What does the Duty to Assist really require?

January 17th, 2019

One of our clients' cases, Martinez v. Wilkie, No 17-1551, was recently set for a panel decision by the US Court of Appeals for Veterans Claims (CAVC).We are not yet sure if there will be supplemental briefing or oral argument at this time. In this appeal, we are seeking to push the edge of the envelope on the VA duty to assist.

Recently, I went back and read the legislative history behind 38 U.S.C §5103(a). I came away with the distinct sense that Congress wanted the VA to do so much more with the VA duty to assist than it was.

I identified several ways that the VA duty to assist can be better used to help veterans - and, frankly, veterans' advocates - prove and win their VA claims faster and with more accurate ratings.

The appeal of Andre Martinez focuses on one of the ways the intent behind the VA duty to assist is different from its implementation. Martinez v. Wilkie, CAVC No. 17-1551. The law firm of Morgan & Morgan, and veterans' attorney Stacy Clark, brought us his BVA denial and asked us to take a look.

This appeal was recently set for a panel decision at the Veterans Court, so let me tell you about the appeal and how it might impact your cases.

The Facts.

Since 2005, Mr. Martinez has been trying to prove that his sleep apnea was secondary to his service-connected PTSD. Throughout the course of his claim and appeal, he has repeatedly tried to copies of his C-File and the C&P opinions on which the VA was relying to deny his claim, and now his appeal.

Over the last 10 years, here are some of the things he has done to try to get the evidence the VA relied upon to deny his claim:

6 Requests for his C-File (unanswered)
Multiple authorizations fo the Secretary to disclose his C-file to his representative(s).
Petition for Writ of Mandamus seeking production of his C-File

It took the threat of the writ for the VA to finally respond to Mr. Martinez's requests for his C-File. Nothing was sent to him, though; we don't even really know what was sent to his representative.

Because he did not have access to his C-File over the 13 years he's been fighting for service connection, he has been unable to read the most basic of documents leading to a denial of his claim and appeal: the VA's C&P Opinions.

This is the language in the VA duty to assist that Mr. Martinez believes requires the VA to send him a copy of the opinions that will be used to deny his claims and appeals:

“TheSecretary 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 Secretary argues that only requires that the VA get a copy of the VA C&P opinion. He argues Mr. Martinez could have obtained his own copy any time he wanted by simply making a request.

Mr. Martinez sees it different: if you are a realtor, and are told to assist your buyer in obtaining a home, the realtor doesn't get the home. In the same way, the VA can only assist a claimant in obtaining evidence necessary to substantiate the claim by putting, in his or her hands, a copy of evidence the VA develops.

Here is how the issues are framed in the appeal:

Issue #1: The Secretary has breached the VA duty to assist.

38 U.S.C. §5103A(a)(1) requires the Secretary “assist a claimant in obtaining evidence to substantiate the claim”.

The Secretary denied Mr. Martinez’s claim for service connection of sleep apnea by relying on a VA medical opinion finding PTSD did not cause sleep apnea.The Secretary did not give Mr. Martinez a copy of the opinion before relying on it to deny the claim.

Did the Secretary violate the VA duty to assist when it did not give Mr. Martinez a copy of a medical opinion before relying on it to adjudicate a benefits claim?

Issue #2: The Secretary has violated Mr. Martinez's constitutional right to due process.

Determining how much process is due a veteran under the 5th Amendment requires consideration of the degree of potential deprivation, the fairness and reliability of existing procedures, and the public interest.

Mr. Martinez was potentially deprived of over $100,000 in past-due compensation when the Secretary failed to give him a copy of a medical opinion he relied on in denying benefits. Before that denial, 6 written requests for the C-file, a petition for writ of mandamus to this Court, and two standing disclosure authorizations on the Secretary’s own form failed to produce the opinion on which the Secretary relied in the denial. The Secretary’s current process promotes an inefficient judiciary and affords veterans who stood against our nation’s enemies less process than that due those accused of being her enemies.

Does the Due Process clause of the 5th Amendment require the Secretary to give Mr. Martinez a copy of the material intended to be relied on to adjudicate a veteran’s claim for benefits?

Does the Panel Assignment affect current CAVC Appeals?

If you are a practitioner at the CAVC, and believe your case has a fact pattern and BVA error similar to Mr. Martinez's appeal, you can consider seeking a stay of your appeal pending the resolution of Mr. Martinez's.

Doing so may or may not be in your client's best interests, and depends on the strength of your arguments, and your assessment of the likelihood that you will prevail on those arguments.

How does this case affect current BVA appeals?

No later than your receipt of the 90-day letter (if the BVA sends you one) or the notice that your appeal has been docketed at the BVA, every veteran and representative should be asking the BVA and the VA to send the following items:

Copies of any medical opinions upon which the VA intends to rely
Copies of any evidence probative of the competence and expertise of the author of any medical opinion

One thing is certain: if you request this information, and the VA or BVA does not send it to you before denying your appeal, then there is a high degree of likelihood that the BVA decision will be remanded.

In this appeal, we are asking the Court to find that the VA duty to assist requires the VA and the BVA to take the first step, and "assist the veteran in obtaining" copies of the evidence necessary to substantiate their claim.

We have long believed that there is absolutely no reason that a veteran should have to ask for what the law requires the Secretary to provide.

This appeal tests that theory.

Until there is a final judgment agreeing with our theory - and the Court could go either way on this appeal - the safest course of action is to make the 2 requests above in every BVA appeal, before the decision.

If you do that, and the BVA denies your appeal without sending you a copy of the information you requested, Attig | Steel would very much like to take a look at your BVA decision to see if there is grounds for an appeal.