In The Supreme Court of the United States

Transcription

1 No ================================================================ In The Supreme Court of the United States ARNOLD J. PARKS, v. Petitioner, ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit BRIEF OF AMICUS CURIAE DISABLED AMERICAN VETERANS IN SUPPORT OF PETITIONER CHRISTOPHER J. CLAY Counsel of Record DISABLED AMERICAN VETERANS NATIONAL HEADQUARTERS 3725 Alexandria Pike Cold Spring, KY cclay@dav.org Counsel for Amicus Curiae Disabled American Veterans ================================================================ COCKLE LEGAL BRIEFS (800)

2 i TABLE OF CONTENTS Page INTEREST OF THE AMICUS CURIAE... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 I. IN PARKS, THE FEDERAL CIRCUIT DEPARTS FROM ITS OWN ISSUE- EXHAUSTION PRECEDENT... 3 II. THE PARKS DECISION IS ALL THE MORE REMARKABLE BECAUSE THE DAV REPRESENTATIVE AT BVA CLEAR- LY RAISED THE ISSUE IN QUESTION... 5 III. THE NEW FEDERAL CIRCUIT ISSUE- EXHAUSTION RULE IS ACCOMPLISHED THROUGH A DE FACTO OVERRULING OF COMER... 7 IV. THE PARKS DECISION HAS FAR- REACHING NEGATIVE IMPLICATIONS FOR THE FUTURE OF VA ADVOCACY... 8 V. THE MOST EFFECTIVE REMEDY FOR THE DANGER CREATED BY PARKS IS THE ADOPTION OF THE ISSUE- EXHAUSTION RULE URGED BY PE- TITIONER CONCLUSION... 12

3 ii TABLE OF CONTENTS Continued Page APPENDIX Excerpt from Appellant Parks Post-Remand Brief Filed With the Board of Veterans Appeals on or about October 1, A1 Department of Veterans Affairs Manual M21-1MR, Part III, Subpart IV, Chapter 3, Section D 18(a)... A2

4 iii TABLE OF AUTHORITIES Page CASES Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)... 3, 7, 8, 11 Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002)... 9 Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000)... 4 Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013)... passim Sims v. Apfel, 530 U.S. 103 (2000)... 5, 11 Walters v. National Association of Radiation Survivors, 473 U.S. 305 (1985)... 7 STATUTES 36 U.S.C et seq U.S.C REGULATIONS 38 C.F.R OTHER AUTHORITIES United States Department of Veterans Affairs M21-1MR Compensation and Pension Manual Rewrite, Part III, Subpart IV, Chapter 3, Section D18(a)... 6

5 1 Disabled American Veterans (DAV) respectfully submits this amicus curiae brief in support of Petitioner INTEREST OF THE AMICUS CURIAE DAV is a federally chartered veterans service organization, founded to serve the interests of this nation s disabled veterans. 36 U.S.C et seq. DAV has more than a million members, all of whom are service-connected disabled veterans. Although DAV operates a number of charitable programs that serve the interests of its constituency, its marquee program, and the one for which it is best known, is the National Service Program. Through that program, and from approximately one hundred locations around the United States and Puerto Rico, DAV s National Appeals Officers (NAOs), National Service Officers (NSOs) and Transition Service Officers (TSOs) assist veterans with their claims for benefits from the United States Department of Veterans Affairs (VA). In the most recent year for which statistics 1 Pursuant to Rule 37.6 of the Rules of the Supreme Court, counsel of record for all parties received notice at least 10 days prior to the due date of the amicus curiae s intention to file this brief. All parties have consented to the filing of this brief. Those consents are being lodged herewith. No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae made a monetary contribution to its preparation or submission.

6 2 have been finalized, DAV representatives, all accredited by VA, handled some 300,000 claims for disabled veterans. In addition, DAV developed, in conjunction with two outstanding law firms, what is doubtless the largest program now existing for pro bono representation at the United States Court of Appeals for Veterans Claims (CAVC). The program is now representing well over 1,000 veterans each year at CAVC. DAV thus takes care of veterans cradle to grave in the claims process. The nebulous and near-contradictory character of the Federal Circuit s pronouncements in the case of Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013) on issue-exhaustion and related matters introduces great uncertainty into the important task of representing veterans. Uncertainty undermines efficiency and works to the detriment of veterans. DAV has a significant stake in the outcome of this case SUMMARY OF ARGUMENT In this case, the United States Court of Appeals for the Federal Circuit held that Mr. Parks waived his right to challenge the adequacy of his VA medical exam by failing to raise the issue and specifically the issue of the competence of the examiner at the Board of Veterans Appeals (BVA). Although the Federal Circuit has previously endorsed a case-bycase approach to the issue-exhaustion question, the Parks appeal makes it clear that more is needed. The VA adjudication system is an effort at mass justice, which requires high-volume advocates like DAV to

