UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 16-0740

H E Z E K I A H G R E E N , J R ., A P P E L L A N T ,

V

.

R O B E R T A. M C D O N

A L D , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.

Be fore L ANCE, SCHOEL EN, and B ARTL EY, Judges.

O R D E R

Pending befor e the Co u rt i s Mr. Gre en' s May 13, 2016, motion, which seeks an order compelling the Secre tary to g rant his a ttorney "r ead- only acc ess" to Mr

. Gre en' s Veter ans Be nefits Manag ement Sy stem (VB MS) file. Be cause there is no statutory or reg ulatory rig ht to remote rea d- 1 2 only acc ess to VB MS, including a claimant' s elec tronic claims file, and the Court f inds r easona

ble the Secr etar

y ' s proce dure that allows an a ppellant or his re prese ntative re ad-only acc ess to VB MS
at the VA Gene ral Counsel's office or at a VA reg ional office (RO), the Court will deny Mr. Gre en' s motion.

I. BACKG ROUND

On M arc h 1, 2016, Mr. Green filed a Notice of Appeal from a J anuar y 15, 2016, Boa

rd of Veter ans' Appea ls (B oard) decision that denied claims for disability compensa tion for a bilatera l ey e disorder and for disability rating s in excess of 10% for left and rig ht lower extremity radic ulopathy

. On April 28, 2016, the Secre tary serve d Mr. Gre en with a copy of the rec ord befor e the ag ency (RBA ) and cer

tified to the Court that the RBA had been serve d purs u ant to Rule 10(a) (5) of the Court's Rules of Practice and Procedur e (Rules). Pursuant to Rule 10(b), any motion disputing the content of the RBA wa s due 14 day s after service of the RB A. U.S. V E T

. A P P

. R. 10(b).

" VBM S is an autom ated, fu lly elect r o nic, Web -based claim s pr ocessing sy stem designed to serve as the 1

cor nerstone of [the Veterans Benefits A dm inis tration's ] transit i o n t o pap erless claim s pr ocessing ." VA ' s Notice of A m endm ent of Sy stem s o f Re c o rd s, " ' VA Com pensation, P ension, Educatio n, and Voca tional Rehabilitation and Em plo y m ent Record s – VA ' (5 8VA21/2 2/2 8) ," 77 Fed. Reg. 42 ,59 4-01 (J uly 19
, 20 12 ). " A t the pr esent, VBM S is the only s y stem th ro ug h w hich a claim ant' s e-f

old er is review able. T he e-f old er is the digitized version of w hat used to be the pap er c laim s file." Secre tary ' s Opp osition to Motio n (Mot. ) at 2 n.2

.

A lthoug h Mr. Green's m otio n requests " read -only acce ss" to VB MS, subsequent plead ing s and ar gu m ents, 2 along w ith the regulations th at h e relies on to establish a righ t t o access, m ake clear that Mr. Green seek s remote readonly access. T hu s, the Court' s or der w ill add ress w heth er the Secretar y is req uired to pr ovide Mr. Gre en' s attor ney remote rea d-only

acce ss.A. Appellant' s Motions

On May 13, 2016, Mr. Gre en filed motions seeking an order (1) compelling the Secre tary to g rant his attorney

remote r ead- only

acc ess to his VBMS file, and ( 2) stay ing pr ocee dings until the Secre tary g rants his attorney remote rea d-only acc ess. Mr. Gre en asser ted that a stay of proce eding s

was nece ssary beca

use he was unable to deter mine whether to file a motion pursuant to Rule 10(b) disputing t he R BA without fi rst having acc ess t o VB MS. On M ay 27, 2016, the C ourt stay ed the
appea l pending further

order of the Court.

I n his motion for remote rea d-only acc ess, Mr. Gre en explained that the B oard decision on appea l identified an err or in VB MS and, there fore
, acc ess t o VB M S is nece ssary to asce rtain 3 whether an RBA dispute exis ts. Appellant' s Mot. at 2. Mr. Gre en stated that on April 26, 2016, his attorney asked the Secre tary ' s counsel for rea d-only acc ess to VB MS and upon being ref err ed to an employ ee at the VA centr al o ff i ce , h i s attorney was informed that "it was VA' s policy to require Court attorney s to also be acc redited repr esenta tives befor e the VA befor e VB MS rea d-only acc ess would be g rante d." Id

.

Mr. Gre en arg ued that, rea d toge ther, 38 C.F.R. §§ 1.600(b)( 1) and 1.601(a) (2) aff ord an attorney of rec ord in proce eding s at the Court the rig ht to "' rea d-only ac ce s s t o VB A automated claims rec ords from a location other than a VA [R O].'" Id

. at 1 (quoting 38 C.F.R. § 1.601(a) (2016))

. Mr. Gre en further arg ued that the reg ulations do not g ive the Secre tary discretion to impose, via internal policy
, an additional acc reditation require ment on attorney s befor e the Court. Id

. at 1-2. Mr. Gre en indicated that an o rd er co mpelling the Secre tary to provide remote rea d-only acc ess is consistent with Rule 10(d), which provides that "' the Secre tary s h all permit a party or a repr esenta tive of a party to inspect and to copy , subject to rea sonable reg ulation by the Secre tary , any orig inal materia l in the [R BA ] that is not subject to a protec tive order .' " Id

. at 3 (quoting U.S. V E T

. A P P

. R. 10(d)) (empha sis added)

. Finally
, Mr. Gre en contende d t h at the AB A Model Code of Professional Conduct and VA reg ulations require his attorney to repr esent him with competenc e and diligenc e and that to ensure completene ss of the RBA his attorney "r equire s" rea d-only acc ess to the VB MS file. Id . at 4.

I n response , the Secre tary argu ed that Mr. Gre en' s attorney had not been denied rea d-only

acc ess to VB MS. Secre tary ' s Opposition a t 3- 4. Rather, the Secre tary asser ted that he had offe red Mr. Gre en' s co u n s el t h e same opportunity to revie w the claims file that he had been offe ring attorney s repr esenting appellants at the Court when the claims file was maintained in paper format: Mr. Gre en' s attorney may revie w the VB MS file at either the VA Gene ral Counsel's office or at a VA RO of the appellant' s counsel' s choosing

. Id. T h e S ec re t ar y explained that he does not require attorney s repr esenting appellants befor e the Court to become acc redited to acc ess an appellant' s files in person. Id

. at 3. The Secre tary stated that VA has proce dures and protocols in place that require

" A lthoug h [VB MS] indicates that service treatm ent reco rd s w ere received in A pr il 20 15
, the Bo ard fin ds this 3
to be in error , as it w as clear that the RO considere d thes e s ervice treatm ent reco rd s during the pr ocess of adj udicating the rating decision on ap peal. " J anu ary 15 , 2 01 6, Bo ard Decision at 4

.

