Barrett v. Nicholson

United States Court of Appeals for the Federal Circuit

05-7113

LARRY D. BARRETT,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

James R. Barney, Finnegan, Henderson, Farabow, Garrrett & Dunner, L.L.P., of
Washington, D.C., argued for claimant-appellant. With him on the brief was Mark R.
Lippman,The Veterans Law Group, of La Jolla, California.

David B. Stinson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and James M. Kinsella, Deputy Director. Of counsel on the
brief were David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee,
Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel
was Richard J. Hipolit, Attorney, United States Department of Veterans Affairs, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Retired Judge Jonathan R. Steinberg
 United States Court of Appeals for the Federal Circuit

05-7113

LARRY D. BARRETT,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

__________________________

DECIDED: October 11, 2006
__________________________

Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and MAYER, Circuit
Judge.

Opinion for the court filed by Circuit Judge MAYER. Concurring in the judgment opinion
filed by Senior Circuit Judge FRIEDMAN.

MAYER, Circuit Judge.

Larry D. Barrett appeals the judgment of the United States Court of Appeals for

Veterans Claims, dismissing his appeal for lack of jurisdiction for failure to establish

entitlement to equitable tolling of the 120-day period to file a notice of appeal under 38
U.S.C. § 7266.∗ Barrett v. Principi, No. 02-2382, 2005 U.S. Vet. App. Claims LEXIS 45

(Vet. App. Jan. 26, 2005) (“Barrett III”). Because the Veterans Court erred by declining

to require the Department of Veterans Affairs (“DVA”) to provide all records in its

possession, and to develop additional facts, relevant to Barrett’s equitable tolling

motion, we reverse and remand.

Background

Barrett served on active duty in the Army from July 1970 to January 1972, and in

the Navy from February 1975 to July 1976. He alleges that soon after returning from his

tour of duty in Vietnam he began to experience emotional problems, but that the

symptoms did not become severe until 1982. In 1997, Barrett was diagnosed with post-

traumatic stress disorder (“PTSD”) and panic disorder. He claims that by 2002 he

suffered from flashbacks and hallucinations.

Barrett sought service connection for his PTSD and a hand injury; both claims

were denied by the Regional Office and the Board of Veterans Appeals (“board”). On

August 15, 2002, the board mailed its decision affirming the denial of benefits to Barrett.

Barrett appealed the board’s decision to the Veterans Court on December 21, 2002,

eight days beyond the 120-day period for appeal. The government moved to dismiss

for lack of jurisdiction. On May 23, 2003, Barrett responded that he was prevented from

filing a timely notice of appeal because he had been incapacitated by mental illness,

∗
38 U.S.C. § 7266(a) provides:

In order to obtain review by the Court of Appeals for Veterans Claims of a
final decision of the Board of Veterans’ Appeals, a person adversely
affected by such decision shall file a notice of appeal with the Court within
120 days after the date on which notice of the decision is mailed pursuant
to section 7104(e) of this title.

05-7113 2
and that the Veterans Court should therefore toll the running of the appeal period. The

court dismissed the appeal for lack of jurisdiction, stating that “ill health has not been

adopted as a basis for such tolling.” Barrett v. Principi, No. 02-2382, 2003 U.S. Vet.

App. Claims LEXIS 417 (Vet. App. June 5, 2003) (“Barrett I”). On appeal, we reversed

the Veterans Court, holding that “mental illness can justify equitable tolling of section

7266(a) under some circumstances,” Barrett v. Principi, 363 F.3d 1316, 1317 (Fed. Cir.

2004) (“Barrett II”), and remanded for application of this standard to Barrett’s case.

On remand, the Veterans Court decided that it required “supplemental briefing

(attaching any additional relevant evidence) from the parties in support of their

positions.” Barrett v. Principi, No. 02-2382, 2004 U.S. App. Vet. Claims LEXIS 476, at

*6 (Vet. App. July 16, 2004) (“Remand Order”). It ordered Barrett to file a response

within 30 days establishing that he met the standard set forth in Barrett II or,

alternatively, that he wished to rely on his May 23, 2003, response. Remand Order at

*6-7. It further ordered the government to reply to his response. Id. at *7.

