Citation Nr: 18145563 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 18-14 105A DATE: October 29, 2018 ORDER Entitlement to remote, read-only, access to automated VBA claims records for the Appellant’s unaccredited paralegals is denied. FINDINGS OF FACT 1. Unaccredited paralegals do not have a mandatory, enforceable right to remote, read-only access to automated VBA claims records. 2. The Secretary’s exercise of discretion in disallowing the Appellant’s unaccredited paralegals access to automated VBA claims records is not unreasonable. 3. The Appellant has not alleged any actual harm to a specific client as a result of VA disallowing his unaccredited paralegals access to remote, read-only, automated claims records. CONCLUSION OF LAW The criteria for entitlement to remote, read-only, access to automated VBA claims records for the Appellant’s unaccredited paralegals have not been met. 38 U.S.C. § 5904 (2012); 38 C.F.R. §§ 1.600-.603, 14.629-.635 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The instant case stems from a September 30, 2016 Order from the Court of Appeals for Veterans Claims (Court) granting in part a writ of mandamus directing the Secretary of Veterans Affairs to issue a decision on the Appellant’s request to permit his paralegal support staff remote access to automated claims records. Pursuant to the Court’s Order, VA denied the Appellant’s request in a March 2017 administrative decision. After the Appellant filed a timely notice of disagreement (NOD), VA issued a February 2018 statement of the case (SOC). The Appellant filed a timely VA Form 9 in March 2018, and did not request a hearing. The Board generally has jurisdiction to review “decisions by the Secretary under a law that affects the provision of benefits.” See 38 U.S.C. §§ 511, 7104(a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that 38 C.F.R. § 5904 is a law that affects the provision of benefits. See Bates v. Nicholson, 398 F.3d 1355, 1362 (Fed. Cir. 2005). The action of authorizing or denying access to electronic records for counsel seeking benefits on behalf of clients, and for staff assisting such counsel, is taken pursuant to 38 C.F.R. § 14.629, a regulation that was promulgated pursuant to 38 U.S.C. §§ 501(a) and 5904. As such, the Board has jurisdiction to consider the merits of the Appellant’s request for his unaccredited paralegal staff to have remote, read-only, access to automated claims records. As a predicate matter, the Board notes that VA’s Office of General Counsel (OGC) accepted the Appellant’s October 28, 2016 letter as a petition for rulemaking under 5 U.S.C. § 553(e) to revise 38 C.F.R. § 14.629 in a manner that would allow VA to provide electronic access to law firm support staff and remove the requirements for specific named consent to allow such disclosures. See May 2016 OGC correspondence. The record before the Board does not reflect the precise status of the petition. OGC has, however, represented that VA is in the process of reviewing the request. Id. Despite the pending rulemaking petition, the Board may proceed with adjudication of the appeal. The Court has indicated that potential changes brought about by the rulemaking petition “will not relieve the Secretary of his obligation to provide a decision on [the Appellant’s] request, whether under the current rules or subsequently amended rules.” Chisholm v. McDonald, 28 Vet. App. 240, 243 n.3 (2016). As such, the Board will proceed with adjudication without further delay. For the reasons that follow, the Board finds that there is no statutory or regulatory right that would require the VA Secretary to provide unaccredited paralegals with remote, read-only, access to VBA’s automated claims records. The Board further finds that the Secretary’s decision to disallow unaccredited paralegal and support staff access to such records is a reasonable exercise of the Secretary’s discretion, and is not arbitrary, capricious, or an abuse of discretion. 1. Interplay between §§ 1.600-.603 and § 14.629 The Board’s analysis begins with 38 C.F.R. §§ 1.600-.603, entitled “Expanded Remote Access to Computerized Veterans Claims records by Accredited Representatives” (2017) (emphasis added). The Appellant contends in part that these regulations allow for his unaccredited paralegals to have access to VBA’s automated claims records. Pursuant to the plain language of the regulation, § 1.600 provides for mandatory, remote, read-only access only to the inquiry commands of the Benefits Delivery Network, which provide access to beneficiary identification data and claims history and processing data. Id. The regulation goes on to provide the mechanism by which a representative may access the data. Specifically, access to that information “will currently be through BINQ, SINQ, MINQ, PINQ, and TINQ.” Id. Use of the words “will currently” imply that access to such data may change as those systems become obsolete. Nevertheless, in Green v. McDonald, the Court held that attorneys representing claimants in proceedings at the Court do not have a regulatory right, pursuant to 38 C.F.R. §§ 1.600-.603, to remote, read-only access to claimants’ Veterans Benefits Management System (VBMS) and electronic files. 28 Vet. App. 281, 294 (2016). Importantly, the Court maintained that “VBA automated claims records” or “automated claimants’ claims records” did not include VBMS files or a claimant’s electronic claims file within the meaning of §§ 1.600-.603. Id. at 290. In Green, the Court noted that VA faced new information security risks and is required to comply with federal law. Importantly, “[a]bsent any statutory obligation to provide remote access to veterans’ claims records, the Court will not, at this time, delve into the Secretary’s policies and procedures regarding remote access to VA’s internal networks and information systems.” Id. at 293. Hence, the Court assessed whether there was a regulatory right to remote, read-only, access to VBMS, and held there was not. The Board, while noting factual differences between Green and the instant case, does not see why the general principle and holding are not applicable to unaccredited paralegals. Even assuming, arguendo, that the holding in Green is inapplicable and 38 C.F.R. §§ 1.600-.603 grants mandatory, remote, read-only access to VBMS, it only does so for those applicants qualifying under § 1.601. Under § 1.601, the applicant for such access must be: (1) an organization, representative, attorney, or agent approved or accredited by VA under §§ 14.626 through 14.635; or (2) [a]n attorney of record for a claimant in proceedings before the Court . . . who requests access to the claimant’s automated claims records as part of the representation of the claimant. However, the regulation does not include unaccredited paralegals as a class that qualifies for mandatory, remote, read-only access. Moreover, the record does not show that the Appellant’s law firm qualifies as an “organization” or has applied for such status. The Appellant also argues that a Note to 38 C.F.R. § 14.629 allows for his paralegals to have access to electronic claims records. The Note to § 14.629 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 Veterans Benefits Administration automated records as described in §§ 1.600 through 1.603 in part 1 of this chapter. Note to 38 C.F.R. § 14.629 (emphasis added). Here, the Appellant does not dispute that he has been given access to VBMS through a personal password. Rather, he reads the Note in 38 C.F.R. § 14.629 as a way to grant unaccredited paralegals under his supervision remote, read-only, access to a Veteran’s electronic claims file. However, in the context of § 14.629 as a whole, while the Note allows VA to grant remote, read-only, access to unaccredited paralegals, such grant is not mandatory, but rather is made at the Secretary’s discretion, and subject to §§ 1.600-.603. The term “may” in the Note to § 14.629 gives the Secretary discretion to determine whether to grant unaccredited paralegals remote access to VA systems. See Tagupa v. McDonald, 27 Vet. App. 95, 99 (2014); Willis v. Brown, 6 Vet. App. 433, 435 (1994) (using the word “may” in a statute makes action discretionary; see also Stewart v. Brown, 10 Vet. App. 15, 18 (1997) (noting that an action is committed to the discretion of the Secretary where regulation uses word “may”). The Secretary contemplates unaccredited paralegals assisting in the preparation, presentation, or prosecution of a claim while supervised. However, this is conditioned on written consent furnished to VA. See 38 C.F.R. § 14.629(c)(3). The written consent must contain, among other information, the consent of the claimant for the use of the service of paralegals and for such individuals to have access to applicable VA records and the names of the paralegals who will be assisting in the case. The record does not contain the powers of attorney for each Veteran the Appellant represents, and the Appellant has not represented that each of his 21-22a forms list each paralegal he wishes to have access to VBMS. As a result, the Appellant has not shown that VA is authorized to directly grant access to a Veteran’s electronic file without violating the Privacy Act. 5 U.S.C. § 552a (2012). Moreover, the Secretary has cited several reasons for not permitting unaccredited paralegals remote, read-only, access to VBMS and other electronic Veteran records. In a September 2015 letter, VA’s Deputy General Counsel for Legal Policy, responding for the Secretary, cited Privacy Act and administrative feasibility concerns with allowing unaccredited paralegal and support staff to have electronic access. See September 2015 Deputy General Counsel correspondence. According to the Deputy General Counsel: To the extent that a claimant is willing to provide written authorization for [unaccredited paralegals] to obtain read-only access to his or her VA records, VA cannot permit employees to use an attorney’s code to access VBMS because VA is unable to limit an employee’s access solely to the records of a claimant who has provided written authorization for disclosure to that employee. Rather, use of an attorney’s code would allow an employee to access the records of all claimants whom the attorney represents, which would violate the Privacy Act if all clients did not assent to disclosure of their records to the employee. It is also administratively infeasible for VA to allow employees to use an attorney’s access code because new written authorization would be required from a firm’s clients each time there is a change in personnel at the firm. September 2015 Deputy General Counsel correspondence. The Board finds that the Secretary’s concerns are not unreasonable. Congruently, the Court in Green also found that “[w]ith advancements in technology, VA faces new information security risks and is required to comply with FISMA, HSPD-12, and NIST minimum security standards.” 28 Vet. App. at 293. It is possible the assumptions and factual premises underling the Court’s decision in Green and the Deputy General Counsel’s correspondence have changed. However, as currently written, the law does not compel the Secretary to grant remote, read-only, access to unaccredited paralegals. Even assuming, arguendo, that 38 C.F.R. §§ 1.600-.603 and 14.629 allow the Secretary to grant remote, read-only, access to unaccredited paralegals, the plain language of § 1.600 states that §§ 1.600 through 1.603 do not create, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law against and the United States or the Department of Veterans Affairs. 38 C.F.R. § 1.600(d)(2). Hence, the Secretary’s discretion in this regard has not been improperly exercised. 2. Privacy and Administrative Concerns The Appellant argues that the Secretary’s privacy concerns are unfounded. See March 2018 Substantive Appeal, at 10. He notes that at oral argument in Chisholm v. McDonald, 28 Vet. App. 240, 241 n.2 (2016), VA conceded that an attorney is permitted to retrieve automated claims documents from VA’s online systems, and then share hard copies of these documents with his staff, even when such staff are not accredited to represent claimants before VA. Id. However, in the same footnote, the Court also noted that the Deputy General Counsel explained that: under 38 C.F.R. § 14.629(c)(3), for a paralegal to assist in the preparation, presentation, or prosecution of a claim, “the claimant’s written consent” must be provided to VA, and “[s]uch consent must specifically state that participation in all aspects of that claim by a . . . paralegal furnishing written authorization from the attorney of record is authorized.” Id. In addition, pursuant to § 14.629(c)(3), the claimant’s written consent must include, among other requirements, the consent of the Veteran for the use of the services of paralegals and for such individuals to have access to applicable VA records, and the names of the paralegals who will be assisting in the case. Here, as stated above, the record does not contain the powers of attorney for each Veteran the Appellant represents, and the Appellant has not represented that each of his 21-22a forms list each paralegal he wishes to access VA’s systems. Nevertheless, once VA has disclosed records to those approved under § 14.629, and fulfilled its obligations under the Privacy Act, the relationship between the Veteran and the Appellant controls further disclosure between them. With limited exceptions, the Privacy Act provides that “[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” 5 U.S.C. § 552a. Upon request, the agency shall permit an individual “to review the [individual’s] record and have a copy made of all or any portion thereof.” 5 U.S.C. § 552a(d) (emphasis added). To carry out the provisions of section 552a, Congress required each agency that maintains a system of records to promulgate rules, which shall, among other things, “establish procedures for the disclosure to an individual . . . of . . . record[s] or information pertaining to [the individual].” 5 U.S.C. § 552a(f)(3) (emphasis added). Congress allows VA to provide access to records to a representative in certain circumstances, but generally requires VA to protect the confidential and privileged nature of such records by providing adequate information security in its electronic systems. 38 U.S.C. §§ 5701(a), (b)(1), 5722(b) (requiring VA to “protect the confidentiality, integrity, and availability” of its information systems and the information therein). VA has implemented this statutory authority and complied with other applicable restrictions on access to government records by providing records access to VA-accredited attorneys, claims agents, and Veterans Service Organization representatives. The Appellant argues, however, that any potential privacy concerns are outweighed by attorneys’ and representatives’ interests in allowing unaccredited paralegals access to electronic files. However, the Secretary is in the best position to assess and balance these concerns. Here, VA has considered the arguments supporting the Appellant’s position, and while it recognizes that instantaneous paralegal access to a Veteran’s claims file could be advantageous, the Secretary has not improperly exercised his discretion. Further, VA would incur additional administrative burdens in terms of establishing and policing access of a new group of unaccredited individuals to a system that was not designed to accommodate access by such individuals. See, e.g., 38 U.S.C. §§ 5723 (explaining the responsibilities of VA personnel in maintaining VA information systems), and 5724 (providing that VA shall provide credit protection services as a result of a breach). As a result, the Board finds that the Secretary’s privacy and administrative concerns are not unreasonable, arbitrary, capricious, or an abuse of discretion. 3. Competence and Diligence The Appellant also argues that VA’s decision not to grant remote, read-only, access to his unaccredited paralegals violates 38 U.S.C. § 5904 and 38 C.F.R. §§ 14.629, 14.632. Specifically, he argues that he cannot competently and diligently represent his clients consistent with state ethical rules without his paralegal’s having remote, read-only, access to his clients’ files. See March 2018 Substantive Appeal, at 2. In other words, he argues that VA’s decision opens him to potential malpractice suits and unreasonably hinders his law practice. However, he has not alleged a specific instance where he has been unable to render effective counsel; rather, he relies on hypothetical situations that have no basis in fact. Specifically, according to the Appellant, if an unaccredited paralegal is unable to remotely access a client’s file, “[a] number of adverse consequences could also occur: an appeal deadline may be missed, the time within which to submit a hearing request may pass, or an opportunity to challenge the propriety of VA’s action may be forfeited. As a result, my client may be irreparably harmed.” See March 2018 Substantive Appeal, at 3 (emphasis added). Nevertheless, the Appellant himself has remote, read-only, access to VBMS and the record does not reflect a single bar complaint or adverse action from a professional ethics tribunal regarding deficient conduct. The Appellant has a growing, successful law practice that, to the Board’s knowledge, has not been disciplined for incompetence or lack of diligence. Hence, the relationship between VA’s decision not to grant unaccredited paralegals access to VBMS and the competence mandated by Congress and state ethical rules is far too attenuated. The Appellant also claims that not granting remote, read-only, access to his unaccredited paralegals would curtail his ability to learn of decisional documents, which in turn may lead to malpractice. See March 2018 Substantive Appeal, at 7. In support of his argument, the Appellant cites to an Affidavit from D.B.R., the Executive Director of the National Organization of Veterans’ Advocates (NOVA). See D.B.R. Affidavit, at 1. In her Affidavit, D.B.R. alleges that some “representatives” have told her that, on some occasions, “VA staff concludes that the representative’s access to [VBMS] was sufficient to put the representative on notice of decisional documents affecting their claimants.” See February 2018 D.B.R. Affidavit, at 2. The Affidavit also alleges that after communicating with “numerous representatives accredited to represent claimants before VA,” D.B.R. has noticed that VA is “not regularly mailing copies of decisional documents to claimants’ representatives in accordance with 38 U.S.C. § 5104.” Id. at 1. However, the Board is not aware of a new policy or law instructing VA to disregard 38 U.S.C. § 5104, or to not mail decisional documents to representatives. VA has a duty to notify a claimant and his or her representative in writing of decisions affecting the payment of benefits or granting relief, as well as the date the decision is effective and “the periods in which an appeal must be initiated and perfected.” See 38 C.F.R. § 3.103(f). The record does not support the notion that VA has not mailed the Appellant notice as to his clients. The Appellant then goes on to argue that procedural documents uploaded to the electronic file without the requisite mailing may constitute notice as to the procedural documents, and start the clock on statutory deadlines. See March 2018 Substantive Appeal, at 7. The Appellant interprets Matthews v. Principi, 19 Vet. App. 23, 29 (2005) as holding that a representative’s receipt of a Veteran’s physical claims file puts the representative on notice of all decisional documents contained in it as of the date of receipt of the file. See March 2018 Substantive Appeal, at 7. The Appellant’s reliance on Matthews is misplaced. Matthews involved a claims file that was forwarded to newly retained counsel who knew a statement of the case (SOC) had been issued before he requested and received the claims file, such that the reasonably prudent counsel would know that the SOC should be contained in the claims file. In those limited circumstances, receipt of the claims file cured any defective mailing of the SOC to the previous representative. See Id. at 25, 29 (emphasis added). Thus, the Board does not see how this holding applies to the Appellant’s situation, and the Appellant has not cited an instance where he missed a deadline because his unaccredited paralegals could not access VBMS or other pertinent records electronically. Ultimately, then, the Appellant cites to practical considerations in efficiently running his law firm. Specifically, he states the following: It is simply unrealistic, and antithetical to the standard operation of law firms today, to expect only myself and the accredited representatives with remote claims records access within my office to monitor the status of all my clients’ files without the assistance of paralegals. My practice involves representing hundreds of claimants before VA. The denial of my request for access means that my paralegals cannot assist in the vast majority of the work that my practice requires: retrieving client documents from VA’s records systems, monitoring electronic claims files to become apprised of any decisions rendered, being able to respond to such decisions with timely appeals, and learning the status of pending claims, just to name a few. The accredited representatives within my office cannot be expected to bear the sole responsibility for all of these tasks. There are simply too few hours in the day for only those persons in my office with remote records access to monitor the status of hundreds of cases, to obtain all time-sensitive documents, and to pass that information on to my paralegals. To find otherwise entirely misunderstands the role of a supervising attorney, such as myself, and my ability to delegate tasks to paralegals. March 2018 Substantive Appeal, at 8-9. The Board is not entirely unsympathetic to the Appellant’s argument that the Secretary’s denial of VBMS access to his paralegal staff makes his law practice run less efficiently than he would prefer. However, the Board is not privy to policy or law changes interpreting 38 C.F.R. § 5104 in such a way that erodes Veterans’ procedural rights. Importantly, the Appellant has not represented that his clients have missed a statutory deadline, that VA has not provided notice on decisional documents, or that he himself does not have access to his clients’ electronic claims files. The Board acknowledges that the Appellant requested a list of cases in which VA: issued a Rating Decision, including the award letter; an SOC; or supplemental statement of the case (SSOC) from October 1, 2014 up to the completion of the request, where he has the power of attorney, and where the evidence intake center has served as the mailing point for such documents through the Freedom of Information Act (FOIA). The Acting Chief Counsel denied the request after appeal, and informed the Appellant that he has the right to file a complaint in an appropriate United States District Court. The record does not reflect that the Appellant has done so. In addition, the record does not show that the Appellant made such a request through the Privacy Act. Consequently, the Appellant’s arguments speak to convenience and preferred methods of obtaining his clients’ electronic files. While the Board understands the potential inconvenience involved in representing claimants before VA in a modern, high volume, practice without unaccredited paralegals being able to access VA computerized systems, such does not foreclose the Secretary’s discretion. Even if claims files become fully electronic, and the Court has urged VA in the past to reconsider its protocols and procedures governing access, the Court has also said it would not “delve into the Secretary’s policies and procedures regarding remote access to VA’s internal networks and information systems” as recently as two years ago. Green v. McDonald, 28 Vet. App. 281, 293 (2016). Ultimately, this case comes down to the Appellant’s disagreement with the Secretary’s policy not to grant remote, read-only, access to a class of unaccredited individuals. The Secretary, through his Deputy General Counsel for Policy, has cited to legitimate privacy and administrative concerns, and his use of discretion in this regard is not unreasonable. Hence, the Appellant’s request for his unaccredited paralegals to have remote, read-only, access to automated claims records is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel