            UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                                  NO . 08-2064

                                    RICHARD C. RAUGUST , APPELLANT ,

                                                        V.


                                         ERIC K. SHINSEKI,
                             SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                            On Appeal from the Board of Veterans’ Appeals

                 (Argued April 13, 20101                             Decided June 11, 2010)



        Robert M. Kampfer, of Great Falls, Montana, for the appellant.

      Mark M. McNabb, with whom John H. Thompson, Acting General Counsel, R. Randall
Campbell, Assistant General Counsel, Joan E. Moriarty, Deputy Assistant General Counsel, all of
Washington, D.C., were on the brief for the appellee.

        Before HAGEL, MOORMAN, and LANCE, Judges.

        HAGEL, Judge: Richard C. Raugust appeals through counsel a March 20, 2008, Board of
Veterans' Appeals (Board) decision denying him basic eligibility for Department of Veterans Affairs
(VA) medical care benefits. This appeal is timely, and the Court has jurisdiction to review the
Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). The case was sent to a panel to
address an issue of first impression, which is whether the statute and regulation establishing a
mandatory 24-month minimum service period before a veteran is eligible for basic VA medical care
violates the constitutional guarantee of equal protection. Because the Court finds that there was a
rational basis for the minimum service requirement, the statute and regulation at issue do not violate
the Equal Protection Clause, and the Court will affirm the Board decision.




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          The Court expresses its appreciation to University of Idaho College of Law, in Moscow, Idaho, for hosting
oral argument in this case.
                                                     I. FACTS
         Mr. Raugust served on active duty in the U.S. Army between October 1984 and April 1986.
His service was characterized as under honorable conditions, although his certificate of release lists
"[m]isconduct - pattern of misconduct" as the reason for his separation. Record (R.) at 52.
         In September 2004, Mr. Raugust requested access to VA health care benefits. In March
2005, a VA regional office denied Mr. Raugust's application for veterans medical benefits after
concluding that he was not entitled to such benefits under 38 C.F.R. § 3.12a because he had less
than 24 months of continuous active military service after September 1980.2 Mr. Raugust appealed
the decision.
         In March 2008, the Board issued the decision on appeal, denying Mr. Raugust eligibility for
veterans health care benefits as a matter of law. The Board first considered whether VA had satisfied
its duty to assist pursuant to 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Board concluded that
it was unnecessary to review VA's compliance with its duty to assist Mr. Raugust, reasoning that
"because no reasonable possibility exists that would aid in substantiating this claim, any deficiencies
of [the Veterans Claims Assistance Act of 2000] notice or assistance are moot." R. at 5.
         The Board then considered whether Mr. Raugust was eligible for any VA benefits pursuant
to 38 C.F.R. §§ 3.12a(a)(1), (b) (2008). Under that provision, with some exceptions including
discharge due to hardship, a veteran must serve for a minimum of 24 months of active duty to be
eligible for VA medical benefits. The Board found that Mr. Raugust's certificate of release or
discharge from active duty (DD-214) reflected that he had served on active duty for 17 months and
25 days: in other words, short of the 24-month eligibility requirement. Because Mr. Raugust did not
satisfy the minimum active duty requirements, the Board denied his claim as a matter of law.
Further, the Board acknowledged Mr. Raugust's argument that the minimum service requirements



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           38 C.F.R. § 3.12a(b) provides that "[e]xcept as provided in paragraph (d) of this section, a person listed in
paragraph (c) of this section who does not complete a minimum period of active duty is not eligible for any benefit under
title 38, United States Code or under any law administered by the Department of Veterans Affairs based on that period
of active service."
          Subsection (c) defines persons included under this section as any service member who enlisted after September
7, 1980. Finally, subsection (d) provides exclusions to the general rule, including a service member released under an
early out or hardship discharge program or a person discharged due a medical disability or service-connected disability.



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in 38 C.F.R. § 3.12a were unconstitutional, but declined to rule on the argument because "[t]he
Board is not the appropriate forum for this argument." R. at 7.
       On appeal, Mr. Raugust argues that the Board erred in finding that VA did not have a duty
to obtain further military records beyond his DD-214, enlistment contract, and portions of his
enlistment physical. Appellant's Brief (Br.) at 7-8. Mr. Raugust also asserts that the 24-month
service minimum to qualify for VA medical benefits is unconstitutional, as it violates the Fifth
Amendment's Equal Protection Clause. Appellant's Br. at 10-11.
       In response, the Secretary contends that the Court should reject Mr. Raugust's argument
concerning the duty to assist because he has not asserted that further records would be relevant to
establishing whether he met the 24-month service requirement which statutorily bars VA medical
benefits. Secretary's Br. at 5. Further, the Secretary argues that the minimum service requirement
does not violate the Fifth Amendment's Equal Protection Clause because Congress expressed a
rational basis for establishing the minimum service requirement. Secretary's Br. at 6-11.


