No. 13- IN THE Supreme Court of the United States ARNOLD J. PARKS, ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Transcription

1 No. 13- IN THE Supreme Court of the United States ARNOLD J. PARKS, v. Petitioner, ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Federal Circuit PETITION FOR A WRIT OF CERTIORARI

2 DORIS JOHNSON HINES* Counsel of Record RONALD L. SMITH STEPHEN L. HENNESSY FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 901 New York Avenue, NW Washington, DC (202) *Admitted to Supreme Court Bar January 13, 2014

3 - i - QUESTION PRESENTED This Court has held that issue exhaustion is inappropriate in nonadversarial proceedings before the Social Security Administration where it was not required by statute or regulation. Sims v. Apfel, 530 U.S. 103 (2000). Notwithstanding this precedent, and in conflict with all other circuit courts of appeal that have considered Sims, the U.S. Court of Appeals for the Federal Circuit required issue exhaustion when it held that a pro se veteran waived his argument that a nurse practitioner was not competent to render an opinion on the connection between his disabilities and his in-service exposure to three chemical-warfare agents when he presented that argument for the first time to the Court of Appeals for Veterans Claims. The question presented is: Whether the Federal Circuit erred in requiring issue exhaustion during nonadversarial proceedings before the Department of Veterans Affairs Board of Veterans Appeals?

4 - ii - PARTIES TO THE PROCEEDING Pursuant to Rule 14.1(b), the parties here and in the proceeding in the U.S. Court of Appeals for the Federal Circuit are listed. Petitioner here and claimant-appellant below is Arnold J. Parks. Respondent here and respondent-appellee below is Eric K. Shinseki, Secretary of the Department of Veterans Affairs.

5 - iii - TABLE OF CONTENTS Page QUESTION PRESENTED... i PARTIES TO THE PROCEEDING... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... vi OPINIONS BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS... 1 INTRODUCTION... 2 STATEMENT OF THE CASE... 3 REASONS FOR GRANTING THE PETITION... 7 I. The Federal Circuit s Requirement of Issue Exhaustion in Nonadversarial VA Board Proceedings Is Inconsistent with the Court s Precedent... 7 A. The Court s Decision in Sims Established that Issue Exhaustion is Inappropriate in Nonadversarial Proceedings Where Not Required by Statute or Regulation... 7

6 - iv - B. The VA Statutory and Regulatory Scheme Does Not Impose Issue Exhaustion on Mr. Parks s Claims C. Requiring Issue Exhaustion Is Inappropriate in VA Proceedings Before the Board II. III. The Federal Circuit s Imposition of an Issue- Exhaustion Requirement Is Inconsistent with the Treatment of Sims by Other Circuits The Federal Circuit s Decision Is Inconsistent with Its Previous Analyses of Sims CONCLUSION APPENDIX A. Federal Circuit Mandate (Oct. 23, 2013)... 1a B. Federal Circuit Order Denying Petiton For Rehearing And Rehearing En Banc (Oct. 16, 2013)... 3a C. Federal Circuit Opinion (May 3, 2013)... 5a D. Court of Appeals for Veterans Claims Judgment (Jan. 11, 2012)... 17a E. Court of Appeals for Veterans Claims Memorandum Opinion (Dec. 20, 2011)... 18a F. Board of Veterans Appeals Opinion (Mar. 8, 2010)... 25a

7 - v - G. Combined Petition for Panel Rehearing and Rehearing En Banc of Claimant-Appellant Arnold J. Parks (Aug. 6, 2013)... 42a H. Excerpts from the Record Before the Agency (RBA)... 64a

8 - vi - TABLE OF AUTHORITIES FEDERAL CASES Page(s) Alaska Survival v. Surface Transportation Board, 705 F.3d 1073 (9th Cir. 2013) Amato v. Bernard, 618 F.2d 559 (9th Cir. 1980) Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005)... 11, 22 Ballanger v. Johanns, 495 F.3d 866 (8th Cir. 2007) Belcher v. West, 214 F.3d 1335 (Fed. Cir. 2000) Brokowski v. Shinseki, 23 Vet. App. 79 (2009) Celano v. Peake, 22 Vet. App. 341 (2009) Coalition for Government Procurement v. Federal Prison Industries, Inc., 365 F.3d 435 (6th Cir. 2004)... 18, 19 Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)... 12, 14, 15, 16 Cox v. Nicholson, 20 Vet. App. 563 (2007)... 5 Delta Foundation, Inc. v. United States, 303 F.3d 551 (5th Cir. 2002)... 19

9 - vii - Douglas v. Derwinski, 2 Vet. App. 435 (1992) Environmentel, LLC v. Federal Communications Commission, 661 F.3d 80 (D.C. Cir. 2011) Etchu-Njang v. Gonzales, 403 F.3d 577 (8th Cir. 2005) Formella v. U.S. Department of Labor, 628 F.3d 381 (7th Cir. 2010) Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) Gambill v. Shinseki, 576 F.3d 1307 (Fed. Cir. 2009)... 13, 14 Heckler v. Day, 467 U.S. 104 (1984) Henderson v. Shinseki, 131 S. Ct (2011)... 3, 13 Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000)... passim Mahon v. U.S. Department of Agriculture, 485 F.3d 1247 (11th Cir. 2007)... 20

