UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-1136

KENNETH M. CARPENTER, APPELLANT,

AND

No. 19-1137

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 July 9, 2021)

Charles S. Dameron, of Washington, D.C., with whom Jay I. Alexander, Daniel J. Farnoly, 

John Niles, and Barton F. Stichman, all of Washington, D.C., were on the brief for the appellants.

Nathan P. Kirschner, of Washington, D.C., with whom William A. Hudson, Jr., Acting 

General Counsel; Mary Ann Flynn, Chief Counsel; and Selket N. Cottle, Deputy Chief Counsel,

all of Washington, D.C., were on the brief 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. Not all the paralegals are VA-accredited. Mr. Carpenter's firm also employs nonparalegal support staff. None of the non-paralegal support staff are VA-accredited. For their nonVA-accredited paralegals and other non-VA-accredited staff, Mr. Carpenter and Mr. Chisholm 

both have requested remote, read-only access to automated VA claims records. Ultimately, in 

separate decisions, the Board of Veterans' Appeals denied Mr. Carpenter's unaccredited paralegals 

and staff and Mr. Chisholm's unaccredited paralegals remote, read-only access to automated VA 

claims records. Appellants through counsel appealed these decisions.Theyalso filed an unopposed 
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motion to consolidate, whichthe Court granted on May 31, 2019, and thenconsolidated the appeals 

under U.S. Vet. App. Docket Number 19-1136.

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,1to decide whether,

in categorically barring non-VA-accredited paralegals and staff from remote, read-only access to 

the Veterans Benefits Management System (VBMS),

2 VA 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.

On February 24, 2021, the Court issued a panel decision affirming the Board decisions. On 

March 10, 2021, the appellants filed an unopposed motion to deconsolidate their cases because 

they had different views on how to proceed with their cases. In response to a Court order, on 

March 15, 2021, Mr. Carpenter stated that he intended to file a motion for reconsideration or en 

banc review, and Mr. Chisholm stated that he would not take further action on this matter in this 

Court or at the U.S. Court of Appeals for the Federal Circuit. The next day, the Court 

deconsolidated the cases,reopened Docket Number 19-1137, and included all docket entries made 

under Docket Number 19-1136 after May 31, 2019. 

After Mr. Carpenter's motion for extension was granted, on May 3, 2021, he moved for 

panel reconsideration or en banc review. The Court will grant panel reconsideration under both 

Docket Numbers 19-1136 and 19-1137. See U.S. VET. APP. R. 2, 35. Though Mr. Chisholm does 

not wish to continue to pursue this matter and though we have deconsolidated these cases, for 

1 The appellants filed an opposed motion for oral argument, but that motion is moot because the Court decided 

sua sponte that oral argument would assist us in our determination.

2

"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).
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consistency—i.e., to avoid having two different precedential decisions on the same matter—we 

will grant Mr. Carpenter's motion for panel reconsideration and sua sponte grant panel 

reconsideration in Mr. Chisholm's case. Upon reconsideration, the Court will withdraw the 

February 24, 2021, panel decision and issue this panel decision in its stead. Because the February 

2021 panel decision was issued under both appellants' names, this current decision will also be 

issued under both appellants' names, but the decision will be entered in both dockets rather than 

under just Docket Number 19-1136. 

Returning to the merits, we find, as before, 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. We therefore find that the regulations do not 

pertain to VBMS access. And the Federal Circuit's decision in Euzebio v. McDonough, 989 F.3d 

1305 (Fed. Cir. 2021), which issued shortly after our February 2021 decision, does not change that 

determination. 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. Nor have the appellants proved they are prejudiced by any 

alleged record deficiencies. Thus, we will affirm the Board's decisions.

I. FACTS AND PROCEDURAL HISTORY

A. Mr. Carpenter's Appeal

In June 2016, Mr. Carpenterrequested VBMSaccess for his unaccredited support staff and 

paralegals. Record (R.) at 366-67. In December 2016, VA denied the request. R. at 362-63. That 

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 
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revise 38 C.F.R. § 14.629 to allow VA to provide remote access to non-VA-accredited 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 unaccredited 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 Mr. 

Chisholm's unaccredited paralegals remote, read-only access to automated VBA claims records. 

R. at 369-82.

C. The Board Decisions

In the decisions on appeal, the Board determined that the appellants had not established 

that their non-VA-accredited paralegals and support staff were entitled to remote, read-only access 

to VA claims records. 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. The Board acknowledged that "[i]t is possible the 

assumptions and factual premises underl[y]ing the Court's decision in Green . . . have changed[,]" 

but stated that, "as currently written, the law does not compel the Secretary to grant . . . access." 

R. at 7, 375. 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 §§ 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 denying access violates 38 U.S.C. § 5904 and impedes 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 rather had cited only hypothetical harm. R. at 9, 377-78. The Board thus found the relationship 

between access to VBMS for their paralegals and support staff and their statutory and ethical 

obligations too attenuated. R. at 9, 378. Turning to the appellants' arguments based on the practical 
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considerations of efficiently running a law firm, the Board stated in part that the appellants had not 

cited a specific instance in which, because paralegals and staff could not access VBMS, the 

appellantsmissed a statutory deadline, VA did not providea decisional document, or the appellants 

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, 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 

requirements, and control administrative burden and costs"). Mr. Chisholm informed the Court 

that he had 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 the final rule is issued, allowing the appellants the opportunity to challenge the 

rule directly at the Federal Circuit under 38 U.S.C. § 502. Secretary's Response (Resp.) at 2. The 
6

Secretary contended that if the case is not stayed, 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 for publishing the final rule, urging 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 to be 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, the removal 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. The amicus 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 

whether or when final rules will be published and what they might provide—particularly given 

that, several months after the original panel decision was issued, VA has still not finalized these 

proposed amendments—we conclude that a stay of proceedings is not in the interest of judicial 

efficiency.

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 motion under Rule 10 of the Court's Rules of Practice and Procedure, 

and the Court thus did not need to analyze §§ 1.600-.603 to answer the question presented there. 
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Id. at 16-18. In the alternative, they argue that Green is not controllingbecause 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 categorical 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, that Green is controlling, and that 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 the 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) (2021). Section

1.601(a) provides that a successful applicant for read-only access to VBA automated claims 

records from a location other than a regional office must be one of the following: 

(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) (2021).

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:
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(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 (2021).

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. 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. & 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. Mr. Chisholm's firm

also 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." 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. Id. 
9

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 notinclude VBMS files or a claimant's electronic claims folder." Id. at 290. TheCourt 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. In arguing that Green's interpretation of 

§§ 1.600-.603 was void ab initio or dicta, see Appellants'Br. at 16-18, the appellants 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 Courtto 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 those obtaining remote VBMS accessto be accredited. Id. The appellants

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 also argue that, even if the Green decision is not a nullity, its analysis of §§ 1.600-

.603 is dicta because the analysis was unnecessary to the Court's decision on a Rule 10(d) motion.

Id.

As stated above, in Green Mr. Chisholm's firm, whichrepresented 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 
10

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 that in 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 requests access to

them. In other words, even though the situation here involves categories of people different than 

those in Green, that does not change the applicability of Green's holding that automated claims 

records, as noted in § 1.600, do not include VBMS, no matter who is accessing them. 

2. Self-Abrogation

The appellants also argue that given changes in VA's technological landscape, Green's 

analysis of §§ 1.600-.603 has self-abrogated. Appellants' Br. at 18-20 (asserting that the exhibits 

annexed to their brief demonstrate that post-Green developments "have rendered Green's state of 

the world obsolete" and "obviate[d] Green's articulated security concerns"). Section 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 
11

the inquiry commands of the [BDN]."The Court acknowledgesthat there have been some changes 

to VA's technological landscape since 2008, when § 1.600 was last updated.

