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Court Wins

CCK Wins Precedential Decision in Nohr v. McDonald

Michael Lostritto

November 5, 2014

Updated: June 20, 2024

Court Win - Service Connection lung disorder

Summary of the Case

The Veteran, James Nohr, served in the United States Air Force from 1971 to 1975. In 2003, the Veteran submitted a claim for service connection for dysthymic disorder which the Regional Office subsequently denied. The Veteran appealed to the Board of Veterans’ Appeals and was again denied service connection. He appealed to the Court of Appeals for Veterans Claims (CAVC) in 2009, 2011, and again in 2013.

In July 2012, a VA examiner opined that the Veteran “did not endorse any traumatic event other than his ordinary military duty” to support his claim for service connection for dysthymic disorder, and that his condition preceded his military service and was not aggravated by his active duty. Additionally, the examiner mentioned her own “personal limitations” in rendering the medical opinion. Following the examiner’s opinion, the Veteran submitted a number of questions to the examiner, as well as a request for documents in relation to the examiner’s qualifications and notes from the examination. The Veteran also requested that the Board subpoena the examiner to appear at the Veteran’s hearing. The Board rejected the Veteran’s request for documentation from the examiner, as well as his request that the examiner attend the hearing. The Board denied the Veteran’s claim for service connection, relying on the examiner’s opinion.

The Veteran appealed to CAVC stating that the Board violated his Fifth Amendment due process rights by denying him the opportunity to question the examiner and obtain information necessary to arguing against the examiner’s negative opinion.

Can a Veteran Request the Credentials of a VA Examiner?

The case dealt in part with the question of whether a veteran, or a veteran’s advocate, could (1) ask questions of the examiner and (2) request to see a VA examiner’s credentials following a Compensation and Pension examination (C&P). Mr. Nohr had requested that VA provide a copy of the examiner’s curriculum vitae, transcript of his evaluation with the examiner, as well as a copy of any of the examiner’s handwritten notes from the evaluation.

The main issue of the case was whether veterans should have the right to question a poorly reasoned opinion by an examiner, or an opinion that is vague or does not offer rationale for its conclusions. The Veteran argued that the Board denied his right to meaningfully participate in his claim by questioning the examiner and requesting documentation necessary for arguing against the examiner’s opinion.

Robert Chisholm Argues on Behalf of Veteran

Mr. Chisholm presented argument in front of a three-judge panel, arguing that the examination the veteran underwent was inadequate and that when the Veteran asked VA to provide clarification on the examiner’s opinion, VA violated the Veteran’s due process rights in rejecting  his request to question the examiner at a hearing and provide the information requested of the examiner.

Mr. Chisholm argued that the Veteran deserves the right to “peak under the hood” of the examiner’s reasoning to be able to know how the examiner came to her conclusion. He stated that “it is fundamentally unfair for the VA to slam the door shut on a claimant who seeks information relevant to his claim,” preventing the claimant from meaningfully participating in the process of his claim.

The examiner states her own “personal limitations” in respect to the opinion that she rendered, and Mr. Chisholm argues that ambiguity should give the Veteran the right to question the examiner. There is no regulation regarding if and when claimants are allowed to submit “interrogatories,” or questions. Mr. Chisholm argues that when an examiner’s opinion does not explain their reasoning in arriving to their opinion, claimants should have the opportunity to question the opinion.

In this case, Mr. Chisholm argues that VA found there was clear and unmistakable evidence that the veteran’s pre-existing dysthymic disorder was not aggravated by his military service, and the VA relied on the examiner’s opinion to arrive at that conclusion. As the examiner’s opinion failed to adequately address this issue, the veteran should be able to submit interrogatories and rebut the examiner’s opinion.

The Court Rules In Favor of Veteran

In its decision, the Court found that interrogatories filed by CCK on behalf of the veteran triggered its obligation to more closely scrutinize its own expert’s opinions. They found that the questions and evidence requested by the Veteran reasonably raised issues of the examiner’s competence, the adequacy of the examiner’s opinion, and VA’s duty to assist.

The Court questioned why the Veteran’s request for documents from the examiner was not considered to trigger VA’s duty to assist veterans in obtaining records in support of his claim. On this basis, the Court found that the Board’s decision contained inadequate reasons and basis for its denial of benefits. The Court reminded VA of its obligation to address all issues reasonably raised by the veteran or the evidence of record.

The Court also held that the Board could not ignore the Veteran’s request for information that may help challenge the competence of the VA examiner. The answers to the Veteran’s questions may have allowed him to “diminish the probative value” of the examiner’s opinion so that the Board “would not have had a sufficient evidentiary basis to find the presumption of soundness rebutted.”

The Court vacated the Board’s decision and remanded the case back to the Board for adjudication.

About the Author

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael