United States Court of Appeals 

for the Federal Circuit ______________________ 

JACQUELINE H. JONES,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-2120

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 15-3919, Chief Judge Robert N. Davis, Judge Mary J. Schoelen, Judge Margaret C. Bartley.

______________________ 

Decided: March 13, 2019

______________________ 

MEGHAN GENTILE, Veterans Legal Advocacy Group, Arlington, VA, argued for claimant-appellant. Also represented by HAROLD HAMILTON HOFFMAN-LOGSDON, III. 

 ALBERT S. IAROSSI, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA 

PREHEIM, JOSEPH H. HUNT; BRIAN D. GRIFFIN, SAMANTHA 

ANN SYVERSON, Office of General Counsel, United States 

Department of Veterans Affairs, Washington, DC. 
2 JONES v. WILKIE

 ______________________ 

Before MOORE, REYNA, and CHEN, Circuit Judges.

CHEN, Circuit Judge. 

Jacqueline Jones, who substituted as appellant for her 

deceased husband Josephus Jones, appeals the decision of 

the U.S. Court of Appeals for Veterans Claims (Veterans 

Court), which affirmed the Board of Veterans’ Appeals 

(Board) decision denying an earlier effective date for service-connected compensation for post-traumatic stress disorder (PTSD). Ms. Jones argues that the Veterans Court 

erred in using a heightened legal threshold to determine 

whether the Veterans Administration (VA) was required to 

assist Mr. Jones in obtaining his VA treatment records, 

which he asserted might contain an earlier, informal claim 

that could entitle him to an earlier effective date for benefits. Because the Veterans Court erred in analyzing the 

VA’s duty to assist, we vacate the Veterans Court’s decision 

and remand for consideration of Mr. Jones’s complete VA 

treatment file. 

BACKGROUND

In general, the effective date of a VA benefits award is 

the date the VA receives an application for the claim or the 

date entitlement arose, whichever is later. 38 U.S.C. 

§ 5110(a); 38 C.F.R. § 3.400. However, under the VA regulations that applied to Mr. Jones’s claims, if an applicant 

submitted an “informal claim,”1 the VA was required to 

 

1 The VA previously recognized formal and informal 

claims. See 38 C.F.R. § 3.1(p) (2000). For formal claims, 

the VA required applicants to file forms providing specified 

information. See Rodriguez v. West, 189 F.3d 1351, 1353

(Fed. Cir. 1999). The regulations further provided that 

“[a]ny communication or action, indicating an intent to apply for one or more benefits . . . from a claimant . . . may be 
JONES v. WILKIE 3

send the applicant a formal application form, and, assuming the applicant returned the form within one year, the 

VA would deem the formal application submitted as of the 

date of receipt of the informal claim. 38 C.F.R. § 3.155 

(2000).

Mr. Jones served in the Marine Corps from 1968 to 

1970. A VA psychiatrist treated him and diagnosed him 

with PTSD in 2000. J.A. 1; J.A. 17. Mr. Jones formally 

applied for disability benefits for PTSD in April 2011. 

J.A. 27. In February 2012, the VA Regional Office (RO) 

awarded Mr. Jones a 100% disability rating for PTSD, effective April 13, 2011, the date the RO received his formal 

application. J.A. 2; J.A. 37.

Later in 2012, Mr. Jones filed a notice of disagreement 

arguing that he should receive an earlier effective date that 

reflects VA medical treatment for PTSD beginning in 2000. 

Mr. Jones asserted that he “did not file until 11 years later 

because the doctors did not explain to [him] what PTSD really was back in 2000.” J.A. 61. On July 17, 2015, the 

Board denied Mr. Jones’s claim for an earlier effective date. 

The Board acknowledged the existence of “VA medical records showing treatment for mental health symptoms” in 

2000, but the Board found that the records before it “[did] 

not indicate an intent to file a claim for benefits and are 

not considered an ‘informal claim’ under any applicable 

regulations at the time.” J.A. 17.

Mr. Jones appealed to the Veterans Court, which affirmed the Board’s decision. The Veterans Court did not 

 

considered an informal claim.” 38 C.F.R. § 3.155(a) (2000)

(emphasis added). The VA amended 38 C.F.R. §§ 3.1 and 

3.155, effective March 24, 2015. 79 Fed. Reg. 57,660, 

57,686 (Sept. 25, 2014). Claims and appeals pending under 

the regulations that existed as of that date continue to be 

governed by the preexisting regulations. Id.
4 JONES v. WILKIE

review Mr. Jones’s complete treatment files. The Veterans 

Court noted: “The Secretary tacitly admits that the complete VA medical records from 2000 and 2001 are not in the 

record . . . .” J.A. 1. In light of Mr. Jones’s statement that 

he did not request benefits until 2011, however, the Veterans Court found that “the likelihood of such an informal 

claim [from 2000 or 2001] appearing in the unobtained VA 

medical records is extremely low.” J.A. 3. Further, the 

Veterans Court found, even if the records contained a communication that met the definition of an “informal claim,” 

Mr. Jones had not shown that such an informal claim was 

received by the “benefits section of the VA,” as opposed to 

a doctor at the “Veterans Health Administration.” J.A. 4.

