Sullivan: DUTY TO OBTAIN VA MEDICAL RECORDS

Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. Mar. 8, 2016)

HELD: VA's duty to assist includes the duty to obtain VA medical records - regardless of the relevancy of those records.

SUMMARY: 38 C.F.R. § 3.159(c)(3) identifies four categories of records that VA will help a claimant obtain in connection with a compensation claim: (1) service medical records, if relevant to the claim; (2) other relevant service records that are held by a government entity; (3) VA medical records; and (4) any other relevant records held by any federal agency. (emphasis added). 

Based on the plain language of the regulation, the Federal Circuit found that VA clearly knew how to impose a relevancy standard on three of the four categories of records – and that it did not impose that same requirement on VA medical records. The Federal Circuit found that the CAVC erred in its interpretation of 38 C.F.R. § 3.159(c)(3) when it concluded that VA’s duty to assist extended only to “potentially relevant” VA records, including VA medical records.