Nohr v. McDonald is a Court of Appeals for Veterans Claims (CVAC) precedential opinion issued on 30 October 2014. The Court ruled that questions the veteran put to the VA, but which VA refused to answer, raised reasonable issues regarding:
- the examining VA psychiatrist’s (Dr. Feng) competence (she evaluated the veteran and opined that his dysthymia [chronic depression] was not incurred during his military service);
- the adequacy of the doctor’s opinion; and
- whether VA had fulfilled its duty to adequately assist the veteran obtain information vital to his claim.
You can read the Court’s opinion or listen to the hearing . I highly recommend listening to the oral arguments, as the judges ask some incisive questions, and the veteran’s attorney, Robert V. Chisholm, offers cogent explanations for their position and demonstrates extensive knowledge of veterans law. 
VA Psychiatrist’s Competence
The Court’s reasoning in the section titled, “Dr. Feng’s Competence and the Adequacy of her Opinion” makes sense. The veteran had a right to know what Dr. Feng meant by “personal limitations.”
The veteran’s questions 9-11 (p. 5 of the Court’s opinion) are also reasonable because the veteran has a right to know the basis for the doctor’s conclusion that the veteran’s symptoms followed a “typical dysthymic disorder picture.” What did she mean by that? She might very well have a very good answer to the question, backed up by references to the scientific literature on dysthymia, but she (apparently) did not include any of that in her exam report.
VA’s Duty to Obtain Psychiatrist’s Records
The section of the Court’s opinion titled, “VA’s Duty to Obtain Records” is more involved. Two of the questions the veteran asked might be reasonable, but they will likely not prove helpful to his case.
- The veteran asked VA to provide a transcript of Dr. Feng’s evaluation interview with the veteran. I do not know any C&P examiner who records their evaluation sessions with veterans, so the presence of a transcript is highly unlikely.
- The Veteran also asked for the doctor’s handwritten notes of the evaluation session. The VA operates a ‘paperless’ medical records system, consequently most examiners do not retain copies of hand-written notes after the exam report has been written.
The veteran asked the VA for a copy of the doctor’s curriculum vitae (CV) [resume], which the VA refused to provide. A CV doesn’t seem like a big deal. I don’t understand the rationale for not providing something that simple.
Burden on VA vs. Veterans’ Due Process Rights
VA C&P examiners and administrators are probably worried that the Court’s decision will lead to a deluge of post-exam questions, requests for notes and test results, subpoenas to appear for depositions, etc. I can certainly understand this concern as it will require substantially more staff time and resources to respond to such requests.
But having read many lousy mental health (MH) C&P exam reports over the years, it seems vets should have the right to question a poorly reasoned opinion, vague language, unsubstantiated conclusions, etc., for simple fairness, if not for Constitutional reasons. Support for this right also comes from the Court’s expectation that VA conduct consistent, accurate C&P exams of veterans claiming disability benefits, including claims due to service-related PTSD or other mental disorders.
Courts Expect Reliable and Valid Compensation and Pension Examinations
I make this assertion in part because the courts expect high quality disability evaluations from VA or private C&P examiners. For example:
We believe that fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. (Green v. Derwinksi, 1 Vet. App. 121 at 125, 1991). [emphasis added]
Also consider that the CVAC has previously held in Nieves-Rodriguez v. Peake that FRE 702 (Federal Rules of Evidence 702) offers useful guidance to the Board of Veterans Appeals when weighing the probative value of one expert’s opinion versus another’s.
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
In the same case, the Court also wrote:
“That the medical expert is suitably qualified and sufficiently informed are threshold considerations; most of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service connection or rating context if it contains only data and conclusions. … It is the factually accurate, fully articulated, sound reasoning for the conclusion … that contributes probative value to a medical opinion.” – Nieves-Rodriguez v. Peake, 22 Vet. App. 295 at 306 (2008). [emphasis added]
Beneficial Effect on VHA
So it is clear that the CAVC expects high quality C&P exams and well-written reports, including those for PTSD and other mental disorders claims.
C&P examiners having to answer written interrogatories might have a beneficial impact on the Veterans Health Administration (VHA), viz., it might force VHA to develop quality standards for C&P exams, along with a rigorous QA (quality assurance) program for C&P exams. That in turn would force administrators who demand 15, 20, or even 30 exams per week from MH C&P examiners to reexamine their factory production model.
Possibility of Written Interrogatories in Veterans Law Cases is Not New
The possibility of written interrogatories should not come as a complete surprise to VHA. Five years ago, in a Federal Circuit case, Gambill v. Shinseki, 576 F. 3d 1307 (2009), a veteran argued that he should be able to confront a witness against him, a physician who wrote a medical opinion contrary to his benefit claim. Specifically, the veteran wanted to submit written interrogatories to the physician.
The Court declined to answer that question because the absence of a right to confrontation was not prejudicial in the case. However, two of the judges on the three-judge panel wrote concurring opinions, one of which opposed the idea of allowing interrogatories of expert witnesses in veteran’s benefits cases and the other arguing in favor. Judge Moore, writing in favor, wrote:
Mr. Gambill raises a very serious question on an issue of fundamental importance to due process, and I cannot agree that we should foreclose these arguments, or the opportunity for future veterans to develop evidence of the risk of error, especially in view of the government’s total lack of evidence that interrogatories would create a significant burden. To the contrary, for the reasons discussed, I believe that the submission of a small number of informal interrogatories to doctors by the veteran or administered by DVA would significantly further Congress’ goal of swiftly getting benefits into the hands of deserving veterans. – Gambill v. Shinseki, 576 F. 3d 1307 at 1324, J. Moore, concurring. [emphasis added]
 The audio of the court hearing is in WMA (Windows Media Audio) format, which might not work on non-Windows computers, e.g., I use a Chromebook which does not process WMA files. However, you can easily convert the hearing audio file from WMA to another audio format, e.g., mp3. I used a free online service called CloudConvert, which worked quite well. The fastest way to use CloudConvert is to copy the URL for the hearing – http://www.uscourts.cavc.gov/documents/Noir.wma – and then once on the CloudConvert.org website, select the option for converting from a URL.
 I do not know Mr. Chisholm. I’m simply calling ’em as I hears ’em. ;-)