       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                   JAMES ABELS,
                  Claimant-Appellant

                           v.

  ROBERT WILKIE, SECRETARY OF VETERANS
                  AFFAIRS,
             Respondent-Appellee
            ______________________

                      2018-1484
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-2003, Judge Michael P. Allen.
                ______________________

              Decided: February 14, 2019
               ______________________

    ALEXANDRA H. GAISER, Akin Gump Strauss Hauer &
Feld LLP, Washington, DC, argued for claimant-appellant.
Also represented by DAVID A. APPLEBAUM; HAROLD
HAMILTON HOFFMAN-LOGSDON, III, Veterans Legal Advo-
cacy Group, Arlington, VA.

    WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by ROBERT EDWARD KIRSCHMAN, JR.,
2                                             ABELS v. WILKIE




LOREN MISHA PREHEIM, JOSEPH H. HUNT; BRANDON A.
JONAS, Y. KEN LEE, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
               ______________________

    Before LOURIE, BRYSON, and MOORE, Circuit Judges.
BRYSON, Circuit Judge.
    James Abels, a veteran, appeals from a decision of the
Court of Appeals for Veterans Claims (“the Veterans
Court”), which affirmed a decision of the Board of Veterans’
Appeals denying his claim for benefits. We vacate the Vet-
erans Court’s judgment and remand for further proceed-
ings.
                              I
    Mr. Abels claims that he was injured in an accident
that occurred in 1964, while he was on active duty with the
U.S. Army. Beginning in 2007, he filed a series of claims,
asserting service-connection for several medical conditions,
including orthopedic problems with his left shoulder and
both knees. After extended proceedings, Mr. Abels was ex-
amined by a Department of Veterans Affairs (“DVA”) phy-
sician who concluded that Mr. Abels’ conditions were “less
likely than not incurred in or caused by an in-service in-
jury, event, or illness.” After the regional office denied Mr.
Abels’ claim, he appealed to the Board of Veterans’ Ap-
peals, which sustained the finding of no service connection
for any of his injuries.
    On appeal to the Veterans Court, Mr. Abels raised two
issues: whether his DVA medical examination was suffi-
cient and whether the DVA should have sought and ob-
tained the medical records of a private physician who
examined Mr. Abels in 2013 (“the Western Orthopedics rec-
ords”). The court held, first, that it was reasonable for the
Board to conclude, as it did, that the DVA medical exami-
nation and report were adequate. Second, the court held
ABELS v. WILKIE                                           3



that the DVA did not violate its duty to assist Mr. Abels by
not obtaining the Western Orthopedics records, because
those records “had no possibility of substantiating appel-
lant’s claim beyond what he had already established and/or
what the Secretary had already conceded.”
    On appeal to this court, Mr. Abels makes four argu-
ments: (1) that the Veterans Court committed an error of
law in determining that the Western Orthopedics records
were not relevant; (2) that the DVA improperly failed to
obtain Mr. Abels’ service records; (3) that the DVA medical
examination was inadequate in light of the absence of the
Western Orthopedics records and service medical records;
and (4) that the Veterans Court denied Mr. Abels the stat-
utory right to the “benefit of the doubt” that applies when
there is an approximate balance of positive and negative
evidence regarding any issue material to a veteran’s claims
for benefits. 38 U.S.C. § 5107(b).
                             II
     Of the four issues raised by Mr. Abels, only one—the
first—is properly before us. The second and fourth issues
were not raised before the Veterans Court, and Mr. Abels
has not offered any persuasive reason why we should not
treat those issues as waived. See Morgan v. Principi, 327
F.3d 1357, 1364 (Fed. Cir. 2003). As to the third issue re-
garding the adequacy of the medical examination, Mr.
Abels’ current argument is entirely different from his ar-
gument before the Veterans Court, where he argued that
the DVA physician’s opinion and rationale should not be
regarded as “medical evidence” because it could have been
provided by a lay person. Given the difference between
that argument and the one Mr. Abels now raises with re-
spect to the adequacy of the medical examination, we re-
gard that issue as waived as well. See id.
   The remaining issue is whether the Veterans Court
committed legal error in the course of determining that the
Western Orthopedics records were irrelevant and that the
4                                            ABELS v. WILKIE




