Veteranclaims’s Blog

March 14, 2019

Jones v. Wilkie, No. 2017-2120(Decided: March 13, 2019); duty to assist; informal claim; 38 C.F.R. § 3.155 (2000);

Excerpt from decision below:

“Because the Veterans Court erred in analyzing the
VA’s duty to assist, we vacate the Veterans Court’s decision
and remand for consideration of Mr. Jones’s complete VA
treatment file.”

“However, under the VA regulations that applied to Mr. Jones’s claims, if an applicant submitted an “informal claim,”1 the VA was required to
1 The VA previously recognized formal and informal
claims. See 38 C.F.R. § 3.1(p) (2000). For formal claims,
the VA required applicants to file forms providing specified
information. See Rodriguez v. West, 189 F.3d 1351, 1353
(Fed. Cir. 1999). The regulations further provided that
“[a]ny communication or action, indicating an intent to apply
for one or more benefits . . . from a claimant . . . may be
JONES v. WILKIE 3
send the applicant a formal application form, and, assuming
the applicant returned the form within one year, the
VA would deem the formal application submitted as of the
date of receipt of the informal claim. 38 C.F.R. § 3.155
(2000)
.”

United States Court of Appeals for the Federal Circuit


JACQUELINE H. JONES,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee


2017-2120


Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-3919, Chief Judge Robert N. Davis,
Judge Mary J. Schoelen, Judge Margaret C. Bartley.


Decided: March 13, 2019


MEGHAN GENTILE, Veterans Legal Advocacy Group, Arlington,
VA, argued for claimant-appellant. Also represented
by HAROLD HAMILTON HOFFMAN-LOGSDON, III.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA
PREHEIM, JOSEPH H. HUNT; BRIAN D. GRIFFIN, SAMANTHA
ANN SYVERSON, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
2 JONES v. WILKIE


Before MOORE, REYNA, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
Jacqueline Jones, who substituted as appellant for her
deceased husband Josephus Jones, appeals the decision of
the U.S. Court of Appeals for Veterans Claims (Veterans
Court), which affirmed the Board of Veterans’ Appeals
(Board) decision denying an earlier effective date for service-
connected compensation for post-traumatic stress disorder
(PTSD). Ms. Jones argues that the Veterans Court
erred in using a heightened legal threshold to determine
whether the Veterans Administration (VA) was required to
assist Mr. Jones in obtaining his VA treatment records,
which he asserted might contain an earlier, informal claim
that could entitle him to an earlier effective date for benefits.
Because the Veterans Court erred in analyzing the
VA’s duty to assist, we vacate the Veterans Court’s decision
and remand for consideration of Mr. Jones’s complete VA
treatment file.
BACKGROUND
In general, the effective date of a VA benefits award is
the date the VA receives an application for the claim or the
date entitlement arose, whichever is later. 38 U.S.C.
§ 5110(a); 38 C.F.R. § 3.400. However, under the VA regulations
that applied to Mr. Jones’s claims, if an applicant
submitted an “informal claim,”1 the VA was required to
1 The VA previously recognized formal and informal
claims. See 38 C.F.R. § 3.1(p) (2000). For formal claims,
the VA required applicants to file forms providing specified
information. See Rodriguez v. West, 189 F.3d 1351, 1353
(Fed. Cir. 1999). The regulations further provided that
“[a]ny communication or action, indicating an intent to apply
for one or more benefits . . . from a claimant . . . may be
JONES v. WILKIE 3
send the applicant a formal application form, and, assuming
the applicant returned the form within one year, the
VA would deem the formal application submitted as of the
date of receipt of the informal claim. 38 C.F.R. § 3.155
(2000).
Mr. Jones served in the Marine Corps from 1968 to

  1. A VA psychiatrist treated him and diagnosed him
    with PTSD in 2000. J.A. 1; J.A. 17. Mr. Jones formally
    applied for disability benefits for PTSD in April 2011.
    J.A. 27. In February 2012, the VA Regional Office (RO)
    awarded Mr. Jones a 100% disability rating for PTSD, effective
    April 13, 2011, the date the RO received his formal
    application. J.A. 2; J.A. 37.
    Later in 2012, Mr. Jones filed a notice of disagreement
    arguing that he should receive an earlier effective date that
    reflects VA medical treatment for PTSD beginning in 2000.
    Mr. Jones asserted that he “did not file until 11 years later
    because the doctors did not explain to [him] what PTSD really
    was back in 2000.” J.A. 61. On July 17, 2015, the
    Board denied Mr. Jones’s claim for an earlier effective date.
    The Board acknowledged the existence of “VA medical records
    showing treatment for mental health symptoms” in
    2000, but the Board found that the records before it “[did]
    not indicate an intent to file a claim for benefits and are
    not considered an ‘informal claim’ under any applicable
    regulations at the time.” J.A. 17.
    Mr. Jones appealed to the Veterans Court, which affirmed
    the Board’s decision. The Veterans Court did not
    considered an informal claim.” 38 C.F.R. § 3.155(a) (2000)
    (emphasis added). The VA amended 38 C.F.R. §§ 3.1 and
    3.155, effective March 24, 2015. 79 Fed. Reg. 57,660,
    57,686 (Sept. 25, 2014). Claims and appeals pending under
    the regulations that existed as of that date continue to be
    governed by the preexisting regulations. Id.
    4 JONES v. WILKIE
    review Mr. Jones’s complete treatment files. The Veterans
    Court noted: “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.” J.A. 4.
    Mr. Jones passed away in October 2016, and his wife
    substituted into the case and appealed on his behalf.
    DISCUSSION
    We have jurisdiction to review a Veterans Court decision
    “with respect to the validity of a decision of the Court
    on a rule of law or of any statute or regulation . . . or any
    interpretation thereof (other than a determination as to a
    factual matter) that was relied on by the Court in making
    the decision.” 38 U.S.C. § 7292(a). “We review de novo legal
    determinations of the Veterans Court.” Geib v.
    Shinseki, 733 F.3d 1350, 1353 (Fed. Cir. 2013).
    A. Secretary’s Request for Remand
    The Secretary acknowledges that the Veterans Court
    did not have Mr. Jones’s complete medical files, and so the
    Secretary initially argues that this court should remand
    the case to the Veterans Court—without reaching the merits—
    for consideration based on a complete record.2 See 38
    2 The Secretary previously requested remand in a
    motion filed after Ms. Jones filed her opening brief but before
    the Secretary filed his brief. ECF No. 31. We denied
    JONES v. WILKIE 5
    U.S.C. § 7252(b) (“Review in the [Veterans] Court shall be
    on the record of proceedings before the Secretary and the
    Board.”).
    The Secretary argues that the RO and the Board actually
    reviewed Mr. Jones’s treatment records. The Secretary
    notes that the RO’s Rating Decision stated that the
    evidence it considered included, among other things, “VA
    treatment records, dated August 8, 2000 to February 1,
    2012, from VA Medical Center – Detroit, received February
    7, 2012 (Virtual VA).” J.A. 38. Moreover, the Board noted
    that “the RO assisted the Veteran by obtaining his postservice
    mental health treatment records.” J.A. 15. The
    Secretary suggests that the problem was not that the RO
    or Board failed to obtain Mr. Jones’s medical records but
    that the VA failed to include those medical records when
    assembling the record for the Veterans Court.
    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. See Campbell v. Shinseki, 404 F. App’x 493, 496
    (Fed. Cir. 2010) (“[W]hether records were missing from
    Campbell’s file also presents a question of fact outside this
    court’s jurisdiction.”); Harrison v. Shinseki, 364 F. App’x
    630, 632 (Fed. Cir. 2010) (“Whether records are missing
    from Ms. Harrison’s file is a question of fact and thus not
    within this court’s jurisdiction.”). We cannot, therefore,
    second guess the Veterans Court’s finding that the Board
    did not review Mr. Jones’s complete history. See J.A. 2
    the motion without prejudice pursuant to Federal Circuit
    Rule 27(f), which states that “[a]fter the appellant . . . has
    filed the principal brief, the argument supporting . . . remand
    should be made in the brief of the appellee. . . .” ECF
    No. 48 at 2.
    6 JONES v. WILKIE
    (finding that Mr. Jones’s “complete VA medical records
    from 2000 and 2001 are not in the record”).3
    We are, however, in a position to decide a legal issue
    squarely presented by the briefs, namely, 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. We turn to this issue
    next.
    B. VA’s Duty to Assist
    Because Ms. Jones believes that Mr. Jones’s treatment
    records from 2000 and 2001 may contain an informal claim
    for benefits, she argues that the VA was required to assist
