RIGHT TO REVIEW PAPER RECORDS

Robinson v. McDonald, docket no. 15-0715 (per curiam order) (July 14, 2016)

HELD: VA’s refusal “to allow an appellant’s representative access to the paper source documents is contrary to the requirements under 38 U.S.C. § 7252(b) and Rule 10 [of the Court’s Rules of Practice and Procedure] that the Court’s review be on the record before the Secretary and the Board and that the appellant be permitted to inspect and copy any original material from that record.”

SUMMARY: The issue in this case is “whether the appellant or his representative has a right to review and compare the existing paper source documents with the electronic documents contained in VBMS [the Veterans Benefits Management System] and VVA [Virtual VA] and whether the Secretary is obligated to preserve those paper source documents.

After filing a Notice of Appeal to the Court and receiving a copy of the Record Before the Agency (RBA) from VA, the appellant noticed that several documents were missing. His representative thus filed a motion under Rule 10 of the Court’s Rules of Practice and Procedure, disputing the contents of the RBA. In that motion, he noted that he had asked to examine the original paper claims file.

The Secretary asserted that the records contained in VBMS and VVA “officially comprise [the appellant’s] claims file” and that the RBA “is a true and accurate copy of the documents contained therein.” The Secretary proposed that the parties enter into a joint motion to remand based on a duty-to-assist violation, but the appellant declined.

In response to a Court order to explain his refusal to allow the appellant to view the paper file, the Secretary acknowledged that “some paper source materials may still exist,” but they are not the “claims file and are now considered duplicates or non-records.” The Secretary noted that the scanning of paper documents was handled by a third-party vendor and that the average accuracy rate “exceeds 99 percent.” He added that VA’s scanning, digitizing, and subsequent destruction process “comported with the law” and that VA had “no obligation to produce the paper originals.”

The appellant then filed a motion under Rule 8, “asking the Court to enjoin the Secretary from destroying any original paper documents related to his claims” and to turn over those “non-records” to the appellant. The Court issued a temporary injunction.

In briefing and at oral argument, the appellant argued that Rule 10 required the Secretary to make the paper copies available, and that the Federal Records Act required the Secretary to keep a paper copy after scanning. The Secretary argued that the appellant has “no absolute ‘right’ to inspect or copy these source documents on appeal to this Court,” and that the Federal Records Act and related laws “require VA to dispose of ‘paper duplicates’ in accordance with established procedures, regardless of any pending litigation before this Court.”

The Veterans Court held that “the Secretary’s refusal in this case to allow an appellant’s representative access to the paper source documents is contrary to the requirements under 38 U.S.C. § 7252(b) and Rule 10 that the Court’s review be on the record before the Secretary and the Board and that the appellant be permitted to inspect and copy any original material from that record.”

In reaching this conclusion, the Court pointed to the relevant statutory language stating that “[r]eview in the Court shall be on the record of proceedings before the Secretary and the Board,” which is “mirrored in Rule 10(a) of the Court’s Rules.” The Court noted that even though the Secretary is an adversarial party in Court proceedings, he is “both the adjudicator and records custodian in lower proceedings, tasked with administrating a system ‘that Congress wished to be as informal and nonadversarial as possible.’” The Court emphasized the importance of review based on an accurate record, noting that “a veteran’s entitlement to disability benefits is a property interest protected by the Due Process Clause of the Fifth Amendment.” (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)).

The Court noted that, in this case, the Secretary compiled the RBA exclusively from the electronic file, even though the original records still existed. The Court rejected the Secretary’s argument that he did not have to allow access to the original file since those records were already maintained in electronic form at the time of the Board decision, stating that “Rule 10(a) requires the RBA to include the claims file at the time of the Board decision and any other relevant documents from the record before the Secretary.”

The Court also rejected the Secretary’s argument that he did not have to provide access to the original documents because his digitization of the material complied with the Federal Records Act, as implemented by the National Archives and Record Administration (NARA). The Court found that the Secretary had not even shown how these laws were applicable to the records in this case, adding that the statute cited by the Secretary “governs the ‘admissibility in evidence before the Court’” of digitized records. The Court stated that the appellant was not challenging the admissibility of anything – and that Rule 10 has nothing to do with “admissibility.” The purpose of the rule “is to help ensure that the Court’s review is based on the record of proceedings that was actually before the agency with respect to its prior adjudication of the benefit on appeal, as mandated by section 7252(b).”

The Court further rejected the Secretary’s argument that he is required to destroy the “duplicates” once the paper file has been digitized, noting that the Secretary’s cited authority actually states that “‘VA may destroy’ original materials after conversion to electronic records is ‘verified’ and ‘when no longer needed for legal or audit purposes, or to support the reconstruction of or serve as a backup to the electronic records.”

