radiation exposure to Rizzo’s eyes . DTRA stated that the “highest radiation exposure dose for any participant of the Resu rvey Team for the entire period [from] July 15 to August 29, 1947, using worst case assumptions . . . is not more than 1.0 rem [röntgen equivalent in man] to the whole body.” The record shows, according to epidemiological studies, that the probability of harm was close to zero for most healthy individuals receiving doses less than 10 rem.

2009-7026 2In May 2006 the Board heard medical op inion testimony from Dr. Lawrence R. Deyton, a physician and VA’s Chief Office r of Public Health and Environmental Hazards. Dr. Deyton’s positio n in the VA ranks him as an Assistant Under Secretary. Dr. Deyton reviewed DTRA’s dose estimate s and opined that “it is unlikely that the veteran’s eye disorder diagnosed as retini tis pigmentosa and bilateral cataracts can be attributed to exposure to ioni zing radiation in service.” In an October 2006 decision, the Board de nied service connection for Mr. Rizzo’s eye conditions. The Board gav e greater weight to Dr. Deyt on’s medical opinion than to Dr. Behling’s. The Board found that Dr. Beh ling’s conclusions were “qualified as being based on circumstantial evidence that was ‘s uggestive,’ resulting in a finding that was ‘plausible,’ that t he dose ‘could’ have been received by the veteran.” The Board contrasted Dr. Deyton’s opinion, which was based on DTRA’s “extensive dose estimate development,” which in turn was based on the veteran’s “best and most current representations on the details of his par ticipation [in the Resurvey] . . . .” Mr. Rizzo appealed to the Veterans Cour t. In his appeal, Mr. Rizzo argued that the Board did not supply an adequate statement of reasons for affording greater probative weight to Dr. Deyt on’s opinion than to Dr. Behl ing’s. Further Mr. Rizzo charged that the Board did not affirmatively establish Dr. Deyton’s competency as an expert. Mr. Rizzo also argued that the Bo ard considered no evidenc e that would show that Dr. Deyton possessed the knowledge and expertise to qualify as an expert in this case. In a single-judge decision, the Ve terans Court rejected Mr. Rizzo’s argument, relying on its opinion in Cox v. Nicholson , 20 Vet. App. 563 (2007), to show that the Board was within its rights to presume the competence of the VA medical expert. The

2009-7026 3Veterans Court also noted that Mr. Rizzo did not point to any evidence demonstrating Dr. Deyton’s lack of competence as an ex pert. The court also noted that the Board provided adequate justification for giving greater probativ e weight to Dr. Deyton’s opinion than to Dr. Behling’s. Mr. Rizzo moved for a panel decision, wh ich the Veterans Court denied. This appeal follows from the Veterans Court’s entry of judgment. This court has jurisdiction under 38 U.S.C. § 7292.
II. Under 38 U.S.C. § 7292 this court’s review of a Veterans Court’s decision is limited. This court decides “all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). This court reviews the Veterans Court’s legal determinations without deference. Prenzler v. Derwinski , 928 F.2d 392, 393 (Fed. Cir. 1991). However, unless the appeal presents a constitutional issue, this court may not review challenges to factual determinations or “to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). On appeal, Mr. Rizzo argues that the Vete rans Court incorrectly held that the Board could assume the qualifications of VA’s medical expert. Mr. Rizzo essentially asks this court to impose a new standard requiri ng VA to affirmative ly establish on the record the qualifications of an expert wit ness before the Board may rely upon the opinion of that witness. The Veterans Court consider ed a similar question in the Cox v. Nicholson case. 20 Vet. App. 563. In Cox , a veteran sought a higher rating for his service-connected back condition. A VA physician conducted a sp ine examination, reviewed the veteran’s

2009-7026 4claims file and medical history, and ordered an MRI that was interpreted by another physician. After this review, the VA physi cian concluded that the veteran’s back condition was not related to service. Id. at 566. Nonethele ss, the Board determined that the veteran should receive a 40% disability rating for his back, up from a previous rating of 20%. The veteran appe aled this decision to the Ve terans Court, seeking a still higher rating. The Veterans Court reject ed the veteran’s argument that VA could not have relied on the physician’s report because it did not contain information about the physician’s qualifications: Mr. Cox does not assert that the ex aminer was not com petent, but rather argues that VA did not est ablish his competence. However, the Board is entitled to assume the com petence of a VA examiner. See Hilkert v. West , 12 Vet. App. 145, 151 (1999) (“[T] he Board implicitly accepted [the VA examiner’s] competency by accepting and relying upon the conclusions in her opinion.”), aff’d , 232 F.3d 908 (Fed. Cir . 2000). Further, the “appellant bears the bur den of persuasion on appeals to this Court to show that such relian ce was in error.” Id. ; see also Butler v. Principi , 244 F.3d 1337, 1340 (Fed. Cir. 20 01) (“The [presumption of regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary.”). Mr. Cox has provided no evidence, nor can the Court discern any in the record, that would cast doubt on Dr. Bartal’s competence and qualifications. Absent such argument or evidence, the Court finds no error in the Board’s implicit presumption of competence. Id. at 569. This court adopts the reasoning of the Veterans Court in Cox . Absent some challenge to the expertise of a VA expert, this court perce ives no statutory or other requirement that VA must present affirmative evidence of a physician’ s qualifications in every case as a precondition for the Board’s reliance upon that physician’s opinion. Indeed, where as here, the veteran does not challenge a VA medical expert’s

