Veteranclaims’s Blog

November 2, 2010

VA’s Duty to Obtain Records, Limitations Imposed by Golz v. Shinseki

We recently linked to the PVA SOAR publication which included an article on the top reasons for remand at the Veterans Court and listed 13 general items, here we are looking at two recent opinions regarding relevant VA’s duty to obtain records from SSA and private medical records.

Reasons for Remand
Top reasons the Veterans Court remands cases to the Board of Veterans’ Appeals are for

1. VA medical examinations;
2. VA social/industrial surveys;
3. resolution or clarification of
4. VA field examinations;
5. VA records;
6. military records;
7. private medical records;
8. Social Security records;
9. consideration and application of
additional laws and regulations;
10. consideration of a claim under a
new law or regulation;
11. consideration of the claim under
new court precedent;
12. BVA to provide better statements
of reasons or bases; and
13. VA to adequately address the
credibility of the evidence.

Golz v. Shinseki, 590 F.3d (Fed. Cir. 2010)

Dudley v. Shinseki, NO. 09-3407, October 2010
Before LANCE, Judge.
“In Golz v. Shinseki, the Court of Appeals for the Federal Circuit (Federal Circuit) held that VA is not required to obtain disability records from the Social Security Administration (SSA), a federal agency, if VA determines, without review of
the actual records, that there is no reasonable possibility that such records
are relevant to the veteran’s claim for VA disability compensation. 590 F.3d 1317, 1322 (Fed. Cir. 2010).
The Federal Circuit held that VA is only obligated to obtain SSA records when they “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. Here, the appellant seeks records from the Railroad Retirement Board. Appellant’s Br. at 8. The appellant’s husband worked for the Norfolk & Western Railroad. R. at 86. While the appellant points to an examination report the veteran received in 1993, five years after retirement (R. at 47, 237), where the veteran stated he retired from working for the railroad due to “a back condition, arthritis, nervous problems, a ‘nervous stomach,’ and varicose veins” (R. at 212), multiple other medical reports (R. at 47, 48, 237) and the appellant’s own testimony (R. at 87) state that the veteran received disability retirement as a result only of an injury to his back.
There are also 15 different private medical progress reports from the 1980’s, prior to the veteran’s retirement, that concern whether the veteran’s back injury prevented him from working. R. at 584-98.
None of these 15 contemporaneous medical progress reports mention a psychiatric condition. Id. The appellant has made no specific allegation that any records from the Railroad Retirement Board addressed the veteran’s mental health. R. at 8-9. Rather, the appellant has stated generally that information in records could bolster her claim. Id. Accordingly, the available evidence illustrates that it is very unlikely that there are railroad retirement records that relate to a psychiatric disability, which is the injury for which the appellant is seeking benefits. Thus, the available information shows that these
records do not have a reasonable possibility of substantiating the appellant’s claim and, therefore, VA’s duty to assist does not require it to make efforts to obtain the railroad retirement records. Golz, 590 F.3d at 1323.

Even if the Board erred in finding that the Secretary was not required to obtain records from the Railroad Retirement Board, given that the records concern retirement due to a back injury and are, thus, not relevant to the legal issue at hand, a psychiatric condition, the appellant has failed to carry her burden of demonstrating that any such error has likely prejudiced her claim. See Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) (noting that”the burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination.”); see also Allday v. Brown, 7 Vet.App. 517, 526 (1995) (noting that VA need not “‘search for evidence which, even if obtained, would make no difference in the result.'” (quoting Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992))); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Accordingly, the Court holds that the Board did not commit prejudicial error in finding that the Secretary had fulfilled his duty to assist.”

Hicks v. Shinseki, NO. 08-2872, Oct 2010
Before MOORMAN, Judge.
“The appellant argues that VA failed in its duty to assist by not acquiring service personnel records associated with his claim. App. Br. at 6-10. Specifically, the appellant asserts that these records are relevant because they “would have conclusively shown whether [he] filed a claim for compensation at separation or shortly thereafter, or whether he specifically declined to do so.” Appellant’s Br. at 7. The Secretary responds that VA did not need to obtain those records to satisfy its duty to assist because the records are not relevant as shown by the appellant’s own assertion that he did not file a claim for compensation until 2002. Secretary’s Br. at 5-8.

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). 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 [(Social Security Administration)] disability records must be sought–only those that are relevant to the veteran’s claim.” Id. at 1320 (emphasis added).
“Relevant records for the purpose of [section] 5103A 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; 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, 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).
The appellant argues that his service medical records are relevant because they would have shown whether or not the Air Force complied with 10 U.S.C. § 1218 prior to his discharge. Appellant’s Br. at 5-7 (citing McGee, 511 F.3d 1352).”

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