Filed: Oct. 11, 2006
Latest Update: Feb. 22, 2020
Summary: United States Court of Appeals for the Federal Circuit 05-7113 LARRY D. BARRETT, Claimant-Appellant, v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. James R. Barney, Finnegan, Henderson, Farabow, Garrrett & Dunner, L.L.P., of Washington, D.C., argued for claimant-appellant. With him on the brief was Mark R. Lippman,The Veterans Law Group, of La Jolla, California. David B. Stinson, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of
Summary: United States Court of Appeals for the Federal Circuit 05-7113 LARRY D. BARRETT, Claimant-Appellant, v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. James R. Barney, Finnegan, Henderson, Farabow, Garrrett & Dunner, L.L.P., of Washington, D.C., argued for claimant-appellant. With him on the brief was Mark R. Lippman,The Veterans Law Group, of La Jolla, California. David B. Stinson, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of ..
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United States Court of Appeals for the Federal Circuit
05-7113
LARRY D. BARRETT,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
James R. Barney, Finnegan, Henderson, Farabow, Garrrett & Dunner, L.L.P., of
Washington, D.C., argued for claimant-appellant. With him on the brief was Mark R.
Lippman,The Veterans Law Group, of La Jolla, California.
David B. Stinson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and James M. Kinsella, Deputy Director. Of counsel on the
brief were David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee,
Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel
was Richard J. Hipolit, Attorney, United States Department of Veterans Affairs, of
Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Retired Judge Jonathan R. Steinberg
United States Court of Appeals for the Federal Circuit
05-7113
LARRY D. BARRETT,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
DECIDED: October 11, 2006
__________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and MAYER, Circuit
Judge.
Opinion for the court filed by Circuit Judge MAYER. Concurring in the judgment opinion
filed by Senior Circuit Judge FRIEDMAN.
MAYER, Circuit Judge.
Larry D. Barrett appeals the judgment of the United States Court of Appeals for
Veterans Claims, dismissing his appeal for lack of jurisdiction for failure to establish
entitlement to equitable tolling of the 120-day period to file a notice of appeal under 38
U.S.C. § 7266.∗ Barrett v. Principi, No. 02-2382, 2005 U.S. Vet. App. Claims LEXIS 45
(Vet. App. Jan. 26, 2005) (“Barrett III”). Because the Veterans Court erred by declining
to require the Department of Veterans Affairs (“DVA”) to provide all records in its
possession, and to develop additional facts, relevant to Barrett’s equitable tolling
motion, we reverse and remand.
Background
Barrett served on active duty in the Army from July 1970 to January 1972, and in
the Navy from February 1975 to July 1976. He alleges that soon after returning from his
tour of duty in Vietnam he began to experience emotional problems, but that the
symptoms did not become severe until 1982. In 1997, Barrett was diagnosed with post-
traumatic stress disorder (“PTSD”) and panic disorder. He claims that by 2002 he
suffered from flashbacks and hallucinations.
Barrett sought service connection for his PTSD and a hand injury; both claims
were denied by the Regional Office and the Board of Veterans Appeals (“board”). On
August 15, 2002, the board mailed its decision affirming the denial of benefits to Barrett.
Barrett appealed the board’s decision to the Veterans Court on December 21, 2002,
eight days beyond the 120-day period for appeal. The government moved to dismiss
for lack of jurisdiction. On May 23, 2003, Barrett responded that he was prevented from
filing a timely notice of appeal because he had been incapacitated by mental illness,
∗
38 U.S.C. § 7266(a) provides:
In order to obtain review by the Court of Appeals for Veterans Claims of a
final decision of the Board of Veterans’ Appeals, a person adversely
affected by such decision shall file a notice of appeal with the Court within
120 days after the date on which notice of the decision is mailed pursuant
to section 7104(e) of this title.
05-7113 2
and that the Veterans Court should therefore toll the running of the appeal period. The
court dismissed the appeal for lack of jurisdiction, stating that “ill health has not been
adopted as a basis for such tolling.” Barrett v. Principi, No. 02-2382, 2003 U.S. Vet.
App. Claims LEXIS 417 (Vet. App. June 5, 2003) (“Barrett I”). On appeal, we reversed
the Veterans Court, holding that “mental illness can justify equitable tolling of section
7266(a) under some circumstances,” Barrett v. Principi, 363 F.3d 1316, 1317 (Fed. Cir.
2004) (“Barrett II”), and remanded for application of this standard to Barrett’s case.
