Robert V. Chisholm

On August 23, 2012, the Board of Veterans’ Appeals sent James A. Nohr a VA psychiatrist’s opinion and gave him sixty days to respond. On September 17 he sent back an affidavit and eleven questions about the psychiatrist whose opinion stood between him and service connection. He asked for Dr. Feng’s full name, her employment address, and her current curriculum vitae; for the Board’s correspondence with her; and for the transcript and handwritten notes of any interview. He asked what she meant by “obvious and manifest,” by a “typical dysthymic disorder picture,” and by “ordinary military duty.” He asked what she meant when she wrote, in a July 2012 addendum, “while I recognize my personal limitation.” In the alternative, he asked the Board to subpoena her to a hearing.

The Board declined to answer. “There is no VA regulatory authority for interrogatories,” it wrote in its April 2013 decision, “and it is stressed that the benefits system is non-adversarial in nature.” Issuing a subpoena, it said, was a matter of discretion, and it declined to issue one. It relied on Dr. Feng’s opinion and denied the claim, which Nohr had filed ten years earlier.

Robert V. Chisholm argued Nohr’s appeal to the U.S. Court of Appeals for Veterans Claims on September 18, 2014, before a three-judge panel sitting at the University of Pittsburgh School of Law. Six weeks later the court vacated the Board’s decision in a precedential opinion. In December he was back before the court, in Courtroom 21 of the E. Barrett Prettyman Courthouse in Washington, for Willie C. Wages, whose claim the Board had denied on the strength of a ruling by VA’s Director of Compensation Service. In January 2015 the court set that decision aside as well. In each case the Board had allowed a document written inside VA—a VA psychiatrist’s opinion in one, a Compensation Service director’s denial in the other—to settle a veteran’s claim, and in each the court sent the claim back to the Board: in Nohr to address the questions the veteran had raised about the psychiatrist and her opinion, in Wages to review the Director’s decision de novo instead of relying on it as evidence.

The Hamster Wheel Chisholm Described to the Senate

President Reagan signed the Veterans’ Judicial Review Act on November 18, 1988, establishing the court that hears these appeals. It began as the U.S. Court of Veterans Appeals, took its present name in 1999, and holds exclusive jurisdiction over decisions of the Board of Veterans’ Appeals. Its principal office is in Washington, but it may sit anywhere in the country, and a few times each year it does.

By the spring of 2005 Chisholm had been representing veterans for fourteen years, “at all stages of the veteran’s benefits system,” as he described it, “from the VA regional office to the Board of Veterans’ Appeals to the CAVC as well as before the Federal Circuit.” On May 26, 2005, as past president of the National Organization of Veterans’ Advocates, he testified before the Senate Committee on Veterans’ Affairs at a hearing called “Battling the Backlog.” Regional offices, he told the committee, were not getting decisions right the first time; veterans appealed to the Board, and the Board sent the cases back down. “Many claimants are stuck on this proverbial hamster wheel for years,” he said. One judge of the Veterans Court, he added, had remarked during an oral argument “that a 14-year delay is not unknown.”

With the average veteran 58 years old, he said, “many claimants do not survive the protracted adjudicatory process.” He went on: “Those claimants who do survive are fatigued and discouraged by interminable delays before the VA.” A veteran who appealed to the Veterans Court, he explained, ordinarily waited another twelve to eighteen months for a decision, and when the court ruled in the veteran’s favor, the result was most likely a remand to the Board.

He also told the committee when a lawyer could step in. A veteran could not hire counsel until the Board issued its first final decision in the case, and Chisholm called that “too late in the process for counsel to be truly effective because by the time the Board makes a decision on the claim, the record is effectively closed.” Lawyers, he said, could help obtain, organize, and present a veteran’s records. NOVA asked Congress to impose mandatory time frames for each step of VA’s process and to amend the law so that claimants could hire a lawyer earlier.

Congress changed the timing the next year. Under the Veterans Benefits, Health Care, and Information Technology Act of 2006, accredited attorneys and agents could be paid for work done after a veteran filed a notice of disagreement with VA’s decision. Until then the law had barred fees for any work done before the Board’s first final decision.

