Recent Case Provides Latest Description Of The VA’s Duty To Assist Veteran In Obtaining Evidence To Support A Claim For Benefits

Under the statutes, the Department of Veteran’s Affairs (VA) has a duty to assist a veteran in obtaining all relevant medical records, to provide medical examinations and obtain medical opinions necessary for the agency to make a decision on a claim for benefits. The duty has been explained in the cases in different ways, and the boundaries of the duty have been described in a variety of ways. I previously blogged about the VA’s duty to assist veterans filing for service-connected disability benefits in 2009.

The most recent formulation of the VA’s duty to assist is set forth in the November 2010 case of Kaufman v. Shinseki, 2010 WL 487830 (Vet. App., November 24, 2010). In Kaufman, the court reversed the denial of a service-connected claim filed by a veteran due to the failure of the agency to obtain medical records from a VA medical facility. The Kaufman court described the VA’s duty to assist as follows:

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). 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 [Social Security Administration] disability records must be sought – only those that are relevant to the veteran’s claim.” Id. 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 possibility of 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); see also Quartuccio v. Principi, 16 Vet.App 183, 187-88 (2002); Clarkson v. Brown, 4 Vet.App. 565, 567-68 (1993); Murincsak v. Derwinski, 2 Vet.App. 363, 366, 370 (1992).

Relevance is not established where the identified records pertain to a “completely unrelated medical condition and the veteran makes no specific allegations that would give rise to a reasonable belief that the medical records may nonetheless pertain to the injury for which the veteran seeks benefits.” Golz, 590 F.3d at 1322-23 (concluding that VA is not required to obtain Social Security records from SSA if VA determines, without review of the actual records, that there is no reasonable possibility that such records, which pertain to back and leg pain, are relevant to the veteran’s claim for VA disability compensation for PTSD). Nevertheless, in close or uncertain cases, “[a]s 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.” Id. 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”).

The Kaufman v. Shinseki case is annexed hereto.