The Court found that the facts of this case demonstrate the value of Rule 10 – particularly noting that “the very fact that pages are missing from [the appellant’s initial claims form] suggests that it may have been improperly scanned.” Further support is found in the fact that VA medical records from 1992 were not in the file, even though they were cited as having been reviewed in a rating decision that was in the file.

While the Court did not make a determination with respect to VA’s current records management policies were compliant with federal laws, it did hold that “pursuant to Rule 10(d), the appellant is entitled to inspect the paper source documents and compare them with the electronic records.” The Court thus ordered the Secretary to provide the source documents to the appellant within 15 days.

Finally, while the Court did not “resolve any constitutional due process arguments arising from VA’s records management policies,” it did “express concern with the Secretary’s digitization process.” As an example, the Court noted that a 99% accuracy in a 5,000-page claims file “means that 50 pages will either be scanned incorrectly or will not be scanned” – and that some of those pages might include handwritten buddy statements from a now-deceased veteran or old private medical records that cannot be replaced. The Court also noted the “troubling” findings from the VA Office of Inspector General regarding the disorganized and improper handling of veterans’ documents by contractor facilities.

FULL DECISION

THAILAND, AGENT ORANGE

Parseeya-Picchione v. McDonald, docket no. 15-2124 (July 11, 2016)

HELD: Even if the Board determines that a veteran’s testimony is not credible, it must still review the other evidence of record and provide an adequate statement of reasons or bases for rejecting it.

Advocacy note: Evidence relevant to this appeal – and to other Thailand veterans with appeals related to herbicide exposure – includes (1) third-party evidence showing that most flights from the U.S. to Thailand stopped in Vietnam en route to Thailand; (2) VA’s C&P Bulletin stating that “some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides”; and (3) the Project CHECO report, describing the air base locations.

SUMMARY: The veteran in this case served in the U.S. Army from 1966 to 1977, including a deployment to Thailand from January 1968 to January 1970. In Thailand, he was assigned Camp Friendship at Korat Royal Thai Air Base.

In 2005, he filed a claim for service connection for diabetes based on exposure to herbicides. He testified that he was in Vietnam in January 1968 during a layover between Hawaii and Thailand. He also asserted that he was exposed to herbicides when he was stationed at Camp Friendship. VA denied his claim, and he appealed up to the Veterans Court, which remanded the appeal in 2011.

Two months after the Court’s remand, the veteran died, and his wife substituted for him in his appeal. She provided a copy of the Project CHECO report, a declassified Air Force report, which described Camp Friendship as “bordering the perimeter of the Korat Air Force base.” She also provided evidence of flight paths from the U.S. to Thailand, showing that these flights had to make several stops, including in Vietnam. The Board continued to deny benefits, and she appealed to the Court. The Court remanded again because the Board failed to provide any explanation for its determination that the evidence did not show that the veteran was exposed to herbicides.

In May 2015, the Board denied the claim again, finding that the preponderance of the evidence was against the veteran’s assertion that he “had set foot in Vietnam.” The Board rejected the veteran’s statements as inconsistent and rejected the evidence regarding the flight paths because it did not corroborate that the veteran spent time in Vietnam. The Board also noted that while Camp Friendship was located “near the outer edge of [Korat]” it was “not located on the perimeter” of the base, as required by VA policy. The Board added that the veteran’s military occupational specialty (MOS) as “clerk” would not require his presence on or near the perimeter of the base.

The veteran’s widow appealed to the Court again. The Court first determined that there was no error in the Board’s determination that the veteran’s testimony was not credible regarding his layover in Vietnam. However, the Court noted that the Board is required to review and explain its rejection of the other evidence of record.

Specifically, the Court noted that the appellant submitted third-party evidence stating that “it would be the exception [rather] than the rule where a flight [from a base not in Southeast Asia to a base in Thailand] would bypass [Ton Son Nhut Air base in Vietnam, where the veteran’s alleged layover took place].” Also in the record: “An email from James S. Howard, an archivist from the Air Force Historical Research Agency, reports that ‘[a]s a general rule, military cargo aircraft, especially those engaged in “airlines” would stop over at Ton Son Nhut Air Base, Republic of Vietnam en[]route to bases in Thailand. Very few of this sort of flight were made “direct” to bases in Thailand from bases outside Southeast Asia.’” In addition, the record contained a letter from a retired Air Force major, asserting that “[b]ased on my experience, it was common for military aircraft flying to and from airbases in Thailand to land at Ton Son Nhut [Air Base] and other Vietnam airbases.” Id.

The Board had rejected this evidence because it was only “general information” and did not support the claim “that the veteran himself stopped in Vietnam over-night during his trip to Thailand.” The Court found that this was not an adequate statement of reasons or bases because “[t]he Board failed to specifically discuss any of this evidence.”

