noting that the courts of appeal are "not required to manufacture appellant['s] argument"
How later courts described this case
- noting that the courts of appeal are "not required to manufacture appellant['s] argument"
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2345
STENSON FEARS, JR., APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued July 16, 2019 Decided August 12, 2019)
Brian K. Lewis, of Woodbury, Minnesota, for the appellant.
James L. Heiberg, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief
Counsel; and Emily C. Purcell, Acting Deputy Chief Counsel, all of Washington, D.C., were on
the brief for the appellee.
Before SCHOELEN, ALLEN, and TOTH, Judges.
ALLEN, Judge: Generally, veterans cannot challenge VA's selection of an examiner before
this Court in the first instance, but rather must initially do so before VA.1 But in Wise v. Shinseki,
this Court held that there are times when VA is required to address an examiner's competence,
even without a claimant's objection.2 This appeal principally asks us to consider the scope of the
exception recognized in Wise and where this case fits within it.
While VA was adjudicating the appellant's claim for service connection for hepatitis, he
was examined by a Dr. Wilhelm, a VA physician who had been previously discharged from an
Army medical residency program.3 The examiner appealed his discharge from the Army program,
but the United States District Court for the District of Columbia affirmed the Army's decision.4
The appellant argues, among other things, that this prior judicial proceeding, combined with news
1
See Francway v. Wilkie, No. 2018-2136, __ F.3d __, 2019 WL 3294051 (Fed. Cir. July 23, 2019); Parks v. Shinseki,
716 F.3d 581 (Fed. Cir. 2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301
(Fed. Cir. 2010); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).
2
26 Vet.App. 517 (2014).
3
See Wilhelm v. Caldera, 90 F. Supp. 2d 3 (D.C. Dist. 2000), aff'd, 6 F. App'x 3 (D.C. Cir. 2001).
4
Id.
articles regarding Dr. Wilhelm's possible role in the mishandling of examinations at a VA facility,
raised the issue of Dr. Wilhelm's competence, excusing the appellant's admitted failure to
challenge that competence before the Board. But because both that prior finding and the news
articles the appellant cites were neither actually nor constructively before the Board, there was
nothing to put the Board on notice of an issue concerning competence. Also because they were not
in the administrative record, we cannot use them independently to forgive the appellant's failure
to raise this issue. In sum, the Wise exception5 is not restricted to the facts of that case, but the
facts of this case fall squarely outside the exception. Thus, and because the appellant's remaining
arguments are without merit, we will affirm the Board's decision.
I. BACKGROUND
The appellant served the Nation honorably in the United States Navy from February 1976
to January 1980.6 When he was in service, there was a hepatitis outbreak at his duty station.7 In
August 1976, he reported he had donated blood the previous month and been notified his blood
sample possibly contained hepatitis.8 Thereafter, he was tested for hepatitis.9 Test results revealed
no hepatitis.10 The treating physician noted no known exposure to hepatitis, no symptoms, and that
6 months before, appellant had been given a gamma globulin shot, a shot meant to help him avoid
contracting hepatitis.11
The only available service treatment records reflect that in February 1977 and November
1979 the appellant was treated for a different disease.12 Nonetheless, he claims VA treated him for
hepatitis in 1988, 13 but the only records available from that time show treatment for mild
5
We use the term "Wise exception" where a claimant before the Board is relieved of his or her obligation to object to
an expert's competence and may raise the matter for the first time before the Court on appeal.
6
Record (R.) at 273, 795.
7
R. at 750.
8
R. at 436.
9
Id.
10
R. at 437.
11
R. at 436.
12
See R. at 439, 441.
