concurring:
I concur in the judgment and I specifically concur in the holding that the Secretary did not breach 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. Derwinski 1 Vet.App. 519 (1991), and Ivey v. Derwinski 2 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.” 2 Vet.App. at 322. Despite the absence of a pending claim, the Ivey majority faults the Secretary for breaching the statutory duty to assist by failing to obtain records and failing to create evidence by generating a medical opinion. This holding stands without any supporting authority and for good reason: there isn’t any.
The concurring opinion in Ivey was more imaginative. It invented a “well-grounded *481claim to reopen” a claim and then attempted to set it in stone, if not in statute, by repeating variations of the phrase over and over (see 2 Vet.App. at 324, 325, 326, 327, 328, and 330). The concurring opinion then decrees, again without benefit of statutory support, a “lower threshold for satisfying the requirement of a well-grounded claim” to reopen and would impose a duty to assist merely because a prior hospitalization was mentioned. In my view, the majority and concurring opinions in Ivey are not consistent with 38 U.S.C. § 5107(a).
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, 6 Vet.App. 377, 383 (1994): “The duty to assist may arise when a claimant simply refers to private medical examinations or treatments without making a specific request.” It is now law that a mere reference to prior treatment or hospitalization will be deemed to have given rise to the statutory duty to assist even when no claim is pending. The next step will be a holding that the Secretary is required to get records whether or not a veteran ever mentions private medical examinations or treatment. In the short space of three years we have all but created a form of strict liability for which I can find no basis in law, fact, or reason.
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, 6 Vet.App. 220, 224-25 (1994); Suttmann v. Brown, 5 Vet.App. 127, 132 (1993); Ivey, 2 Vet.App. at 327 (Steinberg, J., concurring); Murphy v. Derwinski 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).
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 definitively 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 1 Vet.App. 419, 425 (1991); see also Grivois v. Brown, 6 Vet.App. 136, 140 (1994) (“no duty to assist arises absent a well-grounded claim ...”); Suttmann, supra (“Once a claimant submits a well-grounded claim for VA benefits, the Secretary is required to assist ... ”). Thus, under § 5107(a), the Secretary only has a duty to assist “such a claimant,” i.e., one who has met the burden of submitting a well-grounded claim; the Secretary is not under a statutory obligation to assist one who has not submitted a well-grounded claim. Were this not so, i.e., if the Secretary is deemed to have a statutory duty to assist any and all who present claims, the “burden” imposed by Congress in § 5107(a) and stressed again in § 5107(b) would be meaningless.
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 under § 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 3 Vet.App. 510, 512 (1992). If a denied claimant submits new and material evidence, i.e., meets the statutorily imposed burden, the Secretary “shall reopen the claim and *482review the former disposition of the claim.” 38 U.S.C. § 5108. As a result of the submission of new and material evidence and the statutory command to the Secretary to reopen and review, the Secretary’s duty to assist “such a claimant” attaches because the “prerequisite,” a well-grounded claim, once again exists: “a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a) ].” Murphy, supra. If the claimant fails to meet the § 5108 burden, the claim remains finally denied and cannot be considered well grounded, and I can find no statutory basis for imposing upon the Secretary a duty to assist such a claimant.
In my view, therefore, 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 Government, 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 (2 Vet.App. at 323), and Caffrey ruled that the VA was under a duty to obtain “evidence in view of its relevance to proper adjudication of the claim” (6 Vet.App. 377, 383. Unlike Judge Mankin, I am of the view that an en banc pronouncement is not required in an instance such as this where the panel opinion merely “completes the analysis” of our prior decisions. See McGinnis v. Brown, 4 Vet.App. 239, 244 (1993).
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.
*483IV.
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.