Bailey v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RUSSELL L. BAILEY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7052
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-0465, Judge Lawrence B.
Hagel.
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Decided: July 10, 2013
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RUSSELL L. BAILEY, of Harts, West Virginia, pro se.
ELIZABETH ANNE SPECK, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were STUART F. DELERY,
Principal Deputy Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and KIRK T. MANHARDT, Assistant
Director. Of counsel on the brief were MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel, and MARTIN
2 RUSSELL BAILEY v. SHINSEKI
J. SENDEK, Attorney, United States Department of Veter-
ans Affairs, of Washington, DC.
______________________
Before NEWMAN, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
Russell L. Bailey appeals from a decision of the Unit-
ed States Court of Appeals for Veterans Claims (“Veter-
ans Court”) affirming a decision of the Board of Veterans
Appeals (“Board”) that denied his claim for disability
benefits. We affirm.
BACKGROUND
Mr. Bailey served in the United States Air Force from
January 1977 to December 1980. His separation exami-
nation report, dated October 8, 1980, indicates that at the
time of his separation from service, apart from noted
preexisting conditions, he was “normal” in all aspects
evaluated. In his report of medical history, completed on
the same day, he himself wrote that he was in “excellent”
health.
At the time of Mr. Bailey’s most recent claim for
increased benefits for additional disabilities, he had a
combined disability rating of 80% and was being paid at
the 100% level based upon individual unemployability.
On July 30, 2010, a Regional Office (“RO”) of the Depart-
ment of Veterans Affairs (“VA”) notified Mr. Bailey of its
decision to deny his additional claims for service connec-
tion, but noted that his combined rating and individual
unemployability payments will continue unchanged.
On February 1, 2011, the Board affirmed the RO’s
rating decision denying benefits for fifteen disabilities for
which Mr. Bailey claimed service connection, and re-
manded for further consideration of service connection for
two other disabilities. In response to Mr. Bailey’s general
assertion that the copies of the October 1980 separation
examination report and report of medical history in the
RUSSELL BAILEY v. SHINSEKI 3
record had been altered to his detriment, the Board
determined that the VA had satisfied its duty to assist
under 38 U.S.C. § 5103A, having made reasonable efforts
to obtain all “identified and available VA and private
medical records” necessary to determine his claims. In
particular, the Board noted that the RO had submitted
numerous records requests to the National Personnel
Records Center, an Air Force Base, a Naval Station, as
well as several private physicians. Indeed, the Board
found that Mr. Bailey’s claims file contains several hun-
dred pages of service medical records, including x-rays,
bone scans, personal statements, and the October 1980
reports, all of which appear to be authentic and complete.
Finally, the Board found that “there is no indication that
there are any relevant outstanding medical records to be
procured.”
In his appeal of the Board’s decision to the Veterans
Court, Mr. Bailey raised a single argument: the VA failed
to comply with its duty to assist in failing to obtain the
original October 1980 separation examination report
because the photocopy version of it in the record did not
appear to be authentic. On August 28, 2012, the Veterans
Court rejected Mr. Bailey’s argument, noting that the
Board found the record to be replete with requests to and
responses by various entities for Mr. Bailey’s medical
records, as evidenced by a voluminous claims file contain-
ing copies of official documents that appear to be both
authentic and complete. In addition, the Veterans Court
noted that in a previous appeal which resulted in a partial
remand in April 2008, it had already found that there is
no evidence that the copies of the reports in Mr. Bailey’s
claims files are other than exact replicas of the originals,
and that the VA has exhausted efforts to procure originals
of these records. Finally, the Veterans Court noted that
Mr. Bailey may have waived the instant authenticity
challenge in having failed to raise it in one of his prior
appeals. Accordingly, the Veterans Court concluded that
the Board’s determination that the VA satisfied its duty
to assist is not clearly erroneous.
4 RUSSELL BAILEY v. SHINSEKI
Mr. Bailey filed a timely motion for reconsideration
with the Veterans Court, which was denied. After judg-
ment was entered on December 13, 2012, Mr. Bailey
timely appealed to this court.
DISCUSSION
This court’s review of Veterans Court decisions is
strictly limited by statute. Under 38 U.S.C. § 7292(a), we
may review “the validity of a decision of the [Veterans]
Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the [Veter-
ans] Court in making the decision.” We review a statuto-
ry interpretation by the Veterans Court de novo. Cayat v.
Nicholson, 429 F.3d 1331, 1333 (Fed. Cir. 2005). Howev-
er, we may not review findings of fact or application of
law to the facts, except to the extent that an appeal
presents a constitutional issue. 38 U.S.C. § 7292(d)(2).
Giving Mr. Bailey’s informal briefing the broadest lat-
itude, we identify two bases for Mr. Bailey’s appeal. He
asserts that both the language of 38 U.S.C. § 5103A and
United States v. Bass, 64 F.2d 467 (7th Cir. 1933), require
the VA to obtain an original copy of his separation exami-
nation report in order to comply with its duty to assist.
With respect to the statute, 38 U.S.C. § 5103A(a)(1)
requires the VA to “make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate
the claimant’s claim for a benefit.” However, 38 U.S.C.
§ 5103A(a)(2) provides that such assistance “is not re-
quired . . . if no reasonable possibility exists that [it]
would aid in substantiating the claim.” Subsections (b)
and (c) of § 5103A then limit the VA’s duty to assist to
obtaining only records that are “relevant to the claim.”
Thus, the duty to assist is not boundless in scope. The
plain language of the statute requires the VA to make
reasonable efforts to obtain only the relevant records that
are necessary to and would aid in substantiating a veter-
an’s claim. See Golz v. Shinseki, 590 F.3d 1317, 1320
RUSSELL BAILEY v. SHINSEKI 5
(Fed. Cir. 2010). Accordingly, the Veterans Court did not
err when it interpreted 38 U.S.C. § 5103A not to require
the VA to obtain an original copy of the identified record,
especially when relevancy, necessity, and availability of
the record are concerned.
Second, Mr. Bailey’s reliance on United States v. Bass
is misplaced. That case, which, in dicta, discussed the
Best Evidence Rule and the business record exception to
the Hearsay Rule in the context of a war risk insurance
policy suit, has no bearing on the interpretation of
38 U.S.C. § 5103A, enacted decades later.
Because the Veterans Court correctly interpreted the
VA’s duty to assist as found in 38 U.S.C. § 5103A, the
judgment of the Veterans Court is affirmed.
AFFIRMED
COSTS
Each side shall bear its own costs.