For example, in a September 2016 VA letter regarding granting accredited representatives 

access to VA information systems, 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 removing these references serves to "ensure VA's regulations stay current 

regardless of future IT developments" and that the Agency 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 whether a final 

rule will be published).3 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—when the reason of a 

rule ceases, so should the rule itself—applies to a court's plain-language interpretation of a 

3 When this revised panel decision was issued, VA had still not published a final rule regarding the February 

2020 proposed amendments. 
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regulation in a precedential decision. Appellants' Br. at 18 (citing Zadvydas v. Davis, 533 U.S. 

678, 699 (2001), and two nonbinding 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 such updates are complete, the 

Court will not, based on underdeveloped arguments, disregard the current regulations' plain 

language and Green's interpretation of that plain language.

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 principal deputy under secretary's September 2016 VA 

letter cites no statutory or regulatory authority. See R. at 51-54; id. (nor does the letter mention 

access for unaccredited attorneys practicing before the Court, even though § 1.601 states that 

remote access to VBA automated claims records 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 regard §§ 1.600-.603 as including VBMS and that 

VA follows protocols the same as those extant when we issued Green, including requiring a PIV 

card for access to VA systems. Oral Argument at 35:30-37:30; id. at 43:52-44:32 (notingthat 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 . . 

. position" contrary to VA's treating VBMS e-folders as constituting VBA automated claims 

records, Appellants' Br. at 18, the appellants provide no analysis and cite no 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 characterize the "dispositive fact" in Green as "the only way" for VA 

to grant remote access was "to grant logistical access to VA['s] networks and information systems"

and 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 
13

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.

To the extent that the appellants maintain that remand is required for the Board to address 

in the first instance whether "'the assumptions and factual premises underl[y]ing the Court's 

decision in Green'" have in fact changed, Appellants' Br. at 19 (quoting R. at 7, 375), they fail to 

acknowledge the Board's reliance on the law "as currently written"; do not address the Board's 

alternative finding pursuant to § 1.600(d)(2), which provides that the regulations do not create an 

enforceable right, R. at 7, 375; and fail to explain how the Board could reach a contrary result

considering that the Board is bound by VA regulations and precedential decisions of this Court, 

see 38 U.S.C. § 7104(c); Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991) ("We hold that a decision 

of this Court, unless or until overturned . . . [is] authoritative and binding as of the date of the 

decision is issued and . . . [is] to be followed by VA agencies of original jurisdiction, the Board

. . . , and the Secretary in adjudicating and resolving claims."); see also Soyini v. Derwinski, 

1 Vet.App. 540, 546 (1991) (finding that strict adherence to the reasons-or-bases requirement is 

not warranted where it would impose additional burdens on the Board with no benefit flowing to 

the claimant).We thus conclude that the appellants have not shown that any reasons-or-bases error 

on the part of the Board is prejudicial.4 See Shinseki v. Sanders, 556 U.S. 396, 410, 413 (2009) 

("[T]he party seeking reversal normally must explain why the erroneous ruling caused harm[,] . . . 

by marshaling the facts and evidence" and must "explain[ ] . . . how the . . . error to which he [or 

she] points could have made any difference.").

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.

4 For these reasons, we are also unpersuaded by Mr. Carpenter's assertion in his motion for reconsideration 

that declining to remand the matter for the Board to address self-abrogation in the first instance violates the Chenery

doctrine. Motion for Reconsideration at 5-6 (citingSEC v. Chenery Corp., 318 U.S. 80, 95 (1943)).
14

Doing so here, we find that the appellants fail in arguing that VA's categorical bar against VBMS 

access for unaccredited paralegals and support staff violates the note to § 14.629. See Appellants'

Br. at 13-16. Section 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." 38C.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 people's access to VBMS would not be related to the regulations.5

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 (Sept. 2016 VA letter), the appellants focused the 

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 many 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), 

5 The Court acknowledges that, although the note to § 14.629 lists paralegals, there remains the question 

whetherthat note includes a law firm's other 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 non-paralegal support staff, 

like paralegals, barring their access to VBMS is unrelated to the regulations at issue (§§ 1.600-.603).
15

we decline to do so under the circumstances here. Finally, though 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 

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 hypotheticalsituationsrather than specific instances of when they could not provide 

effective counsel. R. at 9; see R. at 378.

