## 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 fo r 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 Depa rtment 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, Unit ed States Department ofVeterans 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 physici an told him it is possible for a blow to the head to cause cataracts. Thereafter, Mr. Ga mbill filed a claim for disability benefits with2008-7120 2 a regional office of the Department of Vete rans 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 milit ary service. Following a DVA consultation examination, the regional office denied hi s 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 H ealth Administration (“VHA”) whenever, in the Board’s judgment, “medical expertise is needed fo r equitable disposition of an appeal.” 38 C.F.R. § 20.901. The Boar d is also authorized to obtain a medical opinion from an independent medical expert if “ex pert medical opinion, in addition to that available within the Department, is warranted by the medical co mplexity or controversy involved in an appeal case.” 38 U.S.C. § 7109(a). In Mr. Gambill’s case, the Board concl uded 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 t herefore requested an additional opinion from a VHA ophthalmologist “as to w hether 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 hi story, 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 ophthalmologi st added that “certainlydirect eye trauma2008-7120 3 is an associated risk factor for cataract dev elopment [but] the patient denies ocular trauma.” Pursuant to regulation, the Board pr ovided Mr. Gambill with a copy of the ophthalmologist’s opinion and advised him thathe 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 bysubmitting a statement in support of his contention that the blow to his head duri ng service had caused his cataracts. Mr. Gambill provided excerpts from several articles found on the Interne t. One stated that “cataract formation after non-perforating injuri es 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 t hat “[i]t is possible t hat a blow to the head can contribute to the development of catara cts 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 ask ed that the Boar d proceed with the adjudication of his appeal. After reviewing all the evidence before i t, the Board denied service connection for Mr. Gambill’s cataracts. The Board re cognized 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. Wi th 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 were2008-7120 4 offered to establish that Mr. Gambill developed cataracts as a result of his in-service head injury, “they are insufficient in that t he doctors did not specifically address the circumstances in this case.” The Board reached the same conclusion wit h 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 material s “were not prepared wit h consideration of the circumstances of this case.” The Board therefore ruled that “[i]t would be speculative to find that the veteran’s cataract s 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]her e simply is no evidence of record, to include the medical treatise exce rpts or [Mr. Gambill’s] private physicians’ statements . . . which actually makes this nexus connection. . . . The objective evidence of record does not show a relationshi p 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 Appeal s for Veterans Claims (“the Veterans Court”). In his brief to that court, he asse rted that the DVA had violated his rights under the Due Process Clause of t he Fifth Amendment to the Constitution by not allowing him to submit written interrogatories to the VH A ophthalmologist and by failing to advise him that he had the right to do so.2008-7120 5 The Veterans Court affirmed. It reject ed 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 re ceiving benefits to trigger the procedural protections of the Due Process Clause. Instead, the court ruled that “creati ng a procedural right in the name of fair process principl es [for applicants for DVA dis ability 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 c onduct its own evidentiary development by requesting a medical opinion, the court stat ed that the Board “must ensure that it provides the appellant fair process in t he adjudication of his claim,” and that “in rendering a decision on a clai m, on any evidence developed or obtained by it, [the Board] must provide a clai mant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reas onable 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 ophthal mologist’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 fo r disability benefits must be afforded the2008-7120 6 opportunity to confront adverse medical evidence, at least through the use of interrogatories. In addition, he contends, t hey must be given notice of that right. Although the Supreme Court has declined to address the question whether due process protections apply to the proceedi ngs in which the DVA decides whether veteran-applicants are eligib le 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 t he failure to provide him with the right to serve interrogatories on the VHA ophthalmologi st 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 reques ted 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 medi cal 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 cl aimant then has 60 days to respond to the medical opinion by submitting any relevant evidence or argument t hat may assist the Board in reaching an equitable re sult. 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 re spond to an opinion from a VHA medical professional or an independent medical examiner, butthat the veteran must be given an opportunity to2008-7120 7 confront any physician who submits a medi cal opinion that the veteran regards as contrary to his interests in whole or in part. The submission ofinterrogatories, he contends, is the minimum necessary to sati sfy his due process right to confront the evidence against him. We need not address the broad questions w hether the absence ofconfrontation rights in veterans’ benefits cases renders su ch 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 c onfrontation was not prej udicial in this case. 1 Even assuming that claimants in veterans’ disability compensation proceedings have a constitutional right to challenge adverse evi dence 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 wh ich the right of confr ontation 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 ca ses, 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) (citi ng the harmless error provision of title 38 that applies to pr oceedings before the Court of Appeals for Veterans Claims, 38 U.S.C. § 7261(b)(2), and the parallel harmle ss error provision of the Administrative