13
R. at 750.
2
depression and a history of cocaine dependence.14 VA unsuccessfully attempted to locate records
of the appellant's purported hepatitis treatment, formally finding them unavailable in June 2011.15
In December 2009, the appellant sought service connection for hepatitis, bilateral hearing
loss, tinnitus, and a bilateral shin condition.16 VA denied these claims in 2010.17 The appellant
timely disagreed in December 2010, and VA continued its denial in a February 2011 Statement of
the Case. 18 April and July 2011 Supplemental Statements of the Case continued to deny the
appellant's hepatitis claim.19
The appellant testified before the Board in June 2011, reporting he had illegally used drugs
both during and after service.20 He also stated that, while in service, he was inoculated through an
air gun and had unprotected sex.21
The Board found a January 2011 VA medical examination inadequate in May 2014,
remanding the claim with instructions for a new medical opinion "by an appropriate examiner
(preferably a hepatologist)" addressing the etiology of the appellant's hepatitis.22 In July 2014,
Dr. Wilhelm, a VA examiner, provided the requested opinion. 23 He concluded the appellant's
hepatitis was most likely caused by his postservice drug use from 1986 to 1991, rather than from
his in-service marijuana use or risky sexual behavior.24 The appellant's hepatitis-like symptoms in
1976 predated his risky sexual behavior, and thus, the examiner explained, "temporality is lacking
in establishing a causal nexus between his documented 'risky sexual behavior' in 1977 and 1979
and his first claims of" hepatitis-attributed symptoms in 1976.25 The examiner also noted that, per
14
See R. at 699-700.
15
R. at 608.
16
See R. at 723-42.
17
R. at 694-98.
18
R. at 639-66, 688.
19
R. at 614-20, 601-07.
20
R. at 538-40.
21
R. at 533-38.
22
R. at 506-08.
23
R. at 388-90.
24
R. at 388.
25
R. at 388-89.
3
medical literature, the use of air guns in inoculation is not highly correlated with hepatitis
transmission.26
Dr. Wilhelm provided an addendum opinion in December 2014, this time also considering
service treatment records.27 He still reached the same opinion, noting the appellant's in-service lab
results did not show hepatitis and opining that the possible hepatitis detected in the appellant's
1976 blood donation may have been caused by the gamma globulin shot he had been given to help
prevent the disease.28
On April 6, 2017, the Board denied the appellant's claim, relying on Dr. Wilhelm's July
2014 and December 2014 medical opinions.29 The Board also found the regional office (RO) had
substantially complied with its May 2014 remand order that a new medical opinion be provided
"by an appropriate examiner (preferably a hepatologist)," even though Dr. Wilhelm was not a
hepatologist.30 This appeal followed.
II. ANALYSIS
The appellant principally argues the Board clearly erred in denying service connection
because, under the doctrine of "offensive collateral estoppel," VA was precluded from relying on
Dr. Wilhelm's medical opinion because of the examiner's litigation history. 31 Yet that same
litigation history is what the appellant claims forgives his failure to object to Dr. Wilhelm's
competence before the Agency. Though he does not expressly challenge the adequacy of Dr.
Wilhelm's medical opinion in his principal brief, in his reply brief the appellant did challenge the
adequacy of Dr. Wilhelm's rationale. 32 The appellant's failure to raise the adequacy of the
examination in his primary brief is fatal, as the Court will not entertain piecemeal litigation.33 Also,
26
R. at 389.
27
See R. at 214-15.
28
Id.
29
R. at 1-12.
30
R. at 4-5.
31
"Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision
may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen
v. McCurry, 449 U.S. 90, 94 (1980).
32
Appellant's Reply Brief at 12-13.
33
"Advancing different arguments at successive stages of the appellate process does not serve the interests of the
parties or the Court. Such a practice hinders the decision-making process and raise the undesirable specter of piecemeal
4
at oral argument, the appellant's counsel asserted that the adequacy of Dr. Wilhelm's rationale was
part of his competence argument. 34 But challenging the competence of an examiner and
challenging the adequacy of an examination "are two separate inquiries."35 Thus, the appellant has
failed to raise a challenge to the adequacy of the opinion. He also argues VA failed its duty to
assist him in locating certain records and, in doing so, violated a Board remand order. Finally, he
asserts the Board impermissibly reversed a favorable factual finding purportedly made by the RO.
The Secretary disagrees and urges the Court to affirm the Board's decision.
A. The Legal Landscape
Before considering whether this case serves as an exception to the general rule that
claimants must challenge a VA examiner's competence before the Agency before doing so here,
we lay out the applicable legal framework.
