United States Court of Appeals
for the Federal Circuit
__________________________
HOMER D. SICKELS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS
Respondent-Appellee.
__________________________
2010-7140
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 08-1963, Chief Judge Bruce
E. Kasold.
___________________________
Decided: May 6, 2011
___________________________
PETER J. SEBEKOS, of Niagara Falls, New York, ar-
gued for claimant-appellant.
MICHAEL P. GOODMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
SICKELS v. DVA 2
counsel were DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, and AMANDA R. BLACKMON, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before RADER, Chief Judge, CLEVENGER, and LINN, Circuit
Judges.
CLEVENGER, Circuit Judge.
Appellant, Homer D. Sickels, appeals from a decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a Board of Veterans’ Appeals
(“Board”) decision denying compensation for a right knee
disability. Sickels v. Shinseki, No. 08-1963 (Vet. App.
May 18, 2010). For the following reasons we affirm the
Veterans Court’s decision.
I
Mr. Sickels served on active duty in the United States
Army from August 1948 until August 1950. The available
service medical records show that he suffered a right knee
injury in September 1949 and was evaluated and treated
for lesions at a field hospital in Stuttgart, Germany. An
x-ray revealed no bone or joint pathology. Mr. Sickels
suffered his knee injury while playing football with a
military team.
In September 1999, Mr. Sickels filed an application
for disability compensation with the Cleveland Regional
Office (the “RO”) of the Department of Veterans Affairs
(“VA”) claiming a service-related right knee disability.
Mr. Sickels notified the RO that he had not received any
treatment for his knee since his time in the military, but
that he had recently suffered from pain and a trick knee.
3 SICKELS v. DVA
In April 2001, the RO informed Mr. Sickels that it had
requested his service medical records from the military
and that it would review his claim. In response, Mr.
Sickels notified the RO that he had been twice examined
at the Cincinnati VA Medical Center in 2000 and that x-
rays were taken of his knee. The orthopedic department
of the VA clinic had found no major pathology or instabil-
ity, but noted that if Mr. Sickels’ symptoms continued
then a Magnetic Resonance Imaging (“MRI”) should be
obtained to look for meniscal pathology. The x-rays
revealed minimal degenerative change consistent with
osteoarthritis.
The RO denied Mr. Sickels’ claim for disability com-
pensation in February 2002 for failure to demonstrate
service connection between Mr. Sickels’ football injury
and his arthritic knee. Mr. Sickels appealed this denial to
the Board and argued that the VA failed to comply with
its statutory duty to assist him in developing his claim.
The Board agreed and remanded the claim back to the RO
to obtain a medical opinion as to whether Mr. Sickels’
right-knee disability was related to his service. The
remand order specifically required that the opinion be
based on a review of the record and noted that Mr. Sickels
should undergo a VA examination and/or diagnostic
testing if the medical specialist deemed it necessary.
In May 2005, the VA Appeals Management Resource
Center (“AMC”), upon receipt of the remand order from
the Board, sent instructions to the Cincinnati VA Medical
Center requesting that a medical examiner review the
record and provide a nexus opinion “as to whether any
current right knee disability currently found is as likely
as not related to the in-service injury of the right knee.”
The front page of the instructions read:
SICKELS v. DVA 4
General Remarks:
CLAIMS FILE BEING SENT FOR REVIEW BY
THE EXAMINER.
NO EXAM AT THIS TIME
NO EXAM AT THIS TIME
NO EXAM AT THIS TIME
NO EXAM AT THIS TIME
The more detailed instructions on the second page speci-
fied that “[i]f the medical specialist deems it to be neces-
sary, the veteran should undergo a VA examination
and/or diagnostic testing.” A VA medical examiner re-
viewed Mr. Sickels’ records in August 2005 and concluded
that “it is LESS likely than not that the veteran’s injury
in 1949 resulted in his current symptomatology in the
right knee.” The examiner noted that “[t]his is a file
review only and there was no examination.”
Additional records were obtained from the Office of
the Surgeon General in May 2007, and the AMC sent
another request to the Cincinnati VA Medical Center for a
review of Mr. Sickels’ records. The instructions noted on
the front page:
General Remarks:
CLAIMS FILE BEING SENT FOR REVIEW BY
THE EXAMINER.
PER BVA REMAND:
NO EXAM!!! NO EXAM!!! NO EXAM!!!
REVIEW/OPINION ONLY!!!
5 SICKELS v. DVA
It was again noted in the detailed instructions that “[i]f
the medical specialist deems it to be necessary, the vet-
eran should undergo a VA examination and/or diagnostic
testing.” In July 2007, another medical examiner re-
viewed Mr. Sickels’ records and filed a report stating that
“it is less likely than not that the veteran’s current right
knee osteoarthritis is secondary to his right knee in-
service injury.”
In October 2007, the AMC issued a supplemental
statement of the case which continued to deny Mr.
Sickels’ claim for lack of service connection. Mr. Sickels
again appealed to the Board and argued that the VA
should have performed additional diagnostic testing on
his knee as a result of the remand order. The Board
reviewed the actions taken pursuant to its initial remand
and found the additional record searches and medical
specialist reviews were sufficient to comply with its
instructions. The Board also found that the VA satisfied
its duties to notify and assist Mr. Sickels with developing
his claim.
