Sullivan: Duty to Assist to Obtain Medical Records

Maurice Sullivan v. McDonald, Opinion Number 2015-7076, decided March 8, 2016 is a Federal Circuit decision involving the duty to assist. 

The veteran had sought to reopen his claim by submitting new evidence.  The Board determined the evidence was not material and further found it had fulfilled its duty to assist the veteran. 

On appeal to the Veterans Court the veteran argued the VA did not obtain his medical records from a VAMC where he had previously sought treatment.  During the hearing before the Board, the veteran had said he had been treated there and told by doctors that he did not have anything wrong with him.

The Veterans Court concluded the duty to assist a veteran in obtaining records only extends to potentially relevant records and then went on to determine the VAMC records identified were not potentially relevant records that would aid the veteran in reopening his claim.

The relevant code and regulation are 38 USC 5103A and 38 CFR 3.159(c).  Interestingly, the code section imposes a relevancy standard on records.  However, the regulation at issue does not impose the same relevancy standard on VA medical records—instead simply stating:

“Obtaining records in compensation claims. In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided.”

The Federal Circuit dealt with the more liberal regulation language by noting 38 USC 5103A states that “nothing in [5103A] shall be construed as precluding the Secretary from providing such other assistance under subsection (a) to a claimant in substantiating a claim as the Secretary considers appropriate.”  Therefore, the regulation can be more pro-veteran than the Code.

The Federal Circuit thus found the VA had not fulfilled its duty to assist. 

The Federal Circuit than dealt with the Veterans Court’s determination that the non-obtained VAMC were not relevant by noting that this was a factual determination the Board had never considered and such factfinding is improper for the Veterans Court.

This case is likely to be helpful in a many appeals where the VA simply did not obtain readily identifiable older VA medical records.  It might be a technical reason to remand, but could allow for more development for the veteran and an earlier effective date.

Decision written by Judge Stoll, and joined in by Judges Reyna and Taranto.