Lead Opinion
FARLEY, Judge, concurring in the result, and MANKIN, Judge, concurring in part and dissenting in part, file separate opinions.
Appellant, Gool Counts, appeals the April 15, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which determined that new and material evidence had not been submitted to reopen appellant’s claims of entitlement to service connection for residuals of an eye injury, a neck injury, a left hip injury, a left leg injury (other than the left knee scar), and a hiatal hernia. Appellant served on active duty from July 1943 to December 1945. This Court has jurisdiction under 38 U.S.C. § 7252(a). In addition to the specific determination by the BVA, appellant’s brief also raises the issue of a violation of the VA’s duty to assist and the issue of clear and unmistakable error (CUE). Inherent in the former, in part, is the question of the scope of such duty in relation to private records under 38 U.S.C. § 5107(a) and 38 C.F.R. § 3.159 (1993). For the reasons set forth below, the Court affirms the BVA decision. The relevant facts are discussed in the context of each issue.
I. New and Material Evidence
Pursuant to 38 U.S.C. § 5108, the Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b). On claims to reopen previously and finally disallowed claims, the BVA must conduct a “two-step analysis” under sectiоn 5108. Manio v. Derwinski,
The Court recently synthesized the applicable law as follows:
“New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin [v. Derwinski,1 Vet.App. 171 , 174 (1991) ], ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.
Cox v. Brown,
The Court finds that the BVA correctly determined that appellant had not submitted new and material evidence since the Board last denied his claims in July 1987. On appeal, appellant contended that two records from the Surgeon General’s Office submitted by appellant in 1988 constitute new and material evidence. Br. at 14-16. One record shows that appellant was hospitalized in April 1944 following a motor vehicle accident, and the other reflects that a veteran with the same service number as appellant
II. Duty to Assist
Despite the finding that appellant did not submit new and material evidеnce to reopen his claims, this Court’s decisions in White v. Derwinski,
First, appellant points to an undated branch separation center document which states, “A Board of Review has considered this ease ..., dated 10 September] 1945_ Its findings indicate that hospitalization for further study, treatment, and/or disposition is necessary,” R. at 247, and hе argues that this language suggests that documents are missing from the record on appeal, Br. at 14-19. The bottom of this separation center document indicates a final diagnosis of “[n]asopharyngitis, acute, mod[erately] s[e]v[ere].” R. at 247. Subsequent hospital records, also included in the record on appeal, contain an entry dated December 10, 1945, which states that appellant had complained “[f]or the past five days ... of a sore throat, hoarseness, coughing, running nose, pain in the chest interiorly and pain in the back.” R. at 250. Another entry, dated December 11, 1945, notes, “Temperature Pulse Normal. Patient has recovered from nasopharyngitis acute catarrhal moderate. He has no complaints and is feeling fine. Discharge to [separation [c]enter.” Id. Upon reviewing these records, the Court finds that the duty to assist has not been breached. There has been no showing that any records, either missing or described in this paragraph, relate to a disability for which appellant is presently seeking benefits, and no such relationship can be perceived on the face of the described documents. Furthermore, there are records which postdate the separation center document which show that the hospitalization deemed neсessary in such document not only took place, but that at the end of such hospitalization, appellant had recovered from the specified condition. R. at 250; see 38 U.S.C. § 5107 (“Secretary shall assist ... a claimant in developing the facts pertinent to the claim”) (emphasis added); 38 C.F.R. § 3.103(a) (1993); Godwin v. Derwinski,
Second, appellant states that “the record clearly indicates that x-rays were taken in the course of [his] pre-discharge physical examination. The BVA has not obtained these x-rays.” Br. at 19. Appellant’s pre-discharge examination, dated November 30, 1945, indicates “no significant abnormalities” with respect to a chest x-ray, and notes that “x-rays of left shoulder and spine [are] essentially negative.” R. at 12, 14. The Court finds that since the relevance of these documents has not been shown and is not readily apparent, the Court cannot find a breach of the duty to assist. See 38 U.S.C. § 5107(a); 38 C.F.R. § 3.103(a); Godwin,
Fourth, appellant points to statements from private physicians, R. at 326, 330, and states that while the “BVA relied upon [these] letters, [it] did not request their complete records.” Br. at 19. The Court notes that the statements referenced by appellant primarily address his back condition, with one also “explain[ing]” that his left hip pain was secondary to his back condition. R. at 326, 330. Again, the Court finds that the BVA did not violate the duty to assist where appellant made no showing as to the relevance of thesе records and their relevance is not readily apparent since the issue of entitlement to service connection for appellant’s back condition was not before the BVA and is not presently on appeal. In addition, by their description, it appears that such records would be merely cumulative of the letters already of record. See 38 U.S.C. § 6107(a); 38 C.F.R. § 3.103(a); Godwin,
Appellant’s third and fourth arguments pertain to the VA’s alleged failure to assist appellant in procuring private records. Since appellant does not aver that he specifically requested the VA, at any time, for assistance in obtaining these private documents, his arguments raise the underlying issue of the scope of the VA’s duty to assist in obtaining them.