failure to seek those records therefore did not violate the
DVA’s duty to assist the veteran in pursuing his claim.
    The government argues that this court lacks jurisdic-
tion to address the relevance of the Western Orthopedics
records, because that issue is factual in nature or, at most,
entails the application of law to fact. As such, the govern-
ment contends, the issue is not within our reviewing au-
thority in appeals from the Veterans Court. See 38 U.S.C.
§ 7292. We disagree. Mr. Abels has couched his arguments
as to the Western Orthopedics records in terms of the legal
standards applied by the Veterans Court to the issue of rel-
evance. We have confined our review to the legal principles
governing the Veterans Court’s analysis. And our decision
on the legal issue on which we focus affects the outcome of
the appeal. We therefore have jurisdiction to decide this
issue. See Morgan, 327 F.3d at 1363; see also Burris v.
Wilkie, 888 F.3d 1352, 1356 (Fed. Cir. 2018) (court has ju-
risdiction to review issues of the jurisdiction of the Veter-
ans Court); Lamour v. Peake, 544 F.3d 1317, 1320–21 (Fed.
Cir. 2008) (“Even where factual disputes may remain, we
have authority to decide whether the Veterans Court ap-
plied the correct legal standard.”).
    Although the DVA was aware of the existence of the
Western Orthopedics records, it did not seek to obtain
them. In its opinion, the Board of Veterans’ Appeals did
not advert to the question whether it was error for the DVA
not to obtain those records. Before the Veterans Court, Mr.
Abels argued that the records were relevant on their face
because they refer to his current conditions. The Veterans
Court, however, concluded that the records were not rele-
vant, and that the DVA therefore did not violate its duty to
assist Mr. Abels in prosecuting his claim.
    The Veterans Court reasoned that the Western Ortho-
pedics records are not relevant because they are recent
treatment records, “which would not assist in substantiat-
ing the missing element of [Mr. Abels’] claim for service
ABELS v. WILKIE                                             5



connection,” i.e., the causal nexus between Mr. Abels’ cur-
rent condition with his in-service injury. [J.A.11] The
court noted that Mr. Abels had testified that the Western
Orthopedics physician who treated him had not offered a
firm conclusion that his injuries were related to the in-ser-
vice event, although Mr. Abels related that the physician
had said that it may be “more than coincidental” that he
had suffered a large number of painful orthopedic issues
and that “a common or primary cause appears to be a very
reasonable deduction.” [J.A. 183] Because the court found
that the physician’s opinion, as related by Mr. Abels, “falls
short of the preponderance of evidence necessary to estab-
lish service connection,” the court concluded that the duty
to assist did not extend to the Western Orthopedics records
because the records had “no possibility of substantiating
[Mr. Abels’] claim beyond what he had already established
and/or what the Secretary had already conceded.” [J.A.
11]
     Among the challenges that Mr. Abels raises to the Vet-
erans Court’s analysis is that the court made a finding in
the first instance of a fact critical to the resolution of Mr.
Abels’ claim, i.e., the factual issue of the relevance vel non
of the Western Orthopedics records. Appellant’s Br. 21–22.
Notably, the Board of Veterans’ Appeals made no such find-
ing, as the Board did not even advert to the problem that
the Western Orthopedics records were not obtained. The
Veterans Court made the relevance finding on its own.
    It may be that the Western Orthopedics records will ul-
timately be determined to be irrelevant. But that is a find-
ing that must be made in the first instance by a finder of
fact, in this case the Board of Veterans’ Appeals. It is not
a determination that can be the subject of appellate fact-
finding.
    As a general matter, fact-finding by an appellate court
is improper. See Icicle Seafoods, Inc. v. Worthington, 475
U.S. 709, 714 (1986) (“If the Court of Appeals believed that
6                                             ABELS v. WILKIE




the District Court had failed to make findings of fact essen-
tial to a proper resolution of the legal question, it should
have remanded to the District Court to make those find-
ings. . . . But it should not simply have made factual find-
ings on its own.”). The same principle applies to veterans
appeals, as both this court and the Veterans Court have
recognized. See Sullivan v. McDonald, 815 F.3d 786, 792
(Fed. Cