Jones: VA's duty to obtain VA medical records

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Jones v. Wilkie, 918 F.3d 922 (Mar. 13, 2019)

HELD: VA’s duty to assist does not require a veteran “to show that a particular record exists or that such a record would independently prove his or her claim.” VA must obtain VA medical records unless “no reasonable possibility exists that such assistance would aid in substantiating the claim.”

 SUMMARY: Mr. Jones was diagnosed with PTSD by a VA psychiatrist in 2000. He formally applied for VA disability benefits in 2011. In 2012, he was granted service connection, rated 100% disabled. He appealed for an earlier effective date, arguing that his medical records show treatment beginning in 2000 and stating that he did not file a claim until 11 years later “because the doctors did not explain to [him] what PTSD really was back in 2000.” The Board acknowledged the existence of VA medical records from 2000, but found that they were not an informal claim for benefits. The CAVC affirmed. The Court noted that the veteran’s VA medical records from 2000 and 2001 were not in the record – but found that since he stated that he did not file a claim until 2011, the chances of finding an informal claim in the VA medical records “is extremely low.” 

The Federal Circuit held that the CAVC erred “in requiring an impermissibly high threshold to trigger the VA’s duty to assist” because “it actually required Mr. Jones to show more than what the statute requires.” Under 38 U.S.C. § 5103A, VA cannot avoid its “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.’” Instead, “the applicable standard is whether ‘no reasonable possibility exists that such assistance would aid in substantiating the claim.” 

The Court reiterated its prior holding in Sullivan v. McDonald, 815 F.3d 786, 790-91 (Fed. Cir. 2016) that “VA may not consider relevance when determining whether to assist in obtaining VA medical records.” In other words, VA medical records are per se relevant and VA must obtain them unless “no reasonable possibility exists” that the records could help. The Federal Circuit remanded for the CAVC to return the appeal to the Board and, in turn, to the RO to obtain all of Mr. Jones’s VA medical records. 

FULL DECISION

Young: VA can revise decision based on CUE while appeal is pending

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Young v. Wilkie, 31 Vet.App. 51 (Mar. 11, 2019)

HELD: In representing a veteran in an appeal challenging a debt owed to VA, the representative is only entitled to a fee based on the amount of the invalidated debt that was actually recouped – not on the entire amount of the invalidated debt. 

SUMMARY: Robert Young was granted service connection in a June 2012 decision. He appealed for an earlier effective date for the assignment of a higher rating. On review, a DRO determined that the June 2012 assignment of the higher rating was CUE and proposed to reduce the rating. In June 2013, the RO reduced the rating, and the veteran appealed. 

At the CAVC, he argued that VA could not revise the June 2012 rating based on CUE because the CUE regulation only allows for revisions of “final” decisions – and because he had appealed that decision, it was not yet final and, therefore, could not be subject to revision based on CUE. The CAVC noted that 38 C.F.R. § 3.105(a) says that “final and binding” decisions are subject to CUE – and that § 3.104 defines final as “the end of any internal review of a matter by an AOJ.” This regulation also says that a rating decision is an example of a “final and binding” determination.

The Court also found that “it is far more efficient – and beneficial to claimants – to allow VA to correct obvious errors at the time of the identification of the error than to force it to wait until a claim is fully adjudicated and then pursue overpayments in the form of recoupment.”  

FULL DECISION

James: Equitable Tolling; Extraordinary Circumstances

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James v. Wilkie, 917 F.3d 1368 (Fed. Cir. Mar. 7, 2019)

HELD: In determining whether a situation is extraordinary enough to warrant equitable tolling of the 120-day appeal deadline, the Court must analyze the specific facts of the case and cannot make a “categorical determination that a particular set of facts will never warrant equitable tolling of the filing deadline.” 

SUMMARY: Charles James sought service connection for back and neck conditions and an increased rating for pseudofolliculitis barbae. The Board denied his claims on January 28, 2016. On May 27, 2016, Mr. James put his Notice of Appeal to the CAVC in a stamped envelope, put the envelope in his home mailbox, and raised the flag on the box for collection. He then left town for the weekend. He returned the evening of May 30 – and saw that the mail had not been picked up. He mailed it that night and the CAVC received the appeal, postmarked May 31, 2016.

This was more than 120 days after the January 28, 2016 decision – so the CAVC ordered Mr. James to show cause why his appeal should not be dismissed. Through counsel, Mr. James responded, arguing that the 120-day appeal deadline should be equitably tolled because “an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control.” He submitted a sworn declaration that he had spoken with his neighbor who had received mail on May 27 – and had seen some neighborhood kids playing in the street who “might have put the flag down.” The CAVC dismissed the appeal because he had not demonstrated that equitable tolling was warranted because “a fallen mailbox flag” was not “an extraordinary circumstance beyond [his] control … but rather an ordinary hazard of last minute mailing that could have been avoided.” 

On appeal to the Federal Circuit, Mr. James argued that the CAVC erred as a matter of law by “creating a categorical ban against equitable tolling in cases involving a fallen mailbox flag.” The Federal Circuit agreed, finding that the CAVC did not perform the necessary case-specific analysis of Mr. James’s case, but instead “made a categorical determination that a fallen mailbox flag is not entitled to equitable tolling but is ‘rather an ordinary hazard of last-minute mailing that could have been avoided.”

The Federal Circuit held that “because the extraordinary circumstances element requires a case-by-case analysis” the CAVC erred in making what appeared to be a categorical determination that Mr. James’s fallen mailbox flag did not neatly fall into “one of the factual patterns of past cases” that considered equitable tolling. The Court stated that the CAVC “failed to consider whether the fallen mailbox flag due to an alleged third-party interference with the federal collection of mail could justify invoking equitable tolling in Mr. James’s case as a matter of law.” 

The Court further held that “it is irrelevant to the extraordinary circumstances element analysis whether Mr. James could have done more after he put his NOA in his residential mailbox” – when the relevant and undisputed fact was that he put his NOA in a mailbox “in time for it to be postmarked within the 120-day filing deadline.” 

FULL DECISION