On remand, the Veterans Court decided that it required “supplemental briefing
(attaching any additional relevant evidence) from the parties in support of their
positions.” Barrett v. Principi, No. 02-2382, 2004 U.S. App. Vet. Claims LEXIS 476, at
*6 (Vet. App. July 16, 2004) (“Remand Order”). It ordered Barrett to file a response
within 30 days establishing that he met the standard set forth in Barrett II or,
alternatively, that he wished to rely on his May 23, 2003, response. Remand Order at
*6-7. It further ordered the government to reply to his response. Id. at *7.
Barrett moved to stay proceedings pending the outcome of Jones v. Principi,
U.S. Vet. App. No. 03-1996, then before the Veterans Court on a motion for remand to
the DVA for record development on the issue of mental incapacity for the purpose of
equitable tolling. On August 13, 2004, the Veterans Court deferred consideration of
Barrett’s motion and ordered him to file his response within seven days. Barrett
responded, relying on the arguments and evidence presented in his May 23, 2003,
submission.
In the government’s response, it attached and made arguments based on several
medical records dating from the judicial-appeal period, August 15 to December 21,
05-7113 3
2002, obtained from Barrett’s medical treatment facility, the Birmingham Veterans
Affairs Medical Center. Among these records are an August 21, 2002, medical
progress note and other documentation stating that Barrett failed to report for medical
appointments on December 18 and 30, 2002. With respect to these records, the
Secretary states that the DVA “provided the Veterans Court with copies of DVA medical
records reflecting the diagnosis and consequences of Mr. Barrett’s psychiatric
disability.” Gov’t Br. at 19 n.8. Before the Veterans Court, Barrett’s counsel stated, and
the government does not contest, that these records were previously unknown to him.
It is unclear from the record before us if the government sought all records relevant to
the issue of mental incapacity bearing on equitable tolling. It is also unclear if it
provided the Veterans Court with all relevant records that it obtained, or selectively
submitted only portions.
Barrett filed a response to the government’s new evidence, and the Veterans
Court considered it in assessing his equitable tolling motion. Barrett III at *10-11.
However, in view of its decision in Jones v. Principi, 18 Vet. App. 500 (2004) (finding
that the Secretary’s duty to assist under 38 U.S.C. § 5103A does not extend to
assistance in developing the record for an equitable tolling motion), appeal dismissed
for lack of jurisdiction,
431 F.3d 1353 (Fed. Cir. 2005), the Veterans Court dismissed
Barrett’s motion for a stay of proceedings as moot, and declined to remand his case for
further record development on the equitable tolling issue. Barrett III at *12. The court
found that he had not met his burden under Barrett II, 363 Fed. Cir. at 1321, and
dismissed the case for lack of jurisdiction. On appeal, Barrett argues that the Veterans
Court erred by refusing a limited remand in order for the Secretary to assist in further
05-7113 4
developing the record on the equitable tolling issue. We have jurisdiction under 38
U.S.C. § 7292(a).
Discussion
Our review is limited to questions of law, see 38 U.S.C. § 7292(d)(2), and it is de
novo, see 38 U.S.C. § 7292(a); see also Bailey v. West, 160 F.3d 1360, 1362 (Fed. Cir.
1998) (en banc) (citations omitted). This case presents a narrow question of law: what
duty does the DVA have in developing the record before the Veterans Court on the
issue of equitable tolling?
To begin, we recognize that Barrett bears the ultimate burden of establishing the
Veterans Court’s jurisdiction by a preponderance of the evidence. See McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 188-89 (1936); Butler v. Principi,
244 F.3d
1337, 1340 (Fed. Cir. 2001). However, this does not mean that the DVA has no duty to
assist the court in determining its jurisdiction. Indeed, our holding in Barrett II
acknowledged as much: “Furthermore, the [DVA], which employs a host of medical
professionals, is uniquely qualified to facilitate the diagnosis of troubled claimants
should such allegations
arise.” 363 F.3d at 1320. In fact, when the Veterans Court
determines that it needs additional information to decide jurisdictional issues, its general
practice is to require the government (as well as the veteran) to provide the relevant
records in its possession and, where necessary, to develop new facts that go
exclusively to the jurisdictional question.
For example, in this case, the Veterans Court ordered the government to submit
supplemental briefing on the equitable tolling issue and to attach “any additional
relevant evidence.” Remand Order at *6. The government complied, at least in part, by
05-7113 5
seeking out, obtaining, and submitting the medical records and other documents
discussed above. Similarly, in Claiborne v. Nicholson, 19 Vet. App. 181, 183 (2005),
where equitable tolling based on ill health was at issue, the court ordered supplemental
briefing from the government and required it to attach “any additional relevant
evidence.”
In Sthele v. Principi, 19 Vet. App. 11, 13 (2004), the issue was equitable tolling
based on the Secretary’s alleged failure to mail a copy of the board’s final decision to
the veteran. While recognizing that a presumption of regularity applied to the
government’s mailings and that the veteran bore the ultimate burden of establishing
jurisdiction,
id. at 16, the Veterans Court required the government to develop
jurisdictional facts. Indeed, it ordered the Chairman of the Board of Veterans Appeals to
submit a declaration “detailing the Board’s current practices regarding date-stamping
and mailing of Board decisions and those practices employed at the time the appellant’s
copy of the [board’s final decision] was date-stamped and mailed.”
Id. at 13. The
government complied by submitting a declaration from the Senior Deputy Vice
Chairman of the Board.
Id. at 14. After hearing argument on the equitable tolling issue,
the Veterans Court decided that it required more evidence, and ordered a further filing
from the government.
Id. In that filing, the government submitted at least four
additional declarations pertaining to the DVA’s date-stamping and mailroom procedures.
Id. at 15-16. The Secretary’s declarations and filings ultimately assisted the veteran in
rebutting the presumption of regularity. See
id. at 17-18 (discussing the jurisdictional
evidence, including the government’s declarations, and noting that, “[t]he evidence
before the Court in this case is somewhat perplexing and reflects multiple irregularities
05-7113 6
in VA’s handling of the appellant’s case that, coupled with the appellant’s assertion of
nonreceipt, constitute the clear evidence that is necessary to rebut the assumed
presumption of regularity”). On the ultimate issue, the Veterans Court found that the
veteran had met his burden of establishing entitlement to equitable tolling, and accepted
jurisdiction over the merits.
Id. at 20.
These cases place a duty on the government to come forward with jurisdictional
evidence in its possession and to develop additional facts uniquely within its
competence, even though not part of the veteran’s claim file. This “comports with the
general rule that where evidence required to prove a fact is peculiarly within the
knowledge and competence of one of the parties, fairness requires that party to bear
the burden of coming forward.” Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994)
(citing Campbell v. United States,
365 U.S. 85, 96 (1961)).
As established by Reynolds v. Army & Air Force Exchange Service, 846 F.2d
746, 748 (Fed. Cir. 1988), we require that “the party asserting jurisdiction must be given
an opportunity to be heard before dismissal is ordered.” See also Local 336, Am. Fed’n
of Musicians v. Bonatz,
475 F.2d 433, 437 (3d Cir. 1973); Harmon v. Superior Court,
307 F.2d 796, 797 (9th Cir. 1961). Outside of the veterans context, where jurisdictional
facts are contested, the general rule is that “the party asserting jurisdiction be permitted
discovery of facts demonstrating jurisdiction, at least where the facts are peculiarly
within the knowledge of the opposing party.” Kamen v. Am. Tel. & Tel.,
791 F.2d 1006,
1011 (2d Cir. 1986) (citations omitted); see also Majd-Pour v. Georgiana Cmty. Hosp.,
Inc.,
724 F.2d 901, 903 (11th Cir. 1984); Williamson v. Tucker,
645 F.2d 404, 414 (5th
Cir.), cert. denied,
454 U.S. 897 (1981); Inv. Props. Int’l, Ltd. v. IOS, Ltd.,
459 F.2d 705,
05-7113 7
707-08 (2d Cir. 1972). Here, however, because we believe the Veterans Court’s current
procedures for determining contested jurisdictional issues are sufficient, allowing Barrett
to conduct limited discovery of evidence bearing on equitable tolling should not be
necessary.∗∗ When applied sympathetically and with full recognition of the
government’s superior access to a veteran’s claim file and the facts bearing on
jurisdiction, they provide the veteran with the requisite opportunity to be heard as
contemplated by Reynolds.
We next address considerations surrounding the government’s superior access
to information and its obligation in veteran’s cases. This will assist in defining the
contours of the relief to which Barrett is entitled.
First, as the Veterans Court has long recognized and as this case demonstrates,
the full breadth of the information possessed by the DVA and the content of a veteran’s
claim file is generally not known to a veteran, if ever, until after the record on appeal has
been designated and transmitted under the court’s Rules 10 and 11. See, e.g., Parmley
v. Derwinski, 2 Vet. App. 383, 384 (1992); see also U.S. Vet. App. R. 10, 11. For this
reason, the Veterans Court “relies on counsel for the Secretary to act as an impartial
officer of the Court when designating the record on appeal.” See Zo v. Brown, 4 Vet.
∗∗
Based on our review of Veterans Court cases, as best illustrated by
Sthele, we find that upon pleading sufficient facts to establish jurisdiction, the Veterans
Court provides for a veteran’s right to be heard on contested jurisdictional issues as
follows: (1) providing an opportunity for supplemental briefing; (2) requiring the
government to submit any relevant evidence in its possession relating to the contested
jurisdictional issues (and requiring the veteran to make a reasonable effort to seek,
obtain, and submit evidence consistent with his burden under McNutt); (3) requiring the
government to supplement the jurisdictional record with relevant evidence helpful to the
Veterans Court in clarifying the jurisdictional issues; (4) providing an opportunity for the
parties to respond to the other’s evidentiary submissions (either through briefing or oral
argument); and (5) providing an opportunity for oral argument as it deems appropriate.
05-7113 8
Ohio App. 440, 443 (1993) (citing
Parmley, 2 Vet. App. at 384). It is, therefore, the
government’s responsibility under Rules 10 and 11 to provide “all material in the record
of proceedings before the Secretary and the Board that was relied upon by the Board
. . . and any other material from the record which the Secretary considers relevant.”
U.S. Vet. App. R. 10 (emphasis added). Where there is a jurisdictional dispute,
however, designation and transmission of the record does not occur until after the
Veterans Court has made its jurisdictional determination and taken jurisdiction over the
merits of the case. See, e.g.,
Sthele, 19 Vet. App. at 20; Bobbitt v. Principi, 17 Vet.
App. 547, 554 (2004). Because a veteran’s informational disadvantage is at least as
great, if not greater, at the jurisdictional stage of his case, it would be inconsistent to
allow the government to withhold records relevant to jurisdiction, thereby restricting his
very access to judicial review, while not so allowing with respect to records relevant to
the merits of the case. Accordingly, just as the government must provide the Veterans
Court (and the veteran) all records in its possession relevant to the merits of a case, so
too must it provide all records in its possession relevant to contested jurisdictional
issues.
Second, because the government maintains the records in a veteran’s claim file
and has the readiest access to DVA personnel and knowledge about its internal
operating procedures, it is necessary, as exemplified by Sthele, to place some duty on
the government to develop relevant facts in order to clarify the jurisdictional record. Cf.
Jensen, 19 F.3d at 1417. Here the government’s access to medical records of which
Barrett’s counsel was not aware, its history of treating and working with Barrett, and its
access to medical staff that is supremely qualified to make determinations of mental
05-7113 9
incapacity, put it in a unique position to know precisely what further medical evidence
will clarify the jurisdictional record.
When we consider the context in which judicial review occurs, it becomes even
more compelling to assign the government this role. Congress’ intent in crafting the
veterans benefits system is to award “entitlements to a special class of citizens, those
who risked harm to serve and defend their country. This entire scheme is imbued with
special beneficence from a grateful sovereign.” Bailey, 160 F.3d at 1370 (Michel, J.,
concurring); see also Jacquay v. Principi,
304 F.3d 1276, 1286 (Fed. Cir. 2002) (en
banc); Hensley v. West,
212 F.3d 1255, 1262 (Fed. Cir. 2000). “[I]n the context of
veterans' benefits where the system of awarding compensation is so uniquely pro-
claimant, the importance of systemic fairness and the appearance of fairness carries
great weight.” Hodge v. West,
155 F.3d 1356, 1363 (Fed. Cir. 1998). Indeed, it was for
the purpose of ensuring that veterans were treated fairly by the government and to see
that all veterans entitled to benefits received them that Congress provided for judicial
review through the Veterans’ Judicial Review Act (“VJRA”) of 1988 (codified as
amended at 38 U.S.C. §§ 7251-7298 (2000)). The government’s interest in veterans
cases is not that it shall win, but rather that justice shall be done, that all veterans so
entitled receive the benefits due to them. Cf.
Campbell, 365 U.S. at 96 (citations
omitted).
Accordingly, when, as here, a veteran alleges facts to show entitlement to
equitable tolling, thereby meeting his threshold burden under McNutt, see 298 U.S. at
189, and jurisdiction is called into question, consistent with its duty to ensure the reality
and appearance of systemic fairness and the rule in Jensen, the government must
05-7113 10
assist the court by providing and, where necessary, procuring further evidence helpful in
deciding jurisdiction, e.g., declarations, new medical examinations, and other forms of
evidence as appropriate. Cf. Adams v. Principi,
256 F.3d 1318, 1321-22 (Fed. Cir.
2001) (affirming the Veterans Court’s remand to the board for clarification as to the
import of evidence, holding that “clarification . . . can take the form of an explanation
from [the examining doctor] of his opinion, or if necessary supplemental medical
evidence”). The government shall make these submissions on its own initiative, upon
request of the veteran, or as required by the Veterans Court. If a veteran makes such a
request, the government may advert to the court for a determination that it is reasonably
necessary to deciding the jurisdictional issues before it. Cf. 38 U.S.C. § 5103A(a)(2)
(establishing a standard of reasonableness for determining when the Secretary is
required to provide assistance at the agency level under its duty to assist in developing
claims for benefits).
Here Barrett specifically requested a medical examination by DVA doctors to
clarify the nature of his mental incapacity during the appeals period. Because such an
exam will plainly assist in clarifying his entitlement to equitable tolling, is consistent with
the kinds of evidence uniquely within the knowledge and competence of the government
as contemplated by Jensen and Adams, and ensures the reality and appearance of
systemic fairness, the Secretary shall provide Barrett with his requested medical
examination, as well as any other assistance deemed reasonably necessary by the
Veterans Court. The Secretary must provide the Veterans Court with any additional
records in its possession that are relevant to the equitable tolling issue. Moreover, both
05-7113 11
Barrett and the Secretary should voluntarily provide the Veterans Court with any other
relevant evidence now in their possession or later obtained.
The government raises two principal objections, both of which are without merit.
First, it argues that because section 5103A relates to its duty to provide assistance
“necessary to substantiate the claimant’s claim for a benefit under a law administered
by the Secretary,” it is not required by that section to assist Barrett in developing
evidence that relates to jurisdictional issues. Because section 5103A does not provide
the basis for our holding, this argument is of no moment. It is only relevant that our
decision is not inconsistent with section 5103A. In Adams, while we rejected the
Secretary’s duty to assist (then codified at 38 U.S.C. § 5107(a) (2000)) as the
appropriate basis for a Veterans Court’s remand for “clarification as to the import of the
evidence,” we found that the remand was proper under its 38 U.S.C. § 7252(a) remand
power. 256 F.3d at 1321-22. Moreover, we stated, “While it may be that further
proceedings will result in a ruling in Mr. Adams’s favor and thus the remand will
ultimately assist him in obtaining benefits, the purpose of the remand is not principally to
assist Mr. Adams to support his claim, but to clarify [the contested legal issue].”
Id. at
1322. Indeed, our precedent, e.g., Santana-Venegas v. Principi,
314 F.3d 1293 (Fed.
Cir. 2002); Jaquay v. Principi,
304 F.3d 1276 (Fed. Cir. 2002) (en banc), and the
government’s practice before the Veterans Court, e.g., Sthele; Zo; Parmley, plainly
establish that (1) the entirety of the Secretary’s duties do not end once the board
renders a decision, and (2) governmental “assistance” during the judicial review process
that ultimately assists the veteran in obtaining benefits to which he is entitled is not
inconsistent with section 5103A.
05-7113 12
The government also argues that the Veterans Court has no jurisdiction to grant
Barrett his requested relief. However, it is axiomatic that “a court always has jurisdiction
to determine its own jurisdiction.” Rosado v. Wyman, 397 U.S. 397, 403 n.3 (1970); see
also Garcia v. Dep’t of Homeland Sec.,
437 F.3d 1322, 1331 (Fed. Cir. 2006) (en banc)
(citing Cruz v. Dep’t of Navy,
934 F.2d 1240, 1244 (Fed. Cir. 1991)); Henderson v.
West,
12 Vet. App. 11, 14 (1998).
In view of the Veterans Court’s authority to compel the government to produce
evidence uniquely within its knowledge and provenance relevant to clarifying
jurisdictional issues, its authority under section 7252(a) to remand as appropriate,
coupled with the authority of federal courts to order limited remands to clarify and further
develop issues on appeal, e.g., Yang v. McElroy, 277 F.3d 158, 162-64 (2d Cir. 2002), it
has the authority to order a remand for the government to procure and provide the
necessary jurisdictional evidence. However, we are mindful of the Veterans Court’s
practice of also adducing the necessary jurisdictional evidence through orders rather
than remands. E.g., Barrett III; Claibourne; Sthele. Therefore, we leave it to the court’s
sound discretion whether an order or a remand is the more appropriate mechanism to
develop the relevant jurisdictional facts and to ensure that Barrett receives the full and
fair hearing on jurisdiction that he is due.
Conclusion
Accordingly, the judgment of the United States Court of Appeals for Veterans
Claims is reversed, and the case is remanded for further proceedings in accordance
with this opinion.
05-7113 13
COSTS
Costs to appellant.
REVERSED AND REMANDED
05-7113 14
United States Court of Appeals for the Federal Circuit
05-7113
LARRY D. BARRETT,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
FRIEDMAN, Senior Circuit Judge, concurring in the judgment.
I join in the court’s judgment reversing the judgment of the United States Court of
Appeals for Veterans Claims (“Veterans Court”) and remanding the case for further
proceedings. I write separately because of my concern that the court’s opinion seems
to speak more broadly than is necessary to dispose of this case.
Unlike the administrative proceedings involving veterans benefits before the
Department of Veterans Affairs (“Department”), which are non-adversarial, the judicial
proceedings before the Veterans Court are fully adversarial. Before that Article I court,
the appellee usually is the Secretary of Veterans Affairs and ordinarily is represented by
the Department’s General Counsel. The proceedings before that court, like those
before other courts of the United States, are totally adversarial.
It seems anomalous, to say the least, to impose upon one of the parties in such
judicial proceedings the obligation to assist his opponent in presenting and trying to win
his case. Yet that is what certain passages in the court’s opinion appear to suggest, if
not require.
Thus, the court states that specified decisions of the Veterans Court “place a
duty on the government to come forward with jurisdictional evidence in its possession
and to develop additional facts uniquely within its competence, even though not part of
the veteran’s claim file”; that “it is necessary, as exemplified by Sthele, to place some
duty on the government to develop relevant facts in order to clarify the jurisdictional
record”; that “when, as here, a veteran alleges facts to show entitlement to equitable
tolling, . . . and jurisdiction is called into question, consistent with its duty to ensure the
reality and appearance of systemic fairness and the rule in Jensen, the government
must assist the court by providing and, where necessary, procuring further evidence
helpful in deciding jurisdiction, e.g., declarations, new medical examinations, and other
forms of evidence as appropriate. . . . The government shall make these submissions
on its own initiative, upon request of the veteran, or as required by the Veterans Court”;
and that “both Barrett and the Secretary should voluntarily provide the Veterans Court
with any other relevant evidence now in their possession or later obtained.”
If these statements are intended merely to indicate the scope of the requirements
the Veterans Court may impose on the Department as a litigant before it, I have no
problem with them. If, however, they are read to suggest or indicate that the
Department is obligated to take such action on its own, either voluntarily or in response
to the veteran’s request but without any directive from the Veterans Court to do so, I find
them troublesome.
05-7113 2
Before this court provides or recognizes such a fundamental change in our
adversarial system of judicial adjudication, I would think it would require a clear and
explicit expression of legislative intent to do so. It is 38 U.S.C. § 5103A that creates and
describes the Secretary’s “Duty to assist claimants” “in obtaining evidence necessary to
substantiate the claimant’s claim for a benefit under a law administered by the
Secretary.” 38 U.S.C. 5103A(a). I see nothing there that would require the Secretary
on his own initiative to take such action. To the contrary, those provisions seem to me
to address the Secretary’s duty to assist veterans only in handling their claims in the
non-adversarial administrative proceedings before the Department. When the case
reaches the stage of judicial review of the Secretary’s action before the Veterans Court,
however, I think the normal adversarial system prevails, so that neither side has any
obligation on its own to assist its opponent in handling the case on appeal.
In sum, I think that any duty the Secretary may have to assist the veteran in
handling an appeal before the Veterans Court is limited to compliance with the court’s
directives or requests, and does not also include an obligation to furnish information or
provide medical assistance on his own initiative or on request of the veteran. Although
the present case involves only a narrow issue involving the Veterans Court’s
jurisdiction, some language in the opinion appears to have broader and troubling
implications.
05-7113 3
