Bailey v. Shinseki

• Court: U.S. Court of Appeals — Federal Circuit
• Writing for the Court: PER CURIAM
• Decision Date: 10 July 2013
• Docket Number: 2013-7052
• Citation: Bailey v. Shinseki, 2013-7052 (Fed. Cir. Jul 10, 2013)
• Parties: RUSSELL L. BAILEY, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

RUSSELL L. BAILEY, Claimant-Appellant,

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

2013-7052

United States Court of Appeals for the Federal Circuit

Decided: July 10, 2013

NOTE: This disposition is nonprecedential.

Appeal from the United States Court of Appeals for Veterans Claims in No. 11-0465, Judge Lawrence B. Hagel.

RUSSELL L. BAILEY, of Harts, West Virginia, pro se.

ELIZABETH ANNE SPECK, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were STUART F. DELERY, Principal Deputy Assistant Attorney General, JEANNE E. DAVIDSON, Director, and KIRK T. MANHARDT, Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and MARTIN J. SENDEK, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, BRYSON, and PROST, Circuit Judges.

PER CURIAM.

Russell L. Bailey appeals from a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming a decision of the Board of Veterans Appeals ("Board") that denied his claim for disability benefits. We affirm.

BACKGROUND

Mr. Bailey served in the United States Air Force from January 1977 to December 1980. His separation examination report, dated October 8, 1980, indicates that at the time of his separation from service, apart from noted preexisting conditions, he was "normal" in all aspects evaluated. In his report of medical history, completed on the same day, he himself wrote that he was in "excellent" health.

At the time of Mr. Bailey's most recent claim for increased benefits for additional disabilities, he had a combined disability rating of 80% and was being paid at the 100% level based upon individual unemployability. On July 30, 2010, a Regional Office ("RO") of the Department of Veterans Affairs ("VA") notified Mr. Bailey of its decision to deny his additional claims for service connection, but noted that his combined rating and individual unemployability payments will continue unchanged.

On February 1, 2011, the Board affirmed the RO's rating decision denying benefits for fifteen disabilities for which Mr. Bailey claimed service connection, and remanded for further consideration of service connection for two other disabilities. In response to Mr. Bailey's general assertion that the copies of the October 1980 separation examination report and report of medical history in therecord had been altered to his detriment, the Board determined that the VA had satisfied its duty to assist under 38 U.S.C. § 5103A, having made reasonable efforts to obtain all "identified and available VA and private medical records" necessary to determine his claims. In particular, the Board noted that the RO had submitted numerous records requests to the National Personnel Records Center, an Air Force Base, a Naval Station, as well as several private physicians. Indeed, the Board found that Mr. Bailey's claims file contains several hundred pages of service medical records, including x-rays, bone scans, personal statements, and the October 1980 reports, all of which appear to be authentic and complete. Finally, the Board found that "there is no indication that there are any relevant outstanding medical records to be procured."

In his appeal of the Board's decision to the Veterans Court, Mr. Bailey raised a single argument: the VA failed to comply with its duty to assist in failing to obtain the original October 1980 separation examination report because the photocopy version of it in the record did not appear to be authentic. On August 28, 2012, the Veterans Court rejected Mr. Bailey's argument, noting that the Board found the record to be replete with requests to and responses by various entities for Mr. Bailey's medical records, as evidenced by a voluminous claims file containing copies of official documents that appear to be both authentic and complete. In addition, the Veterans Court noted that in a previous appeal which resulted in a partial remand in April 2008, it had already found that there is no evidence that the copies of the reports in Mr. Bailey's claims files are other than exact replicas of the originals, and that the VA has exhausted efforts to procure originals of these records. Finally, the Veterans Court noted that Mr. Bailey may have waived the instant authenticity challenge in having failed to raise it in one of his prior appeals. Accordingly, the Veterans Court concluded that the Board's determination that the VA satisfied its duty to assist is not clearly erroneous.

Mr. Bailey filed a timely motion for reconsideration with...