10 - viii - Norris v. West, 12 Vet. App. 413 (1999) Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009)... 11, 12 Shinseki v. Sanders, 556 U.S. 396 (2009)... 3 Sims v. Apfel, 530 U.S. 103 (2000)... passim United States v. Oregon, 366 U.S. 643 (1961)... 3 Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620 (9th Cir. 2008) Walters v. National Ass n of Radiation Survivors, 473 U.S. 305 (1985) FEDERAL STATUTES 28 U.S.C. 1254(1) U.S.C. 511(a) U.S.C. 5103A U.S.C. 5103A(a) U.S.C. 5103A(b) U.S.C. 5103A(c)... 15

11 - ix - 38 U.S.C. 5103A(b)(2)(B) U.S.C. 7104(a)... 1, 2 38 U.S.C. 7105(d) U.S.C. 7105(d)(1) U.S.C. 7105(d)(3)... 10, U.S.C. 7252(a) U.S.C. 7252(b) U.S.C. 7261(a) U.S.C. 7292(a)... 2 FEDERAL REGULATIONS 20 C.F.R (b) (1999) C.F.R (a) (1999) C.F.R (a) (1999)... 8, C.F.R (a) (2013)... 14, C.F.R (a)(1) (2012)... 6, C.F.R. 18.9(d)(2) (2013) C.F.R (2013) C.F.R (2008)... 5, C.F.R (2008)... 4, C.F.R (2008)... 4, 11, 12

12 - x - 38 C.F.R (c) (2008)... 5, C.F.R (c) (2013) C.F.R (2004) OTHER AUTHORITIES H.R. Rep. No (1997) H.R. Rep. No (1988), reprinted in 1988 U.S.C.C.A.N

13 - 1 - OPINIONS BELOW The opinion of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) (Pet. App. 5a) is reported at 716 F.3d 581 (Fed. Cir. 2013). The denial of Mr. Parks s petition for panel rehearing and rehearing en banc (Pet. App. 3a) is unreported. The opinion of the U.S. Court of Appeals for Veterans Claims (Veterans Court) (Pet. App. 18a) is reported at Parks v. Shinseki, No , 2011 WL (U.S. Vet. App. Dec. 20, 2011). The final agency decision issued by the Board of Veterans Appeals (Board) (Pet. App. 25a) is unreported. JURISDICTION The Federal Circuit entered its judgment on May 3, 2013, and denied Mr. Parks s timely combined petition for panel rehearing and rehearing en banc on October 16, This Court has jurisdiction under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS The Secretary of Veterans Affairs is charged with deciding claims for veterans benefits under 38 U.S.C. 511(a) ( The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. ). Decisions on claims for veterans benefits are subject to one administrative review on appeal. Id. 7104(a) ( All questions in a matter which under section 511(a) of [title 38]

14 - 2 - is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. ). Final decisions on veterans administrative appeals are made by the Board. Id. The Veterans Court has exclusive jurisdiction to review decisions of the Board. Id. 7252(a). The Veterans Court reviews de novo all questions of law and reviews facts found by the Board under a clearly erroneous standard. Id. 7261(a). Decisions of the Veterans Court may be reviewed by the Federal Circuit to the extent such appeals challenge the validity of a decision of the Court on a rule of law or of any statute or regulation... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision. Id. 7292(a). INTRODUCTION This case poses the fundamental question of whether a pro se veteran must raise an argument during the nonadversarial and inquisitorial administrative proceedings before the Board to raise the argument in the Veterans Court. Mr. Parks appealed a decision of the Board denying service connection for diabetes mellitus with neuropathy and a heart disorder secondary to his exposure to chemicalwarfare agents. At the Veterans Court, Mr. Parks challenged the competence of the nurse practitioner who provided the sole medical opinion relied on by the Board to reject his claims. That court and the Federal Circuit held that Mr. Parks waived this argument because it was not presented earlier.

15 - 3 - In Sims v. Apfel, 530 U.S. 103 (2000), this Court held that similar nonadversarial and inquisitorial proceedings before the Social Security Administration do not require such issue exhaustion. This Court and Federal Circuit have routinely noted the similarities in the administrative procedures of the Social Security Administration and the Department of Veterans Affairs in addressing disability claims. For the same reasons this Court did not require issue exhaustion in Sims, the Federal Circuit should not have required it here. Indeed, as distinct from any other administrative proceeding, Congress and the courts have recognized the special solicitude that is to be afforded to veterans, those among us who have performed an especially important service for the Nation, often at the risk of his or her own life. Shinseki v. Sanders, 556 U.S. 396, 412 (2009); see also Henderson v. Shinseki, 131 S. Ct. 1197, 1205 (2011); United States v. Oregon, 366 U.S. 643, 647 (1961). That special solicitude is reflected in the nonadversarial and inquisitorial procedures for affording veterans disability benefits. And the nature of those procedures as nonadversarial, in which the proceedings are ex parte and traditional adversarial procedures are not allowed, and as inquisitorial, in which the VA has a statutory duty to assist veterans, means that the Federal Circuit should not have required issue exhaustion. Mr. Parks should not be denied the opportunity to challenge the competence of the nurse practitioner who provided the opinion relied on to reject his claims. STATEMENT OF THE CASE Mr. Parks served on active duty in the United States Army, including service in Vietnam, from 1964 to (Pet. App. 6a, 19a.) During his tour of duty, he volunteered