1 Because Mr. Gambill has argued t hat due process requir ed not only that he be allowed to serve interrogatories on medica l experts, but also that he be advised of that right, we do not rest ourdecision 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 admin istrative proceedings). In such cases, the party “who seeks to have a judgment set aside because of an erroneous ruling carries the burden of s howing 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 clai m was clearly insufficient to establish service connection for his cataracts because it failed to showa 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 t he following: (1) he suffered a head injury during service; (2) he developed cataracts more than 20 year s 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 possibl e that cataracts can be caus ed 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 examinat ion 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 spec ifically asked that she address whether Mr. Gambill’s cataracts were as likely as not t he result of his in-service injury. As it turned out, the VHA ophthalmologist’s report di d not help Mr. Gambill. But it left him no worse off than he was without t he report, as the rest of t he evidence before the Board failed to prove actual causation.

2 He subsequently supplemented that evidence, but his additional evidence was of the same character, a ll 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 r eport that Mr. Gambill has disputed is the statement that in her s earch of the literature she was unable to find any reports suggesting that head trauma was a cause oran associated risk factor in the development of cataracts. The rest of the report consisted ofa 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 ot her than direct trauma to the eye, also appears to be undisputed. Mr. Gambill argues that allowing confr ontation through the submission of interrogatories would have helped elicit “t he 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 t he medical literature show ed 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 rema in Mr. Gambill’s stumbling block; nothing he could realistically expect to obtain by way ofconfrontation of t he VHA ophthalmologist, who did not examine him, w ould overcome that problem. The absence of any prejudice to Mr. Ga mbill from the VHA ophthalmologist’s report is apparent from the m anner in which the Board analyz ed 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 of2008-7120 10 cataracts. As the Board st ated, even if the VHA ophthalmol ogist was in error as to whether head trauma could cause cataracts, t here was “simply no evidence of record, to include the medical treatise excerpts orthe 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 clai m that the Board is obligated not only to provide claimants with the right to serve interrogatories on VHA physicians and independent medical experts, but al so to advise the claimants of their right to do so. Thus, we do not reach t he 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 admi nistrative 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 clai mant has a due process right to confront any VHA physician or independent medical exam iner who provides a medical opinion upon request, the failure to provi de for confrontation in this case was not prejudicial to Mr. Gambill. More fundamentally, however, I be lieve 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 Supr eme Court analyzed the application of the Due Process Clause to the veterans’ benef its 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 stat ute that sharply rest ricted the maximumfee that may be paid to an atto rney representing a veteran before the DVA in a claim for benefits for service-connected death or dis ability. Although recognizing that the practical effect of the statute was to deny l egal representation to ve terans in most DVA compensation proceedings, the Court uphel d the statute against a due process challenge. In so doing, the Court analyz ed the veterans’ benefits system in detail and concluded that, in light of the informal and pr o-claimant nature of that system, the Due Process Clause does not require the same kinds of procedur es 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 virtuallydictates the proper disposition of the constitutional claim raised in this case. The Walters Court began its analysis by emphas izing that due process “is a flexible concept—that the processes requir ed by the [Due Process] Clause with respect to the termination of a protected inte rest will vary depending upon the importance attached to the interest and the particula r circumstances under which the deprivation may occur.” 473 U.S. at 320. Importantly , the Court emphasized t hat the Due Process Clause does not require proc edures that guarantee against an erroneous deprivation, and that “the marginal gains from afford ing 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 thata 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 definit ion sufficient for all of them.” Id. at 330.

