Kenneth M. Carpenter and Robert v. Chisholm v. Denis McDonough ( 2021 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1136
KENNETH M. CARPENTER, APPELLANT,
AND
ROBERT V. CHISHOLM, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued November 17, 2020 Decided February 24, 2021)
Charles S. Dameron, with whom Jay I. Alexander, Daniel J. Farnoly, John Niles, and
Barton F. Stichman, were on the brief, all of Washington, D.C., for the appellants.
Nathan P. Kirschner, with whom William A. Hudson, Jr., Acting General Counsel; Mary
Ann Flynn, Chief Counsel; and Selket N. Cottle, Deputy Chief Counsel, were on the brief, all of
Washington, D.C., for the appellee.
Yelena Duterte of Chicago, Illinois, was on the brief for the National Law School Veterans
Clinic Consortium as amicus curiae.
Before GREENBERG, MEREDITH, and FALVEY, Judges.
FALVEY, Judge: Kenneth M. Carpenter and Robert V. Chisholm are VA-accredited
attorneys and principals in law firms that represent claimants before VA. Both firms employ
paralegals who help firm attorneys pursue these claims. Mr. Carpenter's firm also employs non-
paralegal support staff who assist with these claims. Some of the paralegals are not VA-accredited
and none of the other support staff are accredited. Mr. Carpenter and Mr. Chisholm both requested
remote, read-only access to automated VA claims records for these unaccredited employees.
Ultimately, in separate decisions, the Board of Veterans' Appeals denied remote, read-only access
to automated VA claims records for Mr. Carpenter's unaccredited paralegals and staff and Mr.
Chisholm's unaccredited paralegals. Appellants through counsel appealed these decisions.1
These appeals, which are timely and over which the Court has jurisdiction, see 38 U.S.C.
§§ 7252(a), 7266(a), were referred to a panel of the Court, with oral argument,2 to decide whether
VA's categorical bar to remote, read-only Veterans Benefits Management System (VBMS)3 access
to unaccredited paralegals and staff violates the note to 38 C.F.R. § 14.629. Because that note
concerns access to Veterans Benefits Administration (VBA) automated claims records as
described in 38 C.F.R. §§ 1.600-.603, we must consider whether the Court's interpretation of those
regulations in Green v. McDonald, 28 Vet.App. 281, 290 (2016) (per curiam order), applies to
these appeals, particularly considering changes in VA's technological landscape. We are also asked
to decide whether VA's bar against remote access to VBMS for accredited attorneys' unaccredited
paralegals and support staff violates 38 U.S.C. § 5904(a) and due process, and whether the addition
to and omission from the appellants' claims files of some documents constitutes statutory and due
process violations.
We find that, because the regulations themselves—§§ 1.600-.603—have not changed since
Green, the Court must follow the regulations' plain language and Green's analysis of that language;
the regulations do not pertain to VBMS access. We also find that the appellants have not proved
that they were prejudiced by the denial of VBMS access to their unaccredited paralegals and staff,
such that they could not competently represent their clients, or by any alleged record deficiencies.
Thus, we will affirm the Board's decisions.
I. RELEVANT FACTS AND PROCEDURAL HISTORY
A. Mr. Carpenter's Appeal
In June 2016, Mr. Carpenter requested VBMS access for his unaccredited support staff and
paralegals. Record (R.) at 366-67. In December 2016, VA denied the request. R. at 362-63. That
1
The appellants filed an unopposed motion to consolidate. The Court granted the motion and consolidated
the appeals under docket number 19-1136.
2
Although appellants filed an opposed motion for oral argument, that motion is moot because the Court
decided sua sponte that oral argument would assist us in our determination.
3
"VBMS is an automated, fully electronic, Web-based claims processing system designed to serve as the
cornerstone of VBA's transition to paperless claims processing." VA's Notice of Amendment of System of Records,
"'VA Compensation, Pension, Education, and Vocational Rehabilitation and Employment Records—VA'
(58VA21/22/28)," 77 Fed. Reg. 42,594-01 (July 19, 2012).
2
same month, Mr. Carpenter filed a Notice of Disagreement (NOD). R. at 361-62. After further
proceedings, on October 31, 2018, the Board denied remote, read-only access to automated VA
claims records for Mr. Carpenter's unaccredited paralegals and staff. R. at 2-13.
B. Mr. Chisholm's Appeal
In November 2014, Mr. Chisholm asked a regional office to grant remote VBMS access to
his unaccredited paralegals. R. at 628-30. VA did not act on the request and, in April 2015, Mr.
Chisholm filed a petition with this Court. R. at 615-66. In September 2015, VA informed Mr.
Chisholm of the basis for withholding access, but did not grant or deny the request. R. at 606-08.
In October 2015, Mr. Chisholm responded and again requested access. R. at 667-70. In May 2016,
VA accepted the October 2015 letter as a petition for rulemaking (under 5 U.S.C. § 553(e)) to
revise 38 C.F.R. § 14.629 in a manner that would allow VA to provide remote access to
unaccredited law firm support staff. R. at 588.
In September 2016, the Court partially granted Mr. Chisholm's petition, holding that
"decisions regarding access to claims files are rendered pursuant to a law affecting the provision
[of] veterans' benefits," and directing the Secretary to issue an appealable decision. Chisholm
v. McDonald, 28 Vet.App. 240, 243 (2016) (per curiam order). In March 2017, the VBA denied
Mr. Chisholm's paralegals remote access. R. at 457. That same month, Mr. Chisholm filed an
NOD. R. at 578-81. After further proceedings, on October 29, 2018, the Board denied remote,
read-only access to automated VBA claims records for Mr. Chisholm's unaccredited paralegals.