The presumption of competence is rooted in in the presumption of regularity, which
"provides that, in the absence of clear evidence to the contrary, the court will presume that public
officers have properly discharged their official duties."36 This presumption of regularity requires
courts "to presume that what appears regular is regular."37 And it shifts the burden to the party
seeking to rebut the presumption "to show the contrary."38 In this context, showing the contrary
"requires nothing more than is required for veteran[-]claimants in other contexts—simply a
requirement that the veteran raise the issue" before VA.39 "Given that one part of the presumption
of regularity is that the person selected by . . . VA is qualified by training, education, or experience
in the particular field, the presumption can be overcome by showing the lack of those presumed
qualifications."40 Whether the presumption has been rebutted is inherently a question of fact the
Court will review for clear error.41 Under this clear-error standard, we may overturn the Board's
litigation." Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990).
34
See Oral Argument at 19:10-20:57, Fears v. Wilkie, U.S. Vet. App. No. 17-2345 (oral argument held July 16, 2019),
https://www.uscourts.cavc.gov/documents/Fears17-2345.mp3.
35
Francway, __ F.3d at __, 2019 WL 3294051, at *4.
36
Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004).
37
Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001).
38
Id.
39
Francway, __ F.3d at __, 2019 WL 3294051, at *3.
40
Parks, 716 F.3d at 585.
41
See 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).
5
finding only if there is no plausible basis in the record for the Board's decision and the Court is
"left with the definite and firm conviction that" the Board's decision was in error. 42 Today,
however, we address the scope of the Wise exception, a legal question distinct from the question
whether the presumption of competence has been rebutted in a specific appeal. We review
questions of law such as this without deference to the Board.43 Moreover, the Board must provide
a statement of the reasons or bases for all its material determinations of law and fact "adequate to
enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate
review in this Court."44
We have never been called on to review whether there was sufficient evidence to rebut the
presumption. Rather, our precedent has focused on cases where no objection to competence has
been made below.
The presumption first found its way to this Court in its decision in Cox v. Nicholson.45
There, the appellant argued the Board erred by not affirmatively establishing the qualifications of
VA's chosen examiner before relying on the examiner's opinion.46 But the Court held that VA was
not required to affirmatively establish an examiner's qualifications absent "evidence . . . that would
cast doubt on [the examiner's] competence and qualifications."47 This was so, the Court explained,
because "the Board is entitled to assume the competence of a VA examiner."48 On its face, this is
a simple rule. Nonetheless it has caused both this Court and the United States Court of Appeals
for the Federal Circuit to spill a great deal of ink.
After Cox, the Federal Circuit decided Rizzo.49 There, the court considered a challenge to
a VA examiner's qualifications raised for the first time on appeal to this Court. The Federal Circuit,
"adopt[ing] the reasoning of the Veterans Court in Cox," held that
42
Gilbert, 1 Vet.App. at 53.
43
See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (noting "the Court's longstanding practice of reviewing
questions of law de novo without any deference to the [Board's] conclusions of law").
44
Allday v. Brown, 7 Vet.App. 517, 527 (1995).
45
20 Vet.App. 563 (2007).
46
Id. at 569.
47
Id.
48
Id.
49
580 F.3d at 1288.
6
[a]bsent some challenge to the expertise of a VA expert, this court perceives no
statutory or other requirements that VA must present affirmative evidence of a
physician's qualifications in every case as a precondition for the Board's reliance
upon that physician's opinion. 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.[50]
The court also noted that "the record contains no evidence to call into question the competence of"
VA's chosen examiner.51 Rizzo thus reaffirmed this Court's holding in Cox.
The Federal Circuit again addressed what veterans must do to challenge a VA examiner's
qualifications in Bastien. 52 There, the appellant requested information about a VA examiner's
qualifications, did not challenge those qualifications before the Board, and then attempted to raise
that argument for the first time on appeal before this Court.53 The Federal Circuit held that "[a]
request for information about an expert's qualifications . . . is not the same as a challenge to those
qualifications." 54 The court also addressed the policy reasons behind the presumption of
competence, stating "[t]here is a sound practical reason" why challenges to a VA examiner's
qualifications "must set forth the specific reasons why the litigant concludes the expert is not
qualified to give an opinion."55 "Unless there is such particularization," the court said, "the trier of
facts is unable to evaluate and determine the validity of the challenge to the expert's
qualifications."56
After Bastien, the Federal Circuit decided Sickels.57 There, the appellant challenged the
qualifications of a VA examiner without raising his concern to the Board, arguing the Board's duty
to provide reasons or bases for its decision required the Board to affirmatively explain why it found
a particular examiner competent. 58 The Court, applying Rizzo, held that "[w]hile we did not
explicitly state so in Rizzo, it should be clear from our logic that the Board is similarly not
50
Id. at 1291.
51
Id. at 1292.
52
599 F.3d at 1301.
53
Id. at 1306.
54
Id.
55
Id. at 1307.
56
Id.
57
643 F.3d at 1362.
58
Id. at 1365-66.
7
mandated . . . to give reasons and bases for concluding that a medical examiner is competent unless
the issued is raised by the veteran." 59 "To hold otherwise would fault the Board for failing to
explain its reasoning on unraised issues." 60 Finally, the court instructed that "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."61
The Federal Circuit had occasion to address the presumption of a VA examiner's
competence yet again in Parks. 62 There, the court explained that "[v]iewed correctly, the
presumption is not about the person or a job title; it is about the process." 63 The presumption
"exists, of course, to eliminate the burden to produce evidence."64 "Repeated unnecessary remands
for additional evidence," the court said, "complicate many cases and lead to system-wide backlogs
and delays."65 And "[r]equiring the Board to present extensive evidence on the competence of a
professional presumed to be competent is not only illogical, but adds to those delays."66
The court explained that "[t]he first step to overcoming the presumption is to object even
where, as here, the veteran is acting pro se."67 Then, "it may be necessary for the veteran to provide
information to overcome the presumption."68 "The regulations may require inquiry beyond the
possession of a particular degree, or the lack of one."69 The focus is on "some nexus between
qualification and opinion."70 But like the claimants in all the cases we have discussed, the appellant
in Parks did not object. Rather, he never challenged the examiner's qualifications before the Board,
instead arguing with non-lawyer assistance that the Board should not consider the examiner's
59
Id. at 1366.
60
Id.
61
Id. at 1365.
62
716 F.3d at 581.
63
Id. at 585.
64
Id.
65
Id.
66
Id.
67
Id.
68
Id.
69
Id.
70
Id.
8
opinion because, contrary to VA's standard procedures, a physician had not signed it.71 Despite the
appellant's pro se status, the court still held he was required to raise some objection to the Board
first before pro se litigants' special considerations come into play.72
Parks was expansive, speaking in broad strokes that suggested a bright-line application of
the presumption of competence. But it did not take long for a case to come along that presented an
exception. And in Wise v. Shinseki, this Court recognized just that.73 There, the appellant never
challenged a VA examiner's qualifications before the Board. 74 Nonetheless the Court held an
objection before the Agency was not required because in her opinion the examiner expressly called
her own qualifications into question.75 The examiner explained she had "no formal training or
background" in psychiatry, calling her opinion on psychiatric matters "a relative lay[]person's
perspective."76 The Court found it "unreasonable to allow the Board to ignore this explicit denial
of expertise," holding that
where, as here, a medical professional admits that he or she lacks the expertise
necessary to provide the opinion requested by the Board . . . the opinion itself
creates the appearance of irregularity in the process resulting in the selection of that
medical professional that prevents the presumption of competence from attaching,
and the Board must therefore address the medical professional's competence before
relying on his or her opinion.[77]
Wise thus recognized a limited exception to the requirement that claimants expressly challenge
VA's selection of a medical examiner before the Board, relieving them of this obligation where
there are facially obvious issues of competence. It is this exception into which the appellant hopes
to fit.
Finally, the Federal Circuit recently considered the presumption of competence again in
Francway.78 There, the claimant failed to challenge before the Board VA's selection of an internist
71
Id. at 586.
72
Id.
73
26 Vet.App. at 517.
74
Id. at 526.
75
Id. at 527.
76
Id. at 525.
77
Id. at 527.
