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Arnold J. Parks v. Eric K. Shinseki

May 3, 2013

ARNOLD J. PARKS, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in No. 10-2197, Judge Robert N. Davis.

The opinion of the court was delivered by: Rader, Chief Judge.

Before RADER, Chief Judge, SCHALL and BRYSON, Circuit Judges.

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 Ship- board 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 neuropa- thy 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 Veter- ans' Appeals (Board).

In this time period, the United States government de- classified 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 linked to service-related chemical exposures on an indi- vidual basis when there is evidence of a causal link to military service." A. 213. As a result, in 2004 the Veter- ans 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 examina- tions. 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 condi- tions, 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 ad- vanced registered nurse practitioner (ARNP), to deter- mine whether there was a potential relationship between Mr. Parks' participation in SHAD and his medical condi- tions. In her report, Ms. Larson described Mr. Parks' exposure and his medical history. She then briefly de- scribed 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, neuropa- thy, heart condition and chronic bronchitis is [sic] less likely than not secondary to his confirmed chemical exposures." Id. at 505.

Later, the RO issued a supplemental statement find- ing 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. Lar- son'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 consider the information because it was not part of the record before the Board. Id.

Mr. Parks appeals. This court has jurisdiction under 38 ...


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