Arnold Parks sought service connection for diabetes, neuropathy, heart disability, and chronic bronchitis, claiming they were caused by chemical exposure during Project 112/SHAD. After a VA remand, an advanced registered nurse practitioner opined that the claimed conditions were less likely than not related to the exposure, and the Board relied on that opinion to deny service connection. On appeal to the Veterans Court, Parks argued for the first time that the opinion was not competent medical evidence because it was authored by a nurse practitioner, but the court rejected that argument. The Federal Circuit affirmed.

The Federal Circuit explained that competent medical evidence under 38 C.F.R. § 3.159(a)(1) depends on whether the person is qualified through education, training, or experience, and that VA benefits from a presumption of regularity that it properly selected a qualified examiner. That presumption is rebuttable, but a veteran must first raise a specific objection to the examiner’s qualifications. Because Parks did not challenge Ms. Larson’s competency before the Board—he only argued that the report lacked a physician signature—he waived the argument. The court also held that the Veterans Court did not have to remand for consideration of the new competency challenge, and that a sympathetic reading of the record does not permit inventing an argument never made.

VA may presume that a selected examiner is competent to provide medical evidence, and a claimant must timely raise a specific challenge to the examiner’s qualifications in order to rebut that presumption.

If counsel intends to contest examiner competence, the objection must be specific and made at the Board level; otherwise the argument is likely waived on judicial review.

This decision is a key Federal Circuit authority on the presumption of examiner competency and issue preservation. It protects VA adjudications from belated, unsupported competency attacks and gives advocates a clear preservation rule: object early, object specifically, and tie the challenge to training, education, or experience.

Failing to raise a specific competency challenge to a VA medical examiner before the Board.

A veteran receives an adverse nexus opinion from a nurse practitioner. If the veteran believes the examiner lacks the training to opine on the condition, counsel should object before the Board and explain why the examiner’s education, training, or experience is insufficient rather than waiting until appeal to the Veterans Court.

Use this case to defeat untimely competency challenges and to argue waiver when the claimant did not specifically contest the examiner’s qualifications before the Board. It also supports the proposition that VA need not prove examiner competence in every case unless the issue is properly raised.

Sickels v. Shinseki, Bastien v. Shinseki, Cox v. Nicholson, Rizzo v. Shinseki, Comer v. Peake