Advocacy note: I believe this portion of the decision is important because it strengthens the requirement that the Board expressly discuss favorable evidence before rejecting it. I believe this is also important because advocates can now use THIS Court decision to point to evidence of layovers in Vietnam.  

The Court rejected the Board’s reasons or bases for its determination that the veteran was not exposed to herbicides in Thailand because the Board acknowledged that Camp Friendship “was located near the perimeter of Korat,” yet found that “Camp Friendship is not located on the perimeter as contemplated by the M21-1MR.” The Court determined that “[t]his discussion of the two locations conflicts with how both the Project CHECO report and the veteran described the locations.”

Advocacy note: I believe this portion of the decision is important because the Court is forcing the Board to reconcile its inconsistent statements with the Project CHECO report. Advocates can now cite to THIS decision to show that the Court has recognized the validity of the Project CHECO report and that the Board has to explain its determinations that conflict with this report.

Finally, the Court rejected the Board’s determination that “the only tactical herbicides used in Thailand were used four years before the veteran arrived and in a wholly separate location than where the veteran served.” The Court found this determination to be in conflict with the C&P Bulletin that acknowledged that there was “some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.” The Court found this error prejudicial because “[a] VA finding that the veteran did serve near the perimeter of the base may be significant because the perimeter was the only area where herbicides of a type similar to Agent Orange may have been used.”

Advocacy note: I believe this language is important because it forces the Board to comply with the findings in VA’s C&P Bulletin. Advocates can now cite to THIS decision, in addition to the C&P Bulletin, to support the use of tactical-strength herbicides – as opposed to your garden-variety weed killer – on Thailand base perimeters.

FULL DECISION

RANGE-OF-MOTION TESTING REQUIREMENTS

Correia v. McDonald, docket no. 13-3238 (July 5, 2016)

HELD: “[T]o be adequate, a VA examination of the joints must, wherever possible,[] include the results of the range of motion testing described in the final sentence of § 4.59.” This includes tests for both passive and active motion, in both weight-bearing and non-weight-bearing circumstances, and testing of the opposite, undamaged joint. 

SUMMARY: The veteran in this case appealed the denial of increased ratings for his knees. He argued that the VA examination report on which the Board relied to deny the increased ratings was inadequate because the examiner did not perform all the range-of-motion testing required by 38 C.F.R. § 4.59. To support this argument, the appellant’s attorney submitted two nonprecedential Court decisions showing the Secretary’s position in those cases.

The Secretary first moved to strike the portions of the appellant’s brief that cited to the nonprecedential cases. The Court denied this motion, finding that the decisions were not used for “precedential effect,” but rather to show the factual circumstances and the Secretary’s position in those cases. In a footnote, the Court noted that the rule regarding citation to nonprecedential authority was revised after the Secretary filed his motion, adding that the Court could have taken judicial notice of the Secretary’s contrary positions.

Regarding the regulation, the Secretary argued that it does not establish “a rigid set of protocols” for examinations, and alternatively argued that the regulation was ambiguous and therefore the Court should defer to VA’s interpretation of it.

The Court examined the plain language of the regulation and noted that it describes “ways in which painful motion can be discerned” and “the kind of test results that ‘should’ be obtained to permit an adjudicate to assess the effect of painful motion – range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances.” (emphasis in original). In addition, the regulation states that, if possible, the same tests should be obtained for the undamaged joint. The Court thus narrowed its analysis here to what the word “should” means.

The Court found that, in the context of § 4.59, the word “should” was ambiguous, and next questioned whether it should defer to the Secretary’s interpretation. The Court concluded that no deference was due to the Secretary’s “interpretation that the regulation creates no requirement that particular kinds of range of motion testing be performed” because the Secretary has previously conceded remand in “at least two cases” (nonprecential) “where the Board relied on medical evidence that did not comport with the final sentence of § 4.59.”

On its own, the Court found several additional cases where the Secretary previously interpreted § 4.59 “in accordance with Mr. Correia’s position” – and only found one other case where the Secretary argued that the regulation “does not create a testing requirement with which VA examiners must comply.” The Court thus stated that “given that the Secretary appears to ordinarily concede before this Court that § 4.59 creates a requirement for VA examiners to conduct the range of motion testing listed in the final sentence where such testing can be performed, the Court cannot conclude that the Secretary’s proffered interpretation in this case represents ‘the agency’s considered view on the matter.’” 

The Court thus held that “the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” The regulation identifies “three things examiners ‘should’ do” – “(1) carefully note facial expression or wincing on pressure or manipulation and relate that to the affected joint; (2) carefully note crepitation in the soft tissues or joint structures; and (3) test for pain throughout range of motion in various ways.” 

NOTE: On July 26, 2016, the Secretary filed a motion for reconsideration and/or full court review. 

FULL DECISION