Hezekiah Green, Jr. v. Robert A. McDonald
2016 U.S. Vet. App. LEXIS 1593
| Vet. App. | 2016Background
- Mr. Green appealed a Board decision denying certain disability claims and sought an order compelling the Secretary to give his attorney remote read-only access to Green’s VBMS electronic claims file.
- The Secretary served the RBA; Green moved (May 13, 2016) for remote access and a stay so counsel could determine whether to dispute the RBA. The Court stayed the appeal pending resolution.
- Green relied on 38 C.F.R. §§ 1.600-.603 (remote access regulations) and Rule 10(d) (inspection/copying of RBA) to argue counsel need remote VBMS access and that VA may not require accreditation.
- The Secretary offered in-person read-only review of VBMS at the VA General Counsel’s office or any VA regional office (RO), and explained remote access is subject to security rules (FISMA, HSPD-12, NIST) and that VA requires accreditation (and related administrative steps) to assign POA codes for remote access.
- The Court held: (1) the 1994 regulations do not, on their face, authorize remote access to VBMS (they target BDN/limited data), and (2) VA’s procedure allowing in-person review at GC or ROs is a reasonable exercise of Rule 10(d); Green’s motion to compel remote access was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 38 C.F.R. §§ 1.600-.603 confer a regulatory right to remote read-only access to VBMS | Green: regs grant attorneys of record before the Court remote read-only access without requiring VA accreditation | Secretary: regs apply to legacy BDN data, not VBMS; even if applicable, VA discretion and §1.600(d)(2) limit enforceable rights | Held: §§1.600-.603 do not authorize remote access to VBMS; regs target BDN/limited data, not VBMS files |
| Whether VA’s policy (in-person review at GC or RO) satisfies Rule 10(d)’s requirement to permit inspection/copying of original RBA material | Green: remote access is necessary and traveling to RO is an undue hardship; without remote access counsel may be unable to timely dispute RBA | Secretary: offered equivalent in-person review (consistent with prior paper-file practice); remote access raises mandatory security obligations; accreditation and security protocols are reasonable | Held: VA’s policy permitting in-person review at GC or RO is reasonable and complies with Rule 10(d); motion denied |
| Whether the Court has jurisdiction to review VA’s access policies | Green: Court may review because Rule 10(d) governs RBA access and affects the Court’s record and efficiency | Secretary: access methods are internal management/security matters outside Court’s jurisdiction | Held: Court has jurisdiction to adjudicate reasonableness under Rule 10(d); but it need not resolve broader nonregulatory management/discretion issues here |
| Whether VA may require accreditation as a security measure for remote access | Green: accreditation requirement is unrelated to security for Court-only practitioners and imposes undue burdens and delay | Secretary: accreditation and PIV/security requirements are part of VA’s compliance with federal security mandates and protect sensitive records | Held: Court was unconvinced VA showed accreditation is the only security means; but did not invalidate the requirement—VA must justify security measures separately; current in-person access remains reasonable |
Key Cases Cited
- Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014) (agency rulemaking and court rules interplay and Court’s discretion to prescribe and apply its rules)
- Robinson v. McDonald, 28 Vet.App. 178 (2016) (Rule 10 & RBA scope; electronic claims files may be treated as originals)
- Lane v. Principi, 339 F.3d 1331 (Fed. Cir. 2003) (regulatory interpretation reviewed de novo)
- Tropf v. Nicholson, 20 Vet.App. 317 (2006) (begin regulatory interpretation with plain language)
- Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) (regulatory language construed in context of entire rule set)
- Perrin v. United States, 444 U.S. 37 (1979) (begin with statutory language when interpreting law)
- Brown v. Gardner, 513 U.S. 115 (1994) (clear regulatory language ends interpretive inquiry)
- Duncan v. Walker, 533 U.S. 167 (2001) (interpretation should avoid rendering language superfluous)
- Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994) (context of entire regulation necessary to determine plain meaning)