2008-7120 2More generally, the Supreme Court has char acterized 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 thatwarrant 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 e rroneous 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 adminis trative 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 fact ors as they pertain to veterans’ benefits determinations. As to the private interestthat 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 mo re akin to the Social Security benefits involved in Mathews than they are to the welfare payments upon which the recipients in

2008-7120 3Goldberg [v. Kelly , 397 U.S. 254 (1970),] depended for thei r daily subsistence.” 473 U.S. at 333. Although t he private interest in disability benefits is still substantial, the Walters Court identified the differ ence 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 t hat 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 “gr eat weight must be accorded to the Government interest at stake here. ” 473 U.S. at 326. The Court explained: The flexibility of our appr oach in due process cases is intended in part to allow room for other forms of dis pute resolution; with respect to the individual interests at stake here, legislatures are to be allowed considerable leeway to formulate su ch processes without being forced to conform to a rigid constitutional code of procedural necessities. Id. “It would take an extraordinarily str ong 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 pr ocess. Given Congress’s desire that the proceedings in veterans’ benefits cases be “as informal and nonadv ersarial as possible” in veterans’ benefits cases, Walters , 473 U.S. at 323-24, t he 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 satisf y due process standards. I set forth below

2008-7120 4the 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 import ance in assessing the constitutionality of the procedur es that are employed by t he DVA. The Court surveyed the DVA’s procedures in some detail, and those procedures ar e, if anything, even more protective of claimants now t han 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 st atute 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, t he 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 befor e 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 gover nment 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 a ssure “clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed

2008-7120 5to explore fully the basis for claimed entitle ment 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 cl aimant may offer is to be included in the record. Id. § 3.103(d). By statute and regulati on, it is the obligat ion 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 c onstrue 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 preponderanc e of the evidence; instead, the DVA is instructed to give the benefit of the doubt to the claim ant when “there is an appr oximate balance of positive and negative evidence regarding any iss ue 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 explanat ion 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 benefitsought. If the regi onal 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 Veter ans’ Appeals. 38 U.S.C. § 7105(d)(1); 38 C.F.R. § 3.103(f). Like the regional office, the Board is r equired 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 6hearing on appeal before the Board at wh ich the appellant and witnesses may be present. Id. § 20.700. Like the hearing before t he 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 hearin g, the proceeding is not governed by the rules of evidence, and the parties are “permitted to ask questions, including follow-up questions of all witne sses but cross-examination will not be permitted.” Id. If it appears during such a hearing t hat additional evidence would assist in the review of the questions at issue, t he Board may direct that the record be left open so that the appellant may obt ain the desired evidence. Id. § 20.709. In addition, if necessary evidence cannot be otherwise obt ained, the Board may issue a subpoena at the appellant’s request to obtai n the presence of a witness re siding 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 cl ear that the vete rans’ 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 bet ween 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 nat ure 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 7F.3d 1352, 1357 (Fed. Cir. 2008). The process is “designed to function throughout with a high degree of informality and so licitude for the claimant.” Walters , 473 U.S. at 311. Then-Chief Judge Mayer put the point succinctl y when he stated, “View ed in its entirety, the veterans’ system is constructed as t he 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 compensat ion 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 char acter of the DVA system when it added judicial review to the system in 1988. T he House report on the 1988 legislation stated that point clearly: Congress has designed and fully int ends to maintain a beneficial non-adversarial system of veterans benefits. This is particularly true of service-connected disability compensat ion 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 adjudi cation in which Congress expects VA to fully and sympathetically develop t he 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 benef it of any reasonable doubt. In such a beneficial structure there is no room for such adversarial concepts as cross examination, best evidence ru le, hearsay evidence exclusion, or strict adherence to burden of proof.

