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Richard B. Hime v. Eric K. Shinseki

September 15, 2011

RICHARD B. HIME, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-2236, Judge William A. Moorman.

The opinion of the court was delivered by: Lourie, Circuit Judge.

NOTE: This disposition is nonprecedential.

Before RADER, Chief Judge, and LOURIE and O'MALLEY,

Opinion for the Court filed by Circuit Judge LOURIE.

Dissenting opinion filed by Circuit Judge O'MALLEY.

Richard Hime appeals from the decision of the United States Court of Appeals for Veterans Claims ("the Veterans Court") holding that the Department of Veterans Affairs ("VA") had fulfilled its statutory duty to assist and affirming the denial of his request to reopen his claim for entitlement to service connection for his hip bursitis. Hime v. Shinseki, No. 08-2236, 2010 WL 2978498, at *1 (Vet. App. July 29, 2010) ("Veterans Court Op."). Because we conclude that Hime's challenges are outside the scope of our jurisdiction, we dismiss.

BACKGROUND

Hime served on active duty in the U.S. Navy from 1966 to 1970. During service, he injured his right shoulder and was granted service connection for his shoulder disability as of 1979. On June 3, 1981, Hime was treated by a VA physician, Dr. Palmer, for his right shoulder condition and sent to physical therapy for two weeks. Dr. Palmer recommended that Hime use his left hand instead of his right in order to alleviate some of the right shoulder pain. A few weeks later, on August 5, 1981, Dr. Palmer wrote another treatment plan for Hime, this time for bursitis in his left hip.

In 1982, Hime filed a claim for bursitis of the left hip as secondary to his right shoulder disability, contending that it had resulted from performing various actions with his left hand to avoid further injury to his right shoulder. He submitted an opinion from Dr. Palmer stating that the bursitis was directly related to the service-connected condition of his shoulder. The Board of Veterans' Appeals ("the Board") denied Hime's claim in 1983, explaining that Hime had almost full function of his shoulder and that the bursitis had been diagnosed years later. The Board also stated that it had considered Dr. Palmer's statement in coming to its conclusion. Id.

In 2005, Hime submitted a request to reopen his claim for service connection for bursitis. In support of his claim, he submitted three pieces of evidence: (1) Dr. Palmer's medical statement from 1982, (2) a statement dated 2007 from a private physician on a matter unrelated to bursitis, and (3) VA medical progress notes from 1981. The VA medical progress notes that Hime submitted were not in his original claim file. One of the progress notes indicates, inter alia, that Hime received physical therapy at the VA medical center in June 1981 for his right shoulder disability. However, Hime did not obtain or submit any individual records of those therapy sessions.

The Regional Office ("RO") denied the request, finding that none of the evidence submitted was new and material. On appeal, the Board agreed. It noted that Dr. Palmer's medical statement was considered by the VA in its 1983 decision, and therefore that evidence was not new. It found that the other evidence, including the 1981 treatment notes, was new, but not material, as it did not address the relationship between the hip condition and the shoulder disability-the unestablished element in the 1983 decision. Id. It explained that the treatment notes merely demonstrate a diagnosis of the right shoulder disability, a fact that had long been established.

The Board further found that the VA had satisfied its duty to assist pursuant to 38 U.S.C. § 5103A(a) and 38 C.F.R. § 3.159(c) because it had "obtained records of treatment reported by [Mr. Hime], including service medical records, VA medical center (VAMC) records and private medical records [and there was] no indication from the record of additional medical treatment for which the RO ha[d] not obtained, or made sufficient efforts to obtain, corresponding records."

The Veterans Court affirmed the Board's decision. Hime argued to the Veterans Court that the VA had not satisfied its duty to assist him in obtaining VA records because the 1981 treatment notes, which he had obtained and submitted, were not in the original records obtained by the VA. Because the newly submitted treatment notes indicated that Hime was undergoing physical therapy in 1981, Hime argued that there likely existed additional records related to that therapy, such as individual therapy session records, that could contain information relevant to his bursitis claim. Hime's argument was that because he had identified potentially relevant records that likely existed but he had not been able to obtain, the VA had a duty to seek out and obtain those records for him prior to deciding his claim for service connection for bursitis of the left hip.

The Veterans Court rejected that argument, explaining that those notes simply stated that Hime had bursitis, but failed to provide any type of nexus evidence or establish that there existed any other records not reasonably obtained by the VA. Veterans Court Op. at *4. The court specifically found that the new evidence submitted by Hime failed to "establish the existence of additional missing medical records." Id. The court therefore concluded that the VA had made reasonable efforts to assist Hime in obtaining medical records necessary to substantiate his claim and therefore fulfilled its duty to assist. Id. Hime filed a motion for reconsideration and, in the alternative, for a panel decision. That motion was denied. Hime v. Shinseki, No. 08--2236, 2010 WL 3759887 (Vet. App. Sept. 24, 2010). Hime then timely appealed.

DISCUSSION

This court's jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292. We "have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." Id. § 7292(c). We may not, however, absent a constitutional challenge, "review (A) a challenge to a factual determination, or (B) a chal7lenge to a law or regulation as applied to the facts of a particular case." Id. § 7292(d)(2).

Hime argues that the VA made no attempt to obtain his physical therapy treatment records from the VA medical center even though he provided sufficient information indicating the existence of those records, and yet the Veterans Court found the duty to assist fulfilled. Hime therefore contends that in affirming the Board's decision, the Veterans Court necessarily held that the VA had no duty to assist him. Hime argues that the Veterans Court's holding can only stand under an incorrect interpretation of 38 U.S.C. ยง 5103A(c)(2): that the VA would have no duty to find and obtain VA treatment records even when the veteran submits sufficient information supporting the likely existence of such records. According to Hime, the Veterans Court's interpretation renders the duty to assist meaningless because it requires the veteran to obtain and provide records himself because, in his view, that would be the only way to demonstrate that the records actually contain the necessary evidence to substantiate his claim. That, ...


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