United States Court of Appeals for the Federal Circuit 

2008-7120 

RICHARD GAMBILL, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee. 

Michael A. Morin, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of 

Washington, DC, argued for claimant-appellant. Mark A. Lippman, The Veterans Law 

Group, of LaJolla, California, for claimant-appellant. 

Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, argued for 

respondent-appellee. On the brief were Jeanne E. Davidson, Director, Todd M. 

Hughes, Deputy Director, and Elizabeth A. Holt, Trial Attorney. Of counsel on the brief 

were David J. Barrans, Deputy Assistant General Counsel, and Martie S. Adelman, 

Attorney, Office of the General Counsel, United States Department of Veterans Affairs, 

of Washington, DC. 

 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge William A. Moorman
United States Court of Appeals for the Federal Circuit

2008-7120 

RICHARD GAMBILL, 

 Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

Appeal from the United States Court of Appeals for Veterans Claims 

in 06-1943, Judge William A. Moorman. 

___________________________ 

DECIDED: August 13, 2009 

___________________________ 

Before BRYSON, LINN, and MOORE, Circuit Judges. 

Opinion for the court filed PER CURIAM. Concurring opinions filed by Circuit Judge

BRYSON and Circuit Judge MOORE. 

PER CURIAM. 

Richard Gambill served in the United States Army between 1969 and 1971. 

During his service, a trash barrel fell on his head, resulting in a one to two centimeter 

laceration on his scalp and an abrasion on his forehead. When he left the service, his 

separation examination was normal. In 1994 and 1995, Mr. Gambill was treated for 

bilateral cataracts. At that time, his physician told him it is possible for a blow to the 

head to cause cataracts. Thereafter, Mr. Gambill filed a claim for disability benefits with 
2008-7120 2 

a regional office of the Department of Veterans Affairs (“DVA”). In his claim, he 

asserted that his cataracts were service-connected because they were caused by the 

blow to his head that he suffered during military service. Following a DVA consultation 

examination, the regional office denied his claim. Mr. Gambill then appealed to the 

Board of Veterans’ Appeals. He waived his right to a hearing before the Board. 

By regulation, the Board is authorized to request a medical opinion from a health 

care professional in the DVA’s Veterans Health Administration (“VHA”) whenever, in the 

Board’s judgment, “medical expertise is needed for equitable disposition of an appeal.” 

38 C.F.R. § 20.901. The Board is also authorized to obtain a medical opinion from an 

independent medical expert if “expert medical opinion, in addition to that available within 

the Department, is warranted by the medical complexity or controversy involved in an 

appeal case.” 38 U.S.C. § 7109(a). 

In Mr. Gambill’s case, the Board concluded that the examiner who conducted the 

consultation examination “did not adequately address the etiology of [Mr. Gambill’s] 

bilateral cataracts including whether [his] bilateral cataracts were caused by an 

inservice blow to the head.” The Board therefore requested an additional opinion from a 

VHA ophthalmologist “as to whether the veteran’s bilateral cataracts and residuals 

thereof are as likely as not the result of an inservice head injury.” The ophthalmologist 

did not examine Mr. Gambill, but provided a report containing a medical opinion. The 

report summarized Mr. Gambill’s medical history, listed the risk factors for the 

development of cataracts, and then stated, “In a search of the literature, I could find no 

reports suggesting head trauma was a cause or an associated risk factor in the 

development of cataracts.” The ophthalmologist added that “certainly direct eye trauma 
2008-7120 3 

is an associated risk factor for cataract development [but] the patient denies ocular 

trauma.” 

Pursuant to regulation, the Board provided Mr. Gambill with a copy of the 

ophthalmologist’s opinion and advised him that he had 60 days “to review the medical 

opinion and send us any additional evidence or argument you may wish to make.” Mr. 

Gambill availed himself of that opportunity by submitting a statement in support of his 

contention that the blow to his head during service had caused his cataracts. Mr. 

Gambill provided excerpts from several articles found on the Internet. One stated that 

“cataract formation after non-perforating injuries such as contusion or concussion may 

occur without any damage to the lens capsule.” A second identified “trauma (e.g., head 

injury or puncture wound)” as among the causes of cataracts. In addition, Mr. Gambill 

submitted a letter from his physician stating that “[i]t is possible that a blow to the head 

can contribute to the development of cataracts and retinal detachments.” Mr. Gambill 

waived his right to have his case remanded to the regional office for review of the 

evidence he had submitted and instead asked that the Board proceed with the 

adjudication of his appeal. 

After reviewing all the evidence before it, the Board denied service connection for 

Mr. Gambill’s cataracts. The Board recognized that Mr. Gambill had submitted 

evidence, including statements from two physicians, that head trauma could cause 

cataracts, but it determined that nothing in the record suggested that Mr. Gambill’s 

cataracts were caused by his head injury. With respect to the physicians’ letters, the 

Board noted that the physicians “did not specifically state that the veteran’s cataracts 

developed because of his inservice head injury,” and that to the extent the letters were 
2008-7120 4 

offered to establish that Mr. Gambill developed cataracts as a result of his in-service 

head injury, “they are insufficient in that the doctors did not specifically address the 

circumstances in this case.” 

The Board reached the same conclusion with respect to the materials from the 

Internet that Mr. Gambill submitted in support of the proposition that head trauma can 

cause cataracts, noting that those materials “were not prepared with consideration of 

the circumstances of this case.” The Board therefore ruled that “[i]t would be 

speculative to find that the veteran’s cataracts in this case, first noted in the 1990s, were 

the result of an inservice head injury, based on the simple fact that head injuries can 

possibl[y] cause cataracts.” Even if the VHA ophthalmologist was in error as to whether 

head trauma can cause cataracts, the Board explained, “[t]here simply is no evidence of 

record, to include the medical treatise excerpts or [Mr. Gambill’s] private physicians’ 

statements . . . which actually makes this nexus connection. . . . The objective evidence 

of record does not show a relationship between the veteran’s cataracts and his 

inservice head injury, and it does not provide for a favorable result in this case.” The 

Board added that the lack of evidence linking Mr. Gambill’s cataracts to his in-service 

head injury was “particularly dispositive as the first medical evidence of record of 

cataracts was not until many years after service separation.” 

Mr. Gambill appealed to the Court of Appeals for Veterans Claims (“the Veterans 

Court”). In his brief to that court, he asserted that the DVA had violated his rights under 

the Due Process Clause of the Fifth Amendment to the Constitution by not allowing him 

to submit written interrogatories to the VHA ophthalmologist and by failing to advise him 

that he had the right to do so.
2008-7120 5 

The Veterans Court affirmed. It rejected Mr. Gambill’s due process claim on the 

ground that an applicant for DVA disability benefits does not have a sufficient property 

interest in the prospect of receiving benefits to trigger the procedural protections of the 

Due Process Clause. Instead, the court ruled that “creating a procedural right in the 

name of fair process principles [for applicants for DVA disability benefits] is primarily 

based on the underlying concept of the VA adjudicatory scheme, not the U.S. 

Constitution.” Gambill v. Peake, No. 06-1943, 2008 WL 1883915, at *2 (Ct. Vet. App. 

Apr. 28, 2008), quoting Prickett v. Nicholson, 20 Vet. App. 370, 382 (2006). With 

respect to the Board’s authority to conduct its own evidentiary development by 

requesting a medical opinion, the court stated that the Board “must ensure that it 

provides the appellant fair process in the adjudication of his claim,” and that “in 

rendering a decision on a claim, on any evidence developed or obtained by it, [the 

Board] must provide a claimant with reasonable notice of such evidence and of the 

reliance proposed to be placed on it, and a reasonable opportunity for the claimant to 

respond to it,” including the right to submit additional evidence. Id., quoting from 

Thurber v. Brown, 5 Vet. App. 119, 126 (1993). In this case, the court held, the Board 

gave Mr. Gambill notice of the VHA ophthalmologist’s opinion and an opportunity to 

submit additional evidence in response, which satisfied the requirements of fairness in 

the adjudication of his claim. Mr. Gambill then appealed to this court. 

I 

Mr. Gambill argues that the Due Process Clause of the Fifth Amendment 

requires that all veterans who apply for disability benefits must be afforded the 
2008-7120 6 

opportunity to confront adverse medical evidence, at least through the use of 

interrogatories. In addition, he contends, they must be given notice of that right. 

Although the Supreme Court has declined to address the question whether due 

process protections apply to the proceedings in which the DVA decides whether 

veteran-applicants are eligible for disability benefits, see Walters v. Nat’l Ass’n of 

Radiation Survivors, 473 U.S. 305, 312, 320 n.8 (1985), we have recently held that the 

Due Process Clause applies to such proceedings. See Cushman v. Shinseki, No. 2008-

7129 (Fed. Cir. Aug. 12, 2009). Accordingly, we turn to the question whether Mr. 

Gambill’s due process rights were violated by the failure to provide him with the right to 

serve interrogatories on the VHA ophthalmologist and to notify him that he had that 

right. 

