## United States Court of Appeals for the Federal Circuit

2009-7039

JULIUS J. GOLZ, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Sean A. Ravin , Attorney at Law, of Washington, DC, argued for claimantappellant. Steven M. Mager , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. With him on the brief were Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, and Martin F. Hockey, Jr. , Assistant Director. Of counsel was Elizabeth A. Holt , Trial Attorney. Of counsel on the brief were David J. Barrans , Deputy Assistant General Counsel, and Dana Raffaelli , Attorney, Office of the General Counsel, United States Department of Veter ans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Judge Alan G. Lance, Sr.

## United States Court of Appeals for the Federal Circuit

2009-7039 JULIUS J. GOLZ, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in 07-0159, Judge Alan G. Lance, Sr.

__________________ _________ DECIDED: January 4, 2010

__________________ _________ Before BRYSON, PROST, and MOORE, Circuit Judges

. MOORE, Circuit Judge

. Appellant Julius J. Golz appeal s from the decision of t he United States Court of Appeals for Veterans Claims (Veterans Court) affirming t he decision of the Board of Veterans’ Appeals (Board) denying his claim for service connection for post-traumatic stress disorder (PTSD). Because the Vete rans Court properly in terpreted 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c), we affirm.

BACKGROUND Mr. Golz served on active duty in the U.S. Navy as an aviation ordinanceman from February 1969 to Novemb er 1972. Service medical records do not show any complaints of or treatment fo r a psychiatric condition. In a February 1995 decision, theSocial Security Administration (SSA) found Mr. Golz to be disabled due to severe low back and leg pain stemming from a 1991 car a ccident. The SSA decision discussed the substance of testimony and exhibits relating to Mr. Golz’s disability, including multiple doctors’ reports and diagnoses, which related to Mr. Golz’s physical injuries. The decision does not mention Mr. Go lz’s mental health or indicate that records or testimony reviewed by SSA discussed any psychiatric or mental health issues. In January 2001, almost six years after SSA declared Mr. Golz disabled, Mr. Golz underwent treatment at the Center for Treatment of Ad dictive Disorders (CTAD) located at the VA Medical Center in Pittsburgh. An initial psychiat ric evaluation from the CTAD stated that Mr. Golz “feels he has PTSD ,” but that he had not been previously diagnosed with PTSD. The examiner di agnosed him with alcohol dependence and possible major depressive disorder. In a January 29, 2001, medical evaluation, Mr. Golz complained of symptoms of depression and again stated he felt that he had PTSD, although he could not identify spec ific traumatic stressors. In April 2001, Mr. Golz filed a clai m for compensation with VA, claiming a disability of PTSD. In his application fo r compensation, VA Form 21-526, Mr. Golz checked “Yes” in answer to the question “Have you claimed or are you receiving disability benefits from the Social Security Administration (SSA)?” Mr. Golz underwent a VA medical exam, after which the VA ex aminer diagnosed Mr. Golz with major depressive disorder and polysubstance dependenc e in short-term remission. The VA examiner further found that Mr. Golz did not meet the criteria for a diagnosis of PTSD in terms of identified stressors or symptoms. The VA regional office (RO) denied service

2009-7039 2connection for PTSD in a July 2001 rating dec ision due to lack of evidence of either PTSD or sufficient stressors. Mr. Golz did not appeal this rating decision. Mr. Golz filed a motion in September 2003 to reopen his claim for service connection for PTSD, and in November 2003 he received a VA PTSD examination. Again, the VA examiner stated that Mr. Golz did not report symptoms or stressors sufficient for a diagnosis of PTSD. T he RO confirmed and continued the previous denial of Mr. Golz’s clai m in a December 2003 rating decision, which Mr. Golz appealed. In April 2004, Mr. Golz submitted new evidence in the form of a PTSD questionnaire. The RO issued a Supplemental Statement of the Case, in which the RO again denied entitlement to service connection for PTSD. Mr. Golz appealed to the Board. On September 15, 2006, the Board reopened Mr. Golz’s claim on the basis of the new evidence, but ultimately denied his claim, finding that ev idence did not support a diagnosis of PTSD. The Board also revi ewed whether VA met its duty to assist Mr. Golz. The Board noted that Mr. Golz’s file contained service medical and personnel records, as well as “extensive VA medical evidence.” Further, the Board stated that Mr. Golz did not identify any additional eviden ce he wanted the Board to obtain and consider. The Board also reviewed a copy of the 1995 SSA decision awarding disability benefits for a back disorder in the file. Th e Board, citing 38 U.S.C. § 5103A(c) and 38 C.F.R. § 3.159(c), stated that “[t]he decision does not ment ion a psychiatric disorder, thus, although the medical records accompanyin g the SSA decision are not in the file, the Board finds that they would not be relev ant to the claim on appeal.” The Board also found no evidence corroborating Mr. Golz’s claimed in-service stressors.

2009-7039 3Mr. Golz appealed the denial of service c onnection for PTSD to the Veterans Court, asserting that VA failed to fulfill its duty to assist him by not obtaining his complete SSA disability records. The Veterans Court affirmed the Board decision, stating that the Board did not clearly err in finding that the SSA records relating to that decision were not relevant to the claim. Mr. Golz appeals.

DISCUSSION We have jurisdiction pursuant to 38 U.S. C. § 7292(c). We review statutory interpretation by the Veterans Court de novo

. Glover v. West , 185 F.3d 1328, 1331 (Fed. Cir. 1999). Absent a constitutional iss ue, we may not review challenges to factual determinations or challenges to t he application of a law or regu lation to facts. 38 U.S.C. § 7292(d)(2) (2006). At issue is whether the Veterans Court correctly interpreted 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) by holdi ng that VA is not required to obtain disability records from SSA if VA determines, without review of the actual records, that there is no reasonable possibility that such records are relevant to the veteran’s claim for VA disability compensation. Mr. Go lz argues that SSA records are always potentially relevant to a veteran’s claim for dis ability under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) and therefore to satisfy VA’s duty to assist all SSA records must be obtained. He argues that medical records in general, and SSA disability records in particular, are always potentially relevant because such records may contai n medical evidence relevant to the veteran’s claim and it is im possible to determine the content or relevance of medical records without ex amining them. The government responds that VA does not have a duty to obtain irrelevant SSA reco rds, and that § 5103A does not require VA

2009-7039 4to obtain and review records in every case prior to determining whether they are relevant to a veteran’s claim. The duty to assist is not boundless in its scope. VA’s duty to assist claimants is codified at 38 U.S.C. § 5103A. VA has a duty to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim.” Id. § 5103A(a)(1). VA is not required to assist a claimant in obtaining identified records “if no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2). Subsec tions (b) and (c) of § 5103A, which discuss VA’s duty to obtain records on behalf of veter ans, limit VA’s duty to assist to obtaining only relevant records in five separate places. Section 5103A(b)(1) states that VA is required to “make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identi fies to the Secretary and authorizes the Secretary to obtain.” Sect ion 5103A(c), entitled “Obtaining records for compensation claims,” describes specific types of records VA must assist the veteran in obtaining, but only if they are “ relevant to the claim.” Id. § 5103A(c) (emphasis added). The list includes the “claimant’s service medical records and . . . other relevant records pertaining to the claimant’s active military, naval, or air service,” id. § 5103A(c)(1) (emphasis added), “[r]ecords of relevant medical treatment or examination of the claimant at Department health-care faciliti es or at the expense of the Department,” id. § 5103A(c)(2) (emphasis added), and “[a]ny other relevant records held by any Federal department or agency that t he claimant adequately identifies and authorizes the Secretary to obtain.” Id. § 5103A(c)(3) (emphasis added). The corresponding

2009-7039 5regulation, 38 C.F.R. § 3.159( c), explicitly lists SSA as an agency from which VA is required to obtain relevant records. We stated in McGee v. Peake that “Congress has explicitly defined the VA’s duty to assist a veteran with t he factual development of a benefit claim in terms of relevance.” 511 F.3d 1352, 1357 (Fed. Cir . 2008). There can be no doubt that Congress intended VA to assist veterans in obtaining records for compensation claims, but it is equally clear that Congress only ob ligated the VA to obtain “relevant” records. The duty to assist requires the Secretary to make reasonable efforts to obtain “evidence necessary to substantiate the cl aimant’s claim for a benefit.” The language of the statute is explicit: not all medical records or all SSA disability records must be sought – only those t hat are relevant to the veteran’s claim. To conclude that all medical records or all SSA disability records are relevant would render the word “relevant” s uperfluous in the statute. See TRW Inc. v. Andrews , 534 U.S. 19, 31 (2001) (“It is a cardinal principl e of statutory constr uction that a statute ought, upon the whole, to be so construed t hat, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” (internal quotation marks and citation omitted)). If Congress meant fo r all medical records or all SSA disability records to be obtained, it coul d have said “obtain all records” rather than “obtaining the following records if relevant to the claim.” § 5103A(c) (emphasis added); see also id. § 5103(c)(1) (“other relevant records”); id. § 5103(c)(2) (“relevant medical treatment”); id. § 5103(c)(3) (“[a]ny other rele vant records”). Relevant records for the purpose of § 5103A are those records that relate to the injury for wh ich the claimant is seeking benefits and have a reasonable possi bility of helping to substantiate the veteran’s claim.