16 - 4 - for Project 112, a then-classified program in which he was intentionally exposed to three chemical-warfare agents. (Id.) In 2000 and again in 2002, Mr. Parks filed claims with the Department of Veterans Affairs (VA) seeking service connection for diabetes mellitus with peripheral neuropathy secondary to biochemical exposure and testing as a result of Project 112 and a heart disorder secondary to biochemical exposure and testing as a result of Project 112. (Pet. App. 25a.) There was no dispute that Mr. Parks had been exposed to the three chemical-warfare agents and that he has diabetes mellitus with peripheral neuropathy and a heart disorder. (Pet. App. 6a, 19a, 28a.) The VA Regional Office (RO) denied Mr. Parks s claims. (See Pet. App. 6a.) Mr. Parks, then represented by a nonattorney service officer from the Disabled American Veterans, appealed to the Board. (Pet. App. 8a.) Specifically, in 2003, Mr. Parks submitted a notice of disagreement and a substantive appeal with respect to the denial of service connection for diabetes mellitus with peripheral neuropathy secondary to biochemical exposure and testing (Pet. App. 64a 71a) and in 2004, submitted a notice of disagreement and a substantive appeal with respect to the denial of service connection for a heart disorder secondary to biochemical exposure and testing (Pet. App. 72a 79a). 38 C.F.R , (2008). In this time period, the U.S. government declassified certain details about the chemicals used in Project 112. (Pet. App. 7a.) As a result, in 2004, the Veterans Health Administration issued a directive requiring the VA to provide a thorough clinical evaluation to Project 112 veterans and to provide free care for any illness possibly related to their participation in Project 112. (Id.) In 2007, the Board remanded Mr. Parks s appeal to the Board for it to provide him with a complete Project 112 examination. (Id.) In 2008, the VA selected a nurse practitioner to determine

17 - 5 - whether there was a potential relationship between his exposure to biochemical agents and his medical conditions. (Pet. App. 8a.) The nurse practitioner found no such connection and the RO denied his claims. (Id.) Because of the Board s remand, Mr. Parks s appeal was returned to the Board and no additional notice of disagreement or substantive appeal by Mr. Parks was required. 38 C.F.R (2008); id (c). The Board subsequently denied Mr. Parks s claims. The only medical opinion relied on by the Board was that of the nurse practitioner. (Pet. App. 8a 9a.) Mr. Parks filed a timely appeal to the Veterans Court. (Pet. App. 9a.) Now represented for the first time by an attorney, Mr. Parks argued that the nurse practitioner was not competent to offer the opinion that resulted in the denial of his claims. (Pet. App. 9a, 19a 20a.) Though outside the record, Mr. Parks further asserted that information from the Oklahoma Board of Nursing website, revealing that the nurse practitioner s specialization was in family medicine, raised an issue as to her competence to opine on the physiological effects of the chemical-warfare agents to which he was exposed during military service. (Pet. App. 21a 22a.) Mr. Parks thus argued that the case should be remanded to consider the competence of the nurse practitioner. (Pet. App. 9a.) The Veterans Court rejected Mr. Parks s arguments, holding that because he relied on extra-record information to support his challenge to the nurse practitioner s competence, see 38 U.S.C. 7252(b), it would not address the issue. (Pet. App. 9a, 22a.) In particular, relying on its decision in Cox v. Nicholson, 20 Vet. App. 563 (2007), the Veterans Court held that the nurse practitioner was competent to provide an opinion because of her medical education and training. (Pet. App. 9a, 21a.) Without addressing issue exhaustion, the