II 

By regulation, the Board of Veterans’ Appeals provides a claimant with notice 

that a VHA opinion has been requested and provides a copy of the opinion when it is 

received by the Board. 38 C.F.R. § 20.903(a); see also 38 U.S.C. § 7109(c) (when the 

DVA obtains an opinion from an independent medical expert, the Board similarly notifies 

the claimant of the request for an expert opinion and provides a copy of the expert’s 

report as soon as it is received). The claimant then has 60 days to respond to the 

medical opinion by submitting any relevant evidence or argument that may assist the 

Board in reaching an equitable result. 38 C.F.R. § 20.903(a). 

Mr. Gambill argues that the Due Process Clause is not satisfied by giving the 

veteran the opportunity to respond to an opinion from a VHA medical professional or an 

independent medical examiner, but that the veteran must be given an opportunity to 
2008-7120 7 

confront any physician who submits a medical opinion that the veteran regards as 

contrary to his interests in whole or in part. The submission of interrogatories, he 

contends, is the minimum necessary to satisfy his due process right to confront the 

evidence against him. 

We need not address the broad questions whether the absence of confrontation 

rights in veterans’ benefits cases renders such proceedings fundamentally unfair in 

general, or whether it could render the proceedings unfair in a particular case, because 

it is clear that the absence of a right to confrontation was not prejudicial in this case.1

 

Even assuming that claimants in veterans’ disability compensation proceedings have a 

constitutional right to challenge adverse evidence through interrogatories, the denial of 

that right in a particular case is subject to harmless error analysis. The Supreme Court 

has held that even in criminal cases, in which the right of confrontation is expressly 

guaranteed by the Sixth Amendment, a violation of that right can be harmless error. 

See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); see also Neder v. United 

States, 527 U.S. 1, 18 (1999); Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988). Harmless 

error is fully applicable to veterans’ claims cases, subject to the same principles that 

apply generally to harmless error analysis in other civil and administrative cases. See

Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009) (citing the harmless error provision 

of title 38 that applies to proceedings before the Court of Appeals for Veterans Claims, 

38 U.S.C. § 7261(b)(2), and the parallel harmless error provision of the Administrative 

 

1

 Because Mr. Gambill has argued that due process required not only that he 

be allowed to serve interrogatories on medical experts, but also that he be advised of 

that right, we do not rest our decision on his failure to request that he be allowed to 

serve interrogatories on the VHA ophthalmologist. 
2008-7120 8 

Procedure Act, 5 U.S.C. § 706, that applies generally to administrative proceedings). In 

such cases, the party “who seeks to have a judgment set aside because of an 

erroneous ruling carries the burden of showing that prejudice resulted.” Palmer v. 

Hoffman, 318 U.S. 109, 116 (1943); see also Sanders, 129 S. Ct. at 1706 (“the party 

seeking reversal normally must explain why the erroneous ruling caused harm”). 

As the Board of Veterans’ Appeals found, the evidence that Mr. Gambill 

presented in support of his claim was clearly insufficient to establish service connection 

for his cataracts because it failed to show a causal nexus between his in-service head 

injury and his cataracts. The evidence that Mr. Gambill presented to the regional office 

and the Board consisted of the following: (1) he suffered a head injury during service; 

(2) he developed cataracts more than 20 years later; and (3) his treating physician 

stated that “[i]t is possible that a blow to the head can cause cataracts.”2

 That evidence 

showed only that it is possible that cataracts can be caused by head trauma; it did not 

show that Mr. Gambill’s cataracts were caused by the injury he suffered in service. 

Because the DVA consultation examination did not support Mr. Gambill’s claim 

that his cataracts were caused by his in-service head injury, the Board requested an 

opinion from the VHA ophthalmologist and specifically asked that she address whether 

Mr. Gambill’s cataracts were as likely as not the result of his in-service injury. As it 

turned out, the VHA ophthalmologist’s report did not help Mr. Gambill. But it left him no 

worse off than he was without the report, as the rest of the evidence before the Board 

failed to prove actual causation. 

 

2

 He subsequently supplemented that evidence, but his additional evidence 

was of the same character, all of it directed to the general proposition that it is possible 

for head trauma to cause cataracts. 
2008-7120 9 

The only portion of the ophthalmologist’s report that Mr. Gambill has disputed is 

the statement that in her search of the literature she was unable to find any reports 

suggesting that head trauma was a cause or an associated risk factor in the 

development of cataracts. The rest of the report consisted of a factual recitation of Mr. 

Gambill’s medical history, which appears not to be the subject of dispute, and a listing of 

associated risk factors for the development of cataracts which, except for the absence 

of any express reference to head injuries other than direct trauma to the eye, also 

appears to be undisputed. 

Mr. Gambill argues that allowing confrontation through the submission of 

interrogatories would have helped elicit “the scientific methodology employed by the 

physician” and “the data upon which [she] based her medical opinion.” But even if he 

had succeeded in completely undermining the ophthalmologist’s opinion and had 

obtained her agreement that the medical literature showed that head trauma is a 

possible cause of cataracts, that evidence would still not show that Mr. Gambill’s inservice blow to the head caused cataracts in his case. The problem of establishing 

actual causation in this case would remain Mr. Gambill’s stumbling block; nothing he 

could realistically expect to obtain by way of confrontation of the VHA ophthalmologist, 

who did not examine him, would overcome that problem. 

The absence of any prejudice to Mr. Gambill from the VHA ophthalmologist’s 

report is apparent from the manner in which the Board analyzed Mr. Gambill’s case. In 

particular, the Board found it unnecessary to resolve the apparent conflict between the 

VHA ophthalmologist’s statement about her search of the medical literature and the 

materials submitted by Mr. Gambill about head trauma being a possible cause of 
2008-7120 10 

cataracts. As the Board stated, even if the VHA ophthalmologist was in error as to 

whether head trauma could cause cataracts, there was “simply no evidence of record, 

to include the medical treatise excerpts or the private physicians’ statements,” that 

established an actual causal nexus between Mr. Gambill’s in-service injury and his 

cataracts. The Board’s analysis thus confirms that the absence of confrontation of the 

VHA ophthalmologist did not prejudice Mr. Gambill’s claim. 

Because we conclude that the absence of confrontation had no prejudicial effect 

in this case, it is not necessary to address Mr. Gambill’s further claim that the Board is 

obligated not only to provide claimants with the right to serve interrogatories on VHA 

physicians and independent medical experts, but also to advise the claimants of their 

right to do so. Thus, we do not reach the question whether Mr. Gambill’s failure to 

request the right to serve interrogatories on the VHA ophthalmologist resulted in a 

waiver of whatever rights to confront witnesses in the administrative process that he 

might have as a matter of due process. 

Each party shall bear its own costs for this appeal. 

AFFIRMED. 
United States Court of Appeals for the Federal Circuit

2008-7120 

RICHARD GAMBILL, 

 Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

Appeal from the United States Court of Appeals for Veterans Claims 

in 06-1943, Judge William A. Moorman. 

BRYSON, Circuit Judge, concurring: 

 I agree with the court that even if a claimant has a due process right to confront 

any VHA physician or independent medical examiner who provides a medical opinion 

upon request, the failure to provide for confrontation in this case was not prejudicial to 

Mr. Gambill. More fundamentally, however, I believe that within the veterans’ disability 

compensation system due process does not require that claimants be given the right to 

confront physicians who provide such opinions. 

A 

 Almost a quarter century ago, the Supreme Court analyzed the application of the 

Due Process Clause to the veterans’ benefits system in its seminal decision in Walters

v. National Association of Radiation Survivors, 473 U.S. 305 (1985). In that case, the 

Court addressed the constitutionality of a statute that sharply restricted the maximum 
fee that may be paid to an attorney representing a veteran before the DVA in a claim for 

benefits for service-connected death or disability. Although recognizing that the 

practical effect of the statute was to deny legal representation to veterans in most DVA 

compensation proceedings, the Court upheld the statute against a due process 

challenge. In so doing, the Court analyzed the veterans’ benefits system in detail and 

concluded that, in light of the informal and pro-claimant nature of that system, the Due 

Process Clause does not require the same kinds of procedures that would be required 

in a more conventional adversarial proceeding. The Court’s analysis in Walters is highly 

pertinent to the issue before us and virtually dictates the proper disposition of the 

constitutional claim raised in this case. 

 The Walters Court began its analysis by emphasizing that due process “is a 

flexible concept—that the processes required by the [Due Process] Clause with respect 

to the termination of a protected interest will vary depending upon the importance 

attached to the interest and the particular circumstances under which the deprivation 

may occur.” 473 U.S. at 320. Importantly, the Court emphasized that the Due Process 

Clause does not require procedures that guarantee against an erroneous deprivation, 

and that “the marginal gains from affording an additional procedural safeguard often 

may be outweighed by the societal cost of providing such a safeguard.” Id. at 320-21. 