2acc reditation for remote rea d-only acc ess beca use "it is the only means by which VA can protec t its internal sy stem which conta ins highly sensitive rec ords." Id . at 4.

The Secre tary further arg ued that §§ 1.600-.603 are inapplicable to VB MS, arg uing that these
reg ulations – enac ted prior to the implementation of VB MS – apply to "r emote acc ess to ' automated [VBA] claims rec ords' whi ch is limit ed ' only to the inquiry commands of the Be nefits Deliver y Networ k [(BDN) ]' which, in turn, provides acc ess to very specific data." Id

. at 5 (quoting 38 C.F.R. § 1.600(a) (1), (c) (1) (2016))

. Assuming that the reg ulations a pply to V BMS, the Secre tary arg ued that the reg

ulations do not confe r an enfor cea ble rig ht. Id. at 5 n

. 5 ; see 38 C.F.R. § 1.600(d)( 2) (2016).

Finally
, the Secre tary asser ted that "[t]he manner in which VA chooses to provide acc ess to its elec tronic rec ords sy stem is an adm i n i s t ra t i v e m atter

. . . , and not a question of fac t or law

nece ssary to a d ec ision over which the Court has jurisdiction." Secre tary ' s Opposition at 8. He
arg ued that the decision to extend re m o t e access is discretionar y and subject to rea sonable
reg ulations imposed by

the Secr etar

y to safeg uard V A' s elec tronic re cords sy stem. Id . at 8-9.

On J une 8, 2016, the Court g rante d Mr. Gre en leave to file a reply to t h e Secre tary ' s opposition. Mr. Gre en arg ued, among other things, that the Secre tary has no authority to dictate the
proce dures g overning repr esenta tion at the Court and that the Court has jurisdiction to addre ss this issue b ec au se it aff

ects the Court's eff

iciency and the acc urac y and completene ss of the rec ord. Reply at 3-4. Additionally
, Mr. Gre en maintained that offe ring repr esenta tives at the Court acc ess t o VB MS at a VA R O i s not meaning ful or reasonable acc ess, alleging that trave ling to the R O i s

an undue and unnece ssary hardship. Id . at 5-6. F inally , Mr. Gre en' s attorney stated that she is not seeking to become acc redited by VA beca use s h e prac tices exclusively at the Court, and that the Secre tary has failed to de monstrate why acc reditation is a "r easona ble reg ulation by the Secre tary " under Rule 10 ( d). Id . at 6.

B. Supplementa l Memoranda of L aw On J une 6, 2016, th e ca s e was submitt ed to a panel to addre ss the merits of Mr. Gre en' s motion for remote rea d-only acc ess to VB MS, and, on J une 14, 2016, the Court order ed the parties to submit memoranda

of law a ddressing the following :

(1) Sections 1.600 throug h 1.603, title 38, of the Code of Fe dera l Reg ulations, former ly §§ 14.640-14.643 promulg ated in 1994, ref er to "a utomated [VBA] claims

rec ords" and "a

utomated claimants' cla i m s rec ords." Given that VB MS was implemented by VA near ly 20 y ear s afte r the reg ulations wer e promulg ated, explain whether these reg ulations g overn remo t e rea d-only acc ess to VB MS, which the S ec retary conce des is "the only sy stem throug h which a claimant' s e-f older i s revie wable." Secre tary ' s Opposition at 2, n.2.

(2) I f "a utomated [VBA] claims rec ords" and "a utomated claimants' claims rec ords" identified in §§ 1.600-1.603 do not include VB MS rec ords, identify what sy stems the

3reg ulations ref er to, descr ibe the dat a t hat may be acc essed, and state whether VA continues to utiliz e these sy stems following the advent of VB MS.

(3) I f §§ 1.600-1.603 do not perta in to VB MS, inf o rm the Court what, if any , reg ulations, policies, handbooks, or other internal VA g uidance g overn t he require ments, policies, and proce du r e f o r g r a n ti n g r epre sentatives and attorney s rea donly remote acc ess to VB MS, including the appellant' s undisputed asser tion that the Secre tary require s all attorney s to be acc redited by VA to obtain remote acc ess. See Appellant' s Mot[ .] at 1-2; Secre tary ' s Opposition at 4 (ref err ing to "pr ocedur es and protocols VA curr ently has in place for appellant' s counsel to obtain remote r ead- only

acc ess to VB MS").

(4) The Secre t ary asser

ts that how VA chooses to provide acc ess to its elec tronic

rec ords is an administrative matter over which the Court lacks jurisdiction. Secre tary ' s Opposition at 8. Please addre ss the Court's jurisdiction in light of (a) the
proce dural posture of this case and (b) Rule 1 0 (d )'s require ment that the Secre tary "sha ll permit a party or repr esenta tive o f a party to inspect and copy , subject to reasonable regulation by the Secre tary , any orig inal materia l in the rec ord befor e the
ag ency ," U.S. V E T

. A P P

. R. 10(d), and the Secre tary ' s position in Robinson v. McD onald
, that "e lectronic claims files in VB MS must be trea ted as orig inals for the
purpose of admissibili ty in evidenc e befor e the Court." Secre tary ' s Correc ted Response to the Court's Dec

. 11, 2015, order at 19, Robinson v. McD onald
, U.S. Vet. App. No. 15-0715 ( submitt ed to pane l J an. 8, 2016).

Gree n v. Mc

Donald , U.S. Vet. App. No. 16- 0174 (June 14, 2016) (per curia m order)

.

I n his supplemental memorandum of law, Mr. Gre en maintained that §§ 1.600-.603 g overn

acc ess to VB MS. Appellant' s Memorandum (Mem.) at 1-3. Noting that the reg ulations specific ally
g overn "r ead- only acc ess to the automated [VBA] claims records ," Mr. Gre en asser ted that VA' s use of the phrase "r ead- only acc ess" indicates that the reg ulation is intended to provide repr esenta tives the opportunity

to reviewtheir clients' claims files. Id . at 3. Additionally , Mr. Gre en ave rre d that the Court has jurisdiction to deter mine whether the Secret ar y 's re g ulations provide a rea sonable opportunity

to inspect and c opy

orig inal materia l in the VBMS file. Id . at 6; see Rule 10(d).

Taking the contra

ry position, the Secre tary maintained that the reg ulations rela ting to remote

rea d-only ac ce s s ar e inapplicable to VB MS. Secre tary ' s Mem. at 3. The Secre tary asser ted that §§ 1.600-.603 by their plain lang uag e apply only to the BD N and the specific data and information 4

enumer ated in § 1.601(c) (1). Id

. The Secre tary stated that the Privacy Act, 5 U.S.C. § 552a, and 38 U.S.C. §§ 5701 (Confidential Nature of Cla i m s ) and 7332 (Confidentiality of C erta in Medica l Records)
, go v ern VA' s disclosure of claimants' rec ords, and that none of these laws or their

B DN is a " legacy

ap plicatio n us ed for proc essin g claim s for com pensation, p ension, and fiduciary service, 4 education, and vocational rehabilitatio n and em plo y m ent (VR&E) and fin ancial transactions." Secretar y ' s Mem

. at 3-4.

