Parks v. Shinseki, 716 F.3d 581 (2013)
The presumption that a VA examiner is qualified by training, education, or experience in a particular field can be overcome by showing a lack of those presumed qualifications. In this case, the veteran argued that the Board erred in relying on a medical opinion provided by an advanced nurse practitioner because it was not “competent medical evidence.” The CAVC rejected this argument as a matter of law because the veteran had not raised this argument at the Board or the regional office. The veteran appealed to the Federal Circuit.
The Federal Circuit framed the issue as whether the veteran “waived his right to overcome the presumption that the selection of a particular medical professional means that the person is qualified for the task.” *6. The Federal Circuit held that the first step to overcoming the presumption is to object to the examiner’s qualifications – and that this applies even to pro se veterans. *7. The next step would be to show that the examiner lacks the necessary education, training, or experience to provide the requested opinion. *8. The Court pointed out VA’s purpose in adopting the regulation regarding competent medical opinions was that “competency requires some nexus between qualification and opinion.” Id. Because the veteran never raised the issue of the ARNP’s competency below, the Federal Circuit affirmed the CAVC’s decision.