Kenneth M. Carpenter and Robert v. Chisholm v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-1136

KENNETH M. CARPENTER, APPELLANT,

AND

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 February 24, 2021)

Charles S. Dameron, with whom Jay I. Alexander, Daniel J. Farnoly, John Niles, and

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

Nathan P. Kirschner, with whom William A. Hudson, Jr., Acting General Counsel; Mary

Ann Flynn, Chief Counsel; and Selket N. Cottle, Deputy Chief Counsel, were on the brief, all of

Washington, D.C., 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 who help firm attorneys pursue these claims. Mr. Carpenter's firm also employs non-

paralegal support staff who assist with these claims. Some of the paralegals are not VA-accredited

and none of the other support staff are accredited. Mr. Carpenter and Mr. Chisholm both requested

remote, read-only access to automated VA claims records for these unaccredited employees.

Ultimately, in separate decisions, the Board of Veterans' Appeals denied remote, read-only access

to automated VA claims records for Mr. Carpenter's unaccredited paralegals and staff and Mr.

Chisholm's unaccredited paralegals. Appellants through counsel appealed these decisions.1

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,2 to decide whether

VA's categorical bar to remote, read-only Veterans Benefits Management System (VBMS)3 access

to unaccredited paralegals and staff 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.

We find 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;

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,

such that they could not competently represent their clients, or by any alleged record deficiencies.

Thus, we will affirm the Board's decisions.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

A. Mr. Carpenter's Appeal

In June 2016, Mr. Carpenter requested VBMS access for his unaccredited support staff and

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

1

The appellants filed an unopposed motion to consolidate. The Court granted the motion and consolidated

the appeals under docket number 19-1136.

2

Although appellants filed an opposed motion for oral argument, that motion is moot because the Court

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

3

"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).

2

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

revise 38 C.F.R. § 14.629 in a manner that would allow VA to provide remote access to

unaccredited 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 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 remote,

read-only access to automated VBA claims records for Mr. Chisholm's unaccredited paralegals.

R. at 369-82.

C. The Board Decisions

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

entitlement to remote, read-only access to VA claims records for their unaccredited paralegals,

and, in Mr. Carpenter's case, for his support staff as well. 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. 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

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§§ 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 denial of access violates 38 U.S.C. § 5904 and 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

cited only hypothetical harm. R. at 9, 377-78. The Board thus concluded that the relationship

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

obligations was too attenuated. R. at 9, 378. Turning to appellants' arguments based on the practical

considerations of efficiently running a law firm, the Board stated in part that the appellants had not

cited a specific instance in which their clients missed a statutory deadline, VA had not provided a

decisional document, or that they 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 and 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

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

that he 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 issuance of the final rule, allowing the appellants the chance to directly

challenge the rule at the U.S. Court of Appeals for the Federal Circuit under 38 U.S.C. § 502.

Secretary's Response (Resp.) at 2. The Secretary contended that 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 in which to publish the final rule and urged 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 being 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, it 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. It 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 if or

when final rules will be published and what they might provide, we conclude that a stay of

proceedings is not in the interests of judicial efficiency.

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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 Rule 10 motion and the Court thus did not need to analyze

§§ 1.600-.603 to answer the question presented there. Id. at 16-18. In the alternative, they argue

that Green is not controlling because 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 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, Green is controlling, and 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 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) (2020). Section

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

location other than a regional office must be:

(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) (2020).

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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:

(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 (2020).

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. Green, 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. at 283 & 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. He also argued that,

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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.

28 Vet.App. 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 not include VBMS files or a claimant's electronic claims folder." Id. at 290. The

Court 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. As noted above, the appellants argue that

Green's interpretation of §§ 1.600-.603 was void ab initio or dicta. Appellants' Br. at 16-18. They

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 Court to 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 accreditation before obtaining remote VBMS access. Id. They

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 argue further that, even if the Green decision is not a nullity, its analysis of

8

§§ 1.600-.603 is dicta because it was unnecessary to the Court's decision on a Rule 10(d) motion.

Id.

As stated above, in Green, Mr. Chisholm's law firm, which represented 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 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 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 is requesting access to them.

In other words, even though the situation here involves different individuals than in Green, that

does not change the applicability of its holding that automated claims records, as noted in § 1.600,

do not include VBMS, no matter who is accessing them.

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2. Self-abrogation

The appellants also argue that Green's analysis of §§ 1.600-.603 has self-abrogated, given

that VA's technological landscape has changed. Appellants' Br. at 18-20. As stated, § 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

the inquiry commands of the [BDN]." Although the Court is limited in what material it may review,

see 38 U.S.C. §§ 7252(b), 7261(c), we acknowledge that there have been some changes to VA's

technological landscape since 2008, when § 1.600 was last updated.