R. at 369-82.
C. The Board Decisions
In the decisions on appeal, the Board determined that the appellants had not established
entitlement to remote, read-only access to VA claims records for their unaccredited paralegals,
and, in Mr. Carpenter's case, for his support staff as well. R. at 2, 370. The Board addressed the
interplay between §§ 1.600-.603 and the note to § 14.629 and, relying on this Court's decision in
Green, determined that the regulations do not apply to VBMS access. R. at 4, 372-73. Assuming,
however, that Green did not apply, the Board found the language in the note to § 14.629
permissive, and that the Secretary's Privacy Act and administrative concerns regarding access were
not unreasonable, arbitrary, capricious, or an abuse of discretion. R. at 5-9, 373-77. The Board
further noted that, even if the regulations pertain to VBMS, § 1.600(d)(2) provides that
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§§ 1.600-.603 "do not create, and may not be relied upon to create, any right or benefit, substantive
or procedural, enforceable at law against the United States or [VA]." R. at 7, 375.
As to whether the Secretary's denial of access violates 38 U.S.C. § 5904 and the appellants'
ability to competently and diligently represent their clients, the Board determined that the
appellants had not alleged a specific instance in which they could not render effective counsel, but
cited only hypothetical harm. R. at 9, 377-78. The Board thus concluded that the relationship
between access to VBMS for their paralegals and support staff and their statutory and ethical
obligations was too attenuated. R. at 9, 378. Turning to appellants' arguments based on the practical
considerations of efficiently running a law firm, the Board stated in part that the appellants had not
cited a specific instance in which their clients missed a statutory deadline, VA had not provided a
decisional document, or that they could not access their clients' electronic records. R. at 11-12,
379-81. Ultimately, the Board concluded that this case comes down to the appellants' disagreement
with VA's policy, but that the Secretary had cited legitimate privacy and administrative concerns,
and that his exercise of discretion is not unreasonable. R. at 12, 381.
D. VA's Proposed Amendments to §§ 1.600-.603 and § 14.629
In February 2020, VA published a proposed rule to amend its regulations regarding remote
access with a comment deadline of April 20, 2020. Individuals Accredited by the Department of
Veterans Affairs Using Veterans Benefits Administration Information Technology Systems to
Access VBA Records Relevant to a Claim While Representing a Claimant Before the Agency,
85 Fed. Reg. 9435 (proposed Feb. 19, 2020) (to be codified at 38 C.F.R. pts. 1 and 14). VA stated
that, in 2003, when it added the note to § 14.629, which undergirds the appellants' arguments
regarding access, VA IT systems did not include electronic copies of evidence. Id. at 9438-39. VA
explained that the regulation's note "never meant that VA would always provide support staff . . .
or paralegals with access to VBA IT systems." Id. at 9439. VA acknowledged, however, that "the
note may have caused confusion and contributed to inconsistent application of current
[§§ 1.600-.603] as VA has transitioned" from maintaining claimants' records in paper form to
electronic form. Id. Thus, VA proposed changes to §§ 1.600-.603 and to remove the note to
§ 14.629 consistent with the clarification of its policy. Id. at 9436-39. VA noted that allowing
unaccredited paralegals remote access to VA records would conflict with the proposed regulations
and current practice of limiting access to claimants' accredited attorneys. Id. at 9439 (citing "VA's
overarching responsibility to protect [v]eterans' privacy, maintain IT security according to Federal
4
requirements, and control administrative burden and costs"). Mr. Chisholm informed the Court
that he submitted comments to VA urging the agency not to implement the proposed changes. See
Appellants' Solze Notice (Apr. 17, 2020).
The Court ordered the parties to address whether we should stay this case pending VA's
publication of the final rule. The Secretary responded, asserting that the Court should stay the case
until 60 days after issuance of the final rule, allowing the appellants the chance to directly
challenge the rule at the U.S. Court of Appeals for the Federal Circuit under 38 U.S.C. § 502.
Secretary's Response (Resp.) at 2. The Secretary contended that the appellants' arguments would
be rendered moot if the proposed rule became the final rule. Id. at 3. The Secretary explained,
however, that VA had no deadline in which to publish the final rule and urged that the stay should
not be limited to a specific period following the notice and comment period because "each
rulemaking is different" and it could cause the stay being lifted before the appellants have a chance
to challenge the final rule. Id. at 3-4.
The appellants also responded, arguing that the Court should not stay this case. Appellants'
Resp. at 1. They asserted that VA's categorical bar to remote access for their unaccredited
paralegals and support staff is causing harm and, because the Secretary is under no deadline to
publish the final rule and there is uncertainty over whether there will be a final rule, a stay would
prolong that harm. Id. at 2-8. They also contended that, even if the Secretary's final rule removes
the note to § 14.629, it will not moot their case because they also raised statutory and constitutional
challenges. Id. at 8-9.
We also permitted the National Law School Veterans Clinic Consortium, which stated it
had an interest in whether law students, paralegals, and clinic staff would be able to "fully
participate" in the representation of clients, to file an amicus response to the Court's order. Amicus
Curiae Resp. at 1. It reiterated that any future final rule would not moot the statutory and
constitutional conflicts here and that the Court should not stay the appeals pending an uncertain
regulatory action. Id. at 1-5.