    him in obtaining his treatment records before rendering a
    decision on his claim for an earlier effective date. The statute
    governing the VA’s duty to assist states, in relevant
    part: “The Secretary shall make reasonable efforts to assist
    a claimant in obtaining evidence necessary to substantiate
    the claimant’s claim for a benefit under a law administered
    by the Secretary.” 38 U.S.C. § 5103A(a)(1). The statute
    specifically requires the VA to assist in obtaining “[r]ecords
    of relevant medical treatment or examination of the claimant
    at Department health-care facilities . . . if the claimant
    furnishes information sufficient to locate those records.” 38
    U.S.C. § 5103A(c)(1)(B). The parties do not dispute that
    Mr. Jones provided information sufficient to locate the records
    in question. However, an exception to the duty to
    3 We also decline to consider a declaration from the
    Deputy Vice Chairman of the Board, presented for the first
    time on appeal, asserting that Mr. Jones’s medical records
    were part of Mr. Jones’s claim file when the Board issued
    its July 17, 2015 decision. See Appellee’s Supp. Appx. 1–7.
    The Secretary waived reliance on this evidence by failing
    to present it to the Veterans Court. See Charles v.
    Shinseki, 587 F.3d 1318, 1322 & n.2 (Fed. Cir. 2009).
    JONES v. WILKIE 7
    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).
    The Veterans Court found that even if the Board had
    not obtained or reviewed Mr. Jones’s complete treatment
    records, “the likelihood of such an informal claim appearing
    in the unobtained VA medical records is extremely low”
    because “Mr. Jones never alleged that he ever expressed an
    intent to file a claim to his VA doctors in 2000 or 2001.”
    J.A. 3. The Veterans Court made its finding “[i]n view of
    Mr. Jones’s allegations in the record,” id., which included
    Mr. Jones’s statement that he “did not file until 11 years
    later,” J.A. 61. Thus, the Veterans Court found that Mr.
    Jones failed to show how the unobtained medical records
    have a reasonable possibility of substantiating his entitlement
    to an earlier effective date. J.A. 4.
    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
    8 JONES v. WILKIE
    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.4 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.
    The Secretary’s contention that any legal error is
    harmless in light of Mr. Jones’s admissions is unpersuasive.
    In Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir.
    2009), we held that it was not harmless error for the VA to
    base its rating decision on a subset of a veteran’s medical
    4 The Sullivan court explained that its holding was
    not inconsistent with 38 U.S.C. § 5103A(c)(1)(B), which
    mentions “relevant” medical records, because “the statute
    permits the VA to provide additional assistance to claimants
    beyond that required by § 5103A, and the VA did so
    with respect to VA medical records when it promulgated
    § 3.159(c)(3).” 815 F.3d at 791.
    JONES v. WILKIE 9
    records. “The fact that the VA considered some of the relevant
    records . . . does not excuse the fact that it failed to
    consider all of them.” Id. Moreover, we were unwilling to
    assume what the contents of the remaining records would
    show. “We fail to understand how the government, without
    examining the [omitted] records, can have any idea as to
    whether they would, or would not, support [the veteran’s]
    claim for an increased disability rating.” Id. at 1375.5
    CONCLUSION
    Because the Veterans Court applied an incorrect legal
    standard regarding the VA’s duty to assist in obtaining
    medical records, we vacate the Veterans Court’s decision.
    We remand to the Veterans Court with instructions to remand
    to the Board, and with further instructions for the
    Board to remand to the RO to obtain and review Mr.
    Jones’s complete VA treatment records for PTSD and determine
    whether Mr. Jones is entitled to an effective date
    prior to April 13, 2011. We are not in a position to decide
    the factual question of whether any portion of his treatment
    records constitutes an “informal claim” within the
    meaning of the applicable statutes and regulations. Moody
    v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). We leave
    it to the RO to make that determination in the first instance.
    6
    5 The Secretary attempts to distinguish Moore on the
    grounds that it involved a claim for a higher disability rating,
    and the missing records related to a recent hospitalization.
    However, the Secretary does not explain why these
    distinctions would make a difference regarding the VA’s requirement
    to consider complete medical records.
    6 At this time, because the record is incomplete, we
    also decline to address the Veterans Court’s ruling that an
    informal claim must be received by the “benefits section of
    the VA,” as opposed to any other section of the VA. J.A. 4.
    10 JONES v. WILKIE
    VACATED AND REMANDED
    COSTS
    Costs to Appellant.
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