4implementing reg ulations require VA to provide remote acc ess t o VA claims files. Id . at 7-8; see

also 38 C.F.R. §§ 1.500-.525 (2016) (Relea se of I nformation from Depa rtment of Veter ans Affa irs C l ai m an t R ecor ds) and 38 C.F.R. §§ 1.575-.582 (2016) (Safe g uarding Personal I nformation in Depa rtment of Veter ans Affa irs Records)

. Nonethele ss, the Secre tary ac k n o wledg ed that remote

acc ess inures to the benef

it of veter ans and ease s the proce ss of repr esenta tion, and stated that he has been endea

voring to provide remote acc ess to individuals repr esenting claimants before VA. Secre tary ' s Mem. at 9.

To provide remote acc ess, the Secre tary further explained that he is require d t o adher e to

cer tain information secur ity require ments, including those prese nted in the Fe d er al I nformation Security Modernization Act of 2014 (F I SMA), codified at 44 U.S.C. §§ 3551-58; minimum secur ity standards established by the National I nstitut e of Tec hnology (NI ST); a nd policies and proce dures issue d by the direc tor of the Offic e of Manag ement and Budg et (OMB ), see 44 U.S.C. § 3554(a) (1)( B) (i), (iii). Secre tary ' s Mem. at 9-14; see also 40 U.S.C. § 11331 (re quiring the direc tor of OMB to promulg ate information secur ity standards that include the minimum secur ity requir em en t s deter

mined by NI ST and that are otherwise nece ssary to improve eff iciency and

secur ity ); NI ST Fe dera l I nformation Processing Standard (F I PS) 200, Minimum Security Requirements for Fe dera l I nformation and I nformation Sy stems (Mar

. 2006); FI PS 201-02, Personal I dentity Ver ification (PI V) of Fe dera l Employ ees & Contractors (Aug

. 2013); NI ST Special Publication 800-53 Rev. 4, Security and P ri v ac y Controls for Fe dera l I nformation Sy stems and Org anizations (Apr. 2013).

Acc ording to the Secre tary , Homeland Security Presidential Direc tive-12 (HSPD-12) further require s VA to implement the use of PI V car ds for logistica l acc ess to VA networks and information
sy stems. Id

. at 11. The proce dures for obtaining a PI V car d include fing erpr inting, a backg round

5 investiga tion, and secur ity training

. Id

. Additionally
, the Secre tary maintained that "a s the sy stem is curr ently constructe d, a [power of attorney (POA)] code is centr al to limit ing acc ess within VB MS only to those rec ords a repr esenta tive has been authorized to acc ess by a claimant" and, "[a]t prese nt, the only way to assign a

POA code is throug h VA ac cre ditation." Id . at 12.

Finally , the Secr etar

y arg ued that the de termination to g rant re mote acc ess and the ma nner in which such acc ess is g rante d is purely discretionar y and outside the Court's jurisdiction. Id

. at 17. The S ecr etar

y aver red that he is not requiring acc reditation for acc ess t o the original record under Rule 10(d) or to pr actice befor e the Court, but that the Secre tary ' s additional secur ity require ments for r emote re ad-only

acc ess to VA' s internal sy stem are rea sonable. Id . at 16.

In A ug ust 20 04
, P resident Geor ge W. Bush issu ed HSPD -12, req uiring the Secretar y of Com mer c e to 5

pr om ulg ate a " Governmen t-w ide standard for secure and reliab le form s of identification issu ed by the Feder al Governm ent to its em

plo y ees an d contracto rs." T o m eet identity , credentialing , an d access m anagem ent req uirem ents of HSPD -12, the " VA P IV Credential is the sole ident i t y c r e d e nt ial for Depa rtm ent em plo y ees, contracto rs, and aff iliates." VA Directive 07 35 , HSP D-12 P ro gram (Oct. 26 , 2 01 5)

.
5C. Oral Ar g ument

At oral arg ument, Mr. Gre en reiter ated his contentions that his attorney has a rig ht to remote

rea d-only acc ess to VB MS pursuant to 38 C.F.R. §§ 1.600-.603. Ora l Arg ument (O.A.) at 1:40-53, G r e e n v

. M c D o n a l d
, U

. S

. V e t

. A p p

. 1 6

- 7 4 0 ( a r g u e d A u g

. 2 5
, 0 1 6 )
, http:// www.usc ourts.cavc .g ov/ oral_a rgu m ents_audio.php. Mr. Gre en further arg ued that the Secre tary ' s J uly 19, 2012, notice in the Fe dera l Reg ister, which announce d VA' s p ro p o s al to add VB MS to its e x isting sy stem of rec ords, essentially rede fined " automated VB A claims re cords" in the re gu l at i o n s to include VB MS. O.A. at 1:58-2:22 (re fer ring to 77 Fe d. Reg

. 42,599-42,600 (discuss i n g VA 's "P o l icies and Practice s for

. . . Acc essing

. . . Records in the Sy stem" and "Saf eg uards" that ref

er to g ranting attorney s remote online acc ess to a "c laimant' s automated claims

rec ords" )). Notably
, Mr. Gre en arg ued that his attorney repr esents veter ans solely at the Court and does not desire to become a ccr edited to pra ctice be fore VA. O.A. at 8:40-56.

The Secre tary urg ed the Court to deny Mr. Green' s motion for remote rea d-only acc ess to VB MS beca

use (1) Mr. Gre en' s counsel has acc ess to the VB MS file at her local RO and, there fore
, VA is comply ing with Rule 10(d); (2) remote acc ess trig g ers add itional information-sec urity

s af egu ar d s , which are mandated by other Fe dera l law over which the Court does not have jurisdiction; (3) the deter mination that acc reditation is pa rt of the proce ss to rec eive remote acc ess is an internal manag ement decision committed to VA' s discretion and not revie wable by the Court; and (4) the reg ulations that Mr. Gre en relies on do not cre ate a rig ht to remote ac ce ss to VB MS. O.A. at 16:45-17:35. When a sked to e x plain how or in what manner acc reditation addre sses VA' s

secur ity conce rns, the Secre t ar y reiter ated unwave ring ly that the acc reditation require ment is a manag ement decision and the only way VA can protec t the privac y of re co rd s wi t hin its technolog ical limitations. O.A. at 21:37-22:25, 23:20-24:10, 35:22-36:42.

