Sullivan v. McDonald

United States Court of Appeals
for the Federal Circuit
______________________

MAURICE C. SULLIVAN,
Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2015-7076
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-283, Judge Alan G. Lance, Sr.
______________________

Decided: March 8, 2016
______________________

KENNETH DOJAQUEZ, Bluestein, Nichols, Thompson &
Delgado, LLC, Columbia, SC, argued for claimant-
appellant.

MELISSA BAKER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
CLAUDIA BURKE; DAVID J. BARRANS, MARTIN JAMES
SENDEK, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
2 SULLIVAN v. MCDONALD

Before REYNA, TARANTO, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Maurice C. Sullivan appeals from a decision of the
Court of Appeals for Veterans Claims (“Veterans Court”)
affirming the decision of the Board of Veterans Appeals
(“Board”) concluding that the Department of Veterans
Affairs (“VA”) had satisfied its duty to assist Mr. Sullivan
with his request to reopen his claim. Because the Veter-
ans Court misconstrued 38 C.F.R. § 3.159(c)(3), we re-
verse and remand for further proceedings consistent with
this opinion.
BACKGROUND
Mr. Sullivan, a veteran, filed a claim for service-
connected benefits for back and neck injuries. In connec-
tion with his claim, Mr. Sullivan testified at a hearing
before the VA. In particular, he testified that he sought
treatment in 1984 for back and neck pain at a VA medical
facility in Asheville, North Carolina, but that the doctors
found nothing wrong with his back and neck. The VA
denied Mr. Sullivan’s claim, finding that the medical
evidence of record did not establish service-connection for
his injuries. Ten years later, Mr. Sullivan submitted new
evidence and sought to reopen his claim. The Board
denied the request to reopen, finding the newly submitted
evidence was not material. The Board also determined
that the VA had satisfied its duty to assist Mr. Sullivan in
obtaining identified and available evidence.
Mr. Sullivan appealed to the Veterans Court. There,
he argued for the first time that the VA failed to satisfy
its duty to assist because it had not obtained his medical
records from the Asheville VA facility (“Asheville medical
records”). The Veterans Court concluded that the VA’s
duty to assist claimants in securing records only extends
to potentially relevant records. The Veterans Court found
SULLIVAN v. MCDONALD 3

that the Asheville medical records were not “potentially
relevant records that would aid [Mr. Sullivan] in reopen-
ing his claim,” and thus affirmed the Board’s determina-
tion that the VA had satisfied its duty to assist. Joint
Appendix (“J.A.”) 15.
Mr. Sullivan appeals, and we have jurisdiction pursu-
ant to 38 U.S.C. § 7292(c).
DISCUSSION
Our jurisdiction to review Veterans Court decisions is
limited by statute. We may review legal questions, in-
cluding the validity of any statute or regulation or any
interpretation thereof. 38 U.S.C. § 7292(c). We may set
aside any regulation or interpretation thereof if we find it:
(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) contrary to constitu-
tional right, power, privilege, or immunity; (3) in excess of
statutory jurisdiction, authority, or limitations, or in
violation of a statutory right; or (4) without observance of
procedure required by law. Id. § 7292(d)(1); Wanner v.
Principi, 370 F.3d 1124, 1128 (Fed. Cir. 2004). We may
not review factual determinations or application of law to
fact, except to the extent an appeal presents a constitu-
tional issue. 38 U.S.C. § 7292(d)(2). Whether the Veter-
ans Court exceeded its jurisdiction is a question of law
that we review de novo. Bonner v. Nicholson, 497 F.3d
1323, 1326–27 (Fed. Cir. 2007); Wanner, 370 F.3d at 1128.
I.
Mr. Sullivan first argues that the Veterans Court
erred in construing 38 C.F.R. § 3.159(c)(3) to impose a
relevance standard for VA medical records before trigger-
ing the VA’s duty to assist a claimant in obtaining such
records. Although Mr. Sullivan recognizes that the un-
derlying statute, 38 U.S.C. § 5103A, includes a relevance
condition in the VA’s statutory duty to assist in obtaining
VA medical records, he argues that the VA adopted a
4 SULLIVAN v. MCDONALD