6 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 Sanders,

556 U.S. at 409 (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 

6 The Board also found that the appellants' arguments speak more to convenience and their preferred way to 

run their law practices, but that they had not shown that VA's policies precluded competent and diligent representation 

or that the policies were unreasonable. R. at 12, 381.
16

federal court must demonstrate 'actual injury redressable by the court'" (quoting Simon v. E. Ky.

Welfare Rts. 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, 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 that in Green is 

inconsequential. In fact, applying Green's rationale seems even more compelling here. Green

concerned an unaccredited attorney before the Court. Denying him remote access would mean he 

could gain access only 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).

7

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, and they contend that "[t]hat severity of harm is not necessary to establish 

prejudice," Appellants'Br. at 23 (mentioning, e.g., missing a deadline in a client's case). But they 

do not proffer what standard should apply, nor elaborate any further on their assertion. In his 

7 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. 
17

motion for reconsideration, Mr. Carpenter asserts that our analysis appears to rest on the more 

particularized harm requirements for standing rather than the standards for establishing prejudice, 

and that, even if the standing requirements controlled, he meets them. Motion for Reconsideration 

at 6-7 (citing in part Simmons v. Wilkie, 30 Vet.App. 267, 279-85 (2018), aff'd, 964 F.3d 1381 

(Fed. Cir. 2020)). Assuming that Mr. Carpenter believes that the framework set forth in Simmons

for determining whether an error was harmless applies here, he still does not explain how he 

satisfies those factors, such as how any purported error in this regard (1) "abrogate[d] the essential 

fairness of the adjudication or deprive[d] a claimant of a meaningful opportunity to participate in 

the processing of [his or her] claim," Simmons, 30 Vet.App. at 281-82; or (2) disrupted the essential 

fairness of the particular adjudication, either by preventing the claimant from effectively 

participating in the adjudicative process or affecting or potentially affecting the outcome of the 

determination, id. at 279. The Court will not make those arguments for him. See Locklear, 

20 Vet.App. at 416.

Although the Court recognizes that there are perhaps more efficient and convenient ways 

to balance a law firm's needs with VA's concerns—such as VA accrediting all paralegals8 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.

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, 

8 Mr. Chisholm stated in his March 2018 Substantive Appeal that he employs some accredited paralegals. 

R. at 408.
18

6 Vet.App. 360, 365 (1994); (2) the appellants' arguments to the Board were not developed; 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.9Further, to the extent that the appellants 

suggest that remand is necessary by contending that their constitutional argument contains an "asapplied" 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 additionof certain documents to and 

omission of certain documents from the claims files—violated 38 U.S.C. § 7104(a) (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. The appellants 

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 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 obtainingaccess 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 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.10

9

In his motion for reconsideration, Mr. Carpenter acknowledges that he did not elaborate on this argument 

in his opening brief. Motion for Reconsideration at 7 (stating that he "did not, to be sure, devote pages and pages of 

analysis to belaboring this point"). He asserts that he did not raise a purely constitutional argument; rather, because 

the Board failed to address due process, it erred under 38 U.S.C. § 7104(d)(1) (providing that Board decisions must

include a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and 

conclusions, on all material issues of fact and law presented on the record). Motion for Reconsideration at 7. 

Essentially, he is arguing that the Board did not provide adequate reasons or bases about due process. But we explain 

above why the Board's failure to discuss this argument does not require remand. See Soyini, 1 Vet.App. at 546.