II. ANALYSIS

The fundame ntal disputes in this case are whether Mr. Gre en' s attorney has a rig ht to remote

rea d-only acc ess to Mr. Gre en' s VB MS file u n d er 3 8 C.F.R. §§ 1.600(b)( 1) and 1.601(a) (2), and whether the Secre tary ' s policies and proc edure s for providing an appe llant or his r epre sentative an opportunity to inspect and copy any o ri gi n al materia l in the R BA are rea sonable pursuant to Rule 10(d).

A. J urisdiction This Court has the power , "to the extent nece ssary to its decision and when prese nted," to "de cide a ll rele vant questi ons of law, inter pret c onstitut ional, statutory , and re g ulatory provisions, and determine t he meaning or applicability of t he terms o f an action of t he S ecr etar y ." 38 U.S.C. § 7 2 61. I n further ance of this authority
, Congr ess provided the Court with "br oad discretion t o p re s cr i b e, interpre t, and apply its own rules." Checo v. Shinseki
, 748 F.3d 1373, 1377 (F ed. C i r. 2014); see 38 U.S.C. § 7264(a).

As the Court r ece ntly stated in Robinson v

. McD onald
, 28 Vet.App. 178, 184 ( 2016), Rule 10(a) mirror s t h e require ment in 38 U.S.C. § 7252(b) that "[r]eview in the Court shall be on the

6rec ord of proce eding s befor e the Secre tary and the Boa rd." See U.S. V E T

. A P P

. R. 10(a) (providing that the RBA shall include "a ll materia ls that wer e contained in the claims file on the date the Boa rd issued the decision from which the appea l was taken," as well as "a ny other materia l from the rec ord befor e the Secre tary and the Boa rd rele vant to the decision on appeal ")

. I n keeping with the adver sarial nature of p ro ceeding s befor e the Court, Rule 10(b) allows an appellant to contest the content of the RBA provided by the Secre tary

. U.S. V E T

. A P P . R. 10(b). To assist an a ppellant in deter mining whether the RBA is acc urate and complete, Rule 10(d) require s the Secre tary to allow "a party or a repr esenta tive of a party to inspect and to copy , subject to reasonable regulation by the Secre tary , any orig inal materia l in the [R BA ] that is not subject t o a protective order." U.S. V E T

. A P P . R. 10(d) (e mphasis added)

.

I n this case, t h e parties disag ree whether the Secre tary ' s policy permitting a party or a repr esenta tive of a party to revie w an appellant' s VB MS file at the Gene ral Counsel's office or a local RO complies with the require ment in Rule 10(d), or whether Mr. Gre en' s attorney has a broade r rig ht
to remote rea d-only acc ess. Be cause this case implicates the Secre tary ' s compliance with Rule 10(d) and the Court clea

rly has jurisdiction to enfor ce its own rules, the Court has jurisdiction to deter mine whether the Secre tary ' s policies and proce dures g overning acc ess to the "or igina l m at er i al in the [R BA ]" are rea sonable. U.S. V E T

. A P P

. R. 10(d). To the extent that the Secre tary contends that the Court lacks jurisdiction to revie w his policies and proce dures for g ranting remote acc ess to VB MS, which the Court ag ree s are not g overne d by 38 C.F.R. §§ 1.600-.603, the Court finds it unnece ssary to resolve this issue beca us e, as discussed below, the Court finds rea sonable the Secre tary ' s proce dure that allows an appellant or a repr esenta tive of an appellant rea d-only acc ess to VB MS at the VA Ge nera l Counsel's off ice or at a VA RO. 6

B. Compliance with Rule 10(d) Mr. Gre en ar g ues that his attorney has a rig ht to remote re ad-only acc ess to his VBMS file and that the Secre tary ' s policy
, which require s attorney s prac ticing at the Court to become acc redited
to rec eive acc ess , i s co n t rary to the plain lang uag e of 38 C.F.R. § 1.601(a) and constitutes an

unrea sonable reg ulation by the Secre tary u n d er Rule 10(d). Mr. Gre en does not dispute that the Secre tary offe red his attorney an alterna tive means to revie w the VB MS file, but instead asser ts that
remote acc ess is the only meaning ful acc ess to the VB MS file. The Secre tary asser ts that §§ 1.600- .603 are inapplicable to VB MS and that he has complied with Rule 10(d) beca use he has not denied Mr. Gre en the opportunity to inspect and copy any orig inal materia l in the RBA. To the extent that the Secre tary require s an attorney to revie w VB MS files at the Gene ral Counsel's office or a VA RO, he ex plains that this proce dure is consistent with his longst an ding policy that permitted review of the pape r cla ims file at the Gene ral Counsel' s office or any VA RO.

Sim ilarly
, beca use the Court holds that the regulations do not app ly to VBM S, the Court need not deter m ine 6

w heth er the m ere statem ent in 38 C.F.R. § 1 .60 0( d) (2 ) that § § 1.6 00 -.603 do not cr eate an enforceab le right to acc ess

" autom ated VBA claim s reco rd s" is a valid exercise of the Secretar y ' s auth or ity to pr om ulg ate regulations necessary or app ro pr iate to carr y

out the law s adm inis tered by VA

.
71. Is there a re gulatory right to r emote re ad-only ac cess to VBM S ? The "inter preta tion of a

. . . reg ulation is a question of law" that the Court revie ws de novo. Lane v. Pri n ci

p i
, 3 3 9 F. 3 d 1331, 1339 (F ed. Cir. 2003). As alway s, to discern the meaning of a reg ulation, the Court be g ins w ith the plain lang uag e of the reg ulation. Cf. Pe rrin v

. United States
, 444 U.S. 37, 42 (1979) (" We beg in with the lang uag e of th e

. . . Act itself.") ; Smith v. Brown
, 35 F.3d 1516, 1523 (F ed. Cir. 1994) (noting that the canons o f s t atutory interpre tation apply to interpre ting reg ulations), supersede d by statute as stated in Samish Indian Nation v. United States
, 419 F.3d 1355 (F ed. Cir. 2005). "[I ]f the meaning of the reg ulation is clea r from its lang uag e, then that is ' the end of the matter.' " Tropf v. Nicholson
, 20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner , 513 U.S. 115, 120 (1994)).

I n 1994, VA proposed and promulg ated the reg ulations relied on by Mr. Gre en as authority for remote rea d-only acc ess to VB MS. See "E x panded Remote Acc ess to Computerized Veter ans Claims Records by Acc redited Represe ntatives," 59 Fe d. Reg

. 47,082-02 (Sept. 14, 1994) (codifie d
at 38 C.F.R. §§ 14.640-14.643 ); see a l s o 59 Fe d. Reg

. 37,008-01 (Jul y 20, 1994) (Notice of 7 Proposed Rulemaking ). At the time, VA had provided remote acc ess to acc redited repr esenta tives of Veter ans Service Org anizations with office s in spa ce provided within VB A ROs unde r 38 USC § 5902(a) (2). 59 F ed. Reg

. at 37,008. The Secre tary ' s notice of pr oposed rulema king r efle cts that he decide d to provide the same online remote acc ess "to all individuals and org anizations" under 38 C.F.R. §§ 14.626-.635 and "attorney s of rec ord for claimants befor e the [C ourt] who reque st such

acc ess." Id

.

