Kauffman : Where are your records?


broncovet
Moderators
Registered: 01/24/09
Posts: 9
02/06/11 #1

In the case, Kauffman vs Shinseki the CAVC suggested the “benefit

of the doubt be applied to “Where are my records”?  The Veteran does
not have to prove that his missing records ARE relevant, only that they
could be relevant:

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.seee.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 here.

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broncovet

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