10 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 over 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 about 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)).
19

The appellants claim that, without disclosing when and why, VA added the following 

documents to their paper claims files, 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 to regional offices 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 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

Mr. Chisholm's original 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 Mr. Chisholm's original Substantive Appeal and that the brief 

cites 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, except for the September 2016 VA letter to regional offices and the evidence 

annexed to their opening brief,

11 absent from the appellants' briefs is any specific assertion 

11 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). As indicated above, however, the appellants are 

mistaken about the role VA's security concerns played in Green and they have not shown on what basis we or the 

Board may ignore the plain language of the regulations and controlling precedent. 

In our prior panel decision, we noted that we are limited in what material we may review and treated the 

documents annexed to the appellants' brief as extra-record evidence. See38 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"). In his motion for 

reconsideration, Mr. Carpenter argues that the Federal Circuit's intervening decision in Euzebio now requires the Court 

to review those documents. Motion for Reconsideration at 4-5. Assuming without deciding that under Euzebio the 

annexed documents were actually or constructively in the Board's possession, the appellants have not shown that any 

Board error in not addressing those documents was prejudicial. See Sanders, 556 U.S. at 409.

The first document is a 2017 "Caseflow Product Impact Statement," explaining that "Caseflow" is a suite of 

web-based tools that VA developed for the Board to replace the Veterans Appeals Control and Location Systems

(VACOLS). Appellants' Br.,Exhibit (Ex.) 1 at 2. The documentstated that claimants have hundreds of electronic files 

associated with their cases and stored in VBMS, but that VBMS does not provide a "download all" function and that 

a feature of Caseflow will remedy this deficiency. Id. at 13. It also stated that documents from older cases are stored 

in a system called "Virtual VA," but that that system would soon be obsolete. Id. at 14.
20

regarding the content and relevance of the documents added to or omitted from their claims files 

or how consideration of, or the lack of consideration of, those documents might have affected the 

Board's decisionmaking. Without more 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.12

Finally, the appellants contend generally that the claimed record deficiencies were per se 

prejudicial. Appellants' Br. at 29-30 (citing Simmons, 30 Vet.App. at 281-82). 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 

The second document is an article about eliminating a technological bug before deploying Caseflow. 

Appellants' Br.,Ex. 2.To the extent that these documents show that the VA technological landscape has changed, the 

Court recognizes that it has changed. Even so, the text of §§ 1.600-.603 has not changed since Green, and the 

appellants have not shown how the Board's review of the annexed documents would alter that fact. And again, although 

the appellants rely on the annexed documents to show that the security concerns in Green have been obviated, 

Appellants' Br. at 18-20, VA's security concerns played no role in the Court's regulatory interpretation in Green.

28 Vet.App. at 288-90. Thus, even if the Court could consider these documents, we find that the Board's failure to 

include them in the appellants' claims files and to address them does not warrant remand. See Sanders, 556 U.S. at 

409; cf.Tobler, 2 Vet.App. at 14; Soyini, 1 Vet.App. at 546.

12 Although the appellants bear the burden of demonstrating prejudice, we find that (1) our conclusion here is 

particularly true with respect to 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 referencedthe 

September 2015 letter from the deputy general counsel 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, concerns the appellants essentially abandoned here on appeal, see ante at 13. 

Likewise, with respect to the omitted documents, we find that (1) our conclusion is particularly true where 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 filesshow that that 

correspondence consisted of emails between the appellants and VA simply communicating 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).
21

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 decisionmaker 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.

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 Court grants panel reconsideration; the February 24, 

2021, panel decision is WITHDRAWN; and this panel decision is issued in its stead under both 

U.S. Vet. App. Docket Numbers 19-1136 and 19-1137. Furthermore, we AFFIRM the October 31, 

2018, Board decision denying entitlement to remote, read-only access to automated VA claims 

records for Mr. Carpenter's non-VA-accredited paralegals and staff, and the October 29, 2018, 

Board decision denying entitlement to remote, read-only access to automated VBA claimsrecords 

for Mr. Chisholm's non-VA-accredited paralegals.