What the Board Owed James Nohr

James Nohr served in the Air Force from July 1971 to February 1975. His enlistment examination noted no psychiatric disability. In June 1972 he complained of feeling tired, run-down, and nervous, with decreased appetite and sleep, and a June 1974 examination recorded frequent trouble sleeping, depression, and excessive worry tied to shift work. He later described serving as a military policeman and guarding weapons, and swore that service had worsened the avoidant behavior he had always shown and contributed to his sense of hopelessness and depression.

He filed his claim in February 2003. A VA examiner that May diagnosed dysthymic disorder, a mood disorder marked by depressed feeling and loss of interest, found that it had been present since childhood, and concluded that service had not aggravated it. The regional office denied the claim in June 2003. The Board remanded for medical examinations in April 2007 and again in August 2009, and the Veterans Court twice granted the parties’ joint motions to send the case back, the first after both sides agreed that an October 2009 VA medical opinion was equivocal.

The law put the burden on VA. Because Nohr’s enlistment examination noted no psychiatric condition, VA could defeat the presumption that he entered service sound only “by clear and unmistakable evidence that the injury or disease manifested in service was both preexisting and not aggravated by service.” The Board asked a Veterans Health Administration psychiatrist, Dr. Feng, to address the question. In July 2011 she found “obvious and manifest” evidence that Nohr’s preexisting disorder had not been aggravated by service, because he had not described any traumatic event beyond his “ordinary military duty.” Asked to clarify her rationale, she supplied a July 2012 addendum that kept her conclusion and closed: “Respectfully, while I recognize my personal limitation, the Board should seek for the next expert opinion if this examiner’s report still is not satisfied by the Board review.”

Chisholm took the appeal as a due process case. VA had refused to let Nohr question the examiner at a hearing and had refused to give him the information he asked for, and Chisholm argued that those refusals denied Nohr a meaningful opportunity to take part in the development of his own claim. A veteran, he argued, had to be able to learn how an examiner reached her conclusion, and it was unfair for VA to shut the door on a claimant seeking information relevant to his claim.

The Secretary answered that VA claimants have no Fifth Amendment right to interrogate medical examiners or to confront them at a hearing, and that any error was harmless because nothing in Nohr’s questions would have changed Dr. Feng’s conclusion that service had not aggravated his disorder.

The subpoena came up at the argument in Pittsburgh. The Board had ruled the request outside the situations its subpoena rule, 38 C.F.R. § 20.711, contemplated, and a subpoenaed witness had to live within 100 miles of the hearing. The Secretary’s counsel could not say whether that distance could be measured from a VA facility equipped for electronic hearings.

Judge Schoelen wrote for a panel that included Chief Judge Kasold and Judge Greenberg. The court did not reach the constitutional question, because two statutes decided the case: the duty to assist in 38 U.S.C. § 5103A and the requirement in § 7104(d)(1) that the Board state the reasons or bases for its findings. Nohr’s eleven questions, the court held, reasonably raised three issues—the competence of the VHA expert, the adequacy of her opinion, and VA’s duty to assist—and the Board had neither decided whether those issues called for further development nor explained why they did not. As for the Board’s objection that VA had no rule providing for “interrogatories,” the court wrote that the Board “should not fixate on the terminology used by veterans’ counsel.” Its preoccupation with the label had, in the court’s words, “prevented the Board from seeing the forest for the trees.”

The court read Dr. Feng’s unexplained reference to a personal limitation as possibly suggesting an irregularity in how she had been selected to give the opinion. It could not see why Nohr’s request for documents failed to identify records VA should help him obtain. Nohr’s request for her curriculum vitae, the court wrote, “is not, as argued by the Secretary’s counsel, a fishing expedition,” and once he had raised the question, “the Board cannot hide behind the presumption of regularity and ignore Mr. Nohr’s request for assistance.”

The court rejected the harmless-error argument on the strength of the burden VA itself carried: “Where, as here, the burden falls on VA to demonstrate by clear and unmistakable evidence that Mr. Nohr’s dysthymic disorder was not aggravated by service, the Court cannot say that the Board’s refusal to address these issues is harmless.” On October 30, 2014, the court vacated the Board’s April 2013 decision, remanded the claim, and directed the Board to proceed expeditiously.