. . . . .
2008-7120 8To the extent possible, the commi ttee expects that the procedures employed at the regional office leve l 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 veter ans’ benefits system. For exam ple, 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 hist orically non-adversarial system of awarding benefits to veterans and discu ssed 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 adm inistrative 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 contem plate 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 ar e 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 ve terans’ disability compensation system, the legislative history of the 1988 statute make s it clear that Congress spec ifically wished to avoid the introduction of adversarial procedures such as interrogatories. Early versions of the

2008-7120 91988 Act contained provisions for serving written interrogatories on any person, including DVA employees. Those provisions we re 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 writt en interrogatories, al ong with several other procedural provisions, had been omitted. The statement explained, “The Committees intend [that the Board’s] info rmal procedures be continued.” Explanatory Statement of the Compromise Agreement on S. 11, As Amended, the “V eterans’ 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 C ongress’s intent was “that the BVA continue to operate in its informal, nonadversarial manner.” 134 C ong. Rec. 31468 (1988) (remarks of Sen. Cranston). D Like the procedure used in the vete rans’ disability compensation system generally, the procedure t hat the DVA has provided for a claimant to obtain, rely on, and respond to an expert medical opinion is nonadver sarial. The DVA’s regulations provide that a claimant or the clai mant’s representative may r equest 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 identificat ion 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 physi cian on its own initiative is part of the DVA’s duty to assist a claimant to obtain evi dence 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 10medical questions involved in the consider ation 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 paralle l statutory authority to obtai n a medical opinion from an independent medical expert if “ex pert medical opinion, in addition to that available within the Department, is warranted by the medical co mplexity 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 physi cian’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 t he 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 m edical 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 Boar d requests an expert medical opinion, due process requires the DVA to afford a vete ran not just an opportunity to respond to the opinion, but also an opportunity to confront the physici an who submitted it. While he does not argue that he is consti tutionally 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 confr ont 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 s ubstantially more effective than the submission of contrary

2008-7120 11evidence alone, and (2) they are less burdens ome 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 ca ses 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 othermedical 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 lit erature for the propos ition that head trauma is a cause or an associated risk factor in t he development of cataract s. To the extent that Mr. Gambill wished to cha llenge her statement about the m edical literature, the best way to proceed would seem to be to introduc e 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 literatur e would reveal. That info rmation could effectively be developed through the introduction of contraryopinions 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 12contrary evidence as a means of chall enging 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 evi dence as possible. But as Justice Brennan wrote for the Supreme Court some years ago, “[I]t should not routi nely be assumed that any decision made without the forms of adver sary 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 advocat e could make effective use of tools of confrontation such as interrogatories or cr oss-examination. Rather, the question is whether the absence of such tools would be likel y to have such a distortive effect on the truth-seeking process and produce such unreli able results as to render the proceeding fundamentally unfair. At least with respec t to expert medical opinions obtained by the Board to assist it in assessing individual claims, I am satisfi ed that the regulatory prohibition on confronting medical experts, ei ther by in-person cr oss-examination or through interrogatories, does not create an una cceptable risk of unreliable outcomes. That is especially true in light of the entire complex of prot ections afforded to claimants in the disability co mpensation process, including t he DVA’s duty to assist the claimants in presenting their claims, its dut y 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 13by an attorney or other repr esentative whose role is to oppose the claim. While Mr. Gambill has characterized the absence of confr ontation 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 pointmade 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 inaccu rate results, there has been no showing in this case—or elsewhere so far as we are advised—that the nonadv ersarial veterans’ disability benefits system, with its many pro-claimant f eatures, produces more erroneous decisions against claimants than would be produced in an adversarial system in which confrontation of wit nesses 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 evidenc e that the participation of lawyers resulted in some marginal benefit to claim ants, the Supreme Court found that showing to be insufficient. The showing made in that case, the Court observed, did not constitute the “extraordinarilystrong of probability of erro r” that would be required to warrant constitutional condemnation of t he current system. 473 U.S. at 326. A fortiori , the showing in this case, which is essent ially limited to the unspoken (but hardly unassailable) proposition that more elaborate pr ocess is likely to produce more accurate results, is insufficient to invalidate t he system devised by the agency and blessed by Congress.

