Nohr v. McDonald

  • Court: United States Court of Appeals for Veterans Claims
  • Case Number: 13-1321
  • Decided: October 30, 2014
  • Judges: Bruce E. Kasold | Mary J. Schoelen | William S. Greenberg

Parties Involved

  • Plaintiff(s):James A. Nohr
    • Counsel for Plaintiff: Robert V. Chisholm


  • Defendant(s): Robert A. McDonald, Secretary of Veterans Affairs
    • Counsel for Defendants: Drew Aaron Silow|  Mary Ann Flynn | Edward V. Cassidy, Jr.



James A. Nohr served on active duty in the U.S. Air Force from July 1971 to February 1975. The enlistment examination did not identify any psychiatric disability, so they presumed he entered service in sound condition regarding any psychiatric disorder. In June 1972, a service medical record showed that Nohr complained of feeling tired, rundown, nervous, and experiencing decreased appetite and sleep. His June 1974 discharge examination noted frequent trouble sleeping, depression, and excessive worry related to “shift work.”

In February 2003, Nohr filed a claim for disability compensation for a dysthymic disorder (a chronic depressive condition). In May 2003, he underwent a VA examination, where the examiner diagnosed him with a dysthymic disorder, alcohol dependency (in remission), and cocaine and polysubstance abuse (in remission). The examiner opined that Nohr’s dysthymic disorder existed before enlistment and was not exacerbated by military service.

Dr. Y. Feng,  a VHA psychiatrist opined that there was clear and unmistakable evidence that Nohr’s preexisting dysthymic disorder was not aggravated by service.

Court Discussion

The Court discussed the Board’s authority to obtain a VHA medical opinion and the claimant’s right to respond. The Court found that the Board erred by failing to address Nohr’s questions and requests for documents related to Dr. Feng’s competence and the adequacy of her opinion. The judges also determined that the Board failed to address whether VA had a duty to assist Nohr. Specifically, this concerned obtaining the requested documents from Dr. Feng.


The Court held that the Board’s reasons-or-bases error was prejudicial because the Board concluded that Dr. Feng’s opinion was adequate and supported by an extensive rationale without addressing Nohr’s questions, which reasonably implicated Dr. Feng’s competence and the adequacy of her opinion. The Court vacated the Board’s decision and remanded the matter for further proceedings.

Key Takeaways

  1. The Board must address issues reasonably raised by the claimant or the evidence of record.
  2. The Board must provide an adequate statement of reasons or bases when addressing a claimant’s challenge to a medical expert’s competence or the adequacy of a medical opinion.
  3. The Board must consider whether VA’s duty to assist requires obtaining records or clarification from a medical expert when requested by the claimant.
  4. Had Nohr received the documentary evidence and answers to his questions, he may have been able to diminish the probative value of Dr. Feng’s medical opinion below the level of “clear and unmistakable evidence” so that the Board, on the current record, would not have had a sufficient evidentiary basis to find the presumption of soundness rebutted.