18 - 6 - Veterans Court thus affirmed the Board s decision. (Pet. App. 24a.) Mr. Parks timely appealed to the Federal Circuit. (Pet. App. 9a.) He again argued that the nurse practitioner did not possess the training, education, or experience relevant to offering a competent opinion on whether there was a nexus between his serial in-service exposures to three chemical-warfare agents and his later-developing disabilities. (Id.) The Federal Circuit stated that the VA is required in some circumstances, including this one, to rely on competent medical evidence, as defined by 38 C.F.R (a)(1) (2012). (Pet. App. 11a). The Federal Circuit reasoned that the VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case. (Pet. App. 12a.) That presumption, however, is rebuttable and can be overcome by showing the lack of those presumed qualifications. (Pet. App. 14a.) The Federal Circuit thus framed the issue as whether Mr. Parks waived his right to overcome the presumption that the selection of a particular medical professional means that the person is qualified for the task. (Pet. App. 11a.) Speaking in issue-exhaustion terms, the Federal Circuit held that Mr. Parks indeed waived the issue (Pet. App. 13a) such that he could not challenge the competence of the nurse practitioner when he did not present that challenge to the Board before raising the issue to the Veterans Court. Stating that it would not read into the record an argument that had never been made, the Federal Circuit affirmed the decision of the Veterans Court because Mr. Parks never raised any concern over Ms. Larson s qualifications or those of [a nurse practitioner] generally, until his appeal to the Veterans Court. (Pet. App. 14a.)

19 - 7 - Mr. Parks petitioned the Federal Circuit for panel rehearing and rehearing en banc. (Pet. App. 3a.) Having rejected the appeal based on an issue-exhaustion rationale, Mr. Parks s petition addressed this Court s decision in Sims and the decisions of sister circuit courts of appeal that have considered Sims. (Pet. App. 50a, 54a 57a.) Notwithstanding that it is now the only court of appeals to depart from the holding and rationale in Sims with respect to issue exhaustion in a nonadversarial and inquisitorial administrative proceeding where no statute or regulation requires it, the Federal Circuit denied Mr. Parks s petition. (Pet. App. 41.) REASONS FOR GRANTING THE PETITION I. The Federal Circuit s Requirement of Issue Exhaustion in Nonadversarial VA Board Proceedings Is Inconsistent with the Court s Precedent The Federal Circuit imposed issue exhaustion when it held that Mr. Parks waived his right to dispute the competence of the VA nurse practitioner during his appeal to the Veterans Court because he did not raise the issue before the Board. Requiring issue exhaustion is inconsistent with the Court s precedent in Sims, 530 U.S A. The Court s Decision in Sims Established that Issue Exhaustion is Inappropriate in Nonadversarial Proceedings Where Not Required by Statute or Regulation In Sims, the petitioner filed an application for Social Security disability benefits. Id. at 105. After a state agency denied her claims, Ms. Sims had a hearing before a Social

20 - 8 - Security Administration (SSA) Administrative Law Judge (ALJ) who affirmed, concluding that she did not have a disability as defined by the Social Security Act. Id. Ms. Sims could request review by the Social Security Appeals Council (Appeals Council) through a Form HA-520 or by any other writing specifically requesting review. Id. (citing 20 C.F.R (a) (1999)). The Appeals Council denied review after Ms. Sims, through counsel, submitted a letter arguing that the ALJ had erred. Id. Ms. Sims then filed suit in district court, contending that the ALJ made selective use of the record, posed defective questions to a vocational expert, and should have ordered a consultative examination in light of certain peculiarities in the medical evidence. Id. at The district court rejected her contentions, and the Fifth Circuit affirmed, concluding that it lacked jurisdiction because Ms. Sims failed to raise those contentions to the Appeals Council. Id. at 106. This Court reversed, holding that a Social Security claimant does not have to exhaust issues in a request for administrative review to preserve those issues for judicial review. Id. at 112. The Sims Court stated that issue exhaustion is typically imposed by statute or regulation. Id. at No statute or regulation, however, required issue exhaustion in SSA proceedings, which were distinguished from a different administrative proceeding in which a petition for review must lis[t] the specific issues to be considered on appeal. Id. at 108 (alteration in original) (quoting 20 C.F.R (a) (1999)). In a concurrence, Justice O Connor noted that the applicable SSA regulation provided that a claimant could secure review by filling out a form or otherwise requesting review in writing, but that the SSA did not notify claimants of an issue-exhaustion requirement. Id. at 113.

21 - 9 - The Court further noted that issue exhaustion can be imposed in the absence of a statute or regulation. Id. at 108. The basis for such judicially imposed, issue exhaustion is an analogy to the rule that appellate courts will not consider arguments not raised before trial courts. Id. at The Sims Court noted that requiring issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding. Id. at 109. In particular, [w]here the parties are expected to develop the issues in an adversarial administrative proceeding, it seems to us that the rationale for requiring issue exhaustion is at its greatest. Id. at 110. In contrast, where an administrative proceeding is not adversarial,... the reasons for a court to require issue exhaustion are much weaker. Id. The Court emphasized that SSA regulations provide that the proceedings are informal and nonadversarial, stating that the differences between courts and agencies are nowhere more pronounced than in Social Security proceedings. Id. The Court also highlighted the inquisitorial rather than adversarial nature of Social Security proceedings, observing that the ALJ has a duty to investigate the facts and develop arguments both for and against granting benefits. Id. at 111. Finally, the Court noted that a large portion of Social Security claimants either have no representation at all or are represented by non-attorneys, suggesting that the Social Security Appeal Council does not depend on Social Security claimants to identify issues for review. Id. at 112. Given these qualities, the Court determined that the adversarial development of issues in such proceedings simply does not exist and held that a judicially created issue-exhaustion requirement is inappropriate. Id.

