Martinez: Obligation of the VA to Send a Copy of Any VA Medical Examination

Martinez v. Wilkie, Case Number 17-1551, decided May 21, 2019 considers whether the VA is obligated to automatically send a veteran a copy of a VA disability medical examination.  The Court decided the VA is not obligated by statute or the constitution to automatically send a veteran a copy of a VA disability medical examination.

The case involved a claim for service connection for sleep apnea.  Apparently, non-appellate counsel had requested the claims file multiple times and may or may not have received it.  Ultimately, a January 2016 VA medical examination was conducted and opposed service connection.  A May 2016 Supplemental Statement of the Case discussed the January 2016 examination in detail and denied the claim. Then counsel submitted a brief to the Board and the Board made a January 2017 decision continuing the denial of service connection for sleep apnea.  The veteran appealed arguing the January 2016 examination should have been automatically provided to the veteran and counsel.

The argument seems to be underpinned by repeated attempts to obtain the claims file which it is not clear was ever achieved.  What is clear is there is apparently no letter to the Board or VA requesting the January 2016 examination which was specifically mentioned by the Supplemental Statement of the Case.

On appeal, the veteran argued the duty to assist provision of 38 U.S.C. Section 5103A and/or the Due Process Clause of the Fifth Amendment to the U.S. Constitution compelled the VA to automatically provide a copy of the relied upon examination.  The Court looked at the language of Section 5103A and determined:

In none of these sections did Congress include a requirement that the Secretary furnish a copy of an examination obtained pursuant to the duty to assist. Significantly, the use of the past tense throughout section 5104(b) demonstrates that Congress intended the notification requirements of that statute to be post-decisional. That is, the statute imposes on the Secretary a requirement to provide notice or disclose the various considerations that influenced the ultimate rating decision so that the veteran can challenge the decision to the Board. 

A construction of section 5103A that would require the Secretary to send a full copy of a medical examination report whenever that examination would be used to deny a claim is inconsistent with this overall statutory scheme.

Id. at *6.

It continues to explain that:

In our view, the relevant statutory scheme is harmonious and complementary. Section

5103A sets out a general duty to help claimants obtain evidence and sections 5103 and 5104 detail the Secretary's notification duties regarding that evidence. Sections 5109 and 7109 note a specific circumstance in which the Secretary is required to automatically furnish a copy of an examination, and sections 5701 and 5702 address the specific method to be used in obtaining certain claims file documents.  The Court should not find in favor of a plain language statutory interpretation that reads out all these complementary sections.

Id. at *8. 

With the statutory arguments out of the way, the Court turned to the Due Process argument. It focuses on the risk of the VA’s practices depriving a veteran of deserved compensation.  It explains:

there is little risk that the Secretary's practices could erroneously deprive a veteran of deserved disability compensation. The Secretary's notification and case development procedures afforded Mr. Martinez detailed notice of the adverse evidence and provided him with several meaningful opportunities to be heard. The May 2016 SSOC addressed the 2016 examination in detail, notified the veteran that the examiner found no causal relationship between sleep apnea and PTSD, and explained that the denial of service connection was based in part on the 2016 examination. R. at 245-46. Attached to the SSOC was a form notifying the veteran that he had 30 days in which to submit additional information or evidence. R. at 247. After the matter returned to the Board, the veteran again received notice that he had 90 days in which to submit additional argument and evidence. R. at 162. In response, he requested that the Board delay deciding his

appeal for 30 more days. R. at 132. And then Mr. Martinez submitted a written brief in which he argued that the medical literature supported a connection between sleep apnea and PTSD. R. at 39.  Following this, the Board issued a decision that discussed the veteran's arguments and evidence, explained that the veteran's medical treatise evidence did not support his claim, and notified him of his rights to Board reconsideration and an appeal to this Court. R. at 2-34.

Mr. Martinez presents little support for concluding that the additional safeguard he suggests–automatically mailing a copy of a medical examination report to every claimant-could lessen the risk of an erroneous deprivation of benefits. Mr. Martinez was provided a detailed description of the 2016 VA medical examination. He had several meaningful opportunities to respond to it, and did so. At any point during the VA adjudicatory process, the represented veteran could have submitted a written request for a copy of the 2016 examination. It is not clear why he did not do so. The pertinent statutes and regulations allow him to obtain a copy of the examination upon written request, and "everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations." Morris v. Derwinski, 1 Vet.App. 260, 265 (1991).

Id. at *10-11.

It looks like the Court is focused on the failure to request the January 2016 examination after the Supplemental Statement of the Case was issued as well as the fact that the veteran (through counsel) did actually respond to the examination indirectly via a brief to the Board.

I see this decision as one that simply demonstrates the power of having all of the documents and medical records available to argue with.

Decision by Judge Falvey and joined in by Judges Meredith and Toth.

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