We thank the parties and the amicus for their helpful briefs. Given the uncertainty of if or
when final rules will be published and what they might provide, we conclude that a stay of
proceedings is not in the interests of judicial efficiency.
5
II. ANALYSIS
On appeal, Mr. Carpenter and Mr. Chisholm argue that VA's categorical bar against access
to VBMS by accredited attorneys' unaccredited paralegals and support staff violates the note to
§ 14.629. Appellants' Brief (Br.) at 13-16. They also assert that Green was void ab initio or dicta
because that case concerned a Rule 10 motion and the Court thus did not need to analyze
§§ 1.600-.603 to answer the question presented there. Id. at 16-18. In the alternative, they argue
that Green is not controlling because the Court's analysis of §§ 1.600-.603 in that case has self-
abrogated, given that VA's technological landscape has changed. Id. at 16, 18-20. Finally, they
assert that VA's bar against remote access to VBMS for accredited attorneys' unaccredited
employees violates section 5904(a) and due process and that the addition to and omission from the
record before the agency (RBA) of some documents constituted statutory and due process
violations. Id. at 20-30.
The Secretary argues that there is no statutory or regulatory right to remote, read-only
access to VBMS, Green is controlling, and the appellants have not carried their burden of proving
prejudicial error. Secretary's Br. at 4-12. The Secretary also asserts that VA has not violated
section 5904(a) and that it afforded appellants due process. Id. at 13-20.
A. Legal Landscape
1. Statutory and Regulatory Framework
Attorneys must competently represent their clients before VA. 38 U.S.C. § 5904(a). In
carrying out this representation, attorneys require access to their clients' claims records. As
explained below, that access is in some cases governed by §§ 1.600 through 1.603, which prescribe
procedures for "[w]hen, and under what circumstances, VA will grant authorized claimants'
representatives read-only access to the automated [VBA] claims records" and "[t]he exercise of
authorized access by claimants' representatives." 38 C.F.R. § 1.600(a)(1)-(2) (2020). Section
1.601(a) provides that an applicant for read-only access to VBA automated claims records from a
location other than a regional office must be:
(1) An organization, representative, attorney or agent approved or accredited by
VA under §§ 14.626 through 14.635; or
(2) An attorney of record for a claimant in proceedings before the Court of Veterans
Appeals or subsequent proceedings who requests access to the claimant's automated
claims records as part of the representation of the claimant.
38 C.F.R. § 1.601(a) (2020).
6
Section 1.600(b)(1) provides that "VBA will grant access to its automated claimants' claims
records from locations outside [r]egional [o]ffices . . . [o]nly to individuals . . . granted access . . .
under §§ 1.600 through 1.603." 38 C.F.R. § 1.600(b)(1). And § 1.600(c) provides:
(1) Access will be authorized only to the inquiry commands of the Benefits
Delivery Network [(BDN)] which provide access to the following categories of
data:
(i) Beneficiary identification data such as name, [S]ocial [S]ecurity number, sex,
date of birth, service number[,] and related service data; and
(ii) Claims history and processing data such as folder location, claim status, claim
establishment date, claim processing history, award data, rating data, including
service-connected medical conditions, income data, dependency data, deduction
data, payment data, [and] educational facility and program data.
38 C.F.R. § 1.600(c).
Finally, the note to § 14.629, which concerns the requirements for accreditation of service
organization representatives, agents, and attorneys, states:
A legal intern, law student, paralegal, or veterans service organization support-staff
person, working under the supervision of an individual designated under
§ 14.631(a) as the claimant's representative, attorney, or agent, may qualify for
read-only access to pertinent [VBA] automated claims records as described in
§§ 1.600 through 1.603 in part 1 of this chapter.
38 C.F.R. § 14.629 Note (2020).
2. Green v. McDonald
Green concerned VA's denial of remote VBMS access to an attorney who represented the
claimant before this Court, but who was not VA-accredited. Green, 28 Vet.App. at 283. Mr. Green
asserted that the Board decision identified an error in VBMS concerning when VA had received
records and that VBMS access was thus necessary to determine whether an RBA dispute existed.
Id. at 283 & n.3. The Secretary responded that "it was VA's policy to require Court attorneys to
also be accredited representatives before . . . VA before VBMS" access was granted. Id. at 283
(internal quotation marks omitted).
Mr. Chisholm's law firm, which represented Mr. Green in that case, argued that remote
VBMS access was consistent with Rule 10(d) of the Court's Rules of Practice and Procedure,
which provides that the Secretary must permit a claimant or representative to inspect and copy,
subject to reasonable regulation, any original material in the RBA. Id. at 284. He also argued that,
7
read together, § 1.600(b)(1) and § 1.601(a)(2) afford an attorney before the Court the right to
remote access to VBA automated claims records and "that the regulations do not give the Secretary
discretion to impose, [through] internal policy, an additional accreditation requirement on
attorneys before the Court." Id. at 283-84.
The Court concluded that attorneys representing claimants before the Court do not have a
regulatory right, under §§ 1.600-.603, to remote read-only access to the claimants' VBMS files.
