Jones: VA's duty to obtain VA medical records

Jones v. Wilkie, 918 F.3d 922 (Mar. 13, 2019)

HELD: VA’s duty to assist does not require a veteran “to show that a particular record exists or that such a record would independently prove his or her claim.” VA must obtain VA medical records unless “no reasonable possibility exists that such assistance would aid in substantiating the claim.”

 SUMMARY: Mr. Jones was diagnosed with PTSD by a VA psychiatrist in 2000. He formally applied for VA disability benefits in 2011. In 2012, he was granted service connection, rated 100% disabled. He appealed for an earlier effective date, arguing that his medical records show treatment beginning in 2000 and stating that he did not file a claim until 11 years later “because the doctors did not explain to [him] what PTSD really was back in 2000.” The Board acknowledged the existence of VA medical records from 2000, but found that they were not an informal claim for benefits. The CAVC affirmed. The Court noted that the veteran’s VA medical records from 2000 and 2001 were not in the record – but found that since he stated that he did not file a claim until 2011, the chances of finding an informal claim in the VA medical records “is extremely low.” 

The Federal Circuit held that the CAVC erred “in requiring an impermissibly high threshold to trigger the VA’s duty to assist” because “it actually required Mr. Jones to show more than what the statute requires.” Under 38 U.S.C. § 5103A, VA cannot avoid its “duty to assist in obtaining records based on a mere belief that the likelihood of finding a record substantiating a veteran’s claim is ‘low’ or ‘extremely low.’” Instead, “the applicable standard is whether ‘no reasonable possibility exists that such assistance would aid in substantiating the claim.” 

The Court reiterated its prior holding in Sullivan v. McDonald, 815 F.3d 786, 790-91 (Fed. Cir. 2016) that “VA may not consider relevance when determining whether to assist in obtaining VA medical records.” In other words, VA medical records are per se relevant and VA must obtain them unless “no reasonable possibility exists” that the records could help. The Federal Circuit remanded for the CAVC to return the appeal to the Board and, in turn, to the RO to obtain all of Mr. Jones’s VA medical records. 

FULL DECISION

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.