78
__ F.3d __, 2019 WL 3294051.
9
to perform a back examination.79 Instead, just like the appellant here, he sought to do so before
this Court in the first instance.80 But the court explained that "[t]he presumption of competency
requires nothing more than is required for veteran claimants in other contexts—simply a
requirement that the veteran raise the issue."81
"[O]nce [a] veteran raises a challenge to the competency of a medical examiner," the court
said, "the presumption has no further effect, and, just as in typical litigation, the side presenting
the expert (here the VA) must satisfy its burden of persuasion as to the examiner's qualifications."82
But the court also explained that claimants' burden of rebutting the presumption must be offset by
"the ability to secure from the VA the information necessary to raise the competency challenge."83
Thus, once a claimant requests information about an examiner's qualifications, he or she "has the
right, absent unusual circumstances, to the curriculum vitae and other information about
qualifications of a medical examiner. This is mandated by the VA's duty to assist."84 The Francway
court, however, expressly declined to "address the applicability of the presumption of competency
in cases," such as Wise, "where the veteran did not challenge the examiner's competency, but the
record independently demonstrates an irregularity in the process of selecting the examiner." 85
Moreover, the court did not find any irregularity suggested by the fact that the Board asked for an
opinion from "an appropriate medical specialist." The Federal Circuit saw "no reason to distinguish
between how the presumption applies to 'general' medical examiners as compared to 'specialists.'
The presumption is that VA has properly chosen an examiner who is qualified to provide
competent medical evidence in a particular case absent a challenge by the veteran."86
B. Application to the Instant Appeal
Wise was an odd case, seemingly ripped straight from a law school textbook. There, the
traditional policy concern behind the presumption—requiring the production of evidence about an
79
Id. at *1.
80
Id.
81
Id. at *3.
82
Id.
83
Id.
84
Id. at *4.
85
Id. at *3 n2.
86
Id. at *4.
10
examiner's qualifications before those qualifications have even been challenged—was not present
because the examiner herself explicitly called her own qualifications into question; her
qualifications were not attacked post hoc.87 Thus, there was no need for additional evidentiary
production; the record itself raised the issue of competence, compelling the Board to address it.
Here, we have no such explicit admission of incompetence or anything in the record that,
as the Federal Circuit described Wise in Francway, "independently demonstrates an irregularity in
the process of selecting the examiner." 88 Instead, the appellant argues a prior judicial finding
regarding VA's chosen examiner, Dr. Wilhelm, and several news articles on Dr. Wilhelm's
supervising other physicians' improperly administered examinations, are close enough to the facts
in Wise such to excuse his failure to challenge Dr. Wilhelm's competence at the Board. They are
not close enough, and so we will not excuse the failure.
On the one hand, the Federal Circuit has made clear the presumption of competence
requires veterans to object to an examiner's qualifications before doing so in this Court.89 On the
other, the Board cannot ignore facially obvious issues of competence.90
In this appeal, however, we cannot reach that question. The documents the appellant relies
on to attack Dr. Wilhelm's competence are beyond this Court's ability to consider because " we are
precluded by statute from considering any material which was not contained in the record of
proceedings before the Secretary and the Board."91 The appellant fully admits he did not provide
the documents to the Board or otherwise inform it of their existence. And he makes no argument
about why these documents could constructively be considered a part of the administrative record.
And even if it were our place to make arguments for him, we can think of no reason that these
records would have been constructively before the Board. Thus, we return to the default rule that
the appellant needed to object to Dr. Wilhelm's competence before the Board before doing so
here.92 Because he failed to do so, the Board's reliance on Dr. Wilhelm's opinion was not clearly
87
26 Vet.App. at 527.
88
__ F.3d at __, 2019 WL 3294051, at *3 n2.
89
See Parks, 716 F.3d at 585.
90
See Wise, 26 Vet.App. at 525.
91
Id. at 612 (citing 38 U.S.C. § 7252(b)); see also Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013).
92
See Parks, 716 F.3d at 585.
11
erroneous because in the absence of an objection from the appellant the record contained nothing
to raise the issue of his competence.
The appellant makes several arguments about whether Dr. Wilhelm's litigation history and
the extra-record documents he has submitted are sufficient to rebut the presumption of
competence. But for purposes of constituting the record on appeal, these records would not be
constructively before the Board. In Bell v. Derwinski, the Court held that if (1) "items were clearly
generated by" VA or the "item was submitted to the VA by appellant as part of [the] claim and (2)
the documents predate the Board opinion on appeal, then the evidence was before the Secretary
and could properly be considered part of the record on appeal.93 The proper inquiry is whether the
documents proffered by the appellant (1) are within the Secretary's control and (2) could
reasonably be expected to be a part of the record. In this case, even if Dr. Wilhelm's employment
records were within the Secretary's control, they would not be part of the appellant's claims file,
nor would Dr. Wilhelm's personnel records "reasonably be expected" to be part of the record on
appeal. Nor does the Board's request for an opinion "by an appropriate examiner (preferably a
hepatologist)" alter this conclusion.94
It is worth noting that, as the Secretary recognized at oral argument,95 if the appellant had
properly submitted these documents to the Board, the Board likely would have been required to
discuss them, even if the appellant had not expressly raised the argument. 96 The Secretary's
concession is consistent with the Federal Circuit's comment in Francway that the Wise exception
is not limited to the precise facts of that case but also concerns those parts of the record that
"independently demonstrate[] an irregularity in the process of selecting the examiner."97 Given the
facts here, we have no occasion to say more on this subject, just as the Federal Circuit did not in