28 Vet.App. at 294. The Court determined that, standing alone, §§ 1.600-.603 do not define
"automated VBA claims records" or "automated claimants' claims records"; but, "when § 1.600 is
read in its entirety, it becomes clear that 'automated VBA claims records' and 'automated claimants'
claims records' do not include VBMS files or a claimant's electronic claims folder." Id. at 290. The
Court explained that, "[b]y limiting access to categories of data and information enumerated in
§ 1.600(c)(1), the regulation provides some context in which to understand the meaning of 'VBA
automated claims records' or 'automated claimants' claims records.'" Id. The Court noted that the
categories of accessible data do not include VBMS files or a claimant's electronic claims file. Id.
To the contrary, the Court noted that "§ 1.600(c)(1)(ii) specifies that the BDN will provide the
'[c]laims history and processing data such as folder location.'" Id. (emphasis omitted) (quoting
38 C.F.R. § 1.600(c)(1)(ii) (2016)). Thus, the Court found unavailing "Mr. Green's argument that
the regulations should be interpreted to authorize access to his VBMS file." Id.B. Technological Changes and Green
1. Void Ab Initio or Dicta
We now turn to the appellants' arguments. As noted above, the appellants argue that
Green's interpretation of §§ 1.600-.603 was void ab initio or dicta. Appellants' Br. at 16-18. They
first note that Green concerned a Rule 10(d) motion, which permits the Secretary to subject to
reasonable regulation the right of attorneys before the Court to inspect and copy original materials
in the RBA. They argue that, because of this, the Court did not have to analyze §§ 1.600-.603 and
how those regulations pertained to VBA automated claims files because it was VA's policies, and
not its regulations, that required accreditation before obtaining remote VBMS access. Id. They
point out that under § 1.601(a), VA distinguishes between VA accredited attorneys and agents and
attorneys practicing before the Court and suggest that this is an independent basis for remote
access. Id. They argue further that, even if the Green decision is not a nullity, its analysis of
8
§§ 1.600-.603 is dicta because it was unnecessary to the Court's decision on a Rule 10(d) motion.
Id.
As stated above, in Green, Mr. Chisholm's law firm, which represented the claimant in that
case, argued that, read together, § 1.600(b)(1) and § 1.601(a)(2) afford an attorney before the Court
the right to remote access to VBA automated claims records and "that the regulations do not give
the Secretary discretion to impose, [through] internal policy, an additional accreditation
requirement on attorneys before the Court." 28 Vet.App. at 283-84; see 38 C.F.R. § 1.600(b)(1)
(providing that VBA will grant remote access to its automated claimants' claims records: "Only to
individuals and organizations granted access to automated claimants' records under §§ 1.600
through 1.603"), § 1.601(a) (stating that an applicant for remote access to VBA automated claims
records must be: (1) "[a]n organization, representative, attorney, or agent approved or accredited
by VA under §§ 14.626 through 14.635"; or (2) "[a]n attorney . . . before the Court . . . who requests
access to the claimant's automated claims records").
Contrary to the appellants' current contention, the Green Court had to analyze and interpret
§§ 1.600-.603 because Mr. Chisholm's firm there argued that VA's policy contradicted the plain
language of § 1.600(b)(1) and § 1.601(a)(2). Because the Court agreed that the plain language of
§ 1.601(a)(2) does not include an accreditation requirement for attorneys before the Court,
28 Vet.App. at 289-90, it logically also had to address whether the regulations applied to remote
read-only access to VBMS, as well as analyze § 1.600(c) to understand what automated claims
records "individuals and organizations granted access to automated claimants' records under
§§ 1.600 through 1.603" could access. 38 C.F.R. § 1.600(b)(1). Thus, Green's analysis of those
regulations does not render the decision void ab initio or the analysis itself dicta.
Further, even if the situation here is distinguishable from Green, because Green involved
an attorney representing a claimant before the Court and this case involves attorneys and agents
representing claimants before VA, § 1.601(a) provides that both VA accredited attorneys or agents
and unaccredited attorneys before the Court may have access to automated claims records. But
what those claims records include does not change, regardless of whether it is an accredited
attorney or agent, or an unaccredited attorney before the Court, who is requesting access to them.
In other words, even though the situation here involves different individuals than in Green, that
does not change the applicability of its holding that automated claims records, as noted in § 1.600,
do not include VBMS, no matter who is accessing them.
9
2. Self-abrogation
The appellants also argue that Green's analysis of §§ 1.600-.603 has self-abrogated, given
that VA's technological landscape has changed. Appellants' Br. at 18-20. As stated, § 1.600(b)
provides that "VBA will grant access to its automated claimants' claims records from locations
outside [r]egional [o]ffices" and § 1.600(c)(1) provides that "[a]ccess will be authorized only to
the inquiry commands of the [BDN]." Although the Court is limited in what material it may review,
see 38 U.S.C. §§ 7252(b), 7261(c), we acknowledge that there have been some changes to VA's
technological landscape since 2008, when § 1.600 was last updated.
For example, a September 2016 VA letter reflects that the Principal Deputy Under
Secretary for Benefits provided guidance to all the regional offices regarding granting accredited
representatives access to VA information systems. R. at 51-54. He instructed them that, upon
successful completion of a background investigation and issuance of a Personal Identity
Verification (PIV) badge, "VA will grant access to the VA network and to the . . . []VBMS[]."