Barrett moved to stay proceedings pending the outcome of Jones v. Principi,

U.S. Vet. App. No. 03-1996, then before the Veterans Court on a motion for remand to

the DVA for record development on the issue of mental incapacity for the purpose of

equitable tolling. On August 13, 2004, the Veterans Court deferred consideration of

Barrett’s motion and ordered him to file his response within seven days. Barrett

responded, relying on the arguments and evidence presented in his May 23, 2003,

submission.

In the government’s response, it attached and made arguments based on several

medical records dating from the judicial-appeal period, August 15 to December 21,

05-7113 3
2002, obtained from Barrett’s medical treatment facility, the Birmingham Veterans

Affairs Medical Center. Among these records are an August 21, 2002, medical

progress note and other documentation stating that Barrett failed to report for medical

appointments on December 18 and 30, 2002. With respect to these records, the

Secretary states that the DVA “provided the Veterans Court with copies of DVA medical

records reflecting the diagnosis and consequences of Mr. Barrett’s psychiatric

disability.” Gov’t Br. at 19 n.8. Before the Veterans Court, Barrett’s counsel stated, and

the government does not contest, that these records were previously unknown to him.

It is unclear from the record before us if the government sought all records relevant to

the issue of mental incapacity bearing on equitable tolling. It is also unclear if it

provided the Veterans Court with all relevant records that it obtained, or selectively

submitted only portions.

Barrett filed a response to the government’s new evidence, and the Veterans

Court considered it in assessing his equitable tolling motion. Barrett III at *10-11.

However, in view of its decision in Jones v. Principi, 18 Vet. App. 500 (2004) (finding

that the Secretary’s duty to assist under 38 U.S.C. § 5103A does not extend to

assistance in developing the record for an equitable tolling motion), appeal dismissed

for lack of jurisdiction, 431 F.3d 1353 (Fed. Cir. 2005), the Veterans Court dismissed

Barrett’s motion for a stay of proceedings as moot, and declined to remand his case for

further record development on the equitable tolling issue. Barrett III at *12. The court

found that he had not met his burden under Barrett II, 363 Fed. Cir. at 1321, and

dismissed the case for lack of jurisdiction. On appeal, Barrett argues that the Veterans

Court erred by refusing a limited remand in order for the Secretary to assist in further

05-7113 4
developing the record on the equitable tolling issue. We have jurisdiction under 38

U.S.C. § 7292(a).

Discussion

Our review is limited to questions of law, see 38 U.S.C. § 7292(d)(2), and it is de

novo, see 38 U.S.C. § 7292(a); see also Bailey v. West, 160 F.3d 1360, 1362 (Fed. Cir.

1998) (en banc) (citations omitted). This case presents a narrow question of law: what

duty does the DVA have in developing the record before the Veterans Court on the

issue of equitable tolling?

To begin, we recognize that Barrett bears the ultimate burden of establishing the

Veterans Court’s jurisdiction by a preponderance of the evidence. See McNutt v. Gen.

Motors Acceptance Corp., 298 U.S. 178, 188-89 (1936); Butler v. Principi, 244 F.3d

1337, 1340 (Fed. Cir. 2001). However, this does not mean that the DVA has no duty to

assist the court in determining its jurisdiction. Indeed, our holding in Barrett II

acknowledged as much: “Furthermore, the [DVA], which employs a host of medical

professionals, is uniquely qualified to facilitate the diagnosis of troubled claimants

should such allegations arise.” 363 F.3d at 1320. In fact, when the Veterans Court

determines that it needs additional information to decide jurisdictional issues, its general

practice is to require the government (as well as the veteran) to provide the relevant

records in its possession and, where necessary, to develop new facts that go

exclusively to the jurisdictional question.

For example, in this case, the Veterans Court ordered the government to submit

supplemental briefing on the equitable tolling issue and to attach “any additional

relevant evidence.” Remand Order at *6. The government complied, at least in part, by

05-7113 5
seeking out, obtaining, and submitting the medical records and other documents

discussed above. Similarly, in Claiborne v. Nicholson, 19 Vet. App. 181, 183 (2005),

where equitable tolling based on ill health was at issue, the court ordered supplemental

briefing from the government and required it to attach “any additional relevant

evidence.”

