Leroy S. Robinson, Jr. v. Robert A. McDonald
2016 U.S. Vet. App. LEXIS 1061
| Vet. App. | 2016Background
- Appellant appealed a Board decision denying an earlier effective date for service connection for PTSD; dispute arose over missing documents in the Record Before the Agency (RBA) after VA digitized paper claims files.
- Appellant moved under Court Rule 10(b)/(d) to dispute the RBA and to inspect original paper source documents; he also moved under Rule 8 to enjoin destruction of paper records.
- Secretary assembled the RBA from electronic records (VBMS/Virtual VA), acknowledged some missing items, asserted originals had been scanned and categorized as duplicates/non-records, and relied on NARA/Federal Records Act authority permitting destruction of paper after digitization and verification.
- The Court ordered briefing and invited amici; parties and amici argued about Rule 10(d) rights, Federal Records Act implications, and due process risks from digitization and potential spoliation.
- The Court found Rule 10(d)’s plain term “original material” includes paper source documents and held the appellant (or representative) is entitled to inspect paper originals that were part of the record of proceedings before the Secretary or Board even if VA digitized them.
- The Court ordered the Secretary, within 15 days, to assemble and provide the appellant’s paper source documents for inspection (or explain inability to do so), dismissed the Rule 8 motion without prejudice, and left the temporary injunction in place pending further order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Rule 10(d) require VA to produce original paper source documents after digitization? | Robinson: Rule 10(d) entitles appellant to inspect original paper materials in the record before the agency regardless of digitization. | Secretary: Once digitized and incorporated into VBMS/VVA, electronic files are the official claims file and originals are duplicates; Rule 10(d) does not require production of originals. | Held: Rule 10(d) covers “original material”; appellant entitled to inspect paper source documents that were part of the record before the Secretary or Board. |
| Does NARA/Federal Records Act compel destruction of paper originals such that originals lose Rule 10(d) status? | Robinson: Destruction may violate requirements and prevents comparison; Federal Records Act exceptions and permissive language mean destruction is not mandatory here. | Secretary: NARA authorization and statutes/regulations permit destruction of paper duplicates after verified digitization; federal law trumps Rule 10 if conflict exists. | Held: Court declined to resolve overall Federal Records Act compliance but concluded Secretary did not show he was compelled to treat paper originals as non-records for Rule 10(d); permissive NARA language and exceptions undermine Secretary’s claimed compulsion. |
| Does VA’s random-sampling verification and claimed >99% accuracy make inspection of paper originals unnecessary? | Robinson: Even small error rates risk loss of unique, irreplaceable evidence; individual veterans need ability to compare originals. | Secretary: Aggregate accuracy and quality controls justify reliance on electronic records; inspection of electronic file is sufficient. | Held: Court skeptical of aggregate-statistic defense; permitted inspection of paper originals and criticized reliance on sampling/99% for individual rights. |
| Does failure to provide paper source documents raise a due process violation requiring immediate relief (Rule 8 injunction)? | Robinson: Denial of access and possible destruction threatens due process and ability to challenge RBA; asked Court to enjoin destruction and hand over originals. | Secretary: No showing of irreparable harm or entitlement to injunction; Secretary followed applicable records management procedures. | Held: Court dismissed Rule 8 motion without prejudice as premature, but preserved injunction pending resolution; reserved constitutional due process questions for later, noting Cushman and potential for due-process violations if altered evidence is presented. |
Key Cases Cited
- Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir.) (alteration of evidence can violate due process)
- Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir.) (court discretion to prescribe and apply its rules)
- Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (U.S.) (VA adjudication intended to be informal/nonadversarial)
- Bell v. Derwinski, 2 Vet.App. 611 (Vet. App.) (record must include items considered by the Board and documents within Secretary’s control)
- King v. Brown, 5 Vet.App. 19 (Vet. App.) (Secretary tasked with initially designating the record on appeal)
- Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir.) (Secretary should act so that justice is done; fairness expectation of system)