R. at 52. Additionally, in the February 2020 Federal Register notice about the proposed rule
changes to §§ 1.600-.603 and § 14.629, VA stated that its "effort to modernize the claims
processing system has required a change to storing records relevant to benefit claims before the
agency and processing such claims in electronic form, currently utilizing the . . . []VBMS[]
information system." 85 Fed. Reg. at 9436; see id. (also stating that the experience of VA
claimants, representatives, and the agency since the transition to VBMS warrants clarification of
terms and processes related to how attorneys, agents, or representatives of VA-recognized veterans
service organizations (VSOs) may have direct access to VBA's claims records). VA further stated
that "[t]he proposed rule would also revise most of § 1.600(c) to remove references to antiquated
IT systems and commands." 85 Fed. Reg. at 9437; see id. (explaining that this was to "ensure VA's
regulations stay current regardless of future IT developments" and that it thus proposed to
"describe affected IT systems more generally").
Despite these apparent technological changes, however, the text of §§ 1.600-.603 has not
changed since Green. Compare 85 Fed. Reg. at 9436-37 (publishing the proposed changes to these
regulations) with Oral Argument at 45:14-45:45, Carpenter v. Wilkie, U.S. Vet. App. No. 19-1136
(oral argument held Nov. 17, 2020), http://www.uscourts.cavc.gov/oral_arguments_audio.php)
(the Secretary noting that VA is still addressing comments and that it is unclear if a final rule will
10
be published). And the appellants have not persuaded us how we can consider anything but the
plain language of the regulations and Green's controlling analysis of those regulations.
First, the appellants fail to explain how the common-law maxim—that when the reason of
a rule ceases, so should the rule itself—applies to a court's plain language interpretation of a
regulation in a precedential decision. Appellants' Br. at 18 (citing Zadvydas v. Davis, 533 U.S.
678, 699 (2001), and two non-binding cases about changed circumstances justifying departure
from common-law rules, but not elaborating on how VA technological changes compel a departure
from applying that Agency's regulations); see Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006)
(holding that the Court will not entertain underdeveloped arguments). VA appears to be updating
its regulations in response to the technological changes; but until the time that such updates occur,
the Court will not disregard the current regulations' language, and Green's interpretation of that
plain language, based on underdeveloped arguments and extra-record evidence annexed to the
appellants' brief (discussed below). See 38 U.S.C. § 7261(a)(1) (providing that the Court may
interpret regulatory provisions); 38 U.S.C. § 7252(b) (providing that "[r]eview in the Court shall
be on the record of proceedings before the Secretary and the Board").
The appellants also contend that VA now treats VBMS e-folders as constituting "VBA
automated claims records," Appellants' Br. at 17, those records discussed in §§ 1.600 through
1.603. But it is unclear whether VA relies on §§ 1.600-.603 to grant VBMS access to accredited
attorneys and agents. For example, the September 2016 VA letter cites no statutory or regulatory
authority. See R. at 51-54; id. (the letter also does not mention access for unaccredited attorneys
practicing before the Court, even though § 1.601 states that remote VBA automated claims records
access can be granted for accredited attorneys or agents, or for unaccredited attorneys representing
claimants before the Court). Further, the Secretary responded during oral argument that, although
he could not identify the regulations on which the September 2016 letter was based, VA does not
consider §§ 1.600-.603 as including VBMS and that VA follows the same protocols as when we
issued Green, including requiring a PIV card for access to its systems. Oral Argument at
35:30-37:30; id. at 43:52-44:32 (noting that there is a proposed rule governing VBMS). Thus,
although the appellants assert that "[w]hether by abandonment, estoppel, or similar doctrine, VA
may not now rely on Green's analysis . . . for a contrary position" to VA treating VBMS e-folders
as constituting VBA automated claims records, Appellants' Br. at 18, they provide no analysis or
11
citation to legal authority and they fail to explain how we can interpret the language of the
regulations as applying to VBMS. We therefore find this argument unpersuasive.
The appellants also maintain that the "dispositive fact" in Green was that "the only way"
for VA to grant remote access was "to grant logistical access to VA['s] networks and information
systems" and, again citing extra-record evidence, they assert that those security concerns have now
been obviated. Appellants' Br. at 18-20. But the appellants' reading of Green is mistaken. VA's
security concerns played no role in the Court's regulatory interpretation in Green. 28 Vet.App. at
288-90 (relying instead on the plain language of the regulations and finding that §§ 1.600-.603 do
not provide a right to remote access to claimants' VBMS files); id. at 293-94 (discussing the
Secretary's arguments regarding security concerns, but not basing its interpretation on those
arguments). And, even regarding whether the Secretary's policy was reasonable under Rule 10 of
the Court's Rules of Practice and Procedure, the Court declined to "delve into the Secretary's
policies and procedures" because the appellant had not established a statutory right to remote
access. Id. at 293.
3. § 14.629 and Summary
In sum, the appellants have demonstrated no error on the part of the Board for relying on
Green to find that §§ 1.600-.603 do not apply to VBMS access. Further, the Court must review
and apply the regulations' language, as well as its own interpretation of that language in Green.
Doing so here, the appellants' arguments that VA's categorical bar against VBMS access for
unaccredited paralegals and support staff violates the note to § 14.629 must fail. Appellants' Br. at
13-16. As stated, § 14.629 concerns the requirements for accreditation of attorneys, agents, and
VSOs and the note to that regulation states that a "legal intern, law student, paralegal, or [VSO]
support-staff person, working under the supervision of an individual designated . . . as the
claimant's representative, attorney, or agent, may qualify for read-only access to pertinent [VBA]
automated claims records as described in §§ 1.600 through 1.603." 38 C.F.R. § 14.629 Note. But,
as explained above, the automated claims records referenced there—i.e., those described in
§§ 1.600-.603—do not include VBMS. See Green, 28 Vet.App. at 288-90. Thus, any error in
categorically barring these individuals' access to VBMS would not be related to the regulations.4
4
The Court notes that, although the note to § 14.629 lists paralegals, there remains a question about whether
that note includes other law firm support staff. See 38 C.F.R. § 14.629 Note (specifically listing "[VSO] support-
staff"). But we will not delve into that issue because, even if the note includes them, like paralegals, barring their
access to VBMS is unrelated to the regulations at issue (§§ 1.600-.603).
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Further, because the note to § 14.629 refers only to access granted under §§ 1.600-.603, the Court
need not address the appellants' arguments that the Board erred when it concluded that the language
of the note was not mandatory.
And, although the Court is aware of current VA policy, separate from the regulations, about
access to VA IT systems, see, e.g., R. at 51-54 (September 2016 VA letter), the appellants focused
their arguments in their briefs on the regulations and not on whether VA's policies were arbitrary
or capricious. Indeed, they did not challenge the Board's findings that the Secretary's decision to
bar access and his stated privacy and administrative concerns are not unreasonable, arbitrary,
capricious, or an abuse of discretion, R. at 3, 7-9, 372, 375-79, or that the plain language of
§ 1.600(d)(2) provides that the regulations do not create an enforceable right or benefit, R. at 7,
375. Thus, although the appellants focused much of their assertions during oral argument on the
reasonableness of the Secretary's policy, the Court will not address such matters. See Pederson
v. McDonald, 27 Vet.App. 276, 281-85 (2015) (en banc) (declining to review the merits of an issue
not argued on appeal); see also Carbino v. Gober, 10 Vet.App. 507, 511 (1997) (declining to
review an argument first raised in the appellant's reply brief), aff'd sub nom. Carbino v. West,
168 F.3d 32, 34 (Fed. Cir. 1999) ("[I]mproper or late presentation of an issue or argument . . .
ordinarily should not be considered."). Unlike other cases in which the Court has exercised its
discretion to hear late-raised arguments, see, e.g., Crumlich v. Wilkie, 31 Vet.App. 194, 202 (2019),
we decline to do so under these circumstances. Finally, although VA has proposed revisions to
§§ 1.600-.603 and § 14.629, see 85 Fed. Reg. 9435-39, the Court is without authority to analyze
any possible changes in the regulations.
C. Competent and Diligent Representation
We next turn to the appellants' argument that VA's categorical bar to remote VBMS access
for unaccredited paralegals and support staff violates 38 U.S.C. § 5904(a)(2). Section
5904(a)(2)(A) states the following:
The Secretary shall prescribe in regulations (consistent with the Model Rules of
Professional Conduct of the American Bar Association [(ABA)]) qualifications and
standards of conduct for individuals recognized under this section, including a
requirement that . . . an individual must . . . show that such individual is of good
moral character and in good repute, is qualified to render claimants valuable
service, and is otherwise competent to assist claimants.
38 U.S.C. § 5904(a)(2)(A). The appellants assert that VA is depriving claimants of their right to
competent and diligent representation because VA is limiting their representatives' ability to
13
faithfully execute their duties under section 5904, the ABA Model Rules of Professional Conduct,
and VA's regulations concerning representation. Appellants' Br. at 21-23.
In both decisions on appeal, the Board found "the relationship between VA's decision not
to grant [appellants'] unaccredited paralegals and staff access to VBMS and the competence
mandated by Congress and state ethical rules too attenuated," particularly because appellants
provided only hypothetical situations rather than specific instances of when they could not provide
effective counsel. R. at 9; see R. at 378.5 And, indeed, the appellants here only provide
hypotheticals and speculative harms rather than specific examples of harm suffered due to VA's
categorical bar. Appellants' Br. at 22-23 (arguing about general delays because unaccredited
paralegals or support staff must wait for an accredited attorney or agent to access VBMS, which
in turn diminishes the accredited representatives' capacity to perform other tasks); id. (presenting
hypotheticals such as "[i]f a client contacts [the] office" about the status of a case and "[i]f no
accredited representative is available," and alleging that the process causes delay); see Shinseki
v. Sanders, 556 U.S. 396, 409 (2009) (holding that the appellant bears the burden of proving
prejudice on appeal); cf. Saunders v. Brown, 4 Vet.App. 320, 324 (1993) (noting that "[a]n
appellant who seeks redress in federal court must demonstrate 'actual injury redressable by the
court'" (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976))).
In Green, the Court stated that, "[a]lthough remote access to claims records might ease the
process of representation, the Court agrees with the Secretary that Mr. Green's argument that VA
is prohibiting his attorney from providing competent and diligent representation rings hollow."
28 Vet.App. at 293. The same is true here. Although the appellants make a statutory argument, it
is nevertheless similar to the argument that Mr. Chisholm made in Green, where he contended that
the ABA Model Code of Professional Conduct and VA's regulations required competent and
diligent representation. Id. at 284; see Appellants' Br. at 21-23 (appellants here also citing the ABA
Model Rules of Professional Conduct and VA's regulations to support their competence and
diligence argument). Any distinction that we discern between the argument here and in Green is
inconsequential. In fact, applying Green's rationale seems even more compelling here. Green
concerned an unaccredited attorney before the Court. Denying remote access to him would mean
5
The Board also found that the appellants' arguments speak more to convenience and their preferred way to
run their law practice, but that they had not shown that VA's policies precluded competent and diligent representation
or that they were unreasonable. R. at 12, 381.
14
that access could only be obtained at the VA General Counsel's office or at a VA regional office,
Green, 28 Vet.App. at 295, because, presumably, there would be no other representative to
remotely access the client's automated claims records. Yet here, the accredited attorneys and agents
have remote access to automated claims records, even if the unaccredited paralegals and support
staff in their law firms do not. Thus, we will apply Green's logic here: as the Board found, there
has been no showing that accredited attorneys and agents cannot competently represent their
clients because their unaccredited paralegals and support staff cannot remotely access automated
claims files. We therefore find that VA's categorical bar to remote VBMS access for those
individuals does not violate section 5904(a).6
Finally, the appellants' argument that the Board applied an erroneous standard to establish
prejudice is undeveloped. Appellants' Br. at 23; see Locklear, 20 Vet.App. at 416. In essence, they
criticize the Board for noting that they have not shown a specific instance of harm. Appellants' Br.
at 23; see R. at 9, 378. But they do not dispute that their arguments reflect potential harm and,
although they contend that "[t]hat severity of harm is not necessary to establish prejudice,"
Appellants' Br. at 23 (mentioning, e.g., clients missing a deadline), they do not proffer what
standard should apply, nor elaborate any further on their assertion.
Although the Court recognizes that there are perhaps more efficient and convenient ways
to balance law firms' needs with VA's concerns—such as VA accrediting all paralegals7 and
support staff, or VA revoking accreditation of an attorney if his or her unaccredited paralegal or
support staff misuse the systems to which they were granted access under the attorney's
supervision—as always, it is not the Court's place to write laws or make VA policy. As noted
above, the Board found the relationship between remote access for unaccredited paralegals and
support staff and the appellants' duties under section 5904 too attenuated; thus, the appellants have
not demonstrated Board error in this regard.
6
We note that, during oral argument, the Secretary stated that the Model Rules do not trump statutes or
regulations. Oral Argument at 41:17-41:27. Even so, section 5904(a) does reference the Model Rules. In any event,
though, the appellants have not shown that accredited attorneys and agents cannot competently represent their clients
under either the statute or the Model Rules.
7
Mr. Chisholm stated in his March 2018 Substantive Appeal that he employs some accredited paralegals.
R. at 408.
15
D. Due Process
1. VA's Categorical Bar
The appellants assert that remand is required for the Board to address their due process
argument. Appellants' Br. at 23-24. First, they cite pages 302, 409, 410, and 414 of the record, as
containing the argument raised to the Board; these pages contain one-line conclusory assertions
that the denial of remote access to paralegals and support staff violates or affects claimants' due
process rights. Although the Board did not discuss these assertions, remand is not required on this
basis because (1) the Court reviews constitutional questions de novo, see Buzinski v. Brown,
6 Vet.App. 360, 365 (1994); (2) their arguments were not developed, see Locklear, 20 Vet.App. at
416; and (3) as set forth above, they have not established error in the Board's determination that
VA's categorical bar does not preclude effective representation. Further, to the extent that they
suggest that remand is necessary by contending that their constitutional argument contains an
"as-applied" element, Appellants' Br. at 24, which necessarily involves facts, they do not explain
what factual dispute is at play, nor is one apparent from their Substantive Appeals, see R. at 302,
409, 410, and 414.
2. The Claims File
The appellants also argue that record deficiencies—the addition to and omission from the
claims files of certain documents—violated 38 U.S.C. § 7104(a) (that the Board decision must be
based on the entire record) and 38 U.S.C. § 7252(b) ("Review in the Court shall be on the record
of proceedings before the Secretary and the Board."), as well as due process, which safeguards the
development of their claims. Appellants' Br. at 25, 27. They contend that, given these deficiencies,
they did not know what material was and was not before the Board, depriving them of an
opportunity to fully participate in their respective Board proceedings. Id. at 27. We note that,
during oral argument, the Secretary acknowledged that VA assembled the records in an unusual
manner in these cases (e.g., paper claims files) because they concerned the atypical situation of
attorneys obtaining access to automated claims records rather than the typical situation of veterans
seeking benefits. Oral Argument at 46:32-48:13. But, the Secretary asserted that this and the other
16
claimed record deficiencies did not violate due process, deprive the appellants of an opportunity
to participate, or prejudice them. Id.; see id. at 48:38-49:07. We agree.8
The appellants claim that VA added the following documents to their paper claims files
without disclosing when and why, Appellants' Br. at 26: (1) a VA document entitled, Information
Security Rules of Behavior for Non-Organizational Users, R. at 21-25, 702-06; (2) November 2016
VA guidance entitled, IT and Security Requirements for VSOs and Private Attorneys, R. at 26-50,
677-701; (3) the September 2016 VA letter discussed above, R. at 51-56, 671-76; and (4) an April
2016 VA memorandum stating that VBA will cover the cost associated with issuing PIV cards,
including the necessary background investigations for private attorneys and claims agents, R. at
57, 707.
The appellants also question why VA did not include other documents, such as the
documents annexed to their opening brief, and assert that VA did not include in their claims' files
the original of Mr. Chisholm's Substantive Appeal and some email correspondence (noting that
the record contained printouts of emails but not all the originals). Appellants' Br. at 26; see id. at
9 n.1 (stating that the RBA did not have the original of Mr. Chisholm's Substantive Appeal and
that the brief's citation is to a copy that Mr. Chisholm appended to a later motion, citing R. at
403-58). They also state that the Board relied in Mr. Carpenter's case on a September 2015 Deputy
General Counsel letter to Mr. Chisholm that was not in Mr. Carpenter's claims file. Appellants' Br.
at 27 (noting that the letter was in Mr. Chisholm's claims file).