In Sthele v. Principi, 19 Vet. App. 11, 13 (2004), the issue was equitable tolling

based on the Secretary’s alleged failure to mail a copy of the board’s final decision to

the veteran. While recognizing that a presumption of regularity applied to the

government’s mailings and that the veteran bore the ultimate burden of establishing

jurisdiction, id. at 16, the Veterans Court required the government to develop

jurisdictional facts. Indeed, it ordered the Chairman of the Board of Veterans Appeals to

submit a declaration “detailing the Board’s current practices regarding date-stamping

and mailing of Board decisions and those practices employed at the time the appellant’s

copy of the [board’s final decision] was date-stamped and mailed.” Id. at 13. The

government complied by submitting a declaration from the Senior Deputy Vice

Chairman of the Board. Id. at 14. After hearing argument on the equitable tolling issue,

the Veterans Court decided that it required more evidence, and ordered a further filing

from the government. Id. In that filing, the government submitted at least four

additional declarations pertaining to the DVA’s date-stamping and mailroom procedures.

Id. at 15-16. The Secretary’s declarations and filings ultimately assisted the veteran in

rebutting the presumption of regularity. See id. at 17-18 (discussing the jurisdictional

evidence, including the government’s declarations, and noting that, “[t]he evidence

before the Court in this case is somewhat perplexing and reflects multiple irregularities

05-7113 6
in VA’s handling of the appellant’s case that, coupled with the appellant’s assertion of

nonreceipt, constitute the clear evidence that is necessary to rebut the assumed

presumption of regularity”). On the ultimate issue, the Veterans Court found that the

veteran had met his burden of establishing entitlement to equitable tolling, and accepted

jurisdiction over the merits. Id. at 20.

These cases place a duty on the government to come forward with jurisdictional

evidence in its possession and to develop additional facts uniquely within its

competence, even though not part of the veteran’s claim file. This “comports with the

general rule that where evidence required to prove a fact is peculiarly within the

knowledge and competence of one of the parties, fairness requires that party to bear

the burden of coming forward.” Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994)

(citing Campbell v. United States, 365 U.S. 85, 96 (1961)).

As established by Reynolds v. Army & Air Force Exchange Service, 846 F.2d

746, 748 (Fed. Cir. 1988), we require that “the party asserting jurisdiction must be given

an opportunity to be heard before dismissal is ordered.” See also Local 336, Am. Fed’n

of Musicians v. Bonatz, 475 F.2d 433, 437 (3d Cir. 1973); Harmon v. Superior Court,

307 F.2d 796, 797 (9th Cir. 1961). Outside of the veterans context, where jurisdictional

facts are contested, the general rule is that “the party asserting jurisdiction be permitted

discovery of facts demonstrating jurisdiction, at least where the facts are peculiarly

within the knowledge of the opposing party.” Kamen v. Am. Tel. & Tel., 791 F.2d 1006,

1011 (2d Cir. 1986) (citations omitted); see also Majd-Pour v. Georgiana Cmty. Hosp.,

Inc., 724 F.2d 901, 903 (11th Cir. 1984); Williamson v. Tucker, 645 F.2d 404, 414 (5th

Cir.), cert. denied, 454 U.S. 897 (1981); Inv. Props. Int’l, Ltd. v. IOS, Ltd., 459 F.2d 705,

05-7113 7
707-08 (2d Cir. 1972). Here, however, because we believe the Veterans Court’s current

procedures for determining contested jurisdictional issues are sufficient, allowing Barrett

to conduct limited discovery of evidence bearing on equitable tolling should not be

necessary.∗∗ When applied sympathetically and with full recognition of the

government’s superior access to a veteran’s claim file and the facts bearing on

jurisdiction, they provide the veteran with the requisite opportunity to be heard as

contemplated by Reynolds.

We next address considerations surrounding the government’s superior access

to information and its obligation in veteran’s cases. This will assist in defining the

contours of the relief to which Barrett is entitled.

