The Future of Interrogatories Under Nohr v. McDonald

Abstract

Historically the Board of Veterans’ Appeals (Board) has been a non-adversarial system with limited litigation tools available to veterans and their representatives. This changed with Nohr v. McDonald, where the United States Court of Appeals for Veterans Claims held that the Board should have entertained a representative’s request for interrogatories of a Veteran’s Health Administration (VHA) physician. The decision leaves the Board facing the prospect of significantly altering its litigation policy. This article discusses the procedural due process concerns of interrogatories before offering a resolution to implement them with Board judicial regulation and processing. Although the Court of Appeals for the Federal Circuit has debated the relevance of interrogatories in Gambill v. Shinseki, to date there has been no literature reviewing both the relevance and reasonableness of interrogatories while offering recommendations for how VA should execute them. Specifically, this article reflects on the relevance of interrogatories by exploring the veteran’s interest in using them and how the veteran would be affected by not having interrogatories considering the alternative procedural safeguards. Then the article analyzes the reasonableness of interrogatories by examining the government’s interest in fact-finding exercises and making timely and supported decisions while weighing the burdens of affecting the adversarial balance in the Board’s system and increasing the backlog at both the Board and VHA. Finally, the article offers proposals for effecting interrogatories at the Board by allowing Veterans Law Judges to regulate the process and utilize a branch already housed within the Board to carry out the interrogatory requests. This article begins the conversation on interrogatories in veterans law and offers application suggestions for a more seamless transition into using interrogatories as a litigation tool.