Sections 1.600-.603 authorize acc ess to "a utomated [VBA] claims rec ords" and "a utomated claimants' claims rec ords," and "e stablish policy
, assig n responsibilities a nd presc ribe proce dures" rela ted t o when, and under what circ umstances, acce ss wi l l b e g rante d, the ex erc ise of authoriz ed

acc ess, and the ba ses and proce dures for disqualification. 38 C.F.R. § 1.600(a) . As rele vant her e, § 1.600(b)( 1) provides that "V BA will grant acc ess to its automated claimants' claims rec ords from l o ca t ions outside [R Os]

. . . to individuals

. . . g rante d acc ess

. . . under §§ 1.600 throug h 1

. 6 0 3

. " 38 C.F.R. § 1.600(b)( 1) (e mphasis added) . I n turn, § 1.601(a) provides:

An applicant for rea d-only acc ess to VB A automated claims rec ords from a location other than a

VA [RO] must be:

(1) An org anization, repr esenta tive, attorney or ag ent approve d or acc redited by VA under §§ 14.626 throug h 14.635; or

(2 ) An at t orney of rec ord for a claimant in proce eding s befor e the [C ourt] o r subsequent proce eding s who reques t s acc ess to the claimant' s automated claims

rec ords as pa

rt of the r epre sentation of the c laimant.

In 20 08
, the Secretar y red esign ated 38 C.F.R. §§ 14 .64 0-.64 3 as §§ 1.6 00 -.603
, res p e c t i ve l y, w ithout 7
substan tive chan ge. 7 3 Fed . Reg. 29 ,85 2-01 , 2 9,8 70 (Ma y 22 , 2 00 8)

.
8Be cause § 1.601(a) is written in the disjunctive, Mr. Gre en arg ues that to rec eive remote rea do nly acc ess to VB A automated claims rec ords there is no reg ulatory require ment that an at t o rn ey repr esenting an appe llant at the Court be ac cre dited by VA. The plain lang uag e of the re g ulations supports Mr. Gre en' s rea ding. Read toge ther, §§ 1.600(b)( 1) and 1.601(a) (2) provide that "V BA will grant acce

ss " to "[a]n attorney of rec ord for a claimant in proce eding s befor e the [U.S

. Court of Appea ls for Vetera

ns Claims] ." (empha sis added)

. Unlike § 1

. 6 0 1 (a )( 1), t here is no require ment in § 1.601(a) (2) that an attorney of rec ord at t h e C o u rt be acc redited by VA to qualify for remote

acc ess. Howeve r, finding no acc reditation require ment in the reg ulation does not end the Court's inquiry beca

use, a s n o te d a

b o v e , th e p a

r ti e s f u ndamentally disag ree whether the reg ulations authorize
remote r ead- only

acc ess to VB MS.

Standing alone §§ 1.600-.603 do not define "a utomated VB A claims rec ords" or "a utomated claimants' claims rec ords." Howeve r, when § 1.600 is rea d in its entirety
, it become s clea r that "a utomated VB A claims rec ords" and "a utomated claimants' claims rec ords" do not include VB MS files or a claimant' s elec tronic cla ims folder. See V azquez-Claudio v. Shinseki , 713 F.3d 112, 115 (F ed. Cir. 2013) (" I n cons t ru i n g reg ulatory lang uag e, we must rea d the disputed lang uag e in the
context of the entire reg ulation as well as other rela ted reg ulatory sections in order to deter mine the lang uag e' s plain meaning .") ; see also Sm ith v

. Brown
, 35 F.3d 1516, 1523 ( Fe d. Cir. 1994) (" Only by

. . . full ref

ere nce to the context of the whole ca n t h e co u rt find the plain meaning of a part." ). Section 1.600(c) (1) pr ovides that

[a] cce ss will be authorized only to the inquiry co m m ands of the [BDN,] which provides ac cess to the f

ollowing c ateg ories of da ta:

(i) Be nefic iary identification data such as name, social secur ity number, sex, date of birth, service number a

nd rela ted servic e data ; and

(ii) Claims history and proces s i n g d at a such as folder location, claim status, claim establishment date, cl ai m proce ssing history
, awa rd data, rating data, including service -conne cted medical conditions, in c o me d a ta , d e p e n d e n c y d a

ta , d e d u ction data,
pay ment data, educational fac ility and prog ram data (except chapte r 32 benef its), and education prog ram c ontribution and delimiti ng data ( except chapte r 32 bene fits).

38 C.F.R. § 1.600(c) (1).

By limit ing acc ess to cate g ories of data and information enumer ated in § 1.600(c) (1), the
reg ulation provides some conte x t in which to understand the meaning of "VB A automated claims

rec ords" or "a

utomated claimants' claims rec ords." Her e, the cate g ories of ac ce s sible data do not include VB MS files or a claimant' s elec tronic claims file. To the contra ry , § 1.600(c) (1)( ii) specifie s that the BD N will provide the "[c]laim s h i story and proce ssing data such as folder location ." Du ncan v. W

alker
, 533 U.S. 167, 174 (2001) (" [A] [reg ulation] oug ht, upon the whole, to be s o construed that, if it can be preve nted, no clause
, sentenc e, or word shall be superf luous, void, or insignifica

nt.'" (quoting Marke t Co. v. Hoffman
, 101 U.S. 112, 115 (1879))

. Thus, the Court discerns

9no merit in Mr. Green's ar gu m ent t hat t he reg ulations should be int erpr eted to authorize acc ess t o

his VBMS file. 8

2. Reasonablene ss Although Mr. Gre en fails to demonstrate that §§ 1.600-.603 apply to VB M S
, pursuant to Rule 10(d) the Court must deter mine the rea sonablene ss of the Secre tary ' s policy requiring attorney s repr esenting appellants at the Court to (1) trave l to the Gene ral Counsel's office or a VA RO to 9 inspect and copy any orig inal materia l in the RBA – i n t h i s ca s e Mr. Gre en' s VB MS file, or (2) comply with VA' s information secur ity require ments to rec eive remote rea d-only acc ess to VB MS, which includes be coming acc redited by VA.

As the custodian of

Mr. Gre en' s claims rec ords and the pa rty limit ing the manner in which his adver sary may have acc ess to the orig inal materia l in the RBA, the Secre tary must shoulder the burden of showin g t hat hi s policies and procedure s to g ain access to orig inal materia l in the R BA

are rea sonable. See Robinson
, 28 Vet.App. at 189 (finding that the Secre tary failed to demonstrate that the Court was leg ally compelled to deviate from its u s u al and straig htforwa rd application of Rule 10(d) as requiring acc ess to the orig inal paper source documents). As betwee n the parties, the Secre tary is the m ost knowledg eable to explain VA' s policies and procedu res gove rning acc ess t o veter ans' claims rec ords; there fore, i t i s ap propriate to require the Secre tary to demonstrate compliance with Rule 10(d), which includes establishing that his policies and proce dures permitting

an attorney repr esenting an appellant at the Court to inspect and copy any orig inal material in the RBA a re r easona

ble.