First, as the Veterans Court has long recognized and as this case demonstrates,

the full breadth of the information possessed by the DVA and the content of a veteran’s

claim file is generally not known to a veteran, if ever, until after the record on appeal has

been designated and transmitted under the court’s Rules 10 and 11. See, e.g., Parmley

v. Derwinski, 2 Vet. App. 383, 384 (1992); see also U.S. Vet. App. R. 10, 11. For this

reason, the Veterans Court “relies on counsel for the Secretary to act as an impartial

officer of the Court when designating the record on appeal.” See Zo v. Brown, 4 Vet.

∗∗
Based on our review of Veterans Court cases, as best illustrated by
Sthele, we find that upon pleading sufficient facts to establish jurisdiction, the Veterans
Court provides for a veteran’s right to be heard on contested jurisdictional issues as
follows: (1) providing an opportunity for supplemental briefing; (2) requiring the
government to submit any relevant evidence in its possession relating to the contested
jurisdictional issues (and requiring the veteran to make a reasonable effort to seek,
obtain, and submit evidence consistent with his burden under McNutt); (3) requiring the
government to supplement the jurisdictional record with relevant evidence helpful to the
Veterans Court in clarifying the jurisdictional issues; (4) providing an opportunity for the
parties to respond to the other’s evidentiary submissions (either through briefing or oral
argument); and (5) providing an opportunity for oral argument as it deems appropriate.

05-7113 8
App. 440, 443 (1993) (citing Parmley, 2 Vet. App. at 384). It is, therefore, the

government’s responsibility under Rules 10 and 11 to provide “all material in the record

of proceedings before the Secretary and the Board that was relied upon by the Board

. . . and any other material from the record which the Secretary considers relevant.”

U.S. Vet. App. R. 10 (emphasis added). Where there is a jurisdictional dispute,

however, designation and transmission of the record does not occur until after the

Veterans Court has made its jurisdictional determination and taken jurisdiction over the

merits of the case. See, e.g., Sthele, 19 Vet. App. at 20; Bobbitt v. Principi, 17 Vet.

App. 547, 554 (2004). Because a veteran’s informational disadvantage is at least as

great, if not greater, at the jurisdictional stage of his case, it would be inconsistent to

allow the government to withhold records relevant to jurisdiction, thereby restricting his

very access to judicial review, while not so allowing with respect to records relevant to

the merits of the case. Accordingly, just as the government must provide the Veterans

Court (and the veteran) all records in its possession relevant to the merits of a case, so

too must it provide all records in its possession relevant to contested jurisdictional

issues.

Second, because the government maintains the records in a veteran’s claim file

and has the readiest access to DVA personnel and knowledge about its internal

operating procedures, it is necessary, as exemplified by Sthele, to place some duty on

the government to develop relevant facts in order to clarify the jurisdictional record. Cf.

Jensen, 19 F.3d at 1417. Here the government’s access to medical records of which

Barrett’s counsel was not aware, its history of treating and working with Barrett, and its

access to medical staff that is supremely qualified to make determinations of mental

05-7113 9
incapacity, put it in a unique position to know precisely what further medical evidence

will clarify the jurisdictional record.

When we consider the context in which judicial review occurs, it becomes even

more compelling to assign the government this role. Congress’ intent in crafting the

veterans benefits system is to award “entitlements to a special class of citizens, those

who risked harm to serve and defend their country. This entire scheme is imbued with

special beneficence from a grateful sovereign.” Bailey, 160 F.3d at 1370 (Michel, J.,

concurring); see also Jacquay v. Principi, 304 F.3d 1276, 1286 (Fed. Cir. 2002) (en

banc); Hensley v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000). “[I]n the context of

veterans' benefits where the system of awarding compensation is so uniquely pro-

claimant, the importance of systemic fairness and the appearance of fairness carries

great weight.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Indeed, it was for

the purpose of ensuring that veterans were treated fairly by the government and to see

that all veterans entitled to benefits received them that Congress provided for judicial

review through the Veterans’ Judicial Review Act (“VJRA”) of 1988 (codified as

amended at 38 U.S.C. §§ 7251-7298 (2000)). The government’s interest in veterans

cases is not that it shall win, but rather that justice shall be done, that all veterans so

entitled receive the benefits due to them. Cf. Campbell, 365 U.S. at 96 (citations

omitted).