Mr. Jones passed away in October 2016, and his wife 

substituted into the case and appealed on his behalf. 

DISCUSSION

We have jurisdiction to review a Veterans Court decision “with respect to the validity of a decision of the Court 

on a rule of law or of any statute or regulation . . . or any 

interpretation thereof (other than a determination as to a 

factual matter) that was relied on by the Court in making 

the decision.” 38 U.S.C. § 7292(a). “We review de novo legal determinations of the Veterans Court.” Geib v. 

Shinseki, 733 F.3d 1350, 1353 (Fed. Cir. 2013).

A. Secretary’s Request for Remand

The Secretary acknowledges that the Veterans Court 

did not have Mr. Jones’s complete medical files, and so the 

Secretary initially argues that this court should remand 

the case to the Veterans Court—without reaching the merits—for consideration based on a complete record.2 See 38 

 

2 The Secretary previously requested remand in a 

motion filed after Ms. Jones filed her opening brief but before the Secretary filed his brief. ECF No. 31. We denied 
JONES v. WILKIE 5

U.S.C. § 7252(b) (“Review in the [Veterans] Court shall be 

on the record of proceedings before the Secretary and the 

Board.”).

The Secretary argues that the RO and the Board actually reviewed Mr. Jones’s treatment records. The Secretary notes that the RO’s Rating Decision stated that the 

evidence it considered included, among other things, “VA 

treatment records, dated August 8, 2000 to February 1, 

2012, from VA Medical Center - Detroit, received February 

7, 2012 (Virtual VA).” J.A. 38. Moreover, the Board noted 

that “the RO assisted the Veteran by obtaining his postservice mental health treatment records.” J.A. 15. The 

Secretary suggests that the problem was not that the RO 

or Board failed to obtain Mr. Jones’s medical records but 

that the VA failed to include those medical records when 

assembling the record for the Veterans Court.

The completeness of the record presents a question of 

fact outside of this court’s jurisdiction, a point we have 

made more than once in the past, albeit in nonprecedential 

opinions. See Campbell v. Shinseki, 404 F. App’x 493, 496 

(Fed. Cir. 2010) (“[W]hether records were missing from 

Campbell’s file also presents a question of fact outside this 

court’s jurisdiction.”); Harrison v. Shinseki, 364 F. App’x 

630, 632 (Fed. Cir. 2010) (“Whether records are missing 

from Ms. Harrison’s file is a question of fact and thus not 

within this court’s jurisdiction.”). We cannot, therefore, 

second guess the Veterans Court’s finding that the Board

did not review Mr. Jones’s complete history. See J.A. 2 

 

the motion without prejudice pursuant to Federal Circuit 

Rule 27(f), which states that “[a]fter the appellant . . . has 

filed the principal brief, the argument supporting . . . remand should be made in the brief of the appellee. . . .” ECF 

No. 48 at 2. 
6 JONES v. WILKIE

(finding that Mr. Jones’s “complete VA medical records 

from 2000 and 2001 are not in the record”).3

We are, however, in a position to decide a legal issue 

squarely presented by the briefs, namely, whether the Veterans Court applied the correct legal standard when it 

ruled that the VA fulfilled its duty to assist Mr. Jones in 

obtaining “relevant” treatment files. We turn to this issue 

next.

B. VA’s Duty to Assist

Because Ms. Jones believes that Mr. Jones’s treatment 

records from 2000 and 2001 may contain an informal claim 

for benefits, she argues that the VA was required to assist 

him in obtaining his treatment records before rendering a 

decision on his claim for an earlier effective date. The statute governing the VA’s duty to assist states, in relevant 

part: “The Secretary shall make reasonable efforts to assist 

a claimant in obtaining evidence necessary to substantiate 

the claimant’s claim for a benefit under a law administered 

by the Secretary.” 38 U.S.C. § 5103A(a)(1). The statute 

specifically requires the VA to assist in obtaining “[r]ecords 

of relevant medical treatment or examination of the claimant at Department health-care facilities . . . if the claimant 

furnishes information sufficient to locate those records.” 38 

U.S.C. § 5103A(c)(1)(B). The parties do not dispute that 

Mr. Jones provided information sufficient to locate the records in question. However, an exception to the duty to 

 

3 We also decline to consider a declaration from the 

Deputy Vice Chairman of the Board, presented for the first 

time on appeal, asserting that Mr. Jones’s medical records 

were part of Mr. Jones’s claim file when the Board issued 

its July 17, 2015 decision. See Appellee’s Supp. Appx. 1–7. 

The Secretary waived reliance on this evidence by failing 

to present it to the Veterans Court. See Charles v. 

Shinseki, 587 F.3d 1318, 1322 & n.2 (Fed. Cir. 2009). 
JONES v. WILKIE 7

assist is that “[t]he Secretary is not required to provide assistance to a claimant under this section if no reasonable 

possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2). 