Moreover, the Court stated that a particular process is not constitutionally infirm simply 

because another process would have been useful in a particular case; instead, the 

Court explained, “a process must be judged by the generality of cases to which it 

applies, and therefore, process which is sufficient for the large majority of a group of 

claims is by constitutional definition sufficient for all of them.” Id. at 330. 

2008-7120 2
More generally, the Supreme Court has characterized the critical components of 

due process as notice and the opportunity to be heard “at a meaningful time and in a 

meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976), quoting 

Armstrong v. Manzo, 380 U.S. 545, 552 (1965). While it is clear that due process 

requires “some kind of hearing” when a property interest is at stake, Bd. of Regents of 

State Colleges v. Roth, 408 U.S. 564, 570 (1972), the form of the hearing can vary. 

Due process thus “calls for such procedural protections as the particular situation 

demands. . . . [N]ot all situations calling for procedural safeguards call for the same 

kind of procedure.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In particular, due 

process does not require a trial-type hearing in every case. Cafeteria Workers v. 

McElroy, 367 U.S. 886, 894-95 (1961). 

The Court has set forth three factors that warrant consideration in determining 

what specific procedures must be provided in particular cases: (1) “the private interest 

that will be affected by the official action”; (2) “the risk of an erroneous deprivation of 

such interest through the procedures used, and the probable value, if any, of additional 

or substitute procedural safeguards”; and (3) “the Government’s interest, including the 

function involved and the fiscal and administrative burdens that the additional or 

substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. 

The Supreme Court in Walters addressed each of those factors as they pertain to 

veterans’ benefits determinations. As to the private interest that will be affected by the 

official decision, the Walters Court held that disability and survivorship benefits, which 

are not granted on the basis of need, “are more akin to the Social Security benefits 

involved in Mathews than they are to the welfare payments upon which the recipients in 

2008-7120 3
Goldberg [v. Kelly, 397 U.S. 254 (1970),] depended for their daily subsistence.” 473 

U.S. at 333. Although the private interest in disability benefits is still substantial, the 

Walters Court identified the difference in the individual’s interest in disability benefits 

and in welfare benefits as justifying the less formal procedures employed in veterans’ 

benefits cases than in cases involving the termination of welfare benefits. Id. 

The Walters Court made clear that the other two Mathews factors likewise 

justified the use of informal procedures in the veterans’ benefits system. After analyzing 

the operation of that system, the Court concluded that “great weight must be accorded 

to the Government interest at stake here.” 473 U.S. at 326. The Court explained: 

The flexibility of our approach in due process cases is intended in part to 

allow room for other forms of dispute resolution; with respect to the 

individual interests at stake here, legislatures are to be allowed 

considerable leeway to formulate such processes without being forced to 

conform to a rigid constitutional code of procedural necessities. 

Id. “It would take an extraordinarily strong showing of probability of error under the 

present system,” the Court added, to warrant a holding that the statute barring 

compensation of counsel in veterans’ benefits cases denied the claimants’ rights to due 

process. Id. 

In light of the Court’s analysis in Walters, the procedures employed by the DVA 

to obtain and use medical experts’ opinions in veterans’ disability benefits cases do not, 

in my judgment, violate due process. Given Congress’s desire that the proceedings in 

veterans’ benefits cases be “as informal and nonadversarial as possible” in veterans’ 

benefits cases, Walters, 473 U.S. at 323-24, the procedures available to claimants to 

obtain and challenge expert medical opinions provide notice and an opportunity to be 

heard in a meaningful manner and thus satisfy due process standards. I set forth below 

2008-7120 4
the reasons why that is so, again drawing heavily on the Supreme Court’s due process 

analysis in Walters. 

B 

Walters makes clear that the informal and uniquely pro-claimant nature of the 

veterans’ disability compensation system is of critical importance in assessing the 

constitutionality of the procedures that are employed by the DVA. The Court surveyed 

the DVA’s procedures in some detail, and those procedures are, if anything, even more 

protective of claimants now than they were at the time of Walters. In essence, the 

procedures are as follows: 

Any veteran or veteran’s representative can bring a claim for service-connected 

disability to a regional office of the DVA. No statute of limitations bars the filing of an 

application for benefits, and the denial of an application has no formal res judicata

effect. Walters, 473 U.S. at 311. The DVA is required to notify the claimant and the 

claimant’s representative of any information and any medical or lay evidence that is 

needed to substantiate the claim; as part of that notice, the DVA must indicate which 

portion of that information and evidence is to be provided by the claimant and which 

portion the DVA will attempt to obtain on behalf of the claimant. 38 U.S.C. § 5103A. 

The claimant has a right to a hearing before the regional office and can appear, either 

alone or with a representative; the hearing, moreover, is ex parte, as there is no 

representative of the government opposing the claim. 38 C.F.R. § 3.103(a). 

At the hearing before the regional office, the claimant is entitled to produce 

witnesses. 38 C.F.R. § 3.103(c)(2). To assure “clarity and completeness of the hearing 

record, questions which are directed to the claimant and to witnesses are to be framed 

2008-7120 5
to explore fully the basis for claimed entitlement rather than with an intent to refute 

evidence or to discredit testimony.” Id. Any evidence offered by the claimant and any 

contention or argument a claimant may offer is to be included in the record. Id. § 

3.103(d). By statute and regulation, it is the obligation of the DVA to assist the claimant 

in developing the facts pertinent to the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.103(a), 

(c). And the regional office is required to construe all applications liberally in favor of the 

veteran. See 38 C.F.R. § 3.155(a); see also Moody v. Principi, 360 F.3d 1306, 1310 

(Fed. Cir. 2004). Finally, unlike in many other settings, the claimant is not required to 

prove the claim by a preponderance of the evidence; instead, the DVA is instructed to 

give the benefit of the doubt to the claimant when “there is an approximate balance of 

positive and negative evidence regarding any issue material to the determination of the 

matter.” 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

Any decision on the veteran’s claim must be in writing; it must advise the 

claimant of the reasons for the decision; it must include a summary of the evidence 

considered by the DVA; and it must provide an explanation of the procedure for 

obtaining review of the decision. 38 U.S.C. § 5104; 38 C.F.R. § 3.103(f). If the veteran 

disagrees with the decision, the regional office will consider whether to resolve the 

disagreement, such as by granting the benefit sought. If the regional office does not 

resolve the disagreement, it will prepare a Statement of the Case to assist the claimant 

in perfecting an appeal to the Board of Veterans’ Appeals. 38 U.S.C. § 7105(d)(1); 38 

C.F.R. § 3.103(f). 

Like the regional office, the Board is required to construe all of the veteran’s 

arguments “in a liberal manner.” 38 C.F.R. § 20.202. A claimant has a right to a 

2008-7120 6
hearing on appeal before the Board at which the appellant and witnesses may be 

present. Id. § 20.700. Like the hearing before the regional office, the hearing before 

the Board is “ex parte in nature and nonadversarial,” with no government representative 

present to oppose the appeal. Id. § 20.700(c). At the hearing, the proceeding is not 

governed by the rules of evidence, and the parties are “permitted to ask questions, 

including follow-up questions of all witnesses but cross-examination will not be 

permitted.” Id. If it appears during such a hearing that additional evidence would assist 

in the review of the questions at issue, the Board may direct that the record be left open 

so that the appellant may obtain the desired evidence. Id. § 20.709. In addition, if 

necessary evidence cannot be otherwise obtained, the Board may issue a subpoena at 

the appellant’s request to obtain the presence of a witness residing within 100 miles of 

the place where the hearing is to be held. Id. § 20.711. And, as occurred in this case, 

the Board may obtain a medical opinion from a VHA physician or an independent 

medical examiner. Id. § 20.901; 38 U.S.C. § 7109(a). 

The above description makes it abundantly clear that the veterans’ disability 

compensation system differs dramatically from a conventional adversarial process. This 

court and the Supreme Court “have long recognized that the character of the veterans’ 

benefits statutes is strongly and uniquely pro-claimant.” Hodge v. West, 155 F.3d 1356, 

1362 (Fed. Cir. 1998). The relationship between the veteran and the government is 

nonadversarial, Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed. Cir. 2002) (en banc), and 

because of the paternalistic nature of DVA proceedings, the DVA is required “to fully 

and sympathetically develop the veteran’s claim to its optimum before deciding it on the 

merits,” Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009); McGee v. Peake, 511 

2008-7120 7
F.3d 1352, 1357 (Fed. Cir. 2008). The process is “designed to function throughout with 

a high degree of informality and solicitude for the claimant.” Walters, 473 U.S. at 311. 

Then-Chief Judge Mayer put the point succinctly when he stated, “Viewed in its entirety, 

the veterans’ system is constructed as the antithesis of an adversarial, formalistic 

dispute resolving apparatus.” Forshey v. Principi, 284 F.3d 1335, 1360 (Fed. Cir. 2002) 

(en banc) (Mayer, C.J., dissenting). 

C 

As the Supreme Court observed in Walters, Congress is fully aware that the 

veterans’ disability compensation system does not follow the conventional adversarial 

fact-finding model; rather, “Congress desired that the proceedings be as informal and 

nonadversarial as possible.” 473 U.S. at 323-24. In the years since Walters was 

decided, Congress has adhered to that model. In fact, Congress made a point of 

preserving the nonadversarial, pro-claimant character of the DVA system when it added 

judicial review to the system in 1988. The House report on the 1988 legislation stated 

that point clearly: 

Congress has designed and fully intends to maintain a beneficial 

non-adversarial system of veterans benefits. This is particularly true of 

service-connected disability compensation where the element of cause 

and effect has been totally by-passed in favor of a simple temporal 

relationship between the incurrence of the disability and the period of 

active duty. 

I[m]plicit in such a beneficial system has been an evolution of a 

completely ex-parte system of adjudication in which Congress expects VA 

to fully and sympathetically develop the veteran’s claim to its optimum 

before deciding it on the merits. Even then, VA is expected to resolve all 

issues by giving the claimant the benefit of any reasonable doubt. In such 

a beneficial structure there is no room for such adversarial concepts as 

cross examination, best evidence rule, hearsay evidence exclusion, or 

strict adherence to burden of proof. 

. . . . . 

2008-7120 8
To the extent possible, the committee expects that the procedures 

employed at the regional office level will continue to be employed by VA, 

in order to assure that claims are handled in an expeditious manner that is 

sympathetic to the veteran’s claim. The committee believes that the 

existing system achieves a high degree of accuracy and fairness and 

intends that no changes be made to the system unless it would enhance 

achievement of these two goals. 

H.R. Rep. No. 100-963, at 13, 15 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5795, 

5797. This court made the same point more recently in Hodge v. West, 155 F.3d at 

1362: 

Congress itself has recognized and preserved the unique character and 

structure of the veterans’ benefits system. For example, when it passed 

the Veterans’ Judicial Review Act and Veterans’ Benefits Improvement Act 

of 1988, and thus for the first time established judicial review for DVA 

disputes, Congress emphasized the historically non-adversarial system of 

awarding benefits to veterans and discussed its intent to maintain the 

system’s unique character[.] 

While proceedings are more adversarial when a veteran appeals to the Veterans 

Court, the process at the administrative stages within the DVA remains much as the 

Supreme Court described it in 1985: “[T]he process prescribed by Congress for 

obtaining disability benefits does not contemplate the adversary mode of dispute 

resolution utilized by courts in this country.” Walters, 473 U.S. at 309; see also 38 

C.F.R. § 20.700(c) (“Hearings conducted by the Board are ex parte in nature and 

nonadversarial. Parties to the hearing will be permitted to ask questions, including 

follow-up questions, of all witnesses but cross-examination will not be permitted.”). 

Apart from demonstrating Congress’s general desire to preserve the 

nonadversarial nature of the veterans’ disability compensation system, the legislative 

history of the 1988 statute makes it clear that Congress specifically wished to avoid the 

introduction of adversarial procedures such as interrogatories. Early versions of the 

2008-7120 9
1988 Act contained provisions for serving written interrogatories on any person, 

including DVA employees. Those provisions were omitted from the statute as enacted, 

however. A joint statement by the Senate and House Committees regarding the bill that 

was ultimately enacted explained that written interrogatories, along with several other 

procedural provisions, had been omitted. The statement explained, “The Committees 

intend [that the Board’s] informal procedures be continued.” Explanatory Statement of 

the Compromise Agreement on S. 11, As Amended, the “Veterans’ Judicial Review 

Act”, 134 Cong. Rec. 31473, 31477 (1988), reprinted in 1988 U.S.C.C.A.N. 5834, 5843 

(“Explanatory Statement”). The sponsor of the legislation in the Senate underscored 

that point, explaining that Congress’s intent was “that the BVA continue to operate in its 

informal, nonadversarial manner.” 134 Cong. Rec. 31468 (1988) (remarks of Sen. 

Cranston). 

D

Like the procedure used in the veterans’ disability compensation system 

generally, the procedure that the DVA has provided for a claimant to obtain, rely on, and 

respond to an expert medical opinion is nonadversarial. The DVA’s regulations provide 

that a claimant or the claimant’s representative may request a medical opinion from a 

VHA physician or an independent medical expert, which “will be granted upon a 

showing of good cause, such as the identification of a complex or controversial medical 

. . . issue involved in the appeal.” 38 C.F.R. § 20.902. The Board’s authority to obtain a 

medical opinion from a VHA physician on its own initiative is part of the DVA’s duty to 

assist a claimant to obtain evidence to substantiate a claim. See 38 C.F.R. 

§ 3.159(c)(4). The Board may request a medical opinion from a VHA physician “on 

2008-7120 10
medical questions involved in the consideration of an appeal” when, in the Board’s 

judgment, “such medical expertise is needed for equitable disposition of an appeal.” Id.

§ 20.901. The Board has parallel statutory authority to obtain a medical opinion from an 

independent medical expert if “expert medical opinion, in addition to that available within 

the Department, is warranted by the medical complexity or controversy” involved in the 

appeal. 38 U.S.C. § 7109(a); 38 C.F.R. § 20.901(d). 

When the Board requests such an opinion, the Board must provide the claimant 

with notice that a VHA physician’s opinion has been requested and must provide a copy 

of the opinion to the claimant when it is received by the Board. 38 C.F.R. § 20.903(a); 

see also 38 U.S.C. § 7109(c) (when the VA obtains an opinion from an independent 

medical expert, the Board similarly notifies the claimant of the request for an expert 

opinion and provides a copy of the expert’s report as soon as it is received). The 

claimant then has 60 days to respond to the medical opinion by submitting any relevant 

evidence or argument that may assist the Board in reaching an equitable result. 38 

C.F.R. § 20.903(a). 

Mr. Gambill contends that when the Board requests an expert medical opinion, 

due process requires the DVA to afford a veteran not just an opportunity to respond to 

the opinion, but also an opportunity to confront the physician who submitted it. While he 

does not argue that he is constitutionally entitled to in-person cross-examination of the 

physician, he argues that he is at least entitled to use interrogatories directed to the 

physician as a way to confront the evidence against him. Interrogatories must be 

permitted, according to Mr. Gambill, because (1) they are essential to the fairness of the 

proceedings in that they are substantially more effective than the submission of contrary 

2008-7120 11
evidence alone, and (2) they are less burdensome for physicians than in-person crossexamination. 

1 

Mr. Gambill has offered no convincing reason to believe that if a claimant is not 

allowed to confront medical experts’ opinions, the results of Board appeals will be so 

unreliable as to be constitutionally invalid. While in some cases confrontation of the 

physician who has given a medical opinion may be productive, the nature of expert 

medical opinions is such that in many cases the most effective way of countering a 

questionable opinion will be to offer a contrary opinion with more support in the medical 

literature or from other medical experts. 

This case provides a good illustration of why that is so. Mr. Gambill’s quarrel 

with the VHA ophthalmologist’s report focuses on the ophthalmologist’s statement that 

she was unable to find any support in the literature for the proposition that head trauma 

is a cause or an associated risk factor in the development of cataracts. To the extent 

that Mr. Gambill wished to challenge her statement about the medical literature, the best 

way to proceed would seem to be to introduce contrary medical opinions and literature 

on the point in dispute. After all, what is important in such a case is not whether the 

physician is an expert on the particular topic at issue or how much effort she put into her 

search of the literature; what matters is what experts in the field believe and what a 

thorough search of the literature would reveal. That information could effectively be 

developed through the introduction of contrary opinions from experts and from the 

medical literature. Indeed, Mr. Gambill sought to use that approach in this case. The 

evidence he offered was ineffective, not because of the general ineffectiveness of 

2008-7120 12
contrary evidence as a means of challenging a medical professional’s opinion, but 

because it did not establish causation on the facts of this case. 

Mr. Gambill’s attorney asserts that the ability to confront an expert witness who 

gives a medical opinion is preferable to being limited to introducing contrary evidence. 

Of course, a lawyer representing a party in a trial-type setting will always prefer to have 

as many tools for challenging adverse evidence as possible. But as Justice Brennan 

wrote for the Supreme Court some years ago, “[I]t should not routinely be assumed that 

any decision made without the forms of adversary factfinding familiar to the legal 

profession is necessarily arbitrary or incorrect.” Smith v. Org’n of Foster Families for 

Equality & Reform, 431 U.S. 816, 851 n.58 (1977). The pertinent question is not 

whether, in a particular case, a skilled advocate could make effective use of tools of 

confrontation such as interrogatories or cross-examination. Rather, the question is 

whether the absence of such tools would be likely to have such a distortive effect on the 

truth-seeking process and produce such unreliable results as to render the proceeding 

fundamentally unfair. At least with respect to expert medical opinions obtained by the 

Board to assist it in assessing individual claims, I am satisfied that the regulatory 

prohibition on confronting medical experts, either by in-person cross-examination or 

through interrogatories, does not create an unacceptable risk of unreliable outcomes. 

That is especially true in light of the entire complex of protections afforded to 

claimants in the disability compensation process, including the DVA’s duty to assist the 

claimants in presenting their claims, its duty to construe the claimant’s presentation 

liberally, the rule that the claimant will be given the benefit of the doubt in close cases, 

and the ex parte nature of the proceedings, in which the government is not represented 

2008-7120 13
by an attorney or other representative whose role is to oppose the claim. While Mr. 

Gambill has characterized the absence of confrontation rights in the veterans’ disability 

compensation system as indicative that the system provides for less process than in 

more formal settings, a more accurate description would be that it offers different

process. To reiterate the point made by the Supreme Court in Walters, the flexibility of 

due process “is intended in part to allow room for other forms of dispute resolution,” and 

to allow “considerable leeway” in formulating such processes “without being forced to 

conform to a rigid constitutional code of procedural necessities.” 473 U.S. at 326. 

Finally, with respect to the risk of inaccurate results, there has been no showing 

in this case—or elsewhere so far as we are advised—that the nonadversarial veterans’ 

disability benefits system, with its many pro-claimant features, produces more 

erroneous decisions against claimants than would be produced in an adversarial system 

in which confrontation of witnesses was permitted, but in which the various procedural 

advantages that are afforded to veteran-claimants were absent. Even though in the 

Walters case the plaintiffs had introduced evidence that the participation of lawyers 

resulted in some marginal benefit to claimants, the Supreme Court found that showing 

to be insufficient. The showing made in that case, the Court observed, did not 

constitute the “extraordinarily strong of probability of error” that would be required to 

warrant constitutional condemnation of the current system. 473 U.S. at 326. A fortiori, 

the showing in this case, which is essentially limited to the unspoken (but hardly 

unassailable) proposition that more elaborate process is likely to produce more accurate 

results, is insufficient to invalidate the system devised by the agency and blessed by 

Congress. 

2008-7120 14
2 

As to the issue of burdensomeness, it is no doubt true, as Mr. Gambill contends, 

that interrogatories are less intrusive than in-person cross-examination. Nonetheless, 

interrogatories would still be burdensome for the physicians who would be required to 

respond to them. In addition, apart from expenditure of time in framing appropriate 

responses to the interrogatories, the submission of interrogatories could well result in 

collateral conflicts over the content of the interrogatories and the adequacy of the 

responses. 

A further problem with the position taken by Mr. Gambill in this case is that the 

scope of the confrontation right for which he argues is entirely undefined. Mr. Gambill 

suggests that the confrontation right he seeks would not include the right of in-person 

cross-examination, and that the right to submit interrogatories would be limited. He 

states that “a claimant should only be allowed to submit a reasonable number of 

questions, say, five or six on the outside.” That proposal suggests that the Due Process 

Clause requires “five or six” interrogatories, but not twenty. The arbitrariness of that 

distinction is obvious. 

Adopting Mr. Gambill’s position would virtually ensure that the Board, the 

Veterans Court, and this Court would be collectively launched into an ongoing linedrawing exercise regarding the number and character of the interrogatories that would 

have to be allowed. Mr. Gambill may have conceded that only “five or six” 

interrogatories need be granted, but his concession would not bind the next claimant, 

who would want more, or the next, who would argue that the responses to the 

interrogatories were inadequate and follow-up interrogatories or in-person cross2008-7120 15
examination were required. The overall burdensomeness of proceeding down that road 

is clear. 

In short, the use of interrogatories would undermine, at least to some degree, the 

nonadversarial nature of the veterans’ compensation system by forcing medical 

personnel into an adversarial posture with regard to the veteran claimants. Mr. Gambill 

responds that interrogatories are “less adversarial than the subpoena procedure,” but 

he does not dispute that their use would introduce some level of antagonistic 

interaction. I cannot lightly disregard the interest in maintaining the nonadversarial 

nature of the system. When that interest is balanced against the limited benefits of 

allowing interrogatories, I conclude that the availability of interrogatories is not 

constitutionally mandated. 

E 

In an often-cited 1975 article, Judge Henry Friendly surveyed the due process 

landscape and addressed a broad range of procedures that may not be necessary in 

particular cases where full trial-type proceedings are not required. Henry J. Friendly, 

“Some Kind of Hearing”, 123 U. Pa. L. Rev. 1267 (1975). Among the fundamental 

elements of a fair hearing, he identified an unbiased tribunal, notice of the proposed 

action and the grounds for it, and the opportunity to present reasons why the proposed 

action should not be taken. He identified the right to counsel and the right of 

confrontation as less fundamental to a fair proceeding. Id. at 1279-91. 

While acknowledging the importance of confrontation procedures in criminal 

cases and certain civil matters, Judge Friendly questioned the universal applicability of 

such procedures “to the thousands of hearings on welfare, social security benefits, 

2008-7120 16
housing, prison discipline, education, and the like which are now held every month—not 

to speak of hearings on recondite scientific or economic subjects.” Id. at 1284. In a 

passage that seemed to anticipate the Supreme Court’s decision in Walters, Judge 

Friendly observed that the problems associated with providing rights of counsel and 

confrontation in such cases “inevitably bring up the question whether we would not do 

better to abandon the adversary system in certain areas of mass justice, notably in the 

many ramifications of the welfare system.” Id. at 1289. In the system he proposed, a 

presiding official “would have the responsibility for developing all the pertinent facts and 

making a just decision.” The presiding official would assume an active role in the 

hearing: “[F]or example, he would examine the parties, might call his own experts if 

needed, request that certain types of evidence be presented, and, if necessary, aid the 

parties in acquiring that evidence.” Id. Judge Friendly added that the system he 

described, which he referred to as “investigatory,” 

should not be viewed as a lessening of the protection to the individual; if 

properly applied, it could well result in more. This investigatory model 

would also have the advantage of being more informal; the decisionmaker, 

in a conference-type setting, would hear the evidence and discuss the 

dispute with the parties and with their attorneys, assuming that they were 

permitted to have them. . . . There is no constitutional mandate requiring 

use of the adversary process in administrative hearings unless the Court 

chooses to construct one out of the vague contours of the due process 

clause. 

Id. at 1290-91. Judge Friendly’s model describes the veterans’ disability benefits 

system with remarkable accuracy. His analysis, like the subsequent analysis of the 

Supreme Court in Walters, shows why the procedures that are routinely employed in 

criminal and civil litigation, including rights to counsel and confrontation, are not 

2008-7120 17
constitutionally required components of an administrative benefits system, particularly 

one that is nonadversarial and pro-claimant in design and operation. 

F 

 Another factor that supports the conclusion that due process does not require a 

right to serve interrogatories on medical experts has to do with the subject matter: 

medical judgments. On several occasions, the Supreme Court has addressed the 

question of how to apply due process in the context of medical decisions. The Court’s 

opinions, particularly its opinion in Parham v. J.R., 442 U.S. 584 (1979), are instructive. 

In Parham, the Court considered whether Georgia’s procedure for the voluntary 

commitment of mentally ill children violated due process. The Court paid special 

attention to the fact that when a State is forced to determine whether a child is 

sufficiently mentally ill to permit a parent or guardian to institutionalize the child, the 

State faces questions that are “essentially medical in character.” Id. at 609. The Court 

recognized that “[n]ot every determination by state officers can be made most effectively 

by use of ‘the procedural tools of judicial or administrative decisionmaking.’” Id. at 608, 

quoting Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90 (1978). In the 

context before it, the Court held that a formal or quasi-formal hearing was not required 

and that “due process is not violated by use of informal traditional medical investigative 

techniques.” 442 U.S. at 607. In so concluding, the Court stated that “neither judges 

nor administrative hearing officers are better qualified than psychiatrists to render 

psychiatric judgments.” Id. Accordingly, the Court looked to the practical realities of 

how an “essentially medical” decision could be reached with a reduced rate of error. 

The Court explained: 

2008-7120 18
The mode and procedure of medical diagnostic procedures is not the 

business of judges. What is best for a child is an individual medical 

decision that must be left to the judgment of physicians in each case. We 

do no more than emphasize that the decision should represent an 

independent judgment of what the child requires and that all sources of 

information that are traditionally relied on by physicians and behavioral 

specialists should be consulted. 

Id. at 607-08. Rejecting the notion that an adversarial procedure is necessary, the 

Court stated that with respect to decisions to commit the mentally ill, “Common human 

experience and scholarly opinions suggest that the supposed protections of an 

adversary proceeding to determine the appropriateness of medical decisions . . . may 

well be more illusory than real.” Id. at 609. The Court’s decision that a nonadversarial 

system is appropriate in the medical context involved in Parham v. J.R. thus rested on 

the judgment that the risk of error in a procedure involving decisions made by 

independent medical decisionmakers would not be “significantly reduced by a more 

formal, judicial-type hearing.” Id. at 613. 

Parham illustrates the point that when medical decisions are in issue, the 

benefits that may otherwise be associated with the adversarial system are frequently 

attenuated. In other cases as well, the Court has approved the use of nonadversarial 

administrative proceedings that have been implemented to deal with medical 

determinations. See Washington v. Harper, 494 U.S. 210, 233 (1990) (decision 

whether to compel a prisoner to take anti-psychotic medicine does not require a judicial 

decisionmaker; because “the risks associated with antipsychotic drugs are for the most 

part medical ones, best assessed by medical professionals,” a State may permissibly 

choose administrative review using medical decisionmakers rather than a judicial 

hearing); Vitek v. Jones, 445 U.S. 480, 495 (1980) (“essentially medical” decision 

2008-7120 19
whether to transfer a prisoner to a mental hospital for treatment does not require 

presence of counsel). 

In the DVA’s system for determining whether particular disabilities are serviceconnected, the decision frequently turns on a medical judgment. In light of the nature of 

the inquiry in DVA disability proceedings, the Supreme Court has determined that the 

agency’s decision need not be made in a formal adversarial proceeding. As the Court 

stated, “It is less than crystal clear why lawyers must be available to identify possible 

errors in medical judgment.” Walters, 473 U.S. at 330 (emphasis in original). For the 

same reasons, I do not regard confrontation, either through in-person cross-examination 

or interrogatories, to be an essential component of procedural fairness when the issue 

involves a request for a medical opinion from a VHA physician or an independent 

medical expert in the course of a veterans’ disability compensation hearing before the 

Board of Veterans’ Appeals. 

G 

As a final point, it is worth noting that Mr. Gambill relies heavily on cases from 

other courts of appeals dealing with due process challenges to the procedures 

employed in social security benefits cases. In several of those cases, the courts have 

held that due process requires that the claimants be allowed either the right of crossexamination or the right to serve interrogatories as a means of challenging post-hearing 

medical reports. See, e.g., Calvin v. Chater, 73 F.3d 87 (6th Cir. 1996); Demenech v. 

Sec’y of Dep’t of Health & Human Servs., 913 F.2d 882 (11th Cir. 1990); Lidy v. 

Sullivan, 911 F.2d 1075 (5th Cir. 1990); Solis v. Schweiker, 719 F.2d 301 (9th Cir. 

1983); Cowart v. Schweiker, 662 F.2d 731 (11th Cir. 1981). Those cases can be 

2008-7120 20
factually distinguished from this one on the ground that each of them involved 

examination reports assessing the particular claimant’s condition, not merely evidence 

as to a general medical principle, as in this case. With respect to the latter type of 

evidence, there is arguably less need for direct confrontation of the reporting physician. 

More generally, while the veterans’ disability compensation system is similar to 

the social security disability system in some respects, the two systems differ in an 

important regard: As the Supreme Court pointed out in Richardson v. Perales, 402 U.S. 

389, 408-09 (1971), the statute that governs administrative proceedings in social 

security cases served as the model for section 7(c) of the Administrative Procedure Act, 

which provides that a party is entitled “to conduct such cross-examination as may be 

required for a full and true disclosure of the facts.” 5 U.S.C. § 556(d). See Wallace v. 

Bowen, 869 F.2d 187 (3d Cir. 1988) (reliance on post-hearing reports without 

opportunity for cross-examination denied claimant his statutory right to a decision based 

on evidence adduced at the hearing). By contrast, Congress made clear at the time of 

the Veterans’ Judicial Review Act of 1988 that it did not want the provisions of section 

7(c) of the Administrative Procedure Act to apply to veterans’ disability compensation 

proceedings. The explanatory statement by the House and Senate Committees about 

that Act stated that the Committees intended that the Board’s informal procedures “be 

continued and that the [Administrative Procedure Act] procedures relating to 

adjudications continue to be inapplicable.” Explanatory Statement, 134 Cong. Rec. 

31477 (1988), reprinted in 1988 U.S.C.C.A.N. at 5843. The adjudicative process in the 

social security system is thus intended to be more formal than in the veterans’ disability 

compensation system, particularly with respect to the right of cross-examination. 

2008-7120 21
2008-7120 22

Accordingly, without regard to whether those social security cases were correctly 

decided, they do not dictate the outcome in this case, which involves a different type of 

evidence and a different statutory scheme. 

* * * * * 

In sum, the Supreme Court’s guidance in Walters and in the Parham line of 

cases leads me to conclude that due process does not require that veterans’ disability 

compensation claimants must be permitted to use interrogatories or other forms of 

confrontation to challenge medical expert opinion evidence. I would therefore affirm the 

decision of the Veterans Court on that ground. 
United States Court of Appeals for the Federal Circuit

 

2008-7120 

RICHARD GAMBILL, 

 Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

Appeal from the United States Court of Appeals for Veterans Claims 

in 06-1943, Judge William A. Moorman. 

MOORE, Circuit Judge, concurring. 

 I agree with the court that Mr. Gambill suffered no prejudice here. I write 

separately to respond to Judge Bryson’s concurrence. Unlike my colleague, I believe 

that due process requires that claimants of veterans’ benefits be provided with the 

opportunity to confront the doctors whose opinions DVA relies upon to decide whether 

veterans are entitled to benefits. As my colleague points out, DVA’s decision quite often 

turns on the content of these medical opinions. See Concurring Op. at 20. DVA must 

decide which opinion to believe, and of course its final weighing of the evidence is 

essentially unreviewable. Confrontation should be a central part of due process here 

because it is necessary to help DVA understand the limitations of the opinions before it, 

and may be the veteran’s only route to undermine what could otherwise be unassailable 

evidence in favor of denying benefits. 
Every circuit that has ruled on the issue has provided a similar confrontation right 

to claimants of social security disability benefits, either in the form of live testimony or 

written interrogatories. According to my colleague, veterans are not entitled to similar 

protections because the veterans’ benefits system is non-adversarial and tipped in favor 

of the veteran. But the paternalistic attributes of the veterans’ benefits system—many 

of which are shared by the social security system—militate toward providing more 

protection for veterans, not less. The availability of interrogatories to question the 

doctors who issue medical opinions adverse to the veteran are indisputably proclaimant—they only stand to help the veteran explore and challenge an adverse medical 

opinion and ultimately prove their entitlement to claims. Although interrogatories may 

be “adversarial,” they are only necessitated by a medical opinion which stands to block 

the veteran from obtaining disability benefits. I posit that because a veteran only needs 

interrogatories to challenge an opinion that contradicts his claims of entitlement, the 

process is already adversarial by virtue of the opinion. Hence, interrogatories only give 

the veteran a chance to explore an opinion that has already been rendered against him. 

There is no evidence whatsoever that a limited confrontation right would 

ultimately do more harm than good for the veterans’ benefits system. Lacking such a 

basis to restrict due process, and considering the crucial importance of these medical 

opinions, I do not agree that the government’s interests outweigh the veteran’s here. 

Interrogatories would serve mainly to help DVA get to the truth of the matter—whether 

the veteran is entitled to benefits. 

 The evidence at issue in this case is a two-page report written by a VHA 

ophthalmologist. The report is not typical of medical opinions relied upon by DVA 

2008-7120 2
because it did not reach any conclusion regarding Mr. Gambill’s condition. In fact, the 

VHA ophthalmologist rendered no opinions at all. After summarizing Mr. Gambill’s 

medical history, she made a factual statement: “I could find no reports suggesting head 

trauma was a cause or an associated risk factor in the development of cataracts.” Even 

if this statement had harmed Mr. Gambill’s prospects for obtaining benefits, 

confrontation would not have been of great value to him. In this narrow and unusual 

circumstance, I agree with Judge Bryson that a far better response is to simply find and 

provide reports that suggest that head trauma can lead to cataracts, or better yet, a 

medical opinion that head trauma as likely as not caused Mr. Gambill’s cataract 

condition. See Concurring Op. at 12. But I do not understand the concurrence to 

suggest that due process does not require the right of confrontation when the dispute is 

limited to factual statements asserting the absence of certain information in the medical 

literature. Rather, my colleague asserts that due process does not afford veterans the 

use of interrogatories or other forms of confrontation to challenge any medical expert 

opinion evidence. See id. at 1, 12-16, 22. It is here that I disagree. Mr. Gambill’s case 

is not a “good illustration” of why confrontation does not further the veteran’s interests. 

Id. at 12. Instead, Mr. Gambill’s case represents an unusual exception to the common 

situation where the outcome of the claim for benefits turns on a physician’s expert 

opinion relating to the veteran’s medical history and condition. And in this more 

common situation, I believe that due process affords veterans a means to challenge the 

opinion.1

 

1

 The Supreme Court explained that “a process must be judged by the 

generality of cases to which it applies, and therefore a process which is sufficient for the 

2008-7120 3
A. 

 The right to confront adverse witnesses is fundamental to American legal 

process. As the Supreme Court explained: 

Certain principles have remained relatively immutable in our 

jurisprudence. One of these is that where governmental action seriously 

injures an individual, and the reasonableness of the action depends on 

fact findings, the evidence used to prove the Government’s case must be 

disclosed to the individual so that he has an opportunity to show that it is 

untrue. . . . We have formalized these protections in the requirements of 

confrontation and cross-examination. They have ancient roots. They find 

expression in the Sixth Amendment which provides that in all criminal 

cases the accused shall enjoy the right “to be confronted with the 

witnesses against him.” This Court has been zealous to protect these 

rights from erosion. It has spoken out not only in criminal cases, but also 

in all types of cases where administrative and regulatory actions were 

under scrutiny. 

Greene v. McElroy, 360 U.S. 474, 496-97 (1959) (citations and footnote omitted); see 

also Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“In almost every setting where 

important decisions turn on questions of fact, due process requires an opportunity to 

confront and cross-examine adverse witnesses.”). The Supreme Court recently 

reaffirmed the vitality of this principle with regard to affidavits reporting the results of 

forensic analysis. Melendez-Diaz v. Mass., No. 07-591, 557 U.S. ____, 129 S. Ct. 2527 

(2009). Although the result in that case was commanded by the Sixth Amendment, id., 

slip op. at 12, the Court also observed that “neutral scientific testing” is not immune to 

fraud and incompetence, and that confrontation serves to test experts “honesty, 

proficiency, and methodology—the features that are commonly the focus in the crossexamination of experts,” id., slip op. at 12-15. Melendez-Diaz is a poignant and timely 

 

large majority of a group of claims is by constitutional definition sufficient for all of them.” 

Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 321 (1985). The inverse 

applies here—a process insufficient for most is insufficient for all. 

2008-7120 4
reminder of the central importance of confrontation no matter what form evidence may 

take. There is nothing special about the medical opinions relied upon by DVA that 

exempts them from this general rule. See Nieves-Rodriguez v. Peake, 22 Vet. App. 

295, 302 (2008) (“Both VA medical examiners and private physicians offering medical 

opinions in veterans benefits cases are nothing more or less than expert witnesses.”). 

 In Richardson v. Perales, the Supreme Court applied these principles to social 

security disability claims, where just as here, “[t]he trier of fact has the duty to resolve 

[conflicting medical evidence].” 402 U.S. 389, 399 (1971). The Court held that the 

reports of medical experts were admissible evidence “subject as they are to being 

material and to the use of the subpoena and consequent cross-examination.” Id. at 

410. The Court explained that social security disability proceedings are informal, and 

noted that informality “is the obvious intent of Congress so long as the procedures are 

fundamentally fair.” Id. at 401 (emphasis added). 

Since Perales was decided, every circuit that has ruled on the issue has held that 

due process affords social security disability claimants either the right of crossexamination or the right to serve interrogatories as a means of challenging post-hearing 

medical reports. See Townley v. Heckler, 748 F.2d 109 (2d Cir. 1984); Wallace v. 

Bowen, 869 F.2d 187 (3d Cir. 1988); Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990); 

Flatford v. Chater, 93 F.3d 1296 (6th Cir. 1996); Lonzollo v. Weinberger, 534 F.2d 712 

(7th Cir. 1976); Coffin v. Sullivan, 895 F.2d 1206 (8th Cir. 1990); Solis v. Schweiker, 719 

F.2d 301 (9th Cir. 1983); Allison v. Heckler, 711 F.2d 145 (10th Cir. 1983); Demenech v. 

Sec’y of Dep’t of Health & Human Servs., 913 F.2d 882 (11th Cir. 1990). Interestingly, 

the courts reached these decisions despite the decidedly informal and non-adversarial 

2008-7120 5
nature of the social security disability system. See 20 C.F.R. § 404.900(b) (“In making a 

determination or decision in your case, we conduct the administrative review process in 

an informal, nonadversary manner.”). I can think of no justification for suggesting that 

veterans, who have borne the battle, are entitled to less due process than social 

security disability applicants. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) 

(“[I]n the context of veterans’ benefits where the system of awarding compensation is so 

uniquely pro-claimant, the importance of systemic fairness and the appearance of 

fairness carries great weight.”); Forshey v. Principi, 284 F.3d 1335, 1360 (Fed. Cir. 

2002) (en banc) (Mayer, C.J., dissenting) (explaining that the informality and nonadversarial character of veterans benefits proceedings is “equal, if not greater” than that 

of social security disability proceedings). 

Although most of the circuits require an absolute right to cross-examination, 

some of the circuits chose a similar path to what Mr. Gambill proposes—allowing the 

agency to retain its discretion to issue subpoenas, but imposing an absolute right to 

interrogatories. See, e.g., Flatford, 93 F.3d at 1306 (“[T]he practice of using 

interrogatories to question medical witnesses appears to work well for discerning an 

applicant’s medical condition.”). I agree with Mr. Gambill that this would be the wiser 

course in the veterans disability context. See id. (“Because of the nonadversary nature 

of social security adjudications, the need to cross-examine every reporting physician is 

less crucial to the fairness and accuracy of the administrative law judge’s decision than 

it would be in an adversarial context.”). Interrogatories will not make the veterans 

disability claims process adversarial, because by the time a veteran has the need to 

question a doctor, that doctor has already provided an opinion adverse to the veteran’s 

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interests—the system has already become adversarial. Interrogatories are the fair 

response. 

The government has not offered any evidence that interrogatories would impose 

a significant burden on DVA. Nor do I think that the Board, the Veterans Court, or our 

court would be overly burdened with cases asking us to define the scope of the 

confrontation right. See Concurring Op. at 15-16 (“Adopting Mr. Gambill’s position 

would virtually ensure that the Board, the Veterans Court, and this Court would be 

collectively launched into an ongoing line-drawing exercise regarding the number and 

character of the interrogatories that would have to be allowed.”). To the contrary, due 

process is a flexible concept, and DVA would have discretion over the particulars of the 

interrogatory process, subject to the Veterans Court’s review for abuse of discretion. 

See 38 U.S.C. § 7261. The interrogatories could be proffered by the veteran or even 

conducted informally by DVA. Moreover, in the social security context where nearly 

every circuit guarantees at least the right to interrogatories, there has been no explosion 

of cases over the scope of the confrontation right, whether it be the manner in which live 

cross-examination is conducted, or the number and substance of interrogatories. The 

dearth of such disputes in the social security context leaves little room for claims that 

interrogatories would become an overly burdensome judicial headache. 

My colleague asserts that the social security “cases can be factually 

distinguished from this one on the ground that each of them involved examination 

reports assessing the particular claimant’s condition, not merely evidence as to a 

general medical principle, as in this case.” Concurring Op. at 21. This reinforces the 

notion that the medical evidence offered is normally opinion evidence related to the 

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claimant, not general medical fact evidence. Moreover, even if the bulk of the social 

security cases were directed to instances where the medical opinion pertained to the 

claimant’s condition, Judge Bryson’s argument is not that interrogatories ought to be 

permitted when the medical opinion pertains to the claimant and denied when the 

medical opinion is one of general medical principle. His opinion, as I understand it, is 

that there is no right to interrogatories in any of these cases. This would result in us 

deciding that veterans are entitled to less protection than that which our sister circuits 

have held applicants for social security disability benefits are entitled to. 

B. 

The Supreme Court’s decision in Walters v. National Association of Radiation 

Survivors, 473 U.S. 305 (1985), is not contrary to my view. See Concurring Op. at 2 

(“Walters is highly pertinent to the issue before us and virtually dictates the proper 

disposition of the constitutional claim raised in this case.”). First, since the time Walters

was decided, the veterans system has changed in material ways that render much of 

the Walters analysis inapplicable. Second, whereas in Walters the Court relied on 

evidence of undue burden on the government, here there is no evidence of burden. 

Finally, unlike the situation in Walters, there are no acceptable alternative safeguards 

for the due process right at issue. 

In Walters, the Supreme Court addressed the constitutionality of 38 U.S.C. 

§ 3404, the predecessor statute to 38 U.S.C. § 5904. Section 3404 imposed criminal 

penalties on an attorney who charged a veteran fees of more than $10 with respect to 

any one claim for monetary benefits. The Court held that this limitation did not violate 

due process, generally deferring to Congress’ goals of “wanting the veteran to get the 

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entirety of the award” and wanting to avoid administrative burdens that would arise if 

“claimants were permitted to retain compensated attorneys.” Walters, 473 U.S. at 326. 

Section 3404 and the Supreme Court’s ruling in Walters were consistent with the 

structure of the veterans benefits’ system at the time, which among other things 

afforded no judicial review for a denial of benefits. But since the time when Walters was 

decided, Congress has significantly altered the playing field. In 1988, the Veterans’ 

Judicial Review Act created the U.S. Court of Veterans Appeals, now called the U.S. 

Court of Appeals for Veterans Claims, which hears appeals from veterans who are 

dissatisfied with DVA’s decisions. Veterans’ Judicial Review Act, Pub. L. No. 100-687, 

102 Stat. 4105 (1988). In the same act, Congress allowed attorneys to represent 

veterans at the CAVC. And in 2006, Congress removed the bar to legal representation 

before the DVA. Veterans Benefits, Health Care, and Information Technology Act, Pub. 

L. No. 109-461, § 101(c)(1)(A), 120 Stat. 3403, 3407 (2006) (codified at 38 U.S.C. § 

5904(c)(1)). Now, attorneys may represent veterans any time after they file their notice 

of disagreement. See id. Thus, although the Supreme Court appropriately deferred to 

Congress’ judgment in 1985, Congress’ judgment has changed. 

For better or worse, we have noted the increasingly adversarial nature of the 

veterans’ benefits system—the legal landscape has changed since Walters was 

decided. In Forshey, we held that our scope of review of the Veterans Court is narrow 

and that prudential concerns “severely limit the exercise of our authority to consider 

issues not raised or decided below.” 284 F.3d at 1338. The dissent lamented this 

outcome, arguing that just as in the social security context, a “judicially-imposed 

requirement of issue exhaustion is inappropriate . . . because the parties have a 

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nonadversarial relationship.” Id. at 1360 (Mayer, C.J., dissenting) (citing Sims v. Apfel, 

530 U.S. 103, 108-10 (2000)). We noted that although proceedings before DVA are still 

non-adversarial, “under the 1988 legislation the system has changed from a 

nonadversarial, ex parte, paternalistic system for adjudicating veterans’ claims, to one in 

which veterans . . . must satisfy formal legal requirements, often without the benefit of 

legal counsel, before they are entitled to administrative and judicial review.” Id. at 1355 

(quoting Bailey v. West, 160 F.3d 1360, 1365 (Fed Cir. 1998) (en banc)). Congress 

could have chosen the path that the Forshey dissent urged, to “revisit its legislative 

handiwork and restore the veterans’ system to its original purpose set out by President 

Lincoln.” Id. at 1365. But instead, in 2006, Congress opened the doors of DVA to 

lawyers. If the Supreme Court was correct in its analysis in Walters, this development 

adds complexity to DVA proceedings. Recognizing a due process right to 

interrogatories is consonant with this “progress” because as veterans face more 

procedural hurdles, they need more tools to mitigate the risk that their claims for 

benefits will be wrongly denied.2

 In Walters, the Court was not impressed with the prospects for legal 

representation to reduce the risk of an incorrect determination of benefits. See 473 U.S. 

at 327-34. Notwithstanding the Court’s reasoning, Congress decided to allow this 

 

2

 Although Congress did not provide veterans a right to interrogatories in 

1988, see Concurring Op. at 10, this single omission does not have any special 

significance among the unknown compromises that were made prior to enactment, see

Buttrey Stores, Inc. v. United States, 375 F.2d 799, 802-03 (Ct. Cl. 1967) (“To attempt 

to divine, therefore, just what meaning the omission of the subsection of the bill has is to 

engage in a fruitless task.”). Further, placing too much weight on general statements in 

the 1988 legislative history that the process should remain informal ignores the fact that 

eighteen years later, Congress shifted course and decided that veterans would be 

better off with legal representation before DVA. 

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representation. Moreover, although “counsel is not required in various proceedings that 

do not approximate trials, but instead are more informal and nonadversary,” id. at 334, 

interrogatories do not necessarily run counter to an informal and non-adversarial 

system. Rather, they would serve to help DVA get to the truth of central factual 

questions, for example, whether a medical condition is service-connected. See Taylor 

v. Ill., 484 U.S. 400, 411-12 (1988) (“Discovery, like cross-examination, minimizes the 

risk that a judgment will be predicated on incomplete, misleading, or even deliberately 

fabricated testimony.”). Furthermore, it is not clear why a modest number of 

uncomplicated interrogatories could not be administered in an informal manner by DVA. 

After all, DVA could not argue that its own statute and regulation affording it the power 

to issue subpoenas to compel the attendance of witnesses runs contrary to the informal 

character of benefits claims proceedings, see 38 U.S.C. § 5711; 38 C.F.R. § 20.711, 

and interrogatories are considerably less burdensome than live testimony. The 

government acknowledges that interrogatories would be less burdensome than live 

testimony, but argues without evidentiary support that interrogatories, too, would be 

exceedingly burdensome. Finally, in the legal counsel situation, there were substitute 

safeguards of due process; there is no such substitute for confrontation of medical 

opinions. See Walters at 473 U.S. at 333-34 (“[T]he need for counsel is considerably 

diminished” where the veteran received “substitute safeguards such as a competent 

representative, a decision-maker whose duty it is to aid the claimant, and significant 

concessions with respect to the claimant’s burden of proof.”). DVA’s duty to assist and 

the veteran’s low burden of proof will not help the veteran at all if DVA has sought and 

relied upon a superficially convincing but ultimately inadequate medical opinion; this 

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type of judgment is virtually impervious to review. Just the possibility of interrogatories 

will motivate DVA to examine medical opinions more thoroughly. 

C. 

 The fact that the judgments are medical in nature only further reinforces the need 

for confrontation. See Concurring Op. at 18-20 (“Another factor that supports the 

conclusion that due process does not require a right to serve interrogatories on medical 

experts has to do with the subject matter: medical judgments.”). Although the critical 

evidence is usually medical, the ultimate judgment within DVA (made by the Board of 

Veterans Appeals) is made by an administrative law judge using legal standards. See

Nieves-Rodriguez, 22 Vet. App. at 300 (“[T]he Board decides, in the first instance, which 

of the competing medical opinions or examination reports is more probative of the 

medical question at issue.”). Even at the regional office level, ratings specialists are not 

permitted to make their own medical judgments—ever since 1991, DVA has been 

forbidden from making judgments on its own independent medical grounds. See Colvin 

v. Derwinski, 1 Vet. App. 171, 175 (1991), overruled on other grounds by Hodge, 155 

F.3d at 1360. Thus, this decision is quite unlike the decision to commit a child to a state 

mental health care facility at issue in Parham v. J.R., which is made at the will of the 

admitting physician. 442 U.S. 584, 587-88 (1979). In Parham, the Supreme Court 

determined that this procedure did not violate due process, noting that the “mode and 

procedure of medical diagnostics procedures is not the business of judges. What is 

best for a child is an individual medical decision that must be left of the judgment of 

physicians in each case.” Id. at 608-09. At DVA, Congress has mandated that the 

decision be left to the will of judges. This is precisely why interrogatories directed to 

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medical opinions are important—to tell a non-physician administrative law judge when 

the medical evidence is flawed and should be supplemented or discredited. See Colvin, 

1 Vet. App. at 175 (“If the medical evidence of record is insufficient, or, in the opinion of 

the BVA, of doubtful weight or credibility, the BVA is always free to supplement the 

record by seeking an advisory opinion, ordering a medical examination or citing 

recognized medical treatises in its decisions that clearly support its ultimate 

conclusions.”). 

 The Veterans Court recently explained in great detail how DVA should analyze 

medical evidence with reference to the Federal Rules of Evidence. See NievesRodriguez, 22 Vet. App. at 302 (“The Court agrees that [the Federal Rules of Evidence] 

are important, guiding factors to be used by the Board in evaluating the probative value 

of medical opinion evidence, and that this Court’s review of the Board’s evaluation of 

competing medical opinions will be enhanced by their application.”). The Veterans 

Court emphasized that a thorough analysis of the probity of medical opinions is critical 

even though “medical professionals offering medical opinions in veterans benefits cases 

do not typically testify subject to cross-examination.” Id. The two inquiries emphasized 

by the Veterans Court were “whether the medical expert is informed of sufficient facts 

upon which to base an opinion relevant to the problem at hand” and whether the 

physician properly applied reliable principles and methods in his analysis. Id. at 302-04. 

These are the foundations of any expert testimony, and although we should expect that 

the well-intentioned DVA will police them, the single best way to find the answers to 

these questions is to ask the doctor. Just a few interrogatories will likely cover the 

relevant foundational inquiries and address the concerns raised by the Veterans Court. 

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2008-7120 14

CONCLUSION 

 At bottom, the Mathews three-part test is not a rigid one. The Supreme Court’s 

opinion in Walters illustrates a thorough, evidence-based analysis to decide what due 

process requires. As my colleague correctly notes, Mr. Gambill did not provide 

evidence that there is a grave risk of error absent a right to submit interrogatories to 

physicians offering medical opinions. See Concurring Op. at 12. Had we reached the 

issue, this would have hindered Mr. Gambill’s claim of a violation of due process under 

the Mathews test. But the evidence is equally scant on the question of government 

burden, and there is no dispute that the private interest—compensation of disabled 

veterans—is vital. Regardless, 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.