Accordingly, when, as here, a veteran alleges facts to show entitlement to

equitable tolling, thereby meeting his threshold burden under McNutt, see 298 U.S. at

189, and jurisdiction is called into question, consistent with its duty to ensure the reality

and appearance of systemic fairness and the rule in Jensen, the government must

05-7113 10
assist the court by providing and, where necessary, procuring further evidence helpful in

deciding jurisdiction, e.g., declarations, new medical examinations, and other forms of

evidence as appropriate. Cf. Adams v. Principi, 256 F.3d 1318, 1321-22 (Fed. Cir.

2001) (affirming the Veterans Court’s remand to the board for clarification as to the

import of evidence, holding that “clarification . . . can take the form of an explanation

from [the examining doctor] of his opinion, or if necessary supplemental medical

evidence”). The government shall make these submissions on its own initiative, upon

request of the veteran, or as required by the Veterans Court. If a veteran makes such a

request, the government may advert to the court for a determination that it is reasonably

necessary to deciding the jurisdictional issues before it. Cf. 38 U.S.C. § 5103A(a)(2)

(establishing a standard of reasonableness for determining when the Secretary is

required to provide assistance at the agency level under its duty to assist in developing

claims for benefits).

Here Barrett specifically requested a medical examination by DVA doctors to

clarify the nature of his mental incapacity during the appeals period. Because such an

exam will plainly assist in clarifying his entitlement to equitable tolling, is consistent with

the kinds of evidence uniquely within the knowledge and competence of the government

as contemplated by Jensen and Adams, and ensures the reality and appearance of

systemic fairness, the Secretary shall provide Barrett with his requested medical

examination, as well as any other assistance deemed reasonably necessary by the

Veterans Court. The Secretary must provide the Veterans Court with any additional

records in its possession that are relevant to the equitable tolling issue. Moreover, both

05-7113 11
Barrett and the Secretary should voluntarily provide the Veterans Court with any other

relevant evidence now in their possession or later obtained.

The government raises two principal objections, both of which are without merit.

First, it argues that because section 5103A relates to its duty to provide assistance

“necessary to substantiate the claimant’s claim for a benefit under a law administered

by the Secretary,” it is not required by that section to assist Barrett in developing

evidence that relates to jurisdictional issues. Because section 5103A does not provide

the basis for our holding, this argument is of no moment. It is only relevant that our

decision is not inconsistent with section 5103A. In Adams, while we rejected the

Secretary’s duty to assist (then codified at 38 U.S.C. § 5107(a) (2000)) as the

appropriate basis for a Veterans Court’s remand for “clarification as to the import of the

evidence,” we found that the remand was proper under its 38 U.S.C. § 7252(a) remand

power. 256 F.3d at 1321-22. Moreover, we stated, “While it may be that further

proceedings will result in a ruling in Mr. Adams’s favor and thus the remand will

ultimately assist him in obtaining benefits, the purpose of the remand is not principally to

assist Mr. Adams to support his claim, but to clarify [the contested legal issue].” Id. at

1322. Indeed, our precedent, e.g., Santana-Venegas v. Principi, 314 F.3d 1293 (Fed.

Cir. 2002); Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en banc), and the

government’s practice before the Veterans Court, e.g., Sthele; Zo; Parmley, plainly

establish that (1) the entirety of the Secretary’s duties do not end once the board

renders a decision, and (2) governmental “assistance” during the judicial review process

that ultimately assists the veteran in obtaining benefits to which he is entitled is not

inconsistent with section 5103A.

05-7113 12
 The government also argues that the Veterans Court has no jurisdiction to grant

Barrett his requested relief. However, it is axiomatic that “a court always has jurisdiction

to determine its own jurisdiction.” Rosado v. Wyman, 397 U.S. 397, 403 n.3 (1970); see

also Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1331 (Fed. Cir. 2006) (en banc)

(citing Cruz v. Dep’t of Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991)); Henderson v.

West, 12 Vet. App. 11, 14 (1998).