Mr. Sickels appealed to the Veterans Court and ar-
gued, inter alia, that the Board failed to provide adequate
reasons or bases to support its findings and conclusions as
required by 38 U.S.C. § 7104(d)(1). Mr. Sickels alleged
that the Board failed to address whether the June 2005
and July 2007 opinions were thorough and informed. He
specifically faulted the VA for not obtaining an MRI of his
right knee before issuing its nexus opinion and argued
that the instructions sent to the medical examiners were
confusing and did not provide them with clear discretion
to perform additional diagnostic testing if needed. The
Veterans Court rejected Mr. Sickels’ argument and noted
that he presented no testimony or other evidence to
demonstrate that the absence of an MRI rendered the
SICKELS v. DVA 6
examiners’ opinions uninformed or inadequate. The
Veterans Court also rejected the argument that the
instructions to the examiners were confusing because Mr.
Sickels failed to make the argument to the Board and
because examiners’ opinions are presumed competent.
Mr. Sickels renews these arguments on appeal. We have
jurisdiction under 38 U.S.C. § 7292.
II
Mr. Sickels’ appeal focuses on whether 38 U.S.C.
§ 7104(d)(1) requires the Board to provide written reasons
and bases to support an implicit conclusion that a VA
medical opinion is sufficiently informed by physical
examination or other diagnostic procedures. Section
7104(d) requires that “[e]ach decision of the Board shall
include – (1) a written statement of the Board’s findings
and conclusions, and the reasons or bases for those find-
ings and conclusions, on all material issues of fact and
law presented on the record; and (2) an order granting
appropriate relief or denying relief.” 38 U.S.C. § 7104(d).
The scope of our review authority over a final decision
of the Veterans Court is limited by statute. We review
“all relevant questions of law, including interpreting
constitutional and statutory provisions.” Id. § 7292(d)(1).
Absent a constitutional issue, we lack jurisdiction to
review factual determinations in decisions of the Veterans
Court. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir.
2004). We also cannot review a challenge to a law or
regulation as applied to the facts of a particular case. 38
U.S.C. § 7292(d)(2).
The Government argues that this appeal is a chal-
lenge to the Veterans Court’s application of section
7104(d)(1) to the facts of this case and thus outside of this
7 SICKELS v. DVA
Court’s jurisdiction. The Government would limit the
question presented on appeal to whether the Board erred
in this case by failing to articulate reasons and bases for
finding Mr. Sickels’ VA medical opinions to be adequate.
However, such a narrow reading of Mr. Sickels’ argument
is incorrect and unfair. The Board is statutorily com-
pelled by section 7104(d)(1) to articulate reasons and
bases to provide for judicial review of its findings and
conclusions. Mr. Sickels argues on appeal that the Board
may not implicitly find a VA medical opinion to be ade-
quate, but rather must always explicitly explain why each
medical opinion is adequate in order to satisfy its statu-
tory duty under section 7104(d)(1). Mr. Sickels thus
raises a legal question within our jurisdiction.
III
Mr. Sickels’ argument is similar to the challenge
raised in Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir.
2009). In Rizzo, the appellant argued that the VA must
affirmatively establish the competence of a medical exam-
iner before the Board can rely upon the medical exam-
iner’s report. We rejected this argument and found that
“this court perceives no statutory or other requirement
that VA must present affirmative evidence of a physi-
cian’s qualifications in every case as a precondition for the
Board’s reliance upon that physician’s opinion.” Id. at
1291. Thus, when a veteran suspects a fault with the
medical examiner’s qualifications, it is incumbent upon
the veteran to raise the issue before the Board. Id.
(“Indeed, where as here, the veteran does not challenge a
VA medical expert’s competence or qualifications before
the Board, this court holds that VA need not affirmatively
establish that expert’s competency.”). We concluded that
“the Veterans Court did not err in not requiring the Board
SICKELS v. DVA 8
to affirmatively establish [a medical doctor’s] compe-
tency.” Id. at 1292.
We made clear in Rizzo that the VA and Board are not
required to affirmatively establish competency of a medi-
cal examiner unless the issue is raised by the veteran. Id.
at 1291-92. While we did not explicitly state so in Rizzo,
it should be clear from our logic that the Board is simi-
larly not mandated by section 7104(d) to give reasons and
bases for concluding that a medical examiner is compe-
tent unless the issue is raised by the veteran. To hold
otherwise would fault the Board for failing to explain its
reasoning on unraised issues.
Mr. Sickels also argues that because the structure of
the veterans benefits system is “nonadversarial and
paternalistic,” he should not be required to argue that the
medical examiners were insufficiently informed. It is true
that the Board is required to consider issues independ-
ently suggested by the evidence of record. See Comer v.
Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009). However, we
have previously expressed that, even in light of this duty,
the Board is entitled to assume the competence of a VA
examiner unless the competence is challenged. Rizzo, 580
F.3d at 1290-91. The argument that a VA medical exam-
iner’s opinion is inadequate is sufficiently close to the
argument raised in Rizzo that it should be treated the
same.
Mr. Sickels failed to raise his concern regarding the
medical examiners’ ability to understand the AMC in-
structions before the Board and we conclude that his
failure to do so relieves the Board of its burden to address
the issue. As we stated in Rizzo, “[t]he presumption of
regularity provides that, in the absence of clear evidence
to the contrary, the court will presume that public officers
9 SICKELS v. DVA
have properly discharged their official duties.” 580 F.3d
at 1292 (quoting Miley v. Principi, 366 F.3d 1343, 1347
(Fed. Cir. 2004)). The doctrine “allows courts to presume
that what appears regular is regular, the burden shifting
to the attacker to show the contrary.” Id. (quoting Butler
v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)). The VA
medical examiners were provided with instructions grant-
ing authority to perform additional examinations and
diagnostic testing if necessary. The Veterans Court did
not err by not requiring the Board to state reasons and
bases demonstrating why the medical examiners’ reports
were competent and sufficiently informed.
AFFIRMED
COSTS
Each party shall bear its own costs.