2008-7120 142 As to the issue of burdensomeness, it is no doubt true, as Mr. Gambill contends, that interrogatories are less in trusive 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 ex penditure of time in framing appropriate responses to the interrogatories, the submissi on of interrogatories could well result in collateral conflicts over t he content of the interrogat ories and the adequacy of the
responses. A further problem with the position taken byMr. Gambill in this case is that the scope of the confrontation ri ght for which he argues is entirely undefined. Mr. Gambill suggests that the confrontati on right he seeks would not include the right of in-person cross-examination, and that the right to submit interrogat ories would be limited. He states that “a claimant s hould only be allowed to submit a reasonable number of questions, say, five or six on the outside.” That proposal s uggests that the Due Process Clause requires “five or six” in terrogatories, but not twenty. The arbitrariness of that distinction is obvious. Adopting Mr. Gambill’s position would vi rtually ensure that the Board, the Veterans Court, and this Court would be collectively launched into an ongoing linedrawing exercise regarding t he number and character of the interrogatories that would have to be allowed. Mr. Gambill may hav e conceded that only “five or six” interrogatories need be granted, but his conc ession 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 15examination were required. The overall burdensomeness of proceeding down that road is clear. In short, the use of interrogatories woul d undermine, at least to some degree, the nonadversarial nature of the veterans’ compensation system by forcing medical personnel into an adversarial posture with regar d to the veteran claimants. Mr. Gambill responds that interrogatories are “less adversarial than the subpoena procedure,” but he does not dispute that their use woul d introduce some level of antagonistic interaction. I cannot lightlydisregard the interest in maintaining the nonadversarial nature of the system. When t hat interest is balanced against the limited benefits of allowing interrogatories, I c onclude 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 proc edures 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 opportunityto present reasons why the proposed action should not be taken. He identified the right to counsel and the right of confrontation as less fundament al to a fair proceeding. Id. at 1279-91. While acknowledging the importance of c onfrontation procedur es in criminal cases and certain civil matters, Judge Fri endly questioned the universal applicability of such procedures “to the thous ands of hearings on welfare, social security benefits,

2008-7120 16housing, prison discipline, education, and t he like which are now held every month—not to speak of hearings on recondite sci entific 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 prov iding rights of counsel and confrontation in such cases “inevitably bri ng up the question whetherwe would not do better to abandon the adversary system in certai n 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 responsibilit y for developing all the pertinent facts and making a just decision.” The presiding offi cial 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 evidenc e be presented, and, ifnecessary, 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 t he 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, woul d hear the evidence and discuss the dispute with the parties and with their a ttorneys, assuming that they were permitted to have them. . . . There is no constitutional mandate requiring use of the adversary process in adm inistrative hearings unless the Court chooses to construct one out of t he vague contours of the due process clause. Id. at 1290-91. Judge Friendly’ s model describes the ve terans’ disability benefits system with remarkable accuracy. His anal ysis, like the subsequent analysis of the Supreme Court in Walters , shows why the procedures thatare routinely employed in criminal and civil litigation, including right s to counsel and conf rontation, are not