Willie Wages and the Director’s Denial

Willie C. Wages had service-connected disabilities rated noncompensable from 1981, 40 percent from July 2003, 50 percent from December 2006, and 90 percent from December 11, 2009. In June 2012 the Board found that from December 11, 2009, he had been unable to secure or follow a substantially gainful occupation, and it awarded a total disability rating based on individual unemployability—TDIU—from that date, when he first met the schedular requirements. The Board also wrote that “medical and lay evidence suggests that the Veteran was unable to work prior to December 11, 2009.” For the years before, the Board said it had no authority to act. Under Bowling v. Principi, a 2001 decision of the Veterans Court, the Board could not award TDIU on an extraschedular basis in the first instance; 38 C.F.R. § 4.16(b) sent those claims to the Director of VA’s Compensation Service. The Board referred the claim.

The Director reviewed the medical evidence and noted that a December 8, 2009, independent medical opinion addressed only Wages’s “inability to perform strenuous work, and did not discuss his ability to perform a sedentary occupation.” On that basis the Director wrote that “it would not be unreasonable to conclude” that Wages was “capable of performing a non-strenuous or sedentary occupation.” The Director then found no evidence that Wages’s service-connected disabilities had kept him from securing and following any substantially gainful occupation before December 11, 2009, and denied extraschedular TDIU. The regional office carried out the denial in a December 2012 supplemental statement of the case. In July 2013 the Board denied extraschedular TDIU for the earlier period, treating the Director’s opinion as evidence that Wages could have held non-strenuous or sedentary employment. The same decision acknowledged that he “had difficulty working due to his service-connected disabilities.”

The Secretary’s position moved before the argument. He first argued that the Director’s decision was evidence on which the Board could rely. On October 9, 2014, the court ordered both sides to file supplemental memoranda on how the Board should review the Director’s decision, including whether the Board had to defer to it. In response the Secretary conceded that the decision was not evidence and argued instead that § 4.16(b) stripped the Board of authority to overturn it, because extraschedular TDIU determinations were policy decisions committed to the Director’s sole discretion. Board review, he warned, would make the referral process “meaningless, time consuming, and unnecessary.”

Chisholm argued the appeal in December 2014, with Nicholas L. Phinney on the brief. At the argument the Secretary’s lawyer said that the Director decides in light of the “global picture” of “occupational opportunities, national economy, industrial impairment, and things like that,” while the Board is confined to the record before the agency. The court found no indication that the Director had considered any such picture in Wages’s case and noted that the Secretary cited no written authority for the idea. The Secretary’s lawyer also contended that the Director could find a veteran unemployable because of service-connected disabilities and still deny extraschedular TDIU as a matter of policy. The court called that contention “wholly unsupported” and contrary to the policy written into § 4.16(b).

The court rejected each step in a per curiam opinion issued January 23, 2015, by Chief Judge Kasold and Judges Moorman and Pietsch. Congress made the Board the final arbiter of all questions in matters subject to decision by the Secretary under 38 U.S.C. § 511(a) and directed that final decisions on those appeals be made by the Board. The Director’s decision, the court held, “is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence,” and the Board had to review it de novo. The court agreed with Wages “that the Board relied on the Director’s opinion as evidence, and that such reliance was error.” As for policy, § 4.16(b) states its own: “It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” The Secretary, the court wrote, had tried to remove the Director’s decision from Board review “by cloaking that decision as policy made on a case-by-case basis.”

The court also answered the warning about the referral process. Referral to the Director was the Secretary’s chosen procedure, the court noted; withholding the first extraschedular decision from the many regional offices could bring a degree of uniformity, and routing those cases through the Director could keep the Director aware of the number and type of unemployability cases and whether the rating schedule needed changes. The court set aside the July 2013 decision and remanded the claim.

Chief Judge Kasold joined the decision and wrote separately about the rule that had sent the claim to the Director in the first place. The Bowling holding, he wrote, “was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims.” He added: “Frankly, Bowling appears to be wrongly decided.” He would have had the full court take the case, overturn Bowling, and restore the Board’s authority to award extraschedular TDIU in the first instance.

