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, argued for claimant-appellant. 

Allison Kidd-Miller, Trial Attorney, Commercial Litigation 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, United States Department of Veterans Affairs, 

of Washington, DC. 

 

Appealed from: United States Court 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 Claims affirmed the decision of 

the Board of Veterans’ Appeals 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 obligation to present affirmative evidence of 

a VA physician’s qualifications during Board proceedings, absent a challenge by the 

veteran, this court affirms. 

I. 

 Mr. Rizzo served honorably in the United States Air Force 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 Scientific 
Resurvey. 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 cataracts – other diseases of the 

eye. Mr. Rizzo filed a claim for disability benefits in January 1985. He claimed a causal 

link between his eye conditions and his exposure to radiation during service. A VA 

regional office denied Mr. Rizzo’s claim in a January 1995 decision. Rizzo appealed to 

the Board, which ordered 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. Behling testified that the circumstantial evidence strongly 

suggested that Mr. Rizzo’s exposure to a potentially high dose of radiation might have 

caused the eye ailments. 

 In March 2006, at VA’s request, the Defense Threat Reduction Agency (DTRA) 

prepared an assessment of Mr. Rizzo’s likely exposure to radiation. DTRA informed VA 

that Mr. Rizzo was not a confirmed participant of the 1947 Resurvey. Nonetheless, 

based on Mr. Rizzo’s representations regarding the details of his participation in the 

Bikini Scientific Resurvey, DTRA provided 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 Resurvey 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. 

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 In May 2006 the Board heard medical opinion testimony from Dr. Lawrence R. 

Deyton, a physician and VA’s Chief Officer of Public Health and Environmental 

Hazards. Dr. Deyton’s position in the VA ranks him as an Assistant Under Secretary. 

Dr. Deyton reviewed DTRA’s dose estimates and opined that “it is unlikely that the 

veteran’s eye disorder diagnosed as retinitis pigmentosa and bilateral cataracts can be 

attributed to exposure to ionizing radiation in service.” 

 In an October 2006 decision, the Board denied service connection for Mr. Rizzo’s 

eye conditions. The Board gave greater weight to Dr. Deyton’s medical opinion than to 

Dr. Behling’s. The Board found that Dr. Behling’s conclusions were “qualified as being 

based on circumstantial evidence that was ‘suggestive,’ resulting in a finding that was 

‘plausible,’ that the 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 participation [in the Resurvey] . . . .” 

 Mr. Rizzo appealed to the Veterans Court. In his appeal, Mr. Rizzo argued that 

the Board did not supply an adequate statement of reasons for affording greater 

probative weight to Dr. Deyton’s opinion than to Dr. Behling’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 Board considered no evidence 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 Veterans 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 

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Veterans Court also noted that Mr. Rizzo did not point to any evidence demonstrating 

Dr. Deyton’s lack of competence as an expert. The court also noted that the Board 

provided adequate justification for giving greater probative weight to Dr. Deyton’s 

opinion than to Dr. Behling’s. 

Mr. Rizzo moved for a panel decision, which 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 Veterans 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 requiring VA to affirmatively establish on the 

record the qualifications of an expert witness before the Board may rely upon the 

opinion of that witness. 

The Veterans Court considered 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 spine examination, reviewed the veteran’s 

2009-7026 4
claims file and medical history, and ordered an MRI that was interpreted by another 

physician. After this review, the VA physician concluded that the veteran’s back 

condition was not related to service. Id. at 566. Nonetheless, the Board determined 

that the veteran should receive a 40% disability rating for his back, up from a previous 

rating of 20%. The veteran appealed this decision to the Veterans Court, seeking a still 

higher rating. The Veterans Court rejected 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 examiner was not competent, but rather 

argues that VA did not establish his competence. However, the Board is 

entitled to assume the competence 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 burden of persuasion on appeals to this Court to 

show that such reliance was in error.” Id.; see also Butler v. Principi, 244 

F.3d 1337, 1340 (Fed. Cir. 2001) (“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 perceives 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 5
competence or qualifications before the Board, this court 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 Environmental 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 determination of service connection will be made under the 

generally applicable provisions of this part, giving due consideration to all evidence of 

record, including any opinion provided by the Under Secretary for Health or an outside 

consultant . . . . ”). Dr. Deyton’s opinion noted Mr. Rizzo’s radiation exposure estimates. 

He then compared that exposure to several studies and other published material to 

show that the exposure level showing causation 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 found that the expert 

opinion offered by Mr. Rizzo was “speculative 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 conclusion with expert analysis.” This 

argument, however, attacked Dr. Deyton’s opinion itself – not his qualifications to 

provide such an opinion. Absent some challenge to Dr. Deyton’s credentials, this court 

sees no reason to preclude the Board’s reliance on Dr. Deyton’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 6
Cir. 2001). In this connection, VA considers all evidence that may bear upon a claim. 

See 38 U.S.C. § 5107(b) (“The Secretary shall consider all information and lay and 

medical evidence of record in a case before the Secretary with respect to benefits under 

laws administered by the Secretary.”). In this case, the Board rightly considered Mr. 

Rizzo’s objections to Dr. Deyton’s testimony, weighed the credibility of Dr. Deyton’s 

opinion against Dr. Behring’s, and concluded that Dr. Deyton had presented a more 

probative and credible analysis. Mr. Rizzo points to no law or precedent suggesting that 

the Board must have first established Dr. Deyton’s qualifications on the record before 

assigning his opinion probative value. Indeed, in this case, the Board did not conclude 

that Dr. Deyton was better qualified than Dr. Behling, 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 statutory duty to assist. Title 38 obligates VA to “make 

reasonable efforts to assist a claimant in obtaining 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 provide any evidence that would establish the 

competence of a VA examiner 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 supports this court’s judgment. “The 

presumption of regularity provides that, in the 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 7
assertions, nothing in this court’s precedent limits the presumption to procedural 

matters. Simply stated, “[t]he doctrine . . . allows courts to presume 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 Orange, and Gulf War illnesses. [SA28] For this reason as 

well, the Veterans Court did not err in not requiring the Board to affirmatively establish 

Dr. Deyton’s competency. 

III. 

Mr. Rizzo separately challenges the Veterans 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 determination on a motion for a 

panel decision implicates a fundamentally factual 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 complexity 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 requiring the Board to affirmatively establish 

the competency of VA’s medical expert. Accordingly, this court affirms. 

2009-7026 8
2009-7026 9

AFFIRMED

COSTS

 No costs.