                                           II. ANALYSIS
                                          A. Duty to Assist
       Pursuant to 38 U.S.C. § 5103A, the Secretary is required to "make reasonable efforts to assist
a claimant in obtaining evidence necessary to substantiate the claimant's claim for benefits."
38 U.S.C. § 5103A(a). Under section 5103A(b), the Secretary's duty to assist includes making
reasonable efforts to obtain relevant records, so long as the claimant adequately identifies those
records to the Secretary and authorizes the Secretary to obtain them. 38 U.S.C. § 5103A(b)(1).
Under 38 U.S.C. § 5103A(c)(1), VA is required to make reasonable efforts to obtain all records held
by a governmental entity that are relevant to the claim and that pertain to the claimant's military
service if the claimant provides the Secretary information sufficient to locate such records.
       Here, the Board did not find that VA satisfied its duty to assist, but instead found "any
deficiencies of [the Veterans Claims Assistance Act of 2000] notice or assistance are moot" because
"no reasonable possibility exists" that additional records would substantiate Mr. Raugust's claim.
R. at 5. Mr. Raugust argues that the Secretary did not satisfy the duty to assist when he failed to seek
additional service records because those records may have addressed some of the exclusions to the


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24-month minimum service requirement. Such exceptions allow veterans who were discharged
based on a hardship or early discharge agreement (see 10 U.S.C. § 1173) or due to a disability to
receive VA benefits even if that person did not serve in the active duty military for 24 months.
38 C.F.R. § 3.12a(d). The Secretary responds by asserting that any additional records could not be
relevant because Mr. Raugust's certificate of release from active duty provides that he was separated
due to a pattern of misconduct. Therefore, the Secretary contends that, as a matter of law, any
additional records could not be relevant to the claim. In reply, Mr. Raugust characterizes the
Secretary's assertion that the additional records could not be relevant as speculation.
       The Secretary's duty to assist does not extend to obtaining records when "no reasonable
possibility exists that such assistance would aid in substantiating the claim."            38 U.S.C.
§ 5103A(a)(2). As the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated
in McGee v. Peake, "Congress has explicitly defined the VA's duty to assist a veteran with the factual
development of a benefit claim in terms of relevance." 511 F.3d 1352, 1357 (Fed. Cir. 2008); see
38 U.S.C. 5103A(b)(1). When reviewing the Board's finding that records are not relevant, the Court
looks to whether (1) the unobtained records may be related to the claim, or (2) there is a reasonable
possibility that the records could substantiate the claim. Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed.
Cir. 2010). Moreover, there "must be specific reason to believe these records may give rise to
pertinent information," such as "specific allegations" from the claimant that the records are relevant.
Id. at 1323. The Court reviews the Board's finding on the issue of relevance for clear error.
38 U.S.C. § 7261(a)(4).
       Here, the Secretary found that there was "no reasonable possibility" that additional records
would establish that Mr. Raugust satisfied the 24-month minimum service requirement. R. at 5. The
Court finds that Mr. Raugust has not established that this finding was clearly erroneous. See Hilkert
v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant has the burden of
demonstrating error). Although Mr. Raugust correctly asserts that it is conceivable that additional
military records would establish that one of the exceptions to the 24-month minimum service
requirement applied, there is no "specific reason to believe" that the records would contain such
information. Golz, 590 F.3d at 1323. More tellingly, Mr. Raugust has not made a specific allegation
that an exception would be established if the records were obtained. See id. Without a specific and


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credible reason to believe that obtaining the additional records would tend to establish that an
exception to the 24-month minimum service requirement applied to Mr. Raugust's claim, the Court
must conclude that the Board did not commit clear error in concluding that there was no need to
obtain additional records. See 38 U.S.C. § 7261(a)(4); Golz, 590 F.3d at 1323.
       Mr. Raugust's situation is distinguishable from that in McGee, where the Federal Circuit held
that the Board erred by failing to seek military service records that could establish whether the
veteran had filed a claim upon his discharge in accordance with a statutory provision. McGee,
511 F.3d at 1358. In McGee, the veteran was discharged due to a lung disorder and was seeking to
obtain an effective date for his claim from the time of his discharge. Pursuant to statute, when a
service member is discharged from active duty because of a physical disability, the service
department must ensure that the individual files a claim for VA benefits or signs a waiver
establishing that the right to make a claim has been explained. Id. at 1355 (citing 10 U.S.C. § 1218).
In McGee, the Federal Circuit held that the Board erred by finding that there were no pertinent
records to be obtained without taking into account this statute, which required that a claim either be
submitted or waived in the veteran's particular case. Id. at 1358.
       Unlike in McGee, there is no statutory or regulatory provision at play here that would require
the creation of additional potentially relevant records. Although there are exceptions to the § 3.12a
two-year minimum service requirement, there is nothing in that regulation or any other regulation
or statute advanced by Mr. Raugust or located by the Court that requires the creation of records that
would be relevant to Mr. Raugust's claim. The statute at issue in McGee provided that documents
that were inherently relevant to the veteran's effective date argument were subject to the duty to
assist. There is no comparable requirement in Mr. Raugust's case. Thus, there was no specific
reason for the Board to seek additional records that Mr. Raugust never identified or requested. See
Golz, 590 F.3d at 1323.
       To the extent that Mr. Raugust asserts that the Board should have, on its own, considered
whether he received a humanitarian discharge, he failed to advance this argument before the regional
office or the Board. "The duty to assist is not a one-way street." Wood v. Derwinski, 1 Vet.App.
190, 193 (1992). If Mr. Raugust had asserted that he received a humanitarian discharge (and thus
fit into an exception to § 3.12a), there would be a basis for arguing that the Board erred by failing