In view of the Veterans Court’s authority to compel the government to produce

evidence uniquely within its knowledge and provenance relevant to clarifying

jurisdictional issues, its authority under section 7252(a) to remand as appropriate,

coupled with the authority of federal courts to order limited remands to clarify and further

develop issues on appeal, e.g., Yang v. McElroy, 277 F.3d 158, 162-64 (2d Cir. 2002), it

has the authority to order a remand for the government to procure and provide the

necessary jurisdictional evidence. However, we are mindful of the Veterans Court’s

practice of also adducing the necessary jurisdictional evidence through orders rather

than remands. E.g., Barrett III; Claibourne; Sthele. Therefore, we leave it to the court’s

sound discretion whether an order or a remand is the more appropriate mechanism to

develop the relevant jurisdictional facts and to ensure that Barrett receives the full and

fair hearing on jurisdiction that he is due.

Conclusion

Accordingly, the judgment of the United States Court of Appeals for Veterans

Claims is reversed, and the case is remanded for further proceedings in accordance

with this opinion.

05-7113 13
 COSTS

Costs to appellant.

REVERSED AND REMANDED

05-7113 14
 United States Court of Appeals for the Federal Circuit

05-7113

LARRY D. BARRETT,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

FRIEDMAN, Senior Circuit Judge, concurring in the judgment.

I join in the court’s judgment reversing the judgment of the United States Court of

Appeals for Veterans Claims (“Veterans Court”) and remanding the case for further

proceedings. I write separately because of my concern that the court’s opinion seems

to speak more broadly than is necessary to dispose of this case.

Unlike the administrative proceedings involving veterans benefits before the

Department of Veterans Affairs (“Department”), which are non-adversarial, the judicial

proceedings before the Veterans Court are fully adversarial. Before that Article I court,

the appellee usually is the Secretary of Veterans Affairs and ordinarily is represented by

the Department’s General Counsel. The proceedings before that court, like those

before other courts of the United States, are totally adversarial.

It seems anomalous, to say the least, to impose upon one of the parties in such

judicial proceedings the obligation to assist his opponent in presenting and trying to win
his case. Yet that is what certain passages in the court’s opinion appear to suggest, if

not require.

Thus, the court states that specified decisions of the Veterans Court “place a

duty on the government to come forward with jurisdictional evidence in its possession

and to develop additional facts uniquely within its competence, even though not part of

the veteran’s claim file”; that “it is necessary, as exemplified by Sthele, to place some

duty on the government to develop relevant facts in order to clarify the jurisdictional

record”; that “when, as here, a veteran alleges facts to show entitlement to equitable

tolling, . . . and jurisdiction is called into question, consistent with its duty to ensure the

reality and appearance of systemic fairness and the rule in Jensen, the government

must assist the court by providing and, where necessary, procuring further evidence

helpful in deciding jurisdiction, e.g., declarations, new medical examinations, and other

forms of evidence as appropriate. . . . The government shall make these submissions

on its own initiative, upon request of the veteran, or as required by the Veterans Court”;

and that “both Barrett and the Secretary should voluntarily provide the Veterans Court

with any other relevant evidence now in their possession or later obtained.”

If these statements are intended merely to indicate the scope of the requirements

the Veterans Court may impose on the Department as a litigant before it, I have no

problem with them. If, however, they are read to suggest or indicate that the

Department is obligated to take such action on its own, either voluntarily or in response

to the veteran’s request but without any directive from the Veterans Court to do so, I find

them troublesome.

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 Before this court provides or recognizes such a fundamental change in our

adversarial system of judicial adjudication, I would think it would require a clear and

explicit expression of legislative intent to do so. It is 38 U.S.C. § 5103A that creates and

describes the Secretary’s “Duty to assist claimants” “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). I see nothing there that would require the Secretary

on his own initiative to take such action. To the contrary, those provisions seem to me

to address the Secretary’s duty to assist veterans only in handling their claims in the

non-adversarial administrative proceedings before the Department. When the case

reaches the stage of judicial review of the Secretary’s action before the Veterans Court,

however, I think the normal adversarial system prevails, so that neither side has any

obligation on its own to assist its opponent in handling the case on appeal.

In sum, I think that any duty the Secretary may have to assist the veteran in

handling an appeal before the Veterans Court is limited to compliance with the court’s

directives or requests, and does not also include an obligation to furnish information or

provide medical assistance on his own initiative or on request of the veteran. Although

the present case involves only a narrow issue involving the Veterans Court’s

jurisdiction, some language in the opinion appears to have broader and troubling

implications.

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