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BVA Duty to Assist in Obtaining Medical Records

BVA Duty to Assist in Obtaining Medical Records

 

This case involves the BVA duty to assist in the context of a surviving spouse's accrued benefits and DIC claims and appeals. 

A veteran or other claimant has a right to substantial compliance with a CAVC or BVA remand order.  Stegall v. West, 11 Vet.App. 268, 271 (1998). 

The VA has a duty to assist a veteran in obtaining evidence to support their claim or appeal. 38 U.S.C. §5103A(a)(1).

After a July 2013 joint motion to remand at the Court of Appeals for Veterans Claims, the CAVC ordered the VA to comply with its duty to assist the veteran in obtaining the now-deceased veteran's records from the Philadelphia Naval Hospital, which was closed some time ago.

In May 2014, the BVA remanded the case with a similar order to the VA, requiring it to obtain all outstanding treatment records and reports from PNH for the period from January 1945 to December 1954.  Significantly, the BVA ordered the Secretary to continue these efforts until the VA Regional Office determined  the records  do not exist or that further efforts to obtain them would be futile.

The VA Regional Office sent one letter to the Philadelphia Naval Hospital requesting the records.

But because the Philadelphia Naval Hospital was closed, the letter was returned to sender.

The VA Regional Office believed that sending a letter to a medical facility it knew to be closed was sufficient to fulfill its duty to assist the veteran's surviving spouse. The VARO denied the claim, the BVA rubber-stamped it by stating that the VA fulfilled its duty to assist.

After a joint motion to remand, the CAVC vacated that decision on the grounds that the BVA failed to ensure compliance with both an order of the CAVC and the BVA's own error.  This error is a common error at the BVA and it is known as a "Stegall Error", for the case that stands for the proposition that a veteran is entitled to substantial compliance with a CAVC and/or BVA Remand order

Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have  Attig | Steel take a look at your case.

Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

OGC Attorney: Nathan P. Kirschner

Veteran Representation at CAVC: Chris Attig (link to bio)

Board of Veterans Appeals Veterans Law Judge: L. Howell

Regional Office: Newark, New Jersey, VA Regional Office

Vets’ Rep at BVA: George J. Singley, Attorney 

Date of BVA Decision: February 2, 2015

Date of CAVC Judgment on Remand: March 24, 2016

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