Kuppamala Applies Wages to Extraschedular Ratings

Eleven months later the court applied Wages to extraschedular disability ratings. Jose V. Kuppamala’s appeal concerned the Director’s decision on an extraschedular rating, and Landon E. Overby of Providence argued it. Kuppamala had served in the Air Force from September 1987 to September 1991. He had ulcerative colitis, and in November 2002 he underwent a total colectomy. VA rated the condition at 40 percent, the most its diagnostic code allowed. In July 2007 he told VA the condition had grown worse; at an examination that October he reported about fourteen bowel movements a day and two or three more each night, which left him extremely fatigued.

In December 2011 the Board referred the claim to the Director. In May 2012 the Director found that the rating schedule did not address the frequency of Kuppamala’s severe symptoms and awarded an extraschedular 10 percent, and VA raised his rating to 50 percent from July 2007. Kuppamala appealed for more. In June 2014 the Board summarized the Director’s decision, said a 50 percent rating was warranted, and denied a higher one; Kuppamala argued that it had not addressed the weight loss, fatigue, disrupted sleep, and back and leg pain he had also described.

Before the court, the Secretary argued that neither the Board nor the court had authority to review a Director’s decision awarding an extraschedular rating, because awarding one was a policy-based decision that left no manageable judicial standards for the Board to apply. The Secretary suggested that “the Board’s only obligation is to recognize that the Director made the decision and assigned a particular rating.”

Judge Schoelen, who had written Nohr, wrote for the panel on December 30, 2015. “Manageable judicial standards do not require absolute clarity,” the panel answered. Quoting Wages, the court described the Director’s decision as “simply a decision that is adopted by the RO and reviewed de novo by the Board,” and it held that the Board may also assign the rating: “The Board reviews the entirety of the Director’s decision de novo and is thus authorized to assign an extraschedular rating when appropriate.”

The Secretary argued that letting the Board assign the rating would make the extraschedular regulation, 38 C.F.R. § 3.321(b), unworkable. Citing Wages, the court held that “the Board’s ability to review the Director’s decision and assign a rating after the Director has had an opportunity to review the claim does not render referral to the Director meaningless.” It vacated the Board’s decision and remanded.

Nohr and Wages at the Board, 2021 and 2024

CCK now tells veterans that, because of Nohr, they can ask VA for an examiner’s credentials to make sure the examiner is qualified in the appropriate medical field.

In February 2024 the Board took up another veteran’s claim for a higher rating for a knee disability, in which a VA nurse practitioner had written the medical opinion in March 2023. The veteran’s representative asked for the examiner’s qualifications. The claims file held none of that information, and the Board, citing Nohr, sent the claim back with instructions: obtain the examiner’s curriculum vitae and other information about the examiner’s qualifications, give a copy to the veteran and the representative, and, if the information could not be obtained, tell them so and document the reasons.

Since Wages, the Board decides for itself what the Director has denied. In March 2021 the Director denied extraschedular TDIU to a veteran with service-connected neck and back disabilities who had stopped working as a maintenance and industrial mechanic in January 2012, a job in which he routinely carried a tool belt weighing about 60 pounds up and down ladders. The Director acknowledged that he could not do overhead work, lift more than 10 to 20 pounds, or sit or stand for long periods, but reasoned that “the American workplace has had a dramatic shift to less strenuous jobs compared to years past” and that his years of college showed he could learn new skills. In May 2021 the Board, citing Wages, wrote that “the Director’s decision is not evidence, but, rather, the de facto AOJ decision,” and reviewed it de novo. It weighed the veteran’s own statements, a regional office memorandum, and two private medical opinions, one of them from July 2011 saying he needed lighter work that was not available to him, and it granted TDIU, including on an extraschedular basis, for the years before April 20, 2015.

Agent Orange, Burn Pits, and the Nexus Requirement

Chisholm has also written about where the burden of proof falls before a case ever reaches the court. In the January/February 2018 issue of the American Bar Association’s GPSolo magazine, he took up the claims of Iraq and Afghanistan veterans exposed to burn pit emissions. “The burden to establish direct causation—the so-called ‘nexus’ requirement—can be a heavy one,” he wrote. By establishing a presumption, he explained, VA “allows a veteran with the relevant disease to bypass the typical case-specific adjudication of whether a medical nexus exists.”