7 3 process an enormous number of claims in a limited time and with limited resources. This has been possible for many years, in part, because of the claimantfriendly nature of the adjudication system. In this case, the Federal Circuit opts for a rigidity that undermines not only the friendliness of the system, but its own precedents in cases originating at VA. In short, the Parks decision effectively imposes a strict issue-exhaustion rule in veterans cases and at the same time eviscerates the sympathetic reading rule announced in Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). This sends a signal to all advocates, lawyers and non-lawyers alike, that it may be time to change the way they do business at VA. Specifically, the Federal Circuit s decision in Parks would require advocates at VA not only to identify every single issue in a case, but to state every such issue with meticulous precision. It takes little imagination to envision the consequences of such a development. For that reason, the Court should agree to hear this case and grant the relief urged by Petitioner ARGUMENT I. IN PARKS, THE FEDERAL CIRCUIT DEPARTS FROM ITS OWN ISSUE- EXHAUSTION PRECEDENT In the instant case, the Federal Circuit held that Mr. Parks waived his right to raise a challenge to the competence of a nurse practitioner who performed an examination that played a key role in the denial of a

8 4 benefit claim. Parks v. Shinseki, 716 F.3d 581, 586 (Fed. Cir. 2013). The rationale of the court was that Mr. Parks, and his DAV representative, had failed to raise that issue in connection with Mr. Parks appeal at BVA. Id. In short, the Federal Circuit imposed strict issue-exhaustion on Mr. Parks. This decision represents a significant stiffening of the Federal Circuit s position on the exhaustion issue. To take but one example, in Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000), the court stated as follows: Nothing in the statutory scheme providing benefits for veterans mandates a jurisdictional requirement of exhaustion of remedies which would require the Veterans Court to disregard every legal argument not previously made before the Board of Veterans Appeals. In fact, such an absolute rule would be inconsistent with the nonadversarial ex parte system that supplies veterans benefits. (emphasis added) DAV agrees with Petitioner that the strict issueexhaustion requirement imposed in Parks undermines the foundations of a benefit system that was designed to express gratitude and appreciation to those who have served their country. It is certainly difficult to reconcile a national policy of honoring veterans with denying them an advantage in benefit proceedings that is readily available to Social Security applicants. For that reason, DAV believes that this court should review the Parks decision and extend to

9 5 veterans the same issue-exhaustion rights granted to other benefit applicants in Sims v. Apfel, 530 U.S. 103 (2000). II. THE PARKS DECISION IS ALL THE MORE REMARKABLE BECAUSE THE DAV REPRESENTATIVE AT BVA CLEAR- LY RAISED THE ISSUE IN QUESTION The Federal Circuit s determination that Mr. Parks had failed to object to the competence of the nurse practitioner to conduct the medical exam at issue in the case is puzzling. Mr. Parks representative a DAV NAO devoted an entire paragraph of approximately 175 words to that issue in a submission to BVA. (Amicus App. 1a) It is worth outlining the structure of that paragraph complete with the repetitions it contained to demonstrate that the issue was placed squarely before the BVA. The NAO argued as follows (the argument hereafter the BVA Argument ): 1. The medical examination was conducted by a nurse practitioner and the report was not signed by a medical doctor. 2. The examination noted atypical chest pains. 3. The nurse practitioner opined that the conditions at issue were unlikely to be related to chemical exposure. 4. But the exam was conducted by a nurse practitioner and not signed by a doctor.