22 B. The VA Statutory and Regulatory Scheme Does Not Impose Issue Exhaustion on Mr. Parks s Claims As in the SSA proceedings in Sims, the applicable VA statutes and regulations do not require issue exhaustion. In particular, under the applicable VA statutory and regulatory scheme, to contest an RO s rating decision, a veteran files a notice of disagreement (NOD). 38 U.S.C. 7105(d). The NOD must state the determinations being appealed. 38 C.F.R (If the VA gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the Notice of Disagreement must make that clear. ). The NOD need not be expressed in any special wording, and the legal reasoning supporting the NOD need not appear in the NOD. Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Here, Mr. Parks complied with the requirements and submitted multiple NODs, which identified the issues being appealed. (Pet. App. 64a 68a, 72a 76a.) After an NOD, the VA issues a statement of the case, containing, inter alia, the determination of the VA on each issue identified in the NOD and the reasons for each determination. 38 U.S.C. 7105(d)(1); 38 C.F.R (2013). Then the veteran must file a substantive appeal. 38 U.S.C. 7105(d)(3). The substantive appeal, like the administrative appeal in Sims, can be completed by filling

23 out a simple one-page form, VA Form 9. Robinson v. Shinseki, 557 F.3d 1355, 1359 (Fed. Cir. 2009); 38 C.F.R Like the NOD, the substantive appeal must specifically identify the issues or determinations being appealed. 38 C.F.R Here, in 2003 and 2004, Mr. Parks complied with the requirements for perfecting a substantive appeal and filled out a VA Form 9 for each disability. He identified the issue or determination being appealed denial of service connection for diabetes mellitus with peripheral neuropathy and a heart disorder both due to chemical exposure. (Pet. App. 69a 71a, 77a 79a.) Under the applicable regulations, Mr. Parks was not required to provide an NOD or substantive appeal after the RO decision addressing the nurse practitioner s 2008 opinion. 38 C.F.R ; id (c). As a result, when perfecting his substantive appeals in 2003 and 2004, Mr. Parks did not present an argument specifically challenging the competence of the nurse practitioner who did not render an opinion until (Pet. App. 8a, 69a 71a, 77a 79a.) The VA statute and regulations do not require that Mr. Parks present his challenge to the Board regarding the nurse practitioner s competence to render an opinion to preserve the argument before the Veterans Court. See Maggitt, 202 F.3d at 1377 (considering exhaustion and concluding that the Veterans Court has jurisdiction to hear arguments presented to it in the first instance, provided it otherwise has jurisdiction over the veteran s claim ); cf. Andrews v. Nicholson, 421 F.3d 1278, 1284 (Fed. Cir. 2005) (holding that in the limited case of a collateral attack on an otherwise final Board decision based on a claim of clear and unmistakable error (CUE), 38 C.F.R (2004), which states that a motion must set forth clearly and specifically the alleged clear and unmistakable error, or

24 errors, of fact or law in the Board decision, imposes issue exhaustion). Speaking in nonmandatory terms, the applicable statute states that a veteran s substantive appeal should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case. 38 U.S.C. 7105(d)(3); see also Maggitt, 202 F.3d at 1378 (noting the statutory language that a veteran should, not must, set out specific allegations of error of fact or law in his substantive appeal to the Board ). The applicable regulation is similar and speaks in nonmandatory terms. 38 C.F.R ( The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. ); Robinson, 557 F.3d at 1359 (noting language of regulation). The VA regulations also specifically impose an obligation on the Board to read such filings by claimants in a liberal manner. Robinson, 557 F.3d at (quoting Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009)); 38 C.F.R ( The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. ). The nonmandatory language of the statute and regulation combined with the requirement of a liberal reading of the veteran s arguments in the regulation does not impose issue exhaustion. Robinson, 557 F.3d at ; Maggitt, 202 F.3d at 1378; see Sims, 530 U.S. at 108 (noting

25 that 20 C.F.R (a) imposes issue exhaustion by requiring a claimant to [l]ist the specific issues to be considered on appeal (alteration in original)); Environmentel, LLC v. Fed. Commc ns Comm n, 661 F.3d 80, 84 (D.C. Cir. 2011) (holding that the applicable regulation, which states that an application for review shall concisely and plainly state the questions presented for review, requires issue exhaustion). C. Requiring Issue Exhaustion Is Inappropriate in VA Proceedings Before the Board As in Sims, requiring issue exhaustion is inappropriate in VA proceedings before the Board because those proceedings are nonadversarial and inquisitorial. See Sims, 530 U.S. at 112. This is supported by the recognized similarity between review of an administrative decision denying Social Security disability benefits and review of a VA Board decision denying veterans benefits. As to the latter, the Court has explained that the Social Security disability benefits program, like the veterans benefits program, is unusually protective of claimants. Henderson, 131 S. Ct. at 1204 (citing Heckler v. Day, 467 U.S. 104, (1984)); see Sims 530 U.S. at The Court further explained that [t]he contrast between ordinary civil litigation and the system for adjudicating veterans benefits claims could hardly be more dramatic. Henderson, 131 S. Ct. at ; Gambill v. Shinseki, 576 F.3d 1307, 1316 (Fed. Cir. 2009) (Bryson, J., concurring) (The Court and the Federal Circuit have long recognized that the character of the veterans benefits statutes is strongly and uniquely proclaimant ); see Sims, 530 U.S. at 110 ( The differences between courts and agencies are nowhere more pronounced than in Social Security proceedings. ). The recognized