A review of this Court’s jurisprudence reveals a lack of clarity in specifying the obligations of a claimant and of the VA regarding the obtaining of private records once the duty to assist is triggered, either with respect to an original claim or a claim for reopening. See, e.g., Murphy v. Derwinski,
In an attempt to clarify our jurisprudence, the Court begins with the relevant language of the statutory and regulatory bases for the VA’s duty to assist:
§ 5106. Furnishing of information by other agencies
The head of any Federal department or agency shall provide such information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto.
38 U.S.C. § 5106.
§ 5107. Burden of proof; benefit of the doubt
(a) .... a person who submits a claim for benefits ... shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The Secretary shall assist such a claimant in developing the facts 'pertinent to the claim. Such assistance shall include requesting information as described in section 5106 of this title.
38 U.S.C. § 5107 (emphasis added).
§ 3.159 [VA] assistance in developing claims.
(a) Although it is the responsibility of any person filing a claim for a benefit ... to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded, the [VA] shall assist a claimant in developing the facts pertinent to his or her claim....
(b) When information sufficient to identify and locate necessary evidence is of record, the [VA] shall assist a claimant by requesting, directly from the source, existing evidence which is either in the custody of military authorities or maintained by another Federal agency. At the claimant’s request, and provided that he or she has authorized the release of such evidence in a form acceptable to the custodian thereof, the [VA] shall assist a claimant by attempting to obtain records maintained by State or local governmental authorities and medical, employment, or other non-government records which are pertinent and specific to the claim.
38 C.F.R. § 3.159 (emphasis added).
The statute, 38 U.S.C. § 5107(a), speaks in terms of developing all pertinent facts, including obtaining information in the possession of the Federal Government. In addition to section 5106 facts, the regulation, 38 C.F.R. § 3.159, speaks in terms of obtaining pertinent non-federal records. The regulation is also more specific than the statute in that it specifies a process, involving the claimant’s request and authorization, by which to obtain the VA’s assistance in securing non-section 5106 facts. In sum, the statute, in part, directs what non-section 5106 facts to develop, i.e., pertinent facts, and the regulation directs how to obtain them. Since the statute encompasses the development of all pertinent facts, including those not covered by § 5106, and the regulation simply sets forth the process by which non-section 5106 facts are obtained, there is no inconsistency between them. See 38 U.S.C. § 7261(a)(3)(C) (empowering the Court to “hold unlawful and set aside ... regulations issued or adopted by the Secretary, the [BVA], or the Chairman of the Board found to be ... in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right”); see, e.g., Talley v. Derwinski
Giving effect to the language of the regulation, the following construct emerges which delineates the scope of the VA’s duty to assist in obtaining non-section 5106 records: if the claimant wants the VA to consider documents not in the possession of the Federal Government, the claimant must (1) furnish them to the VA, or (2) request the VA to obtain them, provide an appropriate release for such purpose, and demonstrate how the documents are relevant to the claim.
