Turner: A Pending Claim Under Section 3.156(b)

Turner v. Shulkin, Case Number 16-1171, decided February 8, 2018 considers 38 CFR Section 3.156(b) which concerns claims deemed pending because the VA received new evidence with 1 year of a decision.

The Court considers whether VA treatment records may constructively be deemed to have been received by the VA.  “The Court [held] that constructive receipt in the context of 38 C.F.R. § 3.156(b), dealing exclusively with VA treatment records, requires knowledge by VA adjudicators at the VBA of the existence of those VA treatment  records within the one-year appeal period. In determining whether constructive possession has been triggered as to VA treatment records, those records must have been generated by a VA medical facility and VA adjudicators at the VBA must have sufficient

knowledge that such records exist. In addition, based on the Federal Circuit's decision in Sullivan, VA's constructive receipt of such records is not tied to their relevance to the claim.”  Id. at12-13.

The Court further explained:

In the present case, the appellant submitted a statement to the RO in July 2006, noting, "I

receive medication for depression through the Mental Health Clinic at the VAMC [North] Little Rock."  The Court holds that this statement was sufficient to provide VA adjudicators at the VBA with knowledge of the existence of the appellant's VA treatment records to trigger constructive receipt. The appellant identified a specific VA facility, that he received some type of treatment there, and that such treatment was current. Although the Court acknowledges that there is no bright line rule as to what constitutes sufficient knowledge of the existence of VA treatment records, identification of a time, place, and

nature of activity–medical treatment–are factors to be considered. Cf. 38 C.F.R. § 3.159(c)(2)(i). The Secretary argues that the appellant's statement did not indicate the relevance of the VA treatment records to his epilepsy claim. However, as discussed above, the Federal Circuit made clear in Sullivan that relevance of VA treatment records is not to be considered when determining VA's duty to consider those records and how to evaluate two disabilities on the basis of the predominate respiratory disability alone.

Id. at *14 (internal citations omitted).

The Court also acknowledged that the Claim Adjudication Manual requires an adjudicator to associate any relevant records with the claims folder even if a veteran does not identify treatment at a specific VA facility.  However, the Court held “this provision goes beyond the duty to assist as articulated in the statutes and regulations, and it is the duty to assist that defines VA's obligations in the present case.”  Id. at n. 4.

Frankly, I think this decision is tortured in its reasoning and unreasonably narrow.  It seems hard to argue the VA does not know about a VA treatment record and this decision seems to narrow the plain language of the regulation.  It seems to attempt to separate and distinguish between the VA’s medical and rating sections in a way that is probably harmful to veterans.  I understand the Court wants to place some duty on the veteran to point to post-decision evidence and thus trigger 3.156(b), but it feels like the Court has to take a leap in reasoning to place such a burden on the veteran.

I wonder if an attorney or veteran should now make a general statement to the VA any time they receive a denial stating something to the extent that “The veteran has in the past and is currently receiving treatment at the following VAMC: ____ and believe those medical records are relevant to his claim and entitle him to greater benefits.”

The decision was by Judge Allen, joined in by Chief Judge Davis and Judge Pietsch.