The Veterans Court found that even if the Board had 

not obtained or reviewed Mr. Jones’s complete treatment 

records, “the likelihood of such an informal claim appearing in the unobtained VA medical records is extremely low” 

because “Mr. Jones never alleged that he ever expressed an 

intent to file a claim to his VA doctors in 2000 or 2001.” 

J.A. 3. The Veterans Court made its finding “[i]n view of 

Mr. Jones’s allegations in the record,” id., which included 

Mr. Jones’s statement that he “did not file until 11 years 

later,” J.A. 61. Thus, the Veterans Court found that Mr. 

Jones failed to show how the unobtained medical records 

have a reasonable possibility of substantiating his entitlement to an earlier effective date. J.A. 4. 

We agree with Ms. Jones that the Veterans Court erred 

as a matter of law in requiring an impermissibly high 

threshold to trigger the VA’s duty to assist. While the Veterans Court mentioned the “no reasonable possibility 

standard,” it actually required Mr. Jones to show more 

than what the statute requires. Section 5103A does not 

allow the VA to avoid the duty to assist in obtaining records 

based on a mere belief that the likelihood of finding a record substantiating a veteran’s claim is “low” or “extremely 

low.” Rather, the applicable standard is whether “no reasonable possibility exists that such assistance would aid in 

substantiating the claim.” 38 U.S.C. § 5103A(a)(2) (emphasis added). Thus, to trigger the VA’s duty to assist, a veteran is not required to show that a particular record exists 

or that such a record would independently prove his or her 

claim. 

Moreover, the Secretary acknowledges that regulations 

implementing Section 5103A require the VA to assist 
8 JONES v. WILKIE

obtaining VA medical records without even considering the 

records’ relevance:

In a claim for disability compensation, VA will 

make efforts to obtain the claimant’s service medical records, if relevant to the claim; other relevant 

records pertaining to the claimant’s active military, 

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 authorized by VA; and any other relevant 

records held by any Federal department or agency.

38 C.F.R. § 3.159(c)(3) (emphasis added). In Sullivan v. 

McDonald, 815 F.3d 786, 790–91 (Fed. Cir. 2016), we held 

that because the above regulation uses the word “relevant” 

as a modifier for three of the four categories of records it 

identifies, but not for “VA medical records or records of examination or treatment at non-VA facilities authorized by 

VA,” the VA may not consider relevance when determining 

whether to assist in obtaining VA medical records.4 Thus, 

in the instant case, the Veterans Court erred in ruling that 

the duty to assist only “includes obtaining records of treatment at VA facilities that are relevant to the claim.” J.A. 2.

The Secretary’s contention that any legal error is 

harmless in light of Mr. Jones’s admissions is unpersuasive. In Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 

2009), we held that it was not harmless error for the VA to 

base its rating decision on a subset of a veteran’s medical 

 

4 The Sullivan court explained that its holding was 

not inconsistent with 38 U.S.C. § 5103A(c)(1)(B), which 

mentions “relevant” medical records, because “the statute 

permits the VA to provide additional assistance to claimants beyond that required by § 5103A, and the VA did so 

with respect to VA medical records when it promulgated 

§ 3.159(c)(3).” 815 F.3d at 791. 
JONES v. WILKIE 9

records. “The fact that the VA considered some of the relevant records . . . does not excuse the fact that it failed to 

consider all of them.” Id. Moreover, we were unwilling to 

assume what the contents of the remaining records would 

show. “We fail to understand how the government, without 

examining the [omitted] records, can have any idea as to 

whether they would, or would not, support [the veteran’s] 

claim for an increased disability rating.” Id. at 1375.5

CONCLUSION

Because the Veterans Court applied an incorrect legal 

standard regarding the VA’s duty to assist in obtaining 

medical records, we vacate the Veterans Court’s decision. 

We remand to the Veterans Court with instructions to remand to the Board, and with further instructions for the 

Board to remand to the RO to obtain and review Mr. 

Jones’s complete VA treatment records for PTSD and determine whether Mr. Jones is entitled to an effective date 

prior to April 13, 2011. We are not in a position to decide 

the factual question of whether any portion of his treatment records constitutes an “informal claim” within the 

meaning of the applicable statutes and regulations. Moody 

v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). We leave 

it to the RO to make that determination in the first instance.6

 

5 The Secretary attempts to distinguish Moore on the 

grounds that it involved a claim for a higher disability rating, and the missing records related to a recent hospitalization. However, the Secretary does not explain why these 

distinctions would make a difference regarding the VA’s requirement to consider complete medical records.

6 At this time, because the record is incomplete, we 

also decline to address the Veterans Court’s ruling that an 

informal claim must be received by the “benefits section of 

the VA,” as opposed to any other section of the VA. J.A. 4.
10 JONES v. WILKIE

VACATED AND REMANDED

COSTS

Costs to Appellant.