2008-7120 17constitutionally required components of an administrative benefits system, particularly one that is nonadversarial and pro-cl aimant in design and operation. F Another factor that supports the conclusion that due process does not require a right to serve interrogatories on medical ex perts has to do with the subject matter: medical judgments. On several occasi ons, the Supreme Court has addressed the question of how to apply due proc ess 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 orguardian to instituti onalize the child, the State faces questions that are “ess entially medical in character.” Id. at 609. The Court recognized that “[n]ot every det ermination by state officers can be made most effectively by use of ‘the procedural t ools of judicial or adminis trative 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 fo rmal or quasi-formal hearing was not required and that “due process is not vi olated 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 be tter 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 18The mode and procedure of medical diagnostic procedures is not the business of judges. What is best fo r a child is an individual medical decision that must be left to the judgm ent of physicians in each case. We do no more than emphasize that t he decision should represent an independent judgment of what the child requires and that all sources of information that are traditionally re lied 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 appropria teness of medical decisions . . . may well be more illusory than real.” Id. at 609. The Court’s decis ion 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 medi cal decisions are in issue, the benefits that may otherwise be associated wit h 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 medica l decisionmakers rat her than a judicial hearing); Vitek v. Jones , 445 U.S. 480, 495 (1980) (“essent ially medical” decision

2008-7120 19whether to transfer a prisoner to a mental hospital for treatment does not require presence of counsel). In the DVA’s system for determining whet her particular disabilities are serviceconnected, the decision frequently turns on a medi cal 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-per son cross-examination or interrogatories, to be an essential component of procedur al fairness when the issue involves a request for a medical opini on 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 t hat Mr. Gambill relies heavily on cases from other courts of appeals dealing with due pr ocess 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 claim ants 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 20factually 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’ disab ility compensation system is similar to the social security disability system in so me 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 administrativ e proceedings in social security cases served as the model for secti on 7(c) of the Admini strative Procedure Act, which provides that a party is entitled “to conduct such cross-examination as may be required for a full and true disclosure ofthe 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 claimanthis statutory right to a decision based on evidence adduced at the hearing). By contra st, Congress made clear at the time of the Veterans’ Judicial Review Act of 1988 that it did not wantthe provisions of section 7(c) of the Administrative Procedure Act to apply to veterans’ disability compensation proceedings. The explanatory statement bythe House and Senate Committees about that Act stated that the Co mmittees intended that the Boar d’s informal procedures “be continued and that the [Administrative Pr ocedure 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. T he 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 212008-7120 22 Accordingly, without regard to whether those social security cases were correctly decided, they do not dict ate the outcome in this case, which involves a different type of evidence and a different statutory scheme. * * * * * In sum, the Suprem e 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 opini on 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 prejudic e here. I write separately to respond to Judge Bryson’s conc urrence. Unlike my colleague, I believe that due process requires that claimants of veterans’ benefits be provided with the opportunity to confront the doctors whos e 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. C onfrontation should be a centra l part of due process here because it is necessary to hel p DVA understand the limitations of the opinions before it, and may be the veteran’s only route to unde rmine 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 benef its, either in the form of live testimony or written interrogatories. According to my co lleague, veterans are not entitled to similar protections because the veterans’ benefits syst em is non-adversarial and tipped in favor of the veteran. But the paternalistic attr ibutes of the veter ans’ benefits system—many of which are shared by the social security system—militate toward providing more protection for veterans, not less. The av ailability of interrogatories to question the doctors who issue medical opinions adverse to the veteran are indisputably proclaimant—they only stand to help the veter an 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 di sability benefits. I posit t hat because a veteran only needs interrogatories to challenge an opinion that c ontradicts 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 what soever that a limited c onfrontation right would ultimately do more harm than good for the veterans’ benefits system. Lacking such a basis to restrict due process, and consideri ng the crucial importanc e of these medical opinions, I do not agree that t he government’s interests outweigh the veteran’s here. Interrogatories would serve mainly to help D VA get to the truth ofthe 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 typica l of medical opinions relied upon by DVA