26 similarities between SSA and VA proceedings support applying the Court s Sims analysis to VA proceedings and rejecting the Federal Circuit s imposition of issue exhaustion. In particular, like SSA proceedings, VA proceedings before an RO and before the Board are informal and nonadversarial. Sims, 530 U.S. at 111 (The SSA conduct[s] the administrative review proceedings in an informal, nonadversary manner. (alteration in original) (quoting 20 C.F.R (b) (1999))); Walters v. Nat l Ass n of Radiation Survivors, 473 U.S. 305, 323 (1985) ( A necessary concomitant of Congress desire that a veteran not need a representative to assist him in making his claim was that the system should be as informal and nonadversarial as possible. ). In VA proceedings before the Board, the relationship between the veteran and the government is nonadversarial and pro-claimant. Comer, 552 F.3d at 1368 (quoting Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed. Cir. 2002)). The Federal Circuit has further noted that in view of the informal and pro-claimant nature of the VA system, the due process clause does not require the same kinds of procedures that would be required in a more conventional adversarial proceeding. Gambill, 576 F.3d at 1313 (Bryson, J., concurring). The nonadversarial nature of the VA benefits system is borne out by the applicable regulations. For example, by regulation, [p]roceedings before VA are ex parte in nature. 38 C.F.R (a) (2013). The regulations could not be clearer: Hearings conducted by the Board are ex parte in nature and nonadversarial. Parties to the hearing will be permitted to ask questions, including follow-up questions, of all witnesses but cross-examination will not be permitted.

27 Id (c) (2013). And the rules of evidence do not apply in VA proceedings. Celano v. Peake, 22 Vet. App. 341, 348 (2009); 38 C.F.R. 18.9(d)(2) (2013). And VA proceedings, like SSA proceedings, are inquisitorial. The VA has a statutory duty to assist veterans in developing their claims. 38 U.S.C. 5103A; see also 38 C.F.R (a). The Secretary has an affirmative duty to assist claimants in obtaining evidence necessary to substantiate claims for benefits. 38 U.S.C. 5103A(a). The Secretary has a duty to obtain private medical records, id. 5103A(b), as well as service medical records, records from VA medical facilities, and records from other federal departments and agencies, id. 5103A(c). The Secretary must request private medical records at least twice in order to discharge his obligation to help a veteran claimant. Id. 5103A(b)(2)(B). In the case of a claim for disability compensation, the Secretary must provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. And as recognized by the Federal Circuit, in developing claims, the VA is required in some circumstances, including this one, to rely only on competent medical evidence, as defined by 38 C.F.R (a)(1). (Pet. App. 11a.) In explaining that the veterans benefits system is not meant to be a trap for the unwary, the Federal Circuit has underscored the VA s affirmative duty to fully and sympathetically develop the veteran s claim to its optimum before deciding it on the merits. Comer, 552 F.3d at 1368, 1369 (citation omitted); see Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (citing Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998)); H.R. Rep. No (1988), at 13, reprinted in 1988 U.S.C.C.A.N. 5782, The Veterans Court has long echoed this sentiment. Brokowski v.

28 Shinseki, 23 Vet. App. 79, 85 (2009) (VA must fully and sympathetically develop a veteran s claim to its optimum before reaching the claim on its merits. ); Norris v. West, 12 Vet. App. 413, 420 (1999); Douglas v. Derwinski, 2 Vet. App. 435, 439 (1992) (It is a basic principle of the VA claims process that claims will be processed and adjudicated in an informal, nonadversarial atmosphere, and... VA will assist claimants in many ways. ); see also H.R. Rep. No , at 4 (1997) (noting the pro-claimant bias intended by Congress throughout the VA system ). Addressing the fact that the veterans benefits system is intended to be user friendly to the veteran, the Federal Circuit has recognized not only the duty of the VA to assist the veteran but also that [r]ealistic considerations may reduce the ability of a veteran to mount legal challenges in the regional office or at the Board. Maggitt, 202 F.3d at Indeed, claimants in VA proceedings typically appear pro se, even when assisted by a nonattorney, serviceorganization representative. Comer, 552 F.3d at Likewise, in the SSA proceedings in Sims, the Court recognized that many claimants are either represented by nonattorneys or have no representation at all. See Sims, 530 U.S. at 112 (O Connor, J., concurring). The recognized and consistent similarities between the SSA and VA administrative procedures for providing benefits demonstrate that under the Court s holding in Sims, the Federal Circuit should not have required issue exhaustion. Mr. Parks did everything he was required to do in appealing the Board s adverse determination. He complied with the statutory and regulatory provisions, which do not require issue exhaustion. The Federal Circuit s imposition of an issue-exhaustion requirement in holding that Mr. Parks indeed waived the issue of challenging the competence of the nurse practitioner was wholly antithetical to the

