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 Part 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, 1 Vet.App. 90 (1990); Ivey v. Derwinski, 2 Vet.App. 320 (1992); Culver v. Derwinski, 3 Vet.App. 292 (1992); Caffrey v. Brown, 6 Vet.App. 377 (1994). These cases explicitly do not require that the claimant either furnish the records to the VA or specifically request that the VA procure private medical records before the duty to assist is triggered.
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, 6 Vet.App. 196, 200 (1994) (Steinberg, J., concurring) (quoting Lasovick v. Brown, 6 Vet.App. 141, 152 (1994) (Ivers, J., concurring in part and dissenting in part). Having decided that the duty to assist in this ease was not violated, Judge Kramer should have ended his opinion there. The remainder of Judge Kramer’s analysis in Part II of the opinion, including his formulation of a “construct” in regard to the VA’s duty to assist in obtaining non-section 5106 (i.e. private medical) records, is dicta. While I concur in the result, I do not share Judge Kramer’s zeal to limit the VA’s duty to assist.