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.



Chisholm v. McDonald, docket no. 15-1594 (per curiam order) (Sept. 30, 2016)

HELD: The Court ordered the Secretary to issue a decision on an attorney’s request for paralegal access to VA’s electronic claims system (VBMS) on behalf of the law firm’s clients. 

SUMMARY: VA’s regulations allow representatives to access their clients’ VA claims files electronically via its Veterans Benefits Management System (VBMS). 38 C.F.R. § 1.600-.603. Attorney Robert Chisholm petitioned the Court for a writ of mandamus to compel VA to provide electronic access to paralegals under his supervision or, in the alternative, to compel VA to issue a decision on his request for electronic access by his paralegals.

The Court found that it had jurisdiction to order the Secretary to issue a decision, and granted the petition, in part, to do so. Because it had granted that portion of the request, the Court determined that Mr. Chisholm was not entitled to an order granting his paralegal staff access to their clients’ electronic records. 



Robinson v. McDonald, docket no. 15-0715 (per curiam order) (July 14, 2016)

HELD: VA’s refusal “to allow an appellant’s representative access to the paper source documents is contrary to the requirements under 38 U.S.C. § 7252(b) and Rule 10 [of the Court’s Rules of Practice and Procedure] that the Court’s review be on the record before the Secretary and the Board and that the appellant be permitted to inspect and copy any original material from that record.”

SUMMARY: The issue in this case is “whether the appellant or his representative has a right to review and compare the existing paper source documents with the electronic documents contained in VBMS [the Veterans Benefits Management System] and VVA [Virtual VA] and whether the Secretary is obligated to preserve those paper source documents.

After filing a Notice of Appeal to the Court and receiving a copy of the Record Before the Agency (RBA) from VA, the appellant noticed that several documents were missing. His representative thus filed a motion under Rule 10 of the Court’s Rules of Practice and Procedure, disputing the contents of the RBA. In that motion, he noted that he had asked to examine the original paper claims file.

The Secretary asserted that the records contained in VBMS and VVA “officially comprise [the appellant’s] claims file” and that the RBA “is a true and accurate copy of the documents contained therein.” The Secretary proposed that the parties enter into a joint motion to remand based on a duty-to-assist violation, but the appellant declined.

In response to a Court order to explain his refusal to allow the appellant to view the paper file, the Secretary acknowledged that “some paper source materials may still exist,” but they are not the “claims file and are now considered duplicates or non-records.” The Secretary noted that the scanning of paper documents was handled by a third-party vendor and that the average accuracy rate “exceeds 99 percent.” He added that VA’s scanning, digitizing, and subsequent destruction process “comported with the law” and that VA had “no obligation to produce the paper originals.”

The appellant then filed a motion under Rule 8, “asking the Court to enjoin the Secretary from destroying any original paper documents related to his claims” and to turn over those “non-records” to the appellant. The Court issued a temporary injunction.

In briefing and at oral argument, the appellant argued that Rule 10 required the Secretary to make the paper copies available, and that the Federal Records Act required the Secretary to keep a paper copy after scanning. The Secretary argued that the appellant has “no absolute ‘right’ to inspect or copy these source documents on appeal to this Court,” and that the Federal Records Act and related laws “require VA to dispose of ‘paper duplicates’ in accordance with established procedures, regardless of any pending litigation before this Court.”

The Veterans Court held that “the Secretary’s refusal in this case to allow an appellant’s representative access to the paper source documents is contrary to the requirements under 38 U.S.C. § 7252(b) and Rule 10 that the Court’s review be on the record before the Secretary and the Board and that the appellant be permitted to inspect and copy any original material from that record.”

In reaching this conclusion, the Court pointed to the relevant statutory language stating that “[r]eview in the Court shall be on the record of proceedings before the Secretary and the Board,” which is “mirrored in Rule 10(a) of the Court’s Rules.” The Court noted that even though the Secretary is an adversarial party in Court proceedings, he is “both the adjudicator and records custodian in lower proceedings, tasked with administrating a system ‘that Congress wished to be as informal and nonadversarial as possible.’” The Court emphasized the importance of review based on an accurate record, noting that “a veteran’s entitlement to disability benefits is a property interest protected by the Due Process Clause of the Fifth Amendment.” (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)).

The Court noted that, in this case, the Secretary compiled the RBA exclusively from the electronic file, even though the original records still existed. The Court rejected the Secretary’s argument that he did not have to allow access to the original file since those records were already maintained in electronic form at the time of the Board decision, stating that “Rule 10(a) requires the RBA to include the claims file at the time of the Board decision and any other relevant documents from the record before the Secretary.”

The Court also rejected the Secretary’s argument that he did not have to provide access to the original documents because his digitization of the material complied with the Federal Records Act, as implemented by the National Archives and Record Administration (NARA). The Court found that the Secretary had not even shown how these laws were applicable to the records in this case, adding that the statute cited by the Secretary “governs the ‘admissibility in evidence before the Court’” of digitized records. The Court stated that the appellant was not challenging the admissibility of anything – and that Rule 10 has nothing to do with “admissibility.” The purpose of the rule “is to help ensure that the Court’s review is based on the record of proceedings that was actually before the agency with respect to its prior adjudication of the benefit on appeal, as mandated by section 7252(b).”

The Court further rejected the Secretary’s argument that he is required to destroy the “duplicates” once the paper file has been digitized, noting that the Secretary’s cited authority actually states that “‘VA may destroy’ original materials after conversion to electronic records is ‘verified’ and ‘when no longer needed for legal or audit purposes, or to support the reconstruction of or serve as a backup to the electronic records.”

The Court found that the facts of this case demonstrate the value of Rule 10 – particularly noting that “the very fact that pages are missing from [the appellant’s initial claims form] suggests that it may have been improperly scanned.” Further support is found in the fact that VA medical records from 1992 were not in the file, even though they were cited as having been reviewed in a rating decision that was in the file.

While the Court did not make a determination with respect to VA’s current records management policies were compliant with federal laws, it did hold that “pursuant to Rule 10(d), the appellant is entitled to inspect the paper source documents and compare them with the electronic records.” The Court thus ordered the Secretary to provide the source documents to the appellant within 15 days.

Finally, while the Court did not “resolve any constitutional due process arguments arising from VA’s records management policies,” it did “express concern with the Secretary’s digitization process.” As an example, the Court noted that a 99% accuracy in a 5,000-page claims file “means that 50 pages will either be scanned incorrectly or will not be scanned” – and that some of those pages might include handwritten buddy statements from a now-deceased veteran or old private medical records that cannot be replaced. The Court also noted the “troubling” findings from the VA Office of Inspector General regarding the disorganized and improper handling of veterans’ documents by contractor facilities.