However, with the exception of the September 2016 letter and the extra-record evidence
annexed to their opening brief,9 absent from the appellants' briefs is any specific assertion
regarding the content and relevance of the documents added to or omitted from their claims' files
8
Because we agree that the appellants have not met their burden of demonstrating that they were prejudiced
by any alleged record deficiencies, we will not address the parties' dispute as to whether the appellants should have
raised these arguments earlier in these proceedings or whether the Secretary should be estopped from raising this
defense. See Secretary's Br. at 18-20; Reply Br. at 14-15. Likewise, although the Secretary did not substantively
respond to the appellants' arguments regarding the alleged record deficiencies and, instead, rested on his procedural
argument, under the circumstances of this case, we decline to infer a concession of prejudicial error or to relieve the
appellants of their burden of persuasion. Cf. Reply Br. at 14-15 (citing MacWhorter v. Derwinski, 2 Vet.App. 133,
136 (1992)).
9
In this regard, we note that the appellants rely on these documents to support their assertions that Green's
analysis of §§ 1.600-.603 has self-abrogated and that the purportedly dispositive security concerns in Green have been
obviated. Appellants' Br. at 18-19 (citing Green, 28 Vet.App. at 286). However, as indicated above, the appellants are
mistaken as to the role VA's security concerns played in Green and they have not shown on what basis we may ignore
the plain language of the regulations.
17
or how consideration of, or the lack of consideration of, those documents might have affected the
Board's decision making. Without more of an explanation from the appellants, the Court cannot
determine how the inclusion or omission of these documents in or from their claims' files
prejudiced them or prevented them from fully participating in their Board proceedings. See
Sanders, 556 U.S. at 409; Locklear, 20 Vet.App. at 416. Thus, we do not find that the addition to
and omission from the claims files of the documents listed above prejudiced the appellants or
deprived them of the opportunity to fully participate in their Board proceedings.10
Finally, the appellants contend generally that the claimed record deficiencies were per se
prejudicial. Appellants' Br. at 29-30 (citing Simmons v. Wilkie, 30 Vet.App. 267, 281-82 (2018)).
But, as the Court found in Simmons, the appellants here have "not persuasively demonstrated how
[this] error affected the essential fairness of the adjudication . . . or deprived [them] of a meaningful
opportunity to participate in the fair processing of [their] claim[s]." 30 Vet.App. at 283 (noting
that the failure to provide a presumption in a prior decision did not have the natural effect of
preventing meaningful participation in the VA adjudication process). Although the addition to or
omission from a claims file of documents could involve a situation that violates minimum
standards of fairness, see id. (the Court in Simmons noting lack of or defective notice, lack of an
opportunity for a hearing, and partiality or dishonesty of a decision-maker as factors violating
fairness in other cases), the appellants' argument here is underdeveloped and the Court will thus
not address it further, see Locklear, 20 Vet.App. at 416.
10
Although the appellants bear the burden of demonstrating prejudice, we find our conclusion here particularly
true with respect to (1) the September 2016 VA letter, which the appellants relied on to support their arguments, see
Appellants' Br. at 5, 15 (citing the September 2016 letter as evidence that records referenced in §§ 1.600-.603 and
§ 14.629 include VBMS files); and (2) although the Board in Mr. Carpenter's case referenced the September 2015
letter to Mr. Chisholm that was apparently not in Mr. Carpenter's claims file, that letter discussed VA's privacy and
administrative concerns regarding granting access to unaccredited paralegals, which the appellants essentially
abandoned here on appeal, see ante at 13.
Likewise, with respect to the omitted documents, this is particularly true where (1) a copy, if not the original,
of Mr. Chisholm's Substantive Appeal was in the claims file; and (2) although the claims files may not have included
some original correspondence, copies of that correspondence in the claims files show that those emails were simply
communications between the appellants and VA about the status of their claims and did not concern any substantive
matters, see R. at 311-12, 318-19, 332-35.
To be clear, although we are making no determinations regarding these documents in the first instance, we are
permitted to review them for prejudicial error. See Newhouse v. Nicholson, 497 F.3d 1298, 1301 (Fed. Cir. 2007)
(holding that this Court may make factual findings in reviewing for prejudicial error); Vogan v. Shinseki, 24 Vet.App.
159, 164 (2010) (finding that this Court is permitted to look beyond the Board's decision to review the record of
proceedings when identifying prejudicial error).
18
E. Summary
In sum, we find that, because §§ 1.600-.603 have not changed since Green, the Court must
follow the regulations' plain language and Green's analysis of that language; the regulations do not
pertain to VBMS access. We also find that the appellants have not proved that they were prejudiced
by the denial of VBMS access to their unaccredited paralegals and staff or by any alleged record
deficiencies. Thus, we will affirm the Board's decisions.
III. CONCLUSION
On consideration of the above, the October 31, 2018, Board decision denying entitlement
to remote, read-only access to automated VA claims records for Mr. Carpenter's unaccredited
paralegals and staff and the October 29, 2018, Board decision denying entitlement to remote,
read-only access to automated VBA claims records for Mr. Chisholm's unaccredited paralegals are
AFFIRMED.
19