Veteranclaims’s Blog

June 15, 2010

Veterans Court Application of Golz v. Shinseki, F.3d, Record Obtainment

The Golz Fed.Cir. decision was published in January 2010, here are some of the first applications of that decision on VA’s duty to obtain records, as explained and cited by these Veteran Court Judges. As these are but long excerpts, one needs to read the complete decision to understand what is being said.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-2995
LESTER C. TURNER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
“VA’s duty to assist includes making “reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” 38 U.S.C. § 5103A(a)(1), (b); see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005) (discussing requirement that the records be adequately identified). The duty to assist “is not boundless in its scope” and “not all medical records . . . must be sought – only those that are relevant to the veteran’s claim.” Golz v. Shinseki,590 F.3d 1317, 1320-21 (Fed. Cir. 2010). “Relevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim.”). Id. at 1321; see, e.g., Moore v. Shinseki, 555 F.3d
1369, 1374 (Fed. Cir. 2009) (stating that “VA is statutorily required to
obtain all of the veteran’s relevant service medical records, not simply those which it can most conveniently locate”). “As long as a reasonable possibility exists that the records are relevant to the veteran’s claim, VA is required to assist the veteran in obtaining the identified records.” Golz, 590 F.3d at 1323 (emphasis added); see McGee, 511 F.3d at 1357 (discussing VA’s obligation, in fulfilling its duty to assist, to “fully and
sympathetically develop the veteran’s claim to its optimum before deciding
it on the merits”).
As noted by the appellant in his brief, he informed VA that (1) he was
treated at the Greek Army Hospital on the Island of Crete after the gas exposure in September or October 1954 (R. at 149, 228, 307-09), and that (2) he received treatment for blisters and hives at the Salem VAMC in
1955, while he was on active duty (R. at 228). As to these latter records,
the record reflects an
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interoffice VA memo to file dated on March 28, 2006, stating that these
records were “unavailable for review” because on May 30, 2002, the Salem VAMC responded to an RO request for records “that there were no records at that facility.” R. at 790. However, a notation to the DRO from a rating specialist on a deferred rating decision dated March 27, 2006, stated that there was some confusion by the clerk at the Salem VAMC who was searching for the records. The notation stated: E-mail from VAMC Salem on 5/30/02 appears that they don’t have these records, although a clerk at VAMC Salem was somewhat confused about which vet she was looking for. Also, Salem should state that records are destroyed/location unknown (if this is the case.) Although this would be getting somewhat technical for a routine case, the likelihood of egregious error noncompliance with VCAA remand is very high, under these particular facts and circumstances. (VLJs know where retired records are [and] who makes memo determinations.) R. at 788. Thus, the appellant asserts that the duty to assist has not been adequately met.”
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-0468
WAYLAND T. WHITLEY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
“On appeal, the appellant asserts that his mental hygiene records from
service are pertinent to his claim because they would help establish that his PTSD symptoms began while he was in service. Appellant’s Br. at 15. However, wholly absent from the appellant’s argument is any indication that the records are relevant to establishing an earlier effective date for the award of his increased disability rating. Although the appellant cites Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009), for the general proposition that his prior medical records cannot be deemed irrelevant merely because they predate the period in which benefits may be awarded (Reply Br. at 8-9), the U.S. Court of Appeal for the Federal Circuit recently explained that VA’s “duty to assist is not boundless” and does not blindly require VA to obtain all medical records. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The medical records must be “relevant.” Id. ”
Relevant records . . . are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim.” Id. at 1321 (emphasis added).
Thus, in the absence of any specific assertion as to how the appellant’s
records dating back over 20 years could assist the Board in determining whether it was factually ascertainable that an increase in the appellant’s disability actually occurred in the one year prior to his May 2003 claim for an
increased rating, the Court finds that the appellant has not demonstrated
prejudicial error. See Golz and Moore, both supra; see also Hart v. Mansfield, 21 Vet.App. 505, 509 (2007) (“When a claim for increased rating is granted, the effective date assigned may be up to one year prior to the date the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame.”).”
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-0698
JAMES D. HORTON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
“II. ANALYSIS
A. Social Security Records
The appellant argues that VA failed in its duty to assist by not acquiring
SSA records associated with his claim. App. Br. at 7. Specifically, the appellant
states that he is receiving Social Security benefits awarded in 1993 and that “VA never sought to obtain these records.” App. Br. at 7.
The Secretary states that VA did, in fact, obtain SSA records and that
those records were included in the record before the Agency. Sec’y Br. at 6, R. at 32-80. Further, the Secretary argues that the appellant failed to adequately identify what records VA had failed to obtain from SSA.
VA’s duty to assist includes making “reasonable efforts to assist a claimant in obtaining evidence necessaryto substantiate the claimant’s claim for a benefit.” 38 U.S.C. § 5103A(a)(1), (b); see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005) (discussing requirement that the records be adequately identified). VA is not required to assist a claimant in obtaining identified records “if no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2); see Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010).
The duty to assist “is not boundless in its scope” and “not all medical records or all SSA disability records must be sought –only those that are relevant to the veteran’s claim.” Golz, 590 F.3d at 1320-21 (emphasis added).
“Relevant records for the purpose of § 5103A are those that relate to the
injury for which the claimant is seeking benefits and have a reasonable possibilityof helping to substantiate the veteran’s claim.” Id.
; see, e.g., Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009) (stating that “VA is statutorily required to obtain all of the veteran’s relevant service medical records, not simply those which it can most conveniently locate”); McGee v. Peake, 511 F.3d 1352, 1355, 1358 (Fed. Cir. 2008) (finding that the veteran’s service personnel records at issue ” would likely contain documentary evidence that may show whether McGee filed a claim for benefits prior to discharge” after the Board denied entitlement to an earlier effective date because the record did not contain any evidence of a previously filed claim); see also Quartuccio v. Principi, 16 Vet.App. 183, 187-88
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(2002); Clarkson v. Brown, 4 Vet.App. 565, 567-68 (1993); Murincsak v.
Derwinski, 2 Vet.App. 363, 366, 370 (1992).
In both of the decisions here on appeal, the Board found that all relevant
evidence had been obtained. R. at 2; Suppl. R. at 2. The record on appeal contains 51 pages of SSA records. R. at 29-80. The appellant’s brief does not discuss these documents but instead asserts that “VA never sought to obtain those [SSA] records.” App. Br. at 7. The existence of these documents in the record contradicts the appellant’s argument. Further, even assuming, arguendo, other SSA documents exist that VA did not obtain, appellant’s brief makes no argument pertaining to the relevance of such SSA documents to the appellant’s claims on appeal. Relevance, or at least the existence of a possibility of relevance, must be demonstrated in order to trigger a VA duty to obtain SSA records. See Golz, supra.”

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