James A. Nohr v. Robert A. McDonald
2014 U.S. Vet. App. LEXIS 1821
Vet. App.2014Background
- Veteran James A. Nohr filed for VA disability for dysthymic disorder; RO and Board initially denied, finding disorder preexisted service and was not aggravated.
- Board obtained a VHA medical advisory opinion from Dr. Feng concluding Nohr’s dysthymia was not aggravated by service; Dr. Feng later provided an addendum and noted a vague "personal limitation."
- The Board furnished Dr. Feng’s opinion to Nohr and allowed 60 days to respond; Nohr’s counsel submitted an affidavit and eleven written questions/requests (labeled "interrogatories"), including a request for Dr. Feng’s CV, notes, and clarification of terms used.
- The Board refused to forward questions or subpoena Dr. Feng, denied the interrogatory request based on lack of regulatory authority and the nonadversarial nature of the system, and relied on Dr. Feng’s opinion to find clear and unmistakable evidence rebutting the presumption of soundness.
- The Court held the Board erred by failing to address whether Nohr’s questions reasonably raised issues about (1) Dr. Feng’s competence, (2) adequacy of her opinion, and (3) VA’s duty to assist in obtaining requested records; the Board also failed to provide reasons or bases for refusing further development.
- Court vacated the Board decision and remanded for further development (clarification, potential record collection, and reconsideration), finding prejudice because the Board relied on the opinion while ignoring reasonably raised challenges that could have diminished its probative value.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board erred by refusing to have the VHA expert answer written questions or produce documents | Nohr: Denial violated due process and deprived him meaningful opportunity to rebut adverse medical opinion; interrogatories could show flaws | Sec'y: No due process right to submit interrogatories to VA doctors; any error harmless because questions wouldn't change outcome | Court: Board erred in failing to address substance of questions that reasonably raised competence, adequacy, and duty-to-assist issues; constitutional issue not reached |
| Whether the VHA expert’s competence and opinion adequacy were reasonably challenged | Nohr: Dr. Feng’s "personal limitation" remark and requests for CV/notes reasonably called competence and adequacy into question | Sec'y: Presumption of competence attaches and opinion was adequate and well-rationalized | Court: The requests and statement could overcome presumption of competence; Board should have addressed competence and/or sought clarification or explained why unnecessary |
| Whether VA had a duty to obtain documents (CV, notes, correspondence) from the VHA examiner | Nohr: Requests for documents identified records VA should assist in obtaining under duty-to-assist | Sec'y: Board found no outstanding records requested, duty satisfied | Court: Board improperly ignored document requests; duty-to-assist may require obtaining these records and Board must address that obligation |
| Prejudice and remedy (whether error was harmless) | Nohr: Error prejudicial because VA bore burden to show clear-and-unmistakable evidence of no aggravation; answers might have reduced probative weight | Sec'y: Any error harmless because interrogatories would not have changed conclusion | Court: Error was prejudicial and remand required; cannot say outcome unchanged given VA's heavy burden to rebut presumption of soundness |
Key Cases Cited
- Bucklinger v. Brown, 5 Vet.App. 435 (1993) (courts should avoid unnecessary constitutional rulings)
- Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013) (presumption that VA-selected medical examiners are qualified)
- Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (veteran must raise examiner-competence challenge before the Board or waive it)
- D'Aries v. Peake, 22 Vet.App. 97 (2008) (VA-obtained medical opinions must be adequate)
- Stefl v. Nicholson, 21 Vet.App. 120 (2007) (examination/opinion adequate if based on prior history and explains conclusions)
- Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) (medical exam must connect conclusions to supporting data)
- Wagner v. Principi, 370 F.3d 1089 (2004) (standard for rebutting presumption of soundness)
- Horn v. Shinseki, 25 Vet.App. 231 (2012) (Secretary may develop evidence to rebut presumptions)
- Allday v. Brown, 7 Vet.App. 517 (1995) (Board must provide adequate statement of reasons or bases)
- Tucker v. West, 11 Vet.App. 369 (1998) (remand is appropriate remedy when Board fails to provide adequate reasons or bases)