For example, a September 2016 VA letter reflects that 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 this was to "ensure VA's

regulations stay current regardless of future IT developments" and that it 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 if a final rule will

10

be published). 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—that when the reason of

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

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

678, 699 (2001), and two non-binding 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 the time that such updates occur,

the Court will not disregard the current regulations' language, and Green's interpretation of that

plain language, based on underdeveloped arguments and extra-record evidence annexed to the

appellants' brief (discussed below). See 38 U.S.C. § 7261(a)(1) (providing that the Court may

interpret regulatory provisions); 38 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").

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 September 2016 VA letter cites no statutory or regulatory

authority. See R. at 51-54; id. (the letter also does not mention access for unaccredited attorneys

practicing before the Court, even though § 1.601 states that remote VBA automated claims records

access 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

consider §§ 1.600-.603 as including VBMS and that VA follows the same protocols as when we

issued Green, including requiring a PIV card for access to its systems. Oral Argument at

35:30-37:30; id. at 43:52-44:32 (noting that 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 contrary position" to VA treating VBMS e-folders

as constituting VBA automated claims records, Appellants' Br. at 18, they provide no analysis or

11

citation to 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 maintain that the "dispositive fact" in Green was that "the only way"

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

systems" and, again citing extra-record evidence, they 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 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.

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.

Doing so here, the appellants' arguments that VA's categorical bar against VBMS access for

unaccredited paralegals and support staff violates the note to § 14.629 must fail. Appellants' Br. at

13-16. As stated, § 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." 38 C.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 individuals' access to VBMS would not be related to the regulations.4

4

The Court notes that, although the note to § 14.629 lists paralegals, there remains a question about whether

that note includes other law firm 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 them, like paralegals, barring their

access to VBMS is unrelated to the regulations at issue (§§ 1.600-.603).

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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 (September 2016 VA letter), the appellants focused

their 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 much 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),

we decline to do so under these circumstances. Finally, although 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

13

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 hypothetical situations rather than specific instances of when they could not provide

effective counsel. R. at 9; see R. at 378.5 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 Shinseki

v. Sanders, 556 U.S. 396, 409 (2009) (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 federal court must demonstrate 'actual injury redressable by the

court'" (quoting Simon v. Eastern Kentucky Welfare Rights 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, where he contended 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 in Green is

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

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

5

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

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

or that they were unreasonable. R. at 12, 381.

14

that access could only be obtained 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).6

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. But they do not dispute that their arguments reflect potential harm and,

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

Appellants' Br. at 23 (mentioning, e.g., clients missing a deadline), they do not proffer what

standard should apply, nor elaborate any further on their assertion.

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

to balance law firms' needs with VA's concerns—such as VA accrediting all paralegals7 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.

6

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.

7

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

R. at 408.

15

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,

6 Vet.App. 360, 365 (1994); (2) their arguments were not developed, see Locklear, 20 Vet.App. at

416; 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. Further, to the extent that they

suggest that remand is necessary by contending that their constitutional argument contains an

"as-applied" 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 addition to and omission from the

claims files of certain documents—violated 38 U.S.C. § 7104(a) (that 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. They 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 respective 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 obtaining access 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

16

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.8

The appellants claim that VA added the following documents to their paper claims files

without disclosing when and why, 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 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 necessary 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

the original of Mr. Chisholm's 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 the original of Mr. Chisholm's Substantive Appeal and

that the brief's citation is to 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, with the exception of the September 2016 letter and the extra-record evidence

annexed to their opening brief,9 absent from the appellants' briefs is any specific assertion

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

8

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 as to 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 regarding 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)).

9

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). However, as indicated above, the appellants are

mistaken as to the role VA's security concerns played in Green and they have not shown on what basis we may ignore

the plain language of the regulations.

17

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

Board's decision making. Without more of an 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.10

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

prejudicial. Appellants' Br. at 29-30 (citing Simmons v. Wilkie, 30 Vet.App. 267, 281-82 (2018)).

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

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 decision-maker 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.

10

Although the appellants bear the burden of demonstrating prejudice, we find our conclusion here particularly

true with respect to (1) 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 referenced the September 2015

letter 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, which the appellants essentially

abandoned here on appeal, see ante at 13.

Likewise, with respect to the omitted documents, this is particularly true where (1) 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 files show that those emails were simply

communications between the appellants and VA about 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).

18

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 October 31, 2018, Board decision denying entitlement

to remote, read-only access to automated VA claims records for Mr. Carpenter's unaccredited

paralegals and staff and the October 29, 2018, Board decision denying entitlement to remote,

read-only access to automated VBA claims records for Mr. Chisholm's unaccredited paralegals are

AFFIRMED.

19