10 6 5. United States Department of Veterans Affairs M21-1MR Compensation and Pension Manual Rewrite, Part III, Subpart IV, Chapter 3, Section D18(a) (Amicus App. A2) states that a nurse practitioner exam must be signed by a doctor (Note: this was an overbroad reading of the cited section. What the precise paragraph identified by the NAO does state is that a doctor must sign the exam when the exam is beyond the competence of the nurse practitioner.) 6. A new exam is required, one done by an appropriate medical professional. The Federal Circuit rejected the contention that the BVA Argument called into question the nurse practitioner s competence to perform the examination in question. Instead, the court found that Mr. Parks never raised any concern over [the nurse practitioner s] qualifications... and asserted only that the report... should have been excluded because, contrary to VA operating procedures, a physician had not signed it. Parks v. Shinseki, 716 F.3d 581, 586 (Fed. Cir. 2013). The foregoing statement ignores entirely that the BVA Argument had referenced directly the portion of the VA M-21-1 Manual (Amicus App. A2) that specified exactly when a doctor must validate a nurse practitioner exam report. The BVA Argument also noted that the chest pains were atypical, another indication that the condition in question was other than routine. In addition, the BVA Argument concluded with a request for re-examination by an appropriate professional, which can only mean that

11 7 Mr. Parks considered the nurse practitioner to be inappropriate. III. THE NEW FEDERAL CIRCUIT ISSUE- EXHAUSTION RULE IS ACCOMPLISHED THROUGH A DE FACTO OVERRULING OF COMER Despite the unmistakable meaning of the BVA Argument that a doctor needed to perform, or at least review the examination in question, the Federal Circuit concluded that Mr. Parks had not raised the issue. Fortunately, the court does not leave us wondering about the real basis of this determination. The real failure of Mr. Parks, and his representative, was to have neglected to utter the magic words in precisely the right order: no nurse practitioner was competent to provide the opinion or Ms. Larson herself was in some way incompetent. See Parks, 716 F.3d at 586. The Federal Circuit s insistence on a certain manner of stating an issue to avoid waiver seems to be a vestige of the happilyabandoned practice of formulaic or code pleading, wherein certain linguistic conventions were the sine qua non of successful litigation. Such an exaltation of form over substance seems curiously out of place in a benefits system expressly designed to be as informal and nonadversarial as possible. Walters v. National Association of Radiation Survivors, 473 U.S. 305, 323 (1985).

12 8 More than that, it is striking that the determination that Parks waived the argument in question seems completely at odds with the Federal s Circuit s direction in Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009) that a veteran s claim submissions are to be read sympathetically, thereby echoing VA s own rule that such filings are entitled to interpretation in a liberal manner, 38 C.F.R The Parks court s reading of the BVA Argument can in no way be viewed as liberal or sympathetic unless one ignores the common and accepted meanings of those words. 2 For all intents and purposes, Comer is dead. IV. THE PARKS DECISION HAS FAR- REACHING NEGATIVE IMPLICATIONS FOR THE FUTURE OF VA ADVOCACY The VA benefit adjudication is a system of mass and ideally accelerated justice. The process was designed to permit a veteran to navigate it without the assistance of an advocate. It is the VA that has the statutory duty to assist veterans by informing them of the benefits available to them and assisting them in developing claims to receive their entitlements. 2 To do this, one would need to adopt a Dumptian theory of meaning. Such a view was famously advanced by Humpty Dumpty who, in addition to being a notoriously unsuccessful gymnast, embraced a strict nominalism in which the meanings of words were essentially arbitrary: When I use a word it means just what I choose it to mean neither more nor less.

13 9 See Jaquay v. Principi, 304 F.3d 1276, 1280 (Fed. Cir. 2002). Despite the utopian design of VA, it became clear very early on that many, if not most, veterans needed some assistance in navigating the complex adjudication process. To that end, Congress provided the VA with discretion to grant free office space to veterans service organizations in federal buildings, 38 U.S.C. 5902(a)(2) and to recognize certain organizations as qualified at the task of assisting veterans through the maze of the benefit process, 38 U.S.C. 5902(a)(1). To be sure, the service organizations play a major role in keeping the benefit adjudication system running as smoothly as it does. Without the guidance that these knowledgeable advocates bring to the table, VA would certainly suffer from a chaotic situation with hundreds of thousands of veterans filing pro se claims and having no knowledge of the in s and out s of the system. Veteran advocates at the agency level nonlawyers and even some lawyers serve not only as advocates, but also as facilitators. In many cases, DAV NSOs (and presumably similar officers of other recognized organizations) make use of their inside knowledge of VA processes and their personal relationships with VA adjudicators to expedite benefits for obviously qualifying veterans. In many cases, however, the facilitator becomes a genuine advocate, pressing a client s case for a benefit that may be more questionable, or the evidence for

14 10 which may be less than overwhelming. For example, at the BVA, where veterans appeal previously-denied claims, the atmosphere is more adversarial than it would be at the VA regional office, where initial claims are processed. At this stage, veterans are, to some extent, behind the eight ball as they must overcome an initial denial. Here, DAV NAOs are cast much more into the role of advocate. DAV s workload at the BVA is staggering. In FY 2012, more than 31% of all the cases decided at BVA listed DAV as the representative. DAV NAOs carried a caseload of more than 1,000 cases per year, an extraordinary portfolio. Carrying that kind of caseload means that cases must be handled rapidly NAOs triage files for key issues and prepare submissions with care, but with an eye on the ever-mounting stack of cases still requiring attention. This is not to say that quality is sacrificed to speed. Quite the contrary. In FY 2012, DAV s rate of allowance (i.e., victories on claims) at BVA was 29.4%. Private attorneys (who handled less than 10% of BVA cases) had a win rate of 30.1%, only slightly higher than DAV. This virtual dead-heat becomes even more impressive when one considers that DAV takes on the appeal of virtually any veteran seeking its assistance, while attorneys can pick and choose the best cases, sometimes with a view toward generating fees from retroactive benefit awards.

15 11 In light of the Parks decision, DAV and other advocates nonattorneys and attorneys alike will need to consider changing their approach to representation at the BVA. The assembly-line approach, which has produced both quality and quantity, will need to give way to a more academic-style exercise. Case files will need to be combed rather than examined, for fear of missing an issue. Submissions will need to be edited, possibly by multiple reviewers, to ensure that issues have been stated with absolute precision, since the sympathetic or liberal reading promised by Comer is no longer a benefit on which advocates can rely. The upshot of all this? The one thing that neither veterans, nor VA, needs. More delay. V. THE MOST EFFECTIVE REMEDY FOR THE DANGER CREATED BY PARKS IS THE ADOPTION OF THE ISSUE- EXHAUSTION RULE URGED BY PETI- TIONER Happily, this Court holds the key to providing veterans advocates with the key to safe passage between the Scylla of issue exhaustion and the Charybdis of formulaic expression. This Court should extend to veterans the advantages afforded to Social Security claimants in the Sims case and permit our nation s heroes to exhaust their administrative remedies without requiring, at the same time, that they raise an issue to preserve it for judicial appeal. In this way, advocates will not have to worry about the occasional missed issue or, as in the Parks case,

16 12 the failure to satisfy an unspecified standard of what it takes to raise an issue CONCLUSION For the reasons set forth above, DAV requests that this Court grant certiorari in this matter. Respectfully submitted, CHRISTOPHER J. CLAY Counsel of Record DISABLED AMERICAN VETERANS NATIONAL HEADQUARTERS 3725 Alexandria Pike Cold Spring, KY Counsel for Amicus Curiae Disabled American Veterans

17 A1 APPENDIX Excerpt from Appellant Parks Post-Remand Brief Filed With the Board of Veterans Appeals on or About October 1, 2009 The appellant underwent a series of VA examinations on May 20, It should be noted that VA general medical examination was conducted by a nurse practitioner and the report was not signed by a medical doctor. The general VA examination noted findings of Type II, diabetes mellitus, hypertension, atypical chest pains not associated with coronary artery disease. Other conditions were listed but they are not part of this appeal. The examiner opined that the appellant s conditions of diabetes and heart condition are less likely than not secondary to his confirmed chemical exposure. Again, it should be noted that the appellant was examined by a nurse practitioner and the examination report was not signed by a medical doctor. According to M21-1MR, Part III, Subpart IV, Chapter 3, Section D 18(a) an examination report must be signed by a medical doctor when an examination has been conducted by a physician assistant or nurse practitioner. Thus a remand is warranted for a new examination by the appropriate medical professional.

18 A2 Department of Veterans Affairs Manual M21-1MR, Part III, Subpart IV, Chapter 3, Section D 18(a) Who Must Sign Examination Reports All original examination reports must be signed by a physician, unless the examination was performed by a mid-level Veterans Health Administration (VHA) clinician, such as a physician s assistant or nurse practitioner, when the examination does not require a specialist clinical or counseling psychologist dentist audiologist, or optometrist.