In ligh t of the Secretar y ' s assertions that in 20 00 VA shi fted from BDN t o VET SNET and in 20 10 to the 8
Stakeh old er Enterpr ise P or tal – " a self service po rtal designed for external stakeh old er, busin ess par tners[,] and service
pr ovider s (including

. . . P OA s) t o a c c ess w eb-based sy stem s, inf or m ation[,] and services on behalf o f [ v]eterans and VA ," see Secretar y ' s Mem

. at 5 – it is un settlin g that the Secretar y has not am ended his regulations to reflect his current telecomm un ication sy stem s and the data that is available via rem ote access. Mor eover, althoug h the Court declines Mr. Green's i nv i t a tion to red efin e " autom ated claim s reco rd s" in §§ 1.6 00 -.603 to inclu de VBM S, the Court fin ds the Secretar y ' s assertions on app eal that there are no regulations governin g access to VBM S incom patib le w ith VA ' s earlier
statem ents indicating that access to VBM S by a claim ant' s rep resentative or attor ney w ill be app ro ved in acco rd ance w ith VA regulations

. See 77 Fed. Reg. 42 ,60 0 (2 01 2) (p ro viding that access to VA ' s d a t a t e l ecomm un ication netw or ks, inclu ding VBMS, is " by auth or ization contro lled by the site security officer w ho is resp onsible for auth or izing acce ss to the BDN, Virtual VA
, VBM S and VET SNET by a claim ant' s rep resentative or attor ney app ro ved for access in

acco rdan ce with VA regu lation s

. . . . T he security req uirem ents ap plicab le to the a ccess of au tom a ted claims files by VA em plo y ees also app ly to the acce ss of au toma ted claims files by claim ants' rep resentatives or attor ney s" (em phasis add ed) ).

A t or al argum ent, the Secretar y agreed that there m igh t be circum stances in w hich the closest RO offi ce m igh t 9
still r equire an attor ney to travel an exce p t i o na l d i st a nc e

. In those cases, the Sec retar y asserted that VA w ill pr ovide

access at any VA facility that is m or e conv enient for ins pectio n. O.A. at 18 :05 -22, 23 :20 -24:10 ; see also 77 Fed. Reg.
at 42 ,60 0 (indicating that VBM S term inal locatio ns inclu de VA Central Off ice, ROs, VA health care facilities
, Veterans Integrated Service Netw or k offi ces, Depa rtm ent of Defens e Finan ce and A ccountin g Service Centers, and the U.S. Coast Guard P ay

and P ersonnel Center).

10The Secre tary maintains that g ener al acc ess to vetera ns' claims files, paper or elec tronic, is
g overne d by the Pr i v acy Act, 5 U.S.C. § 552a, and 38 U.S.C. §§ 5701 and 7332. He further 1 0 1 1

asser ts that none of t he st atutes or implementing reg ulations require VA to provide remote acc ess to VA claims files.

W i t h limit ed exceptions, section 552a(b) of title 5, U.S. Code, provides that "[n]o age n cy shall disclose any rec ord which is contained in a sy stem of rec ords by any means of communication
to any person, or to another ag ency , except pursuant to a written reque st by
, or with the prior written
consent of, the individual to wh om the rec ord perta ins." 5 U.S.C. § 552a(b)

. Upon reque st, the
ag ency shall permit an individual "to revie w the [i ndividual's] rec ord and have a c opy made of all

or any portion there of." 5 U.S.C. § 552a(d) (empha sis added)

. To car ry out the provisions of section 552a, Congr ess require d eac h ag ency that maintains a sy stem of rec ords to promulg ate rules, which shall, among other things, " establish p r o ce d u r es f o r t he disclosure to an individual

. . . of

. . . rec ord[s] or informa tion pertaining to [ the individual] ." 5 U .S.C. § 552a(f)( 3) (e mphasis added)

.

The Secre tary promulg ated reg ulations g overning an indi v idual' s acc ess to rec ords, and inspection and disclosure of rec ords to acc redited repr esenta tives and rec og nized attorney s. Section 1.577, of title 38, Code of Fe dera l Reg ulations, provides that "a ny individual upon reque st may g ain

acce ss to his or her rec ord or information perta ining to him or her which is contained in any sy stem of rec ords maintained b y [ VA] ." 38 C.F.R. § 1.577(a) (empha sis added)

. An individual "w ill be permitted

. . . to revie w the rec ord and have a copy mad e o f al l o r any portion" of the rec ord. Id

. S ec t i o n 1

. 525(b)( 1) provides, in pertinent part, that "[i]ns pection of folders by acc redited
repr esenta tives or rec og nized attorney s holding a written authorization wher e such case s are being [1 2 ]
proce ssed s h a l l be in space assigned for such inspection. " 38 C.F.R. § 1.525(b)( 1) (empha sis added)

.

Consist ent with the Privacy Ac t , 3 8 U. S

. C. §§ 5701 and 7332, and VA re g ulations, VA' s Adjudication Procedure

s Manual (M 21-1) rec og nizes that repr esenta tives holding a POA have authority to revie w information in a claima n t 's claims folder and that "[a]n RO may rele ase a claimant' s claims folder" to an attorne y repr esenting an appe llant at the Court. M21-1, pt. 1, c h.3, sec. B.2.a. Wit h proper authorization (VA Form 21-22a), a repr esenta tive may revie w t h e claims

Section 5 7 0 1 a d d r e sses the " [c] onfidential natu re of claim s." Section 57 01 (a) pr ovides that " [a] ll files
, 1 0

reco rd s, rep or ts, and other pap ers and do cum ents per tainin g to any claim un der any of the law s adm inis tered by the Secretar y

. . . in po ssess ion of [VA] shall be confidential and pr ivil e ge d

. " 3 8 U.S.C. § 57 01 (a)

. Section 57 01 (b )(1 )
req ui r es the Secretar y to disclose the reco rd s descr ibed in subsection (a) " [t]o a claim ant or duly auth or ized agent or rep resentative of a claim ant as to m atters concerning the claim ant alone." 38 U.S.C. § 57 01 (b )(1 ). With one exception,
not per tinen t here, any disclosure m ade pursuant to section 57 01 " shall b e m ade in ac cor dance w ith the pr o visions of section 55 2a of title 5. " 3 8 U. S.C. § 57 01 (j ).