Francway.98
93
2 Vet.App. 611, 612-13 (1992).
94
As Francway recently clarified, the presumption of competence applies to VA's selection of "specialists" just as
much as "general" medical examiners. __ F.3d at __, 2019 WL 3294051, at *4.
95
See Oral Argument at 31:52-32:24, https://www.uscourts.cavc.gov/documents/Fears17-2345.mp3.
96
See Robinson v. Peake, 21 Vet.App. 545. 552 (2008); Urban v. Principi, 18 Vet.App. 143, 145 (2004); Brannon v.
West, 12 Vet.App. 32, 35 (1998).
97
Francway, __F.3d at __, 2019 WL 3294051, at *3 n2.
98
Id.
12
In sum, this case involves a straightforward application of existing precedent. The appellant
failed either to request information about the examiner's qualifications to explore his competence99
or to object to the examiner's qualifications before the Board as required by Cox and its progeny.
He can escape defeat only if the facts of this case rise to the level of those found sufficient to rebut
the presumption without objection in Wise. The only documents he has submitted were neither
actually nor constructively before the Board, and so we cannot consider them. Thus, because the
appellant's argument has no merit under even the most liberal reading of our decision, we need not
precisely define the outer boundaries of Wise.100
C. Other Arguments
The appellant also argues the Board failed to ensure substantial compliance with its May
2014 remand order.101 This error, he contends, stems from a scrivener's error on the part of the RO
in a document concerning missing records, in which the RO stated that it had found no records for
"Robert M. Marx."102 We find no merit in this argument.
First, it is apparent from the face of the document that it concerned the appellant.
Specifically, the document listed the relevant veteran as "Stenson Fears" as well as the appellant's
correct claim and Social Security numbers. 103 Second, the facility VA requested records from
properly sent records for the appellant.104 Thus, this argument is without merit as the appellant
fails to show (or even allege) how this error is prejudicial.105 And we can think of no reason why
it would be.
99
See Nohr v. McDonald, 27 Vet.App. 124, 132-33 (2014).
100
The appellant attempted to raise new arguments in his December 10, 2018, motion for panel review, but we do not
consider them because arguments not presented in an opening brief are deemed forfeited on appeal. See Pederson v.
McDonald, 27 Vet.App. 276, 283 (2015) (en banc).
101
Appellant's Brief (Br.) at 13-14; see also Stegall v. West, 11 Vet.App. 268, 271 (1998); Dyment v. West,
13 Vet.App. 141, 146-47 (1999).
102
See Appellant's Br. at 13-14; R. at 608. The appellant did not raise the issue of Dr. Wilhelm not being a hepatologist.
Thus, we consider that argument waived. See Pederson, 27 Vet.App. at 283.
103
See R. at 608.
104
See R. at 701-04.
105
See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table);
see also Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (noting that the courts of appeal are "not required
to manufacture appellant['s] argument").
13
Finally, in an April 2011 Supplemental Statement of the Case, an RO found that "hepatitis
A is denied because the infection completely resolved without residual."106 This statement referred
to the findings of a January 2011 VA examiner.107 Appellant contends that statement amounts to
a favorable factual finding conceding that he, at one time, had a hepatitis A infection. But the
Board found that examination inadequate, 108 and, in any event, is not bound by the RO's
determinations, even favorable ones.109 So, this argument, too, is without merit.
III. CONCLUSION
The Board's April 6, 2017, decision is AFFIRMED.
106
R. at 620.
107
R. at 668-77.
108
R. at 4.
109
See McBurney v. Shinseki, 23 Vet.App. 136, 139 (2009); Anderson v. Shinseki, 22 Vet.App. 423 (2009).
14