29 nonadversarial and inquisitorial nature of VA proceedings before the Board and the Court s decision in Sims. The Court should grant the petition to address this fundamental error. II. The Federal Circuit s Imposition of an Issue- Exhaustion Requirement Is Inconsistent with the Treatment of Sims by Other Circuits Other circuits have followed Sims and declined to impose issue exhaustion during review of nonadversarial and inquisitorial administrative proceedings where not required by statute or regulation. The Federal Circuit is now in conflict not only with the precedent of this Court, but also with every other circuit court of appeals that has considered the issue. (See Pet. App. 54a 57a.) For instance, the Ninth Circuit analyzed Sims and held that it leads to the conclusion that issue exhaustion is not applicable in the ERISA context. Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 631 (9th Cir. 2008). In Vaught, the claimant s challenge to the denial of his claim was based on a theory not raised to the Claims Administrator. Id. at 629. The Ninth Circuit concluded that no statute or regulation required the claimant to identify all issues they wished to have considered on appeal to the district court. Id. at 630. The Ninth Circuit then considered and rejected a judicially imposed, issue-exhaustion requirement. Id. at The court first reasoned that the plan s internal review procedures were inquisitorial, providing the opportunity for a full and fair review of any denied claim. Id. at 631. Further, the court stated that Congress intended the ERISA procedures to provide a nonadversarial method of claims settlement. Id. (quoting Amato v. Bernard, 618 F.2d 559, 567 (9th Cir. 1980)).

30 In particular, the Ninth Circuit noted that ERISA s internal review procedures share the nonadversarial characteristics of the SSA procedures in Sims. Id. In both, there is an impartial decisionmaker who may review new information, a deferential standard of review of an initial denial of benefits, and a recognition that many claimants are not represented by counsel. Id. Most significant, the Ninth Circuit reasoned, neither scheme contemplates that the claimant will face an adversary opposing the claim for benefits in the review process. Id. at 632. As a result, the Ninth Circuit concluded that the non-adversarial nature of the ERISA proceeding weighs against imposing an issueexhaustion requirement. Id. The court also identified as significant that ERISA failed to notify claimants of any issue-exhaustion requirement, as noted by Justice O Connor s concurrence in Sims. Id. The court concluded that [b]ecause ERISA and its implementing regulations create an inquisitorial, rather than adversarial process, and because the [explanation of benefits] does not notify a claimant that issue exhaustion is required, Sims leads us to conclude that Vaught was not required to exhaust his issues or theories in the context of this case. Id.; see also Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, (9th Cir. 2013) (applying Sims and holding that, based on the informal nature of the proceedings and the lack of notice to interested parties, issue exhaustion did not apply to proceedings before the Surface Transportation Board). Similar to Vaught, in Coalition for Government Procurement v. Federal Prison Industries, Inc., 365 F.3d 435 (6th Cir. 2004), the Sixth Circuit held that issue exhaustion does not apply to issues not raised during hearings before the Board of Directors of Federal Prison Industries, Inc. (FPI). Noting that no such requirement exists by statute or regulation, the Sixth Circuit concluded that FPI Board

31 hearings were nonadversarial and inquisitorial, id. at , and emphasized that [a]s with the proceedings before the Appeals Council [in Sims], the rules governing the significant expansion hearings vest full fact-finding authority with the Board, and that the hearings lack[ed] any crossexamination, counter-arguments, or any type of discussion that reasonably [could] be defined as adversarial, id. at 465. The relevant proceedings were thus not adversarial and do not warrant a judicially-imposed issue exhaustion requirement. Id. at Consistent with Sims, other circuit courts have only applied issue exhaustion where an administrative proceeding is adversarial. For example, in Delta Foundation, Inc. v. United States, 303 F.3d 551 (5th Cir. 2002), the Fifth Circuit held that proceedings before the Department of Health and Human Services Departmental Appeals Board (DAB) were sufficiently adversarial to require issue exhaustion. The Fifth Circuit explained that regulations applicable to DAB proceedings provide each side with an opportunity to make opening and closing statements, present and cross-examine witnesses, and submit posthearing briefs or proposed findings and conclusions. Id. at 561. The court reasoned that unlike the proceedings in Sims in which the Appeals Council itself, and not the claimant, had the responsibility for identifying the claims and developing arguments, the parties appear before the DAB as adversaries, charged with presenting their arguments and supporting witnesses and effectively discrediting opposing parties through crossexamination. Id. at Considering these differences, the Fifth Circuit held that there is a sufficiently adversarial nature to the proceedings so as to impose an issue exhaustion requirement. Id. at 562. Similarly, in Formella v. U.S. Department of Labor, 628 F.3d 381, 390 (7th Cir. 2010), the Seventh Circuit held