Section 73 32 add resses the " [c] onfidentiality of certain m edica l reco rd s" relating to dr ug abuse, alcoholism 1 1

or alco hol abuse, infection w ith th e hum an im m un od eficien cy

virus, or sickle cell anem ia. 3 8 U. S.C. § 73 32

. Notably , § 1. 52 5( a)( 1) refers to 38 C.F.R. § 14.6 29 (b ) (A ccred itation of A gen ts and A ttorney s) to identify 1 2

" reco gn ized attor ney s." 38 C.F.R. § 1. 52 5( a)( 1)

.
11folder "w ithin an RO space desig nated for such revie w" and the "RO direc tor may permit acc redited

repr esenta tives of service org anizations to revie w a claims folder at t h e d es k o f the acc redited
repr esenta tive." M21-1, pt. 1, ch.3, sec. B.2.j. Although the M21-1 manual contemplates that some POAs might have acc ess to a claimant's elec tronic claims folder, the M21-1 does not addre ss the circ umstances under which elec tronic acce ss is provided. See
, e.g. , M21-1, pt

. 1, ch

. 3
, s ec

. B.1.d (providing notice to POAs who have acc ess to a vete ran' s elec tronic cla ims folder).

Take n toge ther, the statutes and reg ulations discussed here in lend support to the Secre tary ' s contention that VA' s policy of permitting an attorney repr esenting an appellant at the Court to inspect and copy orig inal materia l in the RBA at the Gene ral Counsel's office or a VA RO is long standing and rooted in safe g uarding individual privac y from the misuse of information. The privac y statutes require the Secre tar y to keep confide ntial claimants' claims files, but also direc t him to disclose

cer tain information upon rec eipt of proper written authoriza ti o n

. A s d iscussed above, the reg ulations addre ssing acc ess by an individual or an acc redited repr esenta tive or re co gn ized attorney contemplate the rig ht to revie w and copy all or any portion of the rec ords (38 C.F.R. § 1.577(a) ) and inspection of folders in a space desig nated for such inspection (38 C.F.R. § 1.525(b)( 1)). Nothing discussed her ein re quires the Sec reta ry to provide re mote acc ess to claimants' claims rec ords.

Mr. Gre en essentially maintains that the Secre tary ' s policy is unrea sonable beca use to require

an attorney prac ticing at the Court to trave l to the Gene ral Counsel's office or a VA RO imposes an "undue and unnece ssary hardship" and deprive s his attorney of meaning ful acc ess to his VB MS file. Reply at 5. Mr. Gre en further specula tes t h at i t is unclea r whether VA ROs are equipped to

acc ommodate time-consumi ng demands to revie w claimants' VB MS files, and he arg ues that his attorney require s remote rea d-only acc ess to VB MS to competently repr esent him in this appea l and to ensure the completene ss of the RBA

. Id

.

Mr. Gre en' s arg uments are not persua sive beca use he fails to explain what has chang ed, other than the manner in which VA stores claims rec ords, that rende rs VA' s lon g s ta n d in g p roce dure unduly b u rd en s o m e and a depriva tion of meaning ful acc ess. Although remote acc ess to claims rec ords might ease the pro ce s s o f re prese ntation, the Court ag ree s with the Secre tary that Mr. Gre en' s arg ument that VA is prohibiting his attorney from providing competent and diligent repr esenta tion ring s hollow.

I mportantly
, the Secre tary has not denied Mr. Gre en' s attorney rea d-only acc ess to his VB MS files. Offe ring an option simil ar to VA' s longsta nding policy that permitted appellants' attorney s to inspect and copy the paper file at the Gene ral Counsel's office or a convenie nt VA RO, the Secre tary has offe red Mr. Gre en' s counsel rea d-only acc ess to the VB MS file at the Gene ral Counsel's office

or a c onvenient VA RO. Given the Agenc y ' s responsibilities under the Privac y Act, the Sec reta

ry

rea sonably maintained custody of the orig inal paper rec ords and require d the inspection of rec ords
to be perf

o rmed at the Gene ral Counsel's office or a convenie nt VA RO. VA' s transition to a paper less claims proce ssing sy stem, which includes elec tronic storag e of claimants' claims rec ords, does not alter the Court's view. Wi t h advanc ements in technolog y , VA fac es new information

secur ity risks and is require d to comply with FI SMA, HSPD-12, and NI ST min i m u m s ec u ri ty

12standards. Absent any statutory obliga tion to provide remote acc ess to veter ans' claims rec ords, the

Court will not, at this time, delve into the Secre tary 's p o l i ci es and proce dures reg arding remote

acc ess to VA' s internal networks and information sy stems. The Secre tary ' s policies and proce dures 1 3 that allow an appellant or his repr esenta tive to inspect and copy any orig inal materia l in the RBA – whether that materia l is stored in paper or elec tronic format – at the VA Gene ral Counsel's office or at a VA RO are rea sonable a nd comply

with Rule 10(d).

Nonethele ss, beca

use t he S ecr etar

y aff irms that he is endea

voring to provi d e re m o t e rea donly acc ess to veter ans' repr ese n tatives and attorney s, the Court is compelled to comment on the Secre tary ' s curr ent stance that VA has made a manag ement decision that all attorney s seeking remote

rea d-only acc ess to VB MS must become acc redited by VA and that acc reditation is the only way VA

can p ro t ec t the privac y of rec ords within its technolog ical limit ations. Although the Secre tary indisputably must comply with Fe dera l laws an d re gulations to safe g uard veter ans' private information and sensitive rec ords, the Secre tary provides no convincing explanation how requiring
an attorne y

to become a ccr edited by

VA ser ves any secur ity purpose. 1 4

As noted above, the VA PI V cre dential is the sole identity cre dential for Depa rt m en t employ ees, contra ctors, and aff iliates, which is require d for logisti ca l acc ess to VA networks and information sy stems. See VA Direc tive 0735, HSPD-12 Prog ram (Oc t. 2 6, 2015) (def ining Depa rtment-wide policy
, roles, and responsibilities for compl i an ce wi t h HSPD-12, "Policy for a Common I d e n ti f

ic a ti o n St a n d a r d f o r F e d e ral Employ ees and Contractors" ). Although the proce dures for obtaining a PI V car d, which i n cl u d e fing erpr inting, a backg round investiga tion, and secur ity training
, clea

rly serve a secur ity purpose, VA' s acc reditation require ment is intended to ensure that
ag ents and attorney s who repr esent claimants befor e the Ag ency are of g ood moral char acte r and
possess the qualifica tions and ski l l s t o p rovide claimants valuable service

. See 38 U.S.C. § 5904(a) (2); 38 C.F.R. § 14.629 (2016); see also http:// www.va .g ov/ogc /accre d i t ation.asp (last visited Oct. 20, 2016) (stating that "[t]he VA acc reditation prog ram exis ts to ensure that [v] eter ans and their family members rec eive appropr iate repr esenta tion on their VA benef its claims [and that] VA acc reditation is for the sole and limit ed purpose of prepa ring
, prese nting, and prosec uting claims befor e VA" ).

Even assuming that the Secre tary has wide discretion to develop policies and proce dures for
g ranting remote acc ess to his information secur ity network, it is disconce rt i n g t h at the Secre tary require s an attorney , who intends only to repr esent appellants in proce eding s at the Court, to file an application cer

tify ing that the attorney seeks acc reditation to repr esent claimants befor e VA. Moreove r, the Secre tary ' s r e g u la ti o n s im p o s e c o n ti n

u ing leg al education require ments, as a condition of initial acc reditation and to maintain acc re d i t at i on, that are not require d to prac tice befor e the

T his is n ot to s ay , th at at som e point in the fu ture, advancem ents in techn olo gy m igh t render u nreasonable 1 3

any req uirem ent that a par ty

or rep resentative of party travel to a V A office to r eview

electr onic rec or ds.

Sim ilarly
, althoug h the Secretar y s tates that a POA cod e is central to lim iting access w ithin VBM S only to 1 4
those reco rd s a rep resentative has been authorized to access by a claim ant ( see Secre tary ' s Mem . at 1 2) , the Secre tary fails to explain w

hy accr editatio n is th e o nly

m eans to assign

a P OA co de, w hich seem s purely

ad m inis trative.

13Court. See 38 C.F.R. 14.629(b)( iii), (iv). I n addition to imposing require ments on attorney s that are

not require d by the Court's Rules of Admission and Pract i ce , the Court observe s that it curr ently takes VA betwee n 60 and 120 day s to p rocess attorney applications for acc reditation. See http:// www.va .g ov/OGC/docs/Acc red/How toApply forAc cre ditation.pdf (F AQs) (last visited Oct. 20, 2016). I n this reg ard, the Court notes that the Court's Rules provide, at most, 74 day s from notice of docketing to dispute t h e content of t he R BA

. See Rules 10(a) (re quiring the S ecr etar y to serve the RBA not later than 60 day s after notice of docketing ) and 10(b) (re quiring that any motion disputing the RBA must be ser v ed within 14 day s afte r service of the RBA)

. Thus, unless an attorney is alre ady acc redited by VA, the Secre tary ' s endea vor to make remote re ad -o nly acc ess available might be an empty g esture for many attorney s repr esenting appellants at the Court and may be a fac tor that the Court considers in its future deter minations reg arding the rea sonablene ss of the Secre tary ' s reg ulations under Rule 10(d)

.

III. CONCLUSION Attorney s repr esenting claimants in proce eding s at the Court do not have a reg ulatory rig ht, pursuant to 38 C.F.R. §§ 1.600-.603, to remote rea d-only acc ess to claimants' VB MS files. Pursuant to Rule 10(d), the S ecr etar y is require d to permit Mr. Gre en or his re prese ntative to inspect and to
copy , s u b ject to rea sonable reg ulation, any orig inal materia l in the RBA that is not subject to a protec tive order

. For the fore g oing rea sons, the Court finds rea sonable the Secre tary ' s policies and
proce dures that allow an appellant or his repr esenta tive to inspect and copy any orig inal materia l in the RBA – whethe r t h at materia l is stored in paper or elec tronic format – at the VA Gene ral Counsel's of

fice or at a

VA RO.

Upon consider ation of the for eg oing, it is

ORDERED that Mr. Gre en' s motion to compel the Secre tary to provide his attorney remote

rea d-only acc ess to VB MS is denied. I t is further

ORDERED t hat t he C ourt' s May 27, 2016, stay will be li fted 1 4 day s afte r t he date of t his order and proc eeding s shall continue in acc ordanc e with the Court' s Rules.

DATED: Oc tober 24, 2016 PER C URI AM.

L ANCE, Judge
, concur

ring : I fully concur in the Court's holding that, under the fac ts of this

case , the Secre tary ' s proce dures for and restric tions o n a tt o r n e y a cce ss to VB MS are rea sonable under Rule 10(d). Ante at 1. I write separ ately to emphasize that these proce dures may not be rea sonable in e very case

. Although it is laudable tha t "VA will provide ac cess a t a ny VA fac ility that is more convenie nt for inspection" when the closest RO office require s "a n attorney to trave l an exceptional distance," see ante at 10 n.9, I believe that there are circ umstances wher e even these alterna tive VA fac iliti es may

be unre asonably

burdensome.

As I noted at oral arg ument, an attorney living in Bonne rs Fe rry , I daho, must trave l 323 miles
t o t he closest RO in For t Har rison, Montana. See O.A. at 18:25-40. Even under VA' s cur re n t

14prac tice of pr oviding a cce ss at "mor e conve nient" fac iliti es, an attorney would have to dr ive more than 100 miles to the closest VA medical cente r, the Mann-Gr andstaff VA Medica l Center in Spokane, Washington. By compar ison, VA follows a " 40-mile rule" when evalua ting whether it 1 5 is rea sonable to make a veter an trave l for medical ca re

. See 38 C.F.R. § 17.1510(b)( 2) (2016) (allowing a veter an to r ece ive trea tment a t a private fac ility if the veter an' s residenc e is "mor e than 40 miles from the VA medical fac ility that is closest to the veter an' s residenc e" ). I see no rea son why

a simil ar rule should not be used to deter mine whether it is rea sonable to require an attorney to trave l to reviewa cla ims file.

During oral arg

ument, counsel for the appell an t s t at ed that, prior to the introduction of VB MS, a veter an' s repr esenta tive could rec eive a p ap er copy of the veter an' s claims file by mail. O.A. at 10:08-45. I t is not clea r whether VA will provi d e a p ap er copy of VB MS to a veter an' s attorney or, if not, w hy it ha s chosen not to do so. Where the distance to the ne are st VA fac ility is unduly burdensome, it may

be prude nt for VA to c onsider that option.

I n this case , the appellant' s at t o rn ey did not arg ue that the distance to the near est RO was unduly burdensome, and so the Court was not require d to rea ch that issue. Howev er , wh er e an 1 6 attorney would be required to trave l a si g nificant dist ance to revie w a claims file, I am not cer tain that VA' s proce dures would c ontinue to satisfy the re asonable ness re quirement of Rule 10( d), and I believe that VA would be well serve d to deve l o p al t er n at ive m eans for attorney s to revie w t heir clients' files.

VA pr ovides a too l to loo k up the distance to the nearest VA facilities from a specified add ress on its w ebsite, 1 5 http://w w w .va.gov/directo ry

/gu ide/Findloc ations.cfm

. T he too l pr ovides the straight- line d istance b etw een the o rigin and the VA f

acility ; dr ivin g distance is often sig nif icantly farther.

I note that the P ro vidence, Rh od e Island, RO is located less than a m ile from the app ellant' s counsel' s offi ce. 1 6

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