broader duty in promulgating 38 C.F.R. § 3.159(c)(3).
Mr. Sullivan argues that this regulatory expansion of the
VA’s duties was permissible because § 5103A authorizes
“the Secretary [to] provid[e] such other assistance . . . as
the Secretary considers appropriate.” Appellant Br. 12–
13 (quoting 38 U.S.C. § 5103A(g)).
The government argues that Mr. Sullivan waived this
argument because he did not raise it before the Veterans
Court. We read the Veterans Court’s opinion to find a
relevance requirement both in 38 U.S.C. § 5103A and in
38 C.F.R. § 3.159(c). The Veterans Court cited both the
statute and regulation immediately before its sentence
stating that “the Secretary’s duty to secure records ex-
tends only to potentially relevant records.” J.A. 14. And
after that sentence the Veterans Court cited both the
statute and cases that discuss the regulation as well as
the statute. The Veterans Court’s legal interpretation is
properly before us even though Mr. Sullivan did not
contest the point before that court. See Forshey v. Princi-
pi, 284 F.3d 1335, 1350 (Fed. Cir. 2002) (en banc), super-
seded in other respect by statute, as recognized in Morgan
v. Principi, 327 F.3d 1357, 1359–64 (Fed. Cir. 2003) (“. . .
[38 U.S.C. § 7292(a)] does not require that the issue of
validity or interpretation have been contested in the
[Veterans Court], or even raised below as an issue in the
case, so long as the [Veterans Court’s] decision . . . de-
pended on a particular elaboration of a statute or regula-
tion (in the case of an interpretation issue). Significantly,
Congress did not adopt language requiring that the issue
have been ‘presented’ to the [Veterans Court].”); see also
Verizon Commc’ns Inc. v. FCC, 535 U.S. 467, 530 (2002)
(review permissible where issue was either pressed or
passed on); United States v. Williams, 504 U.S. 36, 41
(1992) (explaining that requirement is in the disjunctive).
The government also asserts that Mr. Sullivan’s ar-
gument challenges only factual determinations or the
application of law to fact—namely whether the VA satis-
SULLIVAN v. MCDONALD 5

fied its duty to assist—and therefore argues that we lack
jurisdiction to consider this issue. We disagree. Our
jurisdiction extends to review of any interpretation of a
regulation relied on by the Veterans Court in rendering
its decision. See 38 U.S.C. § 7292(d)(1). The Veterans
Court explicitly stated that “the Secretary’s duty to secure
records extends only to potentially relevant records.”
J.A. 14. In holding that the Board did not err in finding
that the VA satisfied the duty to assist, the Veterans
Court found “that the appellant’s hearing testimony did
not adequately identify any potentially relevant records
that would aid him in reopening his claim.” J.A. 15.
While we cannot review the Veterans Court’s application
of the relevant legal standard to the facts of the case, it is
within our jurisdiction to determine whether these state-
ments demonstrate a misunderstanding by the Veterans
Court of the standard set out in § 3.159(c)(3).
Turning to the interpretation of § 3.159(c)(3), we
agree with Mr. Sullivan that under the plain language of
this regulation, the VA’s duty to assist extends to provid-
ing assistance to obtain all “VA medical records or records
of examination or treatment at non-VA facilities author-
ized by VA” if adequately identified by a claimant. “In
construing a statute or regulation, we begin by inspecting
its language for plain meaning.” Meeks v. West, 216 F.3d
1363, 1366 (Fed. Cir. 2000). “[W]e attempt to give full
effect to all words contained within that statute or regula-
tion, thereby rendering superfluous as little of the statu-
tory or regulatory language as possible.” Glover v. West,
185 F.3d 1328, 1332 (Fed. Cir. 1999).
Here, the plain language of the regulation is disposi-
tive. Section 3.159(c)(3) states (with disputed language in
italics):
(c) VA’s duty to assist claimants in obtaining evi-
dence. Upon receipt of a substantially complete
application for benefits, VA will make reasonable
6 SULLIVAN v. MCDONALD

efforts to help a claimant obtain evidence neces-
sary to substantiate the claim. In addition, VA
will give the assistance described in paragraphs
(c)(1), (c)(2), and (c)(3) to an individual attempting
to reopen a finally decided claim.
...
(3) Obtaining records in compensation
claims. In a claim for disability compensa-
tion, VA will make efforts to obtain the
claimant’s service medical records, if rele-
vant to the claim; other relevant records
pertaining to the claimant’s active mili-
tary, naval or air service that are held or
maintained by a governmental entity; VA
medical records or records of examination
or treatment at non-VA facilities author-
ized by VA; and any other relevant records
held by any Federal department or agen-
cy. The claimant must provide enough in-
formation to identify and locate the
existing records including the custodian or
agency holding the records; the approxi-
mate time frame covered by the records;
and, in the case of medical treatment rec-
ords, the condition for which treatment
was provided.
38 C.F.R. § 3.159(c)(3) (emphasis added).
Section 3.159(c) explains that the “VA will make
reasonable efforts to help a claimant obtain evidence
necessary to substantiate the claim.” The regulation also
explicitly states that the VA will provide the assistance
described in subsection (c)(3) to individuals “attempting to
reopen a finally decided claim,” which is the context in
which Mr. Sullivan’s present appeal arises. See 38 C.F.R.
§ 3.159(c). Section 3.159(c)(3) then identifies four catego-
ries of records that the VA will provide assistance in
SULLIVAN v. MCDONALD 7

obtaining in connection with compensation claims: (1) the
claimant’s service medical records, if relevant to the claim;
(2) other relevant records pertaining to the claimant’s
active military, naval or air service that are held or main-
tained by a governmental entity; (3) VA medical records
or records of examination or treatment at non-VA facili-
ties authorized by VA; and (4) any other relevant records
held by any Federal department or agency. The VA knew
how to indicate when it was limiting its duty to assist to
obtaining relevant records only, which it did by including
the term “relevant” as a modifier for three of the four
categories of records identified in § 3.159(c)(3). But with
respect to “VA medical records or records of examination
or treatment at non-VA facilities authorized by VA,” the
modifier “relevant” is notably absent. Because “we at-
tempt to give full effect to all words contained within that
statute or regulation,” Glover, 185 F.3d at 1332, meaning
should be given to the VA’s choice to impose a relevancy
standard on the VA’s duty to assist in obtaining certain
categories of records, as well as its choice to not impose
such a standard on VA medical records. We will not read
in a relevancy standard where the VA left it out. Cf.,
Brown v. Gardner, 513 U.S. 115, 120 (1994) (quoting
Russello v. United States, 464 U.S. 16, 23 (1983)) (“Where
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”)
The underlying statute, § 5103A, does not direct a
contrary result. Although the statute clearly imposes a
relevancy standard on the disputed records, see 38 U.S.C.
§ 5103A(c)(1)(B) (extending duty to assist to obtaining
“[r]ecords of relevant medical treatment or examination of
the claimant at Department health-care facilities . . .”), it
further provides that “[n]othing in [§ 5103A] shall be
construed as precluding the Secretary from providing
such other assistance under subsection (a) to a claimant
8 SULLIVAN v. MCDONALD

in substantiating a claim as the Secretary considers
appropriate,” 38 U.S.C. § 5103A(g). Thus, the statute
permits the VA to provide additional assistance to claim-
ants beyond that required by § 5103A, and the VA did so
with respect to VA medical records when it promulgated
§ 3.159(c)(3).
Moreover, the veteran benefits system is a uniquely
pro-claimant system. See Hodge v. West, 155 F.3d 1356,
1362 (Fed. Cir. 1998). Thus, the VA’s decision to expand
its duty to assist in certain limited circumstances by
promulgating § 3.159(c)(3) is a reasonable interpretation
of the statutory directive that “[n]othing in [§ 5103A]
shall be construed as precluding the Secretary from
providing such other assistance under subsection (a) to a
claimant in substantiating a claim as the Secretary
considers appropriate.” 38 U.S.C. § 5103A(g).
Because we find no ambiguity in the language of
§ 3.159(c)(3), we give no weight to the regulatory history
cited by the government. But even considering the regu-
latory history, we do not find it compelling. The govern-
ment cites a statement in the regulatory history that
prefaces the duty to assist in obtaining VA medical rec-
ords with the term “relevant.” See 38 C.F.R. Part 3, Duty
to Assist; Notice of proposed rulemaking, 66 Fed. Reg.
17834, 17836 (April 4, 2001). The regulatory history
provides no further insight or explanation as to why the
regulation lacks this relevancy standard. It is clear from
a review of the plain language of § 3.159(c)(3), as promul-
gated by the VA, that the regulation does not impose a
relevancy standard on the VA’s duty to provide assistance
in obtaining VA medical records.
We are mindful, however, that the context of the
entire regulation is relevant to construing regulatory
language. See Vazquez-Claudio v. Shinseki, 713 F.3d 112,
115 (Fed. Cir. 2013). The VA’s duty to assist is not unlim-
ited, and subsection (d) to § 3.159 provides an important
SULLIVAN v. MCDONALD 9