2009-7026 5competence or qualifications before the Board, this c ourt holds that VA need not affirmatively establish that expert’s competency. In the present case, the Board observed that Dr. Deyton is a medical doctor and serves as VA’s Chief Officer of Public Health and Environm ental Hazards. The Board also observed that Dr. Deyton represented VA’s Under Secretary for Health, whose opinion the Board must consider in claims based on exposure to ionizing radiation. See 38 C.F.R. § 3.311(f) (“The det ermination of service connec tion will be made under the generally applicable provisions of this part, gi ving due consideration to all evidence of record, including any opinion provided by the Under Secretary for Health or an outside consultant . . . . ”). Dr. De yton’s opinion noted Mr. Rizzo’s radiation exposure estimates. He then compared that exposure to severa l studies and other published material to show that the exposure level showing causat ion of cataracts is much higher than the worst-case estimates of Mr. Rizzo’s exposure . Dr. Deyton also stated that retinitis pigmentosa is a hereditary condition. By contrast, the Board f ound that the expert opinion offered by Mr. Rizzo was “spec ulative rather than conclusive.” Mr. Rizzo’s attorney argued to the Board that Dr. Deyton’s opinion was defective because “Dr. Deyton did not support his c onclusion with expert analysis.” This argument, however, attacked Dr. Deyton’s opini on itself – not his qualifications to provide such an opinion. Absent some cha llenge to Dr. Deyton’s credentials, this court sees no reason to preclude t he Board’s reliance on Dr. De yton’s competence to supply a medical opinion. As this court has often noted, the veterans benefits adjudication system is “nonadversarial and paternalistic.” See Butler v. Principi , 244 F.3d 1337, 1340 (Fed.

2009-7026 6Cir. 2001). In this connection, VA considers all evidence that may bear upon a claim. See 38 U.S.C. § 5107(b) (“The Se cretary shall consider a ll information and lay and medical evidence of record in a case befor e the Secretary with respect to benefits under laws administered by the Secret ary.”). In this case, the Board rightly considered Mr. Rizzo’s objections to Dr. Deyton’s testimony , weighed the credib ility of Dr. Deyton’s opinion against Dr. Behring’s, and concluded that Dr. De yton had presented a more probative and credible analysis. Mr. Rizzo point s to no law or precedent suggesting that the Board must have first es tablished Dr. Deyton’s qualific ations on the record before assigning his opinion pr obative value. Indeed, in this case, the Board did not conclude that Dr. Deyton was better qua lified than Dr. Beh ling, or that it resolved the dispute between experts based on their qualifications. Instead, the record shows that the Board compared the two expert opinions on the basis of their respective probative values. Moreover, the Veterans Court’s decision did not create an evidentiary burden that conflicts with VA’s st atutory duty to assist. Ti tle 38 obligates VA to “make reasonable efforts to assist a claimant in ob taining evidence necessary to substantiate the claimant’s claim.” 38 U.S.C. § 5103A(a )(1). However, because VA does not require a claimant such as Mr. Rizzo to provid e any evidence that would establish the competence of a VA exam iner in order to substantiate a claim for benefits, the duty to assist does not come into play in this case. The presumption of regularity also s upports this court’s judgment. “The presumption of regularity provides that, in th e absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.” Miley v. Principi , 366 F.3d 1343, 1347 (Fed. Cir. 2004). Contrary to Mr. Rizzo’s

2009-7026 7assertions, nothing in this court’s prec edent limits the presumption to procedural matters. Simply stated, “[t]he doctrine . . . allows courts to pres ume that what appears regular is regular, the burden shifting to the attacker to show the contrary.” Butler , 244 F.3d at 1340. As the Veterans Court noted, the record contains no evidence to call into question the competence of Dr . Deyton. Indeed, the record shows that Dr. Deyton’s position at VA charges him with vast responsibility for overseeing programs dealing with ionizing radiation, Agent Or ange, and Gulf War illnesses. [SA28] For this reason as well, the Veterans Court did not err in not r equiring the Board to affirmatively establish Dr. Deyton’s competency. III. Mr. Rizzo separately challenges the Vetera ns Court’s denial of his motion for a full panel decision. Mr. Rizzo argues that the Veterans Court did not follow its own rules regarding single judge decisions , and that the complexity of this case warranted a decision by a full panel of judges . This court’s decision in Arnesen v. Principi , 300 F.3d 1353 (Fed. Cir. 2002), disposes of Mr. Rizzo’s argument. In Arnesen , this court found that an appellant’s challenge to the Veterans Court’s dete rmination on a motion for a panel decision implicates a fundamentally fact ual question – the relative simplicity or complexity of a given case. Id. at 1360. In this case, Mr. Rizzo similarly quarrels with the Veterans Court’s estimation of the comp lexity of this case . This court lacks jurisdiction over such a factual determination. See 38 U.S.C. § 7292(a).
IV. The Veterans Court did not err in not requi ring the Board to affirmatively establish the competency of VA’s medical expert. Accordingly, this court affirms.

2009-7026 82009-7026 9 AFFIRMED COSTS No costs.