He traced the Vietnam history. The military had used potent herbicides to clear jungle across Southeast Asia, and VA denied the majority of exposure-related claims filed before the mid-1980s. Congress passed the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act in 1984, and in Nehmer v. U.S. Veterans’ Administration, decided in 1989, a federal district court invalidated VA’s rule and voided all denials of benefits under it.

Burn pits released dioxins as well. At installations in Iraq, Afghanistan, and Djibouti, he wrote, the military disposed of waste by burning it: medical and human waste, plastics, Styrofoam, petroleum products, munitions. The pit at Joint Base Balad covered about 20 acres at its peak and burned up to several hundred tons of waste a day until an incinerator replaced it in 2009. VA’s regulation defines “herbicide agent” to include TCDD, the dioxin that contaminated the Vietnam herbicide 2,4,5-T, and VA acknowledges that TCDD is among the compounds in burn pit emissions.

Without a presumption for burn pit exposure, he wrote, a veteran “must bear the more onerous burden of establishing that exposure to burn pit emissions caused his or her disease,” and he argued that the science did not support treating the two generations differently: “There does not appear to be a basis for finding that TCDD is associated with certain diseases contracted by Vietnam-era veterans but not with the same diseases when contracted by OIF/OEF veterans.” Those veterans and their advocates, he concluded, “may be able to take advantage of the Agent Orange presumption.”

The PACT Act became law on August 10, 2022. It added more than twenty presumptive conditions for burn pit and other toxic exposures, and it presumes burn pit exposure for veterans who served in listed places, among them Iraq, Kuwait, and Saudi Arabia on or after August 2, 1990, and Afghanistan on or after September 11, 2001. VA now tells veterans: “If you have a presumptive condition, you don’t need to prove that your service caused the condition.”

Representing Disabled Veterans Since 1990

Chisholm graduated magna cum laude from Boston College in 1984, where the Spanish department gave him its Andres Bello award, and magna cum laude from Boston University School of Law in 1988, where he served on the law review. He practiced for two years at Simpson Thacher & Bartlett in New York. In 1990 he joined Chisholm & Feldman in Providence and began representing disabled veterans. The Veterans Court admitted him to its bar in 1991; the Federal Circuit and the Supreme Court admitted him in 1995. He is a founding partner of Chisholm Chisholm & Kilpatrick, now CCK Law, and has served as appellant’s lead counsel in more than 7,500 cases at the Veterans Court.

In July 2010 he talked with Dan Rea of WBZ radio on a Boston University School of Law podcast about veterans’ benefits, post-traumatic stress cases, and the need for more lawyers who practice veterans law.

He was president of the National Organization of Veterans’ Advocates from 1999 to 2004, and a founding member and the 2002–2003 president of the United States Court of Appeals for Veterans Claims Bar Association. In 2016 the Veterans Court gave him its Hart T. Mankin Distinguished Service Award, and he entered NOVA’s Hall of Honor. NOVA also made him the first recipient of its Kenneth Carpenter Achievement Award for Excellence.

VA Claims Explained in Spanish

In 2018 Chisholm wrote “An On-Ramp to the Future of VA Appeals” for the American Bar Association. His subject was the Veterans Appeals Improvement and Modernization Act of 2017, known as the Appeals Modernization Act, and RAMP, the pilot program VA launched in October 2017 by invitation to the veterans with the oldest appeals.

Chisholm speaks Spanish. In September 2025 CCK announced a free Spanish-language webinar on VA claims and appeals with Chisholm as its featured speaker, covering how to file a claim, how to respond to a denial, and the appeal options under the Appeals Modernization Act. The firm announced it from San Antonio on September 17, for noon Central time on September 24. Under that law a veteran who has been denied chooses among a Supplemental Claim, a Higher-Level Review, and an appeal to the Board of Veterans’ Appeals, and the session was to walk through that choice along with evidence, common mistakes, deadlines, and when and why to get a lawyer. “This webinar is about providing clear information in Spanish,” he said. “We want to make sure Spanish-speaking veterans and their families know the steps they can take.”