Green v. McDonald, docket no. 16-0740 (per curiam order) (Oct. 24, 2016)

HELD: There is no regulatory right to remote access to the Veterans Benefits Management System (VBMS) for attorneys practicing before the Veterans Court who are not accredited to practice before VA.

SUMMARY: Mr. Green appealed an adverse Board decision to the Court of Appeals for Veterans Claims (CAVC). Pursuant to the Court’s rules, the Secretary provided Mr. Green’s attorney with a copy of the Record Before the Agency (RBA), and the attorney had 14 days to dispute the contents and/or preparation of the RBA.

Recognizing a potential discrepancy in the RBA, the attorney requested “read-only” remote access to Mr. Green’s electronic file contained in VA’s Veterans Benefits Management System (VBMS). The Secretary denied remote access, but would allow the attorney to review the file at any VA office. The attorney filed a motion with the Court asking the Court to compel the Secretary to allow remote read-only access to his client’s VBMS file. In the motion, he argued that VA’s own regulations allow attorney access to “VBA automated claims records from a location other than a VA [regional office]” – and that the Secretary cannot require attorneys to be accredited by VA in order to gain such access for Court proceedings.

The Secretary argued that he had offered the attorney the same opportunity to review the veteran’s file as any non-accredited attorney representing a veteran at the Court prior to VA’s adoption of an electronic records management system. The Secretary asserted that VA accreditation is required for remote read-only access so as to protect VA’s “internal system which contains highly sensitive records.” The Secretary stated that the regulations “do not confer an enforceable right” to remote VBMS access – and that the regulations cited by Mr. Green’s attorney are inapplicable to VBMS.

The Court agreed with the Secretary. The Court examined the regulations cited by the attorney, 38 C.F.R. §§ 1.600-.603, and determined that while there is no requirement that an attorney be accredited by VA to remotely access “VBA automated claims records,” this category of records does not include VBMS files. The Court based this determination on the plain language of 38 C.F.R. § 1.600(c)(1), which expressly limits access to certain categories of data. The Court noted, in a footnote, that it was “unsettling that the Secretary has not amended his regulations to reflect his current telecommunications systems and the data that is available via remote access.” Nevertheless, the Court declined to redefine “automated claims records” in the regulations to include VBMS.

The Court further determined that VA’s policy of requiring attorneys in Court proceedings to travel to a VA office to review a veteran’s electronic claims file was reasonable in light of VA’s “longstanding” policy “rooted in safeguarding individual privacy from the misuse of information.” The Court noted that VA did not deny access to Mr. Green’s VBMS file – but only denied remote access to a non-accredited attorney. The Court thus held that the Secretary’s policies and procedures regarding access to original materials in the RBA – “whether that material is stored in paper or electronic format” – are reasonable and in compliance with the Court’s own rules.

Even though the Court agreed with the Secretary in the holding of this case, the Court stated that it was “compelled to comment on the Secretary’s current stance” requiring VA accreditation as the only way for VA to protect the privacy of records – as the Secretary did not explain how accreditation “by VA serves any security purpose.” The Court noted the length of time it takes to become accredited by VA, which is longer than the amount of time an attorney would have to dispute the RBA in a court proceeding, and referred to the Secretary’s “endeavor to make remote read-only access available” via VA accreditation as “an empty gesture,” particularly for attorneys who only represent veterans at the Court. 

In a concurring opinion, Judge Lance noted that some attorneys – particularly in rural areas – might be hundreds of miles from a VA office where they would be able to review an appellant’s original or VBMS file. (The attorney in this case worked less than a mile from a VA regional office.) Judge Lance stated if an attorney had to travel a significant distance to review the original file, he was “not certain” that VA’s current procedures would be considered “reasonable.