2009-7039 6See Black’s Law Dictionary 1316 (8th ed. 2004) (defini ng “relevant” as “[l]ogically connected and tending to prove or disprove a matter in issue; having appreciable probative value—that is, rationally tending to persuade people of the probability or possibility of some alleged fact”). Not a ll medical records for a veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim. The Board did not err as a matter of la w when it determined that VA met its duty to assist Mr. Golz, even though VA did not r equest Mr. Golz’s SSA records. Mr. Golz seeks service connection for PTSD. Service connection for PTSD is awarded when the record before VA contains (1) a current m edical diagnosis of PTSD, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) medical evidence establishing a link between the claimed in-service stressor and the current symptomatology. 38 C.F. R. § 3.304(f) (2009). Therefore, records relevant to his claim are those relating to a medica l diagnosis of PTSD, evidence corroborating claimed in-service stressors, or medical evidence establishing a link between any inservice stressor and a PTSD diagnosis. The SSA decision identified testimony, documents, and medical reports relating to Mr. Golz’s history of back pain. The Board reviewed whether VA met its duty to assist Mr. Golz in obtaining relevant re cords pursuant to 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c), and made a factual determination as to the relevance of the SSA records identified by Mr. Golz. The Board found that the identifi ed SSA records would not be relevant to Mr. Golz’s claim based on the SSA decision. T he Board stated that the SSA decision “does not mention a psychia tric disorder, thus, although the medical records accompanying the SSA dec ision are not in the file, the Board finds that they

2009-7039 7would not be relevant to the claim on appeal.” There was no specific allegation that the evidence, reports or evaluations in conjunc tion with the SSA decision on back pain ever delved into Mr. Golz mental health. The Board’s factual findi ng that the SSA records would not be relevant to Mr. Golz’s claim is not reviewable by this court. See 38 U.S.C. § 7292 (absent a constitutional issue, this court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulatio n as applied to the facts of a particular case”). The Veterans Court app lied the law to the fa cts of the case and affirmed, stating that “[ t]he appellant does not argue— and the record does not indicate—that the SSA records will provide any potentially relevant evidence relating to the appellant’s mental health.” The Veterans Court reviewed the Board’s relevance determination under the correct legal standard —whether it related to Mr. Golz’s mental health or there is a reasonable possibility it could help subst antiate Mr. Golz’s claim. Therefore, the Veterans Court did not misi nterpret 38 U.S.C. § 5103A in affirming the Board’s decision. Mr. Golz argues that the decision in this case is contrary to prior cases that held that VA must review records before declaring t hem irrelevant for purposes of § 5103A. There are, as Mr. Golz argues, cases that r equired VA to obtain SSA records. Each of these cases, however, included a determination that VA did not meet its duty to assist because the identified records had a reasonable possibility of assisting in substantiation of the veteran’s claim. See Moore v. Shinseki , 555 F.3d 1369, 1374 (Fed. Cir. 2009) (stating that “VA is statutorily required to obtain all of the veteran’s relevant service medical records, not simply those whic h it can most conveniently locate”); McGee , 511 F.3d at 1355, 1358 (finding that the veteran’s service personnel records at issue “would

2009-7039 8likely contain documentary evidence that ma y show whether McGee filed a claim for benefits prior to discharge” afte r the Board denied entitlement to an earlier effective date because the record did not contain any ev idence of a previously filed claim); Quartuccio v. Principi , 16 Vet. App. 183, 187–88 (2002) (requi ring that VA seek SSA records when SSA determined the veteran disabled because of paranoid schizophrenia, the same condition for which he was receiving SSA benefits); Murincsak v. Derwinski , 2 Vet. App. 363, 366, 370 (1992) (stating that an SSA decisi on that the veteran is unemployable is relevant to his claim of entitlement to a total disability rating based on unemployability); Clarkson v. Brown , 4 Vet. App. 565, 567–68 (1993) (gr anting voluntary remand to VA so it could request SSA records relating to an SSA finding of unemployability when the veteran was claiming entitlement to a total disability rating based on unemployability). It is not the case that the government must obtain records in every case in order to rule out their relevance. Such a decis ion would be akin to a determination that all medical records must be obtained. Similarly, it is not the case that a record’s relevance can always be determined without reviewing the record itself. The legal standard for relevance requires VA to exam ine the information it has related to medical records and if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefit s, the duty to assist require s VA to obtain the records. When a SSA decision pertains to a complete ly unrelated medical condition and the veteran makes no specific allegations that woul d give rise to a reasonable belief that the medical records may nonetheless pertain to the injury for which the veteran seeks benefits, relevance is not established. There must be specific reason to believe these records may give rise to per tinent information to conclude t hat they are relevant.

2009-7039 92009-7039 10 In close or uncertain cases, the VA should be guided by the principles underlying this uniquely pro-claimant system. VA has a dut y to assist veterans and is required to “fully and sympathetically develop the veteran’ s claim to its optimum before deciding it on the merits.” McGee , 511 F.3d at 1357 (citation and internal quotation marks omitted). As long as a reasonable possibility ex ists that the records are relevant to the veteran’s claim, VA is required to assist th e veteran in obtaining t he identified records. At the same time, we acknow ledge that Congress has placed reasonable limits on VA’s duty to assist. The relevancy limitation allo ws VA to focus its efforts on obtaining documents that have a reasonable possibility of assisting claimants in substantiating their claims for benefits.

CONCLUSION Because the Veterans Court correctly inte rpreted VA’s duty to as sist as found in 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c), the decision of the Veterans Court is AFFIRMED

. COSTS No Costs.