2008-7120 2because it did not reach any conclusion regar ding Mr. Gambill’s condition. In fact, the VHA ophthalmologist rendered no opinions at a ll. After summari zing 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 factorin the development of cataracts.” Even if this statement had harmed Mr. Gamb ill’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 ca taracts, 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 ri ght of confrontation when the dispute is limited to factual statements a sserting the absence of certain information in the medical literature. Rather, my coll eague asserts that due process does not afford veterans the use of interrogatories or other forms of confrontation to challenge anymedical expert opinion evidence. See id. at 1, 12-16, 22. It is here thatI disagree. Mr. Gambill’s case is not a “good illustration” of wh y confrontation does not furtherthe veteran’s interests. Id. at 12. Instead, Mr. Gamb ill’s case represents an unusual exception to the common situation where the outcome of the clai m for benefits turns on a physician’s expert opinion relating to the veteran’s medical hi story 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 ther efore a process which is sufficient for the 2008-7120 3A. 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 reas onableness of the action depends on fact findings, the evidence used to pr ove 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-exam ination. They have anci ent roots. They find expression in the Sixth Amendment whic h 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 adminis trative and regulatory actions were under scrutiny. Greene v. McElroy , 360 U.S. 474, 496-97 (1959) (cit ations 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 fa ct, 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 affi davits 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 “neutra l scientific testing” is not immune to fraud and incompetence, and that confrontation serves to test experts “honesty, proficiency, and methodology—the features that are commonl y 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 consti tutional 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 fo r most is insufficient for all. 2008-7120 4reminder 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 medica l examiners and private physicians offering medical opinions in veterans benefits cases are not hing 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 admissibl e evidence “subject as they are to being material and to the use of the s ubpoena 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 disab ility 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 5nature of the social secu rity 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 th ink of no justification for suggesting that veterans, who have borne the battle, are ent itled 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 ofsystemic 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 vete rans benefits proceedings is “equ al, if not greater” than that of social security disability proceedings). Although most of the circuits require an absolute right to cr oss-examination, some of the circuits chose a similar pat h 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 witnesse s 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 t he 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

2008-7120 6interests—the system has already become adver sarial. Interrogatories are the fair
response. The government has not offered any evi dence that interrogatories would impose a significant burden on DVA. No r do I think that the Board, the Veterans Court, or our court would be overly burdened with cases a sking 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-dra wing exercise regarding the number and character of the interrogatories that would hav e 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 coul d be proffered by the veteran or even conducted informally by DVA. Moreover, in the social security context where nearly every circuit guarantees at leas t 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 conduct ed, or the number and substanc e of interrogatories. The dearth of such disputes in the social securitycontext leaves little room for claims that interrogatories would become an ov erly burdensome judicial headache. My colleague asserts that the social security “cases can be factually distinguished from this one on the ground t hat each of them in volved 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

2008-7120 7claimant, not general medical fact evidence. Moreover, even if th e 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 prin ciple. His opinion, as I understand it, is that there is no right to interr ogatories in any of these cases. This would result in us deciding that veterans are entitled to less pr otection 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 Asso ciation 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, her e there is no evi dence 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 veter an fees of more than $10 with respect to any one claim for monetary benefits. The Court held that this limitat ion did not violate due process, generally deferring to Congress’ goals of “wanting the veteran to get the

2008-7120 8entirety of the award” and wanting to avoid administrative burdens that would arise if “claimants were permitted to re tain compensated attorneys.” Walters , 473 U.S. at 326. Section 3404 and the Suprem e 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 t he playing field. In 1988, the Veterans’ Judicial Review Act created t he 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, C ongress 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 veter ans any time after they file their notice of disagreement. See id . Thus, although the Supreme C ourt appropriately deferred to Congress’ judgment in 1985, Congr ess’ judgment has changed. For better or worse, we have noted the in creasingly adversarial nature of the veterans’ benefits system—the l egal 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 “sev erely limit the exercise ofour 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 inappropr iate . . . because the parties have a