limitation on the VA’s duty to assist. Specifically, it
provides that the “VA will refrain from providing assis-
tance in obtaining evidence for a claim if the substantially
complete application for benefits indicates that there is no
reasonable possibility that any assistance VA would
provide to the claimant would substantiate the claim.” 38
C.F.R. § 3.159(d). While the Veterans Court did not rely
on this provision in affirming the Board’s determination
that the VA had satisfied its duty to assist, it may consid-
er this provision in conjunction with the requirements of
§ 3.159(c)(3) on remand.
The Veterans Court erred in its interpretation of
§ 3.159(c)(3). Because § 3.159(c)(3) expanded the VA’s
duty to assist to include obtaining VA medical records
without consideration of their relevance, we reverse the
Veterans Court’s affirmance of the Board’s decision for
being predicated on the wrong legal standard.
II.
We next consider Mr. Sullivan’s argument that the
Veterans Court exceeded its jurisdiction by making factu-
al findings in the first instance. 1 Specifically,
Mr. Sullivan alleges that the Veterans Court made a
factual finding that the Asheville medical records were
not relevant, an issue he asserts the Board never consid-
ered. While we held above that relevancy is not required
under § 3.159(c)(3), we nonetheless address Mr. Sullivan’s
secondary argument because the same issue regarding

1 Mr. Sullivan alternatively argues that the Veter-
ans Court applied the wrong standard for determining
relevance, asking us to overturn our decision in Golz v.
Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). But as
Mr. Sullivan acknowledged in his reply brief, as a panel,
we are bound by this court’s prior decision in Golz.
10 SULLIVAN v. MCDONALD

the Veterans Court’s jurisdiction could arise on remand
during consideration of § 3.159(d).
As we have explained in a prior review of the Veter-
ans Court’s jurisdiction:
[A]ppellate tribunals are not appropriate fora for
initial fact finding. Thus, the Supreme Court has
held that when a court of appeals reviews a dis-
trict court decision, it may remand if it believes
the district court failed to make findings of fact
essential to the decision; it may set aside findings
of fact it determines to be clearly erroneous; or it
may reverse incorrect judgments of law based on
proper factual findings; “[b]ut it should not simply
[make] factual findings on its own.”
Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)
(quoting Icicle Seafoods, Inc. v. Worthington, 475 U.S.
709, 714 (1986)) (alterations in original). The Veterans
Court has recognized its limitation in this regard. See
Webster v. Derwinski, 1 Vet. App. 155, 159 (1991) (“Be-
cause we are a Court of review, it is not appropriate for us
to make a de novo finding, based on the evidence . . . .”)
The government argues that the Veterans Court did
not engage in factfinding because the Board is presumed
to have considered all evidence before it. The government
also argues that we lack jurisdiction over this issue,
insisting that its consideration requires us to make a
factual comparison between the Veterans Court’s opinion
and the Board’s opinion.
But the government contradicts itself, also stating
that “[t]he Veterans Court determined, based on
Mr. Sullivan’s own testimony, that [the Asheville medical
records] could not be relevant to his claim for service
connection because the treating doctors found nothing
wrong with him. Such a determination is the quintessen-
tial factual determination.” Respondent Br. 24 (emphasis
SULLIVAN v. MCDONALD 11

added) (internal citation omitted). We agree with this
characterization and conclude that the Veterans Court
engaged in factfinding regarding the relevance of
Mr. Sullivan’s Asheville medical records, which were not
discussed by the Board. Such factfinding is improper for
a court of appeals such as the Veterans Court.
On remand, we urge the Veterans Court to be mindful
of its jurisdictional limits and refrain from engaging in
factfinding when applying the proper statutory and
regulatory framework as outlined in this opinion.
CONCLUSION
We hold that § 3.159(c)(3) extends the VA’s duty to
assist to obtaining sufficiently identified VA medical
records or records of examination or treatment at non-VA
facilities authorized by VA, regardless of their relevance.
The duty to assist, however, is not unlimited; in evaluat-
ing whether the duty to assist is satisfied, the Veterans
Court may consider the limitations on the duty to assist
set forth in § 3.159(d).
Because the Veterans Court relied on the wrong legal
standard in affirming the Board’s determination that the
duty to assist was satisfied, we reverse and remand for
further proceedings consistent with this opinion.
REVERSED AND REMANDED