Turning to the case at issue, because appellant did not raise before the BVA the issue of whether he improperly had not been notified of the requirements of 38 C.F.R. § 3.159(b), it is open to question whether the issue is ripe for review at this time. Cf. Rosalinas v. Brown,
Appellant also argued on appeal that the BVA failed to “rule on” his claim of CUE. Br. at 16; see also Reply Br. of Appellant. Appellant contends that the VA’s trеatment of his separation examination as “complete” and “dispositive” was faulty since he “was not seen by a surgical consultant regarding his hernia,” and that “the Board of Review never submitted its findings regarding his reported disabilities.” Br. at 16. First, appellant’s present CUE claim does not satisfy the requirements of pleading CUE under Fugo v. Brown,
IV. Conclusion
For the reasons stated above, the Court holds that appellant has not demonstrated that the BVA committed either factual or legal error which would warrant reversal or remand. See Gilbert v. Derwinski
Concurrence Opinion
concurring:
I concur in the judgment and I specifically concur in the holding that the Secretary did not breaсh the duty to assist imposed by 38 U.S.C. § 5107(a). I write separately because I have come to the view that this Court has created a concept of “duty to assist” which is at once too broad to be fulfilled in practice by the VA and not justifiable as a matter of statutory construction. While I applaud the courage of Judge Kramer in attempting to bring clarity to our decisions in this area, I believe that he addresses mere symptoms rather than the systemic disease and that he applies only a “Band-Aid” when major surgery is required.
I.
The opening sentence of Part II of Judge Kramer’s opinion, which discusses our jurisprudence concerning the Secretary’s duty to assist under 38 U.S.C. § 5107(a), reads as follows:
Despite the finding that appellant did not submit new and material evidence to reopen his claims, this Court’s decisions in White v. Derwinski1 Vet.App. 519 (1991), and Ivey v. Derwinski2 Vet.App. 320 (1992), stand for the proposition that, even absent the submission of new and material evidence, the duty to assist may still be triggered under appropriate circumstances.
Ante at 476. My quarrel is not with this characterization, which is faithful to White and Ivey, but with the respective holdings in those cases.
Although White was severely cabined by limiting language in the body of the opinion (“the issue ... [is] a very narrow one”), 20/20 hindsight reveals overly broad language in the conclusion which, having been on the panel, I now wish I had challenged at the time. But if White did stretch 38 U.S.C. § 5107(a) a bit, Ivey warped it completely out of shape in holding that “[w]hile the evidence submitted by the veteran was inadequate to reopen his claim, it was sufficient to trigger the duty to assist.”
The concurring opinion in Ivey was more imaginative. It invented a “well-grounded
That the Ivey version of duty to assist is now virtually limitless can be seen from a sentence in a recent panel opinion in Caffrey v. Brown,
II.
For me, the proper analysis is simple and in keeping with the “chronological obligations” which we have held are established and allocated by 38 U.S.C. § 5107. See Schroeder v. Brown,
A claimant has the initial burden of “submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim.” 38 U.S.C. § 5107(a) (emphasis added). As we have definitivеly held, the submission of a well-grounded claim is “a prerequisite to the triggering of the duty-to-assist obligation under section 5107(a).” Godwin v. Derwinski
Pursuant to 38 U.S.C. § 7104(b), a denied claim “may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” See also 38 U.S.C. § 7105(e) (if a Notice of Disagreement with a Regional Office denial is not filed within one year, “the action or determination shall become final and the claim will not thereafter be reopened or allowed ... ”). Since a finally denied claim can be neither reopened nor allowed, and a new claim based upon the same rejected facts cannot even be considered, it necessarily follows that the original claim is no longer well grounded undеr § 5107(a) because it is no longer “a plausible claim, one which is meritorious on its own or capable of substantiation.” Murphy, supra. Therefore, a final denial of a claim eliminates the “prerequisite,” the trigger for the imposition of the Secretary’s § 5107 duty to assist. Godwin, supra.
A claimant can only reopen a disallowed claim by shouldering the burden of presenting “new and material evidence.” 38 U.S.C. § 5108. Such evidence “must” create “a reasonable possibility that the outcome would differ when the new evidence [is] considered in light of all the evidence.” Justus v. Principi
In my view, thеrefore, 38 U.S.C. § 5107 does not impose a duty to assist upon the Secretary unless or until a claimant presents a well-grounded claim. Similarly, unless or until a finally-denied claim has been reopened upon the submission of new and material evidence under 38 U.S.C. § 5108, there is no well-grounded claim pending and no duty to assist. Of course, Congress could well create and impose upon the Secretary a universal duty to assist any and all claimants by eliminating the “burden” language in 38 U.S.C. § 5107(a) and (b), and further require the Secretary to assist, upon request, all claimants whose claims have been finally denied in gathering new and material evidence. Such a step would certainly be within the province of the legislative branch; it is not, however, within the province of this Court and because we have done so, I suggest we have gone too far.
III.
In the case presently before us, Judge Kramer does not address whether the Secretary was under a statutory duty to assist appellant and, indeed, he did not have to because of the global holding in Ivey. Relying upon 38 U.S.C. §. 5107(a), he holds that, with respect to records in the possession of the government, the Secretary’s duty to assist arises only when a claimant demonstrates the relevance of such records. As to records which are not in the possession of the Federal Governmеnt, Judge Kramer effectively holds that the Secretary imposed a duty to assist upon himself by promulgating 38 C.F.R. § 3.159. Focusing solely upon § 3.159(b), he decrees that the duty to assist arises only after such records have been furnished by the claimant to the VA (Query: what remaining assistance could the Secretary provide in such an instance?) or the claimant requests the VA to obtain them, furnishes a release, and demonstrates relevance. Finding that appellant failed to overcome these “relevance” hurdles with respect to both government and non-government records, Judge Kramer holds that the Secretary did not breach the duty to assist imposed by 38 U.S.C. § 5107(a).
I do not disagree with Judge Kramer’s announcement of a barrier of relevance as symptomatic relief. Such a step is consistent with the burdens placed upon claimants or potential claimants by both § 5107(a) and § 5108. Indeed, the concept has been lurking in our duty-to-assist jurisprudence. For example, in Ivey the duty to assist was held to apply to “pertinent” records (
Were it not for the precedents of Ivey and its progeny, however, I would argue that Judge Kramer’s analysis of 38 C.F.R. § 3.159 is incomplete in that it isolates 38 C.F.R. § 3.159(b) from § 3.159(a) which stresses emphatically the burdens (the word “responsibility” appears twice) placed upon a claimant. More importantly, in that context there is no temporal element in § 3.159(b). Taken as a whole, then, I believe that § 3.159 is consistent with the “chronological obligations” holding of Gilbert, supra: the Secretary has a duty to assist a claimant in retrieving any identified records but only after the claimant has met the “responsibility” mentioned two times in § 3.159(a), i.e., there is pending an original well-grounded claim under § 5107(a) or a reopened well-grounded claim under § 5108.
The Secretary did not violate a statutory or regulatory duty to assist in this case. But for our existing precedential decisions, I would hold that, as a matter of law, there was no statutory duty to assist because no well-grounded claim was pending. To the extent that our duty-to-assist jurisprudence presently compels a different result, I respectfully suggest to our bench and bar that the emperor we have created has no statutory clothes.
Concurrence in Part
concurring in part and dissenting in part:
I concur in the result; however, I emphatically do not agree with Judge Kramer’s contravention of precedent in his unabashed attempt to redefine the duty to assist in Pаrt II of the opinion. Judge Kramer concludes, and I agree, that because the appellant has not demonstrated the relevance of the private medical records, the Secretary did not breach the duty to assist imposed by 38 U.S.C. § 5107(a). However, where I diverge from Judge Kramer is with his inappropriate attempt to formulate a “construct ... which delineates the scope of the VA’s duty to assist in obtaining non-section 5106 records.” Ante at 479.
My disagreement with this “construct” is two-fold. First, because this case can be disposed of on the relevancy issue, there is no need to enforce 38 C.F.R. § 3.159(b) (1993). Judge Kramer himself admits that “because [the] appellant did not raise before the BVA the issue of whether he improperly had not been notified of the requirements of 38 C.F.R. § 3.159(b) (1993), it is open to question whether the issue is ripe for review at this time.” Ante at 479. Second, even if the issue were ripe for review and even if these private medical records were deemed to be relevant, such a “construct” as found in Judge Kramer’s opinion would best come from an en banc panel since it directly contravenes Court precedent. See, e.g., Littke v. Derwinski,
Therefore, Judge Kramer, in effect, disregards the Court’s prior conclusions — even one as recent as March 1994. As my colleagues have warned, “the Court should avoid making ‘overly broad pronouncements that are [not] warranted by the facts of this specific case.’ ” Selley v. Brown,