Jones: VA Medical Records and a Duty to Assist

Jones v. Wilkie, Opinion Number 2017-2120 is a Federal Circuit decision that discusses the duty to assist to obtain VA medical records in the context of an earlier effective date.

The veteran served in the Marine Corps from 1968 until 1970 and in 2011 formally applied for VA benefits and was granted service connection for PTSD.  He filed a notice of disagreement arguing he should receive an earlier effective date reflecting the fact he received VA medical treatment for PTSD beginning in 2000.  Mr. Jones asserted he had not filed earlier because he did not really understand PTSD back then.  The Board acknowledge VA mental health treatment records, but found the records did not indicate an intent to file a claim for benefits and are not considered an informal claim under the regulations then existing.

On appeal to the Veterans Court, that Court rejected the appeal, noting

“The Secretary tacitly admits that the complete VA medical records from 2000 and 2001 are not in the record . . . .” J.A. 1. In light of Mr. Jones’s statement that he did not request benefits until 2011, however, the Veterans Court found that “the likelihood of such an informal claim [from 2000 or 2001] appearing in the unobtained VA medical records is extremely low.” J.A. 3. Further, the Veterans Court found, even if the records contained a communication that met the definition of an “informal claim,” Mr. Jones had not shown that such an informal claim was received by the “benefits section of the VA,” as opposed to a doctor at the “Veterans Health Administration.”

Id. at *4.

Initially, the Secretary argued to the Federal Circuit that that the RO and the Board actually reviewed Mr. Jones’s treatment records.  But, the Court noted “The completeness of the record presents a question of fact outside of this court’s jurisdiction, a point we have made more than once in the past, albeit in nonprecedential

opinions.… We cannot, therefore, second guess the Veterans Court’s finding that the Board did not review Mr. Jones’s complete history.”  Id. at *5. 

The Court then stated that it would decide the legal issue of “whether the Veterans Court applied the correct legal standard when it ruled that the VA fulfilled its duty to assist Mr. Jones in obtaining “relevant” treatment files.” Id. at *6.

Essentially, the veteran’s surviving spouse believed the treatment records from 2000 and 2001 may contain an informal claim for benefits and the VA should have been required to assist in obtaining those records.  Initially, the parties did not dispute that the enough information as provided to locate the records.  “However, an exception to the duty to assist is that “[t]he Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2).”  Id. at *6-7.

The Court determined

We agree with Ms. Jones that the Veterans Court erred as a matter of law in requiring an impermissibly high threshold to trigger the VA’s duty to assist. While the Veterans Court mentioned the “no reasonable possibility standard,” it actually required Mr. Jones to show more than what the statute requires. Section 5103A does not allow the VA to avoid the 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.” Rather, the applicable standard is whether “no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2) (emphasis added). Thus, to trigger the VA’s duty to assist, a veteran is not required to show that a particular record exists or that such a record would independently prove his or her claim.

Moreover, the Secretary acknowledges that regulations implementing Section 5103A require the VA to assist obtaining VA medical records without even considering the

records’ relevance:

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.

38 C.F.R. § 3.159(c)(3) (emphasis added). In Sullivan v. McDonald, 815 F.3d 786, 790–91 (Fed. Cir. 2016), we held that because the above regulation uses the word “relevant”

as a modifier for three of the four categories of records it identifies, but not for “VA medical records or records of examination or treatment at non-VA facilities authorized by

VA,” the VA may not consider relevance when determining whether to assist in obtaining VA medical records.  Thus, in the instant case, the Veterans Court erred in ruling that

the duty to assist only “includes obtaining records of treatment at VA facilities that are relevant to the claim.” J.A. 2.

Id. at *7-8.

This Court underlines the VA’s ability to obtain VA medical records (when they are sufficiently identified to locate) and how that can be the basis of a remand that might lead to further argument.

Decision by Judge Chen and joined by Judges Moore and Reyna.

To know more about whether Thomas Andrews can help you, please visit my website.