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to search for such documents. However, the mere possibility that an exception exists is insufficient
to trigger the duty to seek out additional documents when there is no statutory requirement that such
documents be created. In other words, VA is not obligated to embark on an "unguided safari" to seek
all potentially relevant records. Brokowski v. Shinseki, 23 Vet.App. 79, 89 (2009).
                                     B. Equal Protection Clause
       In his brief, Mr. Raugust argued that the 24-month minimum service requirement in
38 C.F.R. § 3.12a to establish eligibility for most VA benefits violates the Equal Protection Clause
of the Fifth Amendment. Mr. Raugust asserted that the provision is unconstitutional because it
creates "arbitrary absurdities" by denying medical care to veterans who served one day less than 24
months while granting benefits to veterans who had only fractionally longer service. Appellant's Br.
at 10. At oral argument, Mr. Raugust's attorney stated that the Secretary's analysis on this question
was persuasive and declined to advance his original argument. He did not, however, state that he
was withdrawing his original argument. Accordingly, the Court will consider the argument. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1991).
       The authority for § 3.12a derives from 38 U.S.C. § 5303A, which provides for the same 24-
month minimum service requirement for veterans to establish entitlement to most VA benefits,
including health care. The Court has jurisdiction to consider constitutional challenges to statutes and
regulations pursuant to 38 U.S.C. § 7261(A)(3)(b).
       It is well established that when legislation involving governmental payment of monetary
benefits "is challenged on equal protection grounds as being violative of the Fifth Amendment, the
rational basis standard is the appropriate standard of judicial review." Talon v. Brown, 999 F.2d 514,
517 (Fed. Cir. 1993), cert. denied, 114 S. Ct. 643 (1993) (citing United States R.R. Retirement Bd.
v. Fritz, 449 U.S. 166, 176 (1980)); Califano v. Torres, 435 U.S. 1, 5 (1978). The rational basis
standard will also be applied when social welfare legislation is involved, so long as fundamental
constitutional rights or suspect classes are not involved. See Fritz, 449 U.S. at 174. Under the
rational basis standard of review, the Court will uphold a statute unless it is "'patently arbitrary and
irrational.'" Saunders v. Brown, 4 Vet.App. 320, 325 (1993) (quoting Fritz, 449 U.S. at 177).
       Here, the Court must first determine whether access to VA medical care pursuant to section
5303A can be classified as a monetary benefit or social welfare program to which the rational basis


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standard may be applied. There can be no doubt that it is a form of social welfare, and thus subject
to the rational basis standard of review. See Fritz, 449 U.S. at 174. Accordingly, the Court will
review the 24-month minimum service requirement to determine whether there was a rational basis
for establishing it. See Fritz, 449 U.S. at 174; see also Saunders, 4 Vet.App. at 325 (reviewing
statute governing entitlement to purchasing life insurance under rational basis standard).
          Congress passed 10 U.S.C. § 977, the precursor to the current section 5303A,3 as part of the
Department of Defense Authorization Act of 1981. The Senate committee reviewing the bill stated
that it
          adopted an amendment to restrict eligibility for all benefits awarded to individuals
          for having served in the military to those who have completed two or more years of
          active service except in cases of injury or unusual circumstances beyond the
          individual's control. The committee has previously expressed a serious concern
          about the high level of attrition, much of which occurs during the first six months of
          active duty. Current eligibility for benefits at the six month point provides an
          incentive for attrition and may contribute to the continuing too high levels of attrition
          of first term personnel.

S. Rep. No. 96-836, at 135 (1980) (original in all upper case). The committee report makes clear that
the purpose of the 24-month minimum service requirement was to attempt to reduce attrition among
new members of the military.
          The Court finds that at least one purpose for which Congress established the 24-month
minimum service requirement may have been to reduce attrition. We hold that this provides a
rational basis for creating the eligibility requirement. See Talon, 999 F.2d at 517. Encouraging new
recruits to remain in the military by withholding benefits to those who choose to leave early is
neither patently arbitrary nor irrational. See Saunders, 4 Vet.App at 325. Thus, the Court finds that
38 U.S.C. § 5303A does not violate the Fifth Amendment's Equal Protection Clause. Id.




          3
          In 1981, Congress recodified 10 U.S.C. § 977 as 38 U.S.C. § 3103A, and in 1991 the provision was
renumbered to its current designation as 38 U.S.C. § 5303A. See S. Rep. N. 97-153, at 39; Pub. L. 102-40, Title IV,
§ 402(b)(1).

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                                  III. CONCLUSION
       Upon consideration of the foregoing, the Court AFFIRMS the Board's March 20, 2008,
decision.




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