32 that proceedings before the Department of Labor were adversarial, making it reasonable to expect the parties to fully raise and develop the issues. Likewise, in Etchu-Njang v. Gonzales, 403 F.3d 577, 583 (8th Cir. 2005), the Eighth Circuit imposed issue exhaustion, reasoning that removal proceedings before the Department of Homeland Security were adversarial since many of the same procedures were used in Article III courts. See also Ballanger v. Johanns, 495 F.3d 866, 869 (8th Cir. 2007) (finding Sims inapplicable because the USDA regulations describe a proceeding that is, in many respects, similar to a trial ). In Mahon v. U.S. Department of Agriculture, 485 F.3d 1247, (11th Cir. 2007), the Eleventh Circuit held that applicants for crop-disaster assistance from the U.S. Department of Agriculture waived their arguments because they failed to raise them during administrative proceedings. The Eleventh Circuit reasoned that, although there was no express issue-exhaustion requirement in National Appeals Division regulations, those proceedings were nonetheless adversarial in nature. Id. at Applying issue exhaustion to Mr. Parks s nonadversarial and inquisitorial Board proceeding thus conflicts with the application of Sims by other circuits, which require issue exhaustion only where the administrative proceeding is sufficiently adversarial. The Federal Circuit now stands alone in requiring issue exhaustion in nonadversarial and inquisitorial administrative proceedings. The Court should grant the petition to address and correct this circuit split.

33 III. The Federal Circuit s Decision Is Inconsistent with Its Previous Analyses of Sims The Federal Circuit s decision is inconsistent with its own consideration of Sims. In its en banc decision in Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), the Federal Circuit considered the applicability of Sims where a VA claimant raises an issue for the first time at the Federal Circuit. In holding that issue exhaustion applied, the Federal Circuit noted that Veterans Court proceedings are not nonadversarial, stating that the Court of Appeals for Veterans Claims is a court and depends upon the adversarial parties to identify the issues for review. Id. at As a result, Sims did not apply. Id. In reaching that conclusion, the Federal Circuit distinguished proceedings before the Veterans Court (where Sims does not apply) from those before the Board, stating that the veterans benefits system remains a non-adversarial system when cases are pending before the Veterans Administration. Id. Even before Forshey, the Federal Circuit had made clear the distinction between raising arguments before the Veterans Court and before the Board. In Belcher v. West, 214 F.3d 1335 (Fed. Cir. 2000), the Federal Circuit addressed whether it had jurisdiction to consider an argument not presented to the Veterans Court. Recognizing the difference between raising an issue to an agency in a nonadversarial proceeding and raising an issue to a court, the Federal Circuit held it could not consider the issue not raised in the Veterans Court. The Federal Circuit distinguished Sims, stating that Sims deals with review of an agency decision by a court, as opposed to this case, which considers our review of another court s judgment. Id. at Consistent with Forshey and Belcher, the Sims rationale should apply to proceedings before the Board.

34 In addition to distinguishing raising an issue before the VA from raising an issue before the court, the Federal Circuit has considered the applicability of Sims in the context of a veteran s CUE claim to the Board. Andrews, 421 F.3d at There, the Federal Circuit held that Sims was not applicable to the CUE claims in Andrews because a particular VA regulation requires CUE claims to be pleaded with specificity. Id. at In doing so, however, the Federal Circuit reaffirmed that proceedings before the Board, like those before the Social Security Appeals Council [in Sims], are non-adversarial, thus suggesting that issue exhaustion does not apply in non-cue cases. Id. at And in Maggitt, while the Federal Circuit did not specifically address Sims, it recognized that the Veterans Court can hear arguments presented to it in the first instance, provided it otherwise has jurisdiction over the veteran s claim. 202 F.3d at The Federal Circuit adopted a requirement that the Veterans Court undertake a case-by-case approach in deciding whether to hear an argument not presented to the Board. Id. at The Federal Circuit here, however, departed even from this permissive rule when it imposed strict issue exhaustion on Mr. Parks. The Federal Circuit s decision is inconsistent with its analyses in Forshey, Andrews, and Maggitt in holding that Mr. Parks waived his challenge to the competence of the nurse practitioner where no statute or regulation required him to make that argument to the Board and where the proceedings before the Board are nonadversarial and inquisitorial. The petition should be granted to correct the Federal Circuit s improper departure from its application of Sims.

35 CONCLUSION For these reasons, the petition for a writ of certiorari should be granted. Respectfully Submitted, DORIS JOHNSON HINES* Counsel of Record RONALD L. SMITH STEPHEN L. HENNESSY FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 901 New York Avenue, NW Washington, DC (202) *Admitted to Supreme Court Bar January 13, 2014