2008-7120 9nonadversarial 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 legisl ation the system has changed from a nonadversarial, ex parte, paternalistic system fo r 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 t he path that the Forsheydissent urged, to “revisit its legislative handiwork and restore the veterans’ system to its original purpose se t 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 “pr ogress” 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 t he risk of an incorrect dete rmination of benefits. See 473 U.S. at 327-34. Notwithstanding t he Court’s reasoning, Congress decided to allow this

2 Although Congress did not provide vete rans a right to interrogatories in 1988, see Concurring Op. at 10, this single omission does not have any special significance among the unknown compromise s 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 w hat meaning the omission of the s ubsection of the bill has is to engage in a fruitless task.”). Further, placing too much weight on gener al statements in the 1988 legislative history that the process should remain in formal ignores the fact that eighteen years later, Congress shifted cour se and decided that veterans would be better off with legal representation before DVA. 2008-7120 10representation. Moreover, al though “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 count er 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 medica l condition is service-connected. See Taylor v. Ill. , 484 U.S. 400, 411-12 (1988) (“Discovery, lik e 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 c ould 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 ofwitnesses 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 le ss burdensome than live testimony. The government acknowledges that interrogat ories would be less burdensome than live testimony, but argues without evidentiary support that interrogatorie s, 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 “subs titute 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.”). D VA’s duty to assist and the veteran’s low burden of pr oof will not help the veteran at all if DVA has sought and relied upon a superficially convincing but ul timately inadequate medical opinion; this

2008-7120 11type of judgment is virtually im pervious to review. Just t he possibility of interrogatories will motivate DVA to examine medical opinions more thoroughly. C. The fact that the judgment s are medical in nature only further reinforces the need for confrontation. See Concurring Op. at 18-20 (“Anot her 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 (m ade by the Board of Veterans Appeals) is made by an administrative law j udge using legal standards. See Nieves-Rodriguez , 22 Vet. App. at 300 (“[T]he Board deci des, in the first instance, which of the competing medical opini ons 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 un like 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 procedur e did not violate due proce ss, 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 decis ion that must be left of the judgment of physicians in each case.” Id. at 608-09. At DVA, C ongress has mandated that the decision be left to the will of judges. This is precisely why interrogatories directed to

2008-7120 12medical opinions are import ant—to tell a non-physician administrative law judge when the medical evidence is flawed and s hould be supplemented ordiscredited. See Colvin , 1 Vet. App. at 175 (“If the medica l evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight orcredibility, the BVA is a lways free to supplement the record by seeking an advisory opinion, or dering a medical exam ination or citing recognized medical treatises in its decis ions 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 t hat [the Federal Rules of Evidence] are important, guiding factors to be used by the Board in evaluati ng the probative value of medical opinion evidence, and that this C ourt’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 m edical opinions is critical even though “medical professionals offering medi cal opinions in veterans benefits cases do not typically testify subjec t to cross-examination.” Id. The two inquiries emphasized by the Veterans Court were “whether the m edical 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 princi ples and methods in his analysis. Id. at 302-04. These are the foundations ofany expert testimony, and al though we should expect that the well-intentioned DVA will polic e them, the single best way to find the answers to these questions is to ask the doctor. Just a few interrogatorie s will likely cover the relevant foundational inquiries and address the concerns raised by the Veterans Court.

2008-7120 132008-7120 14 CONCLUSION At bottom, the Mathews three-part test is not a rigi d one. The Supreme Court’s opinion in Walters illustrates a thorough, evidence- based analysis to decide what due process requires. As my colleague corre ctly 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 disput e that the private intere st—compensation of disabled veterans—is vital. Regardless, Mr. Gamb ill 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 interr ogatories to doctors by the veteran or administered by DVA would signifi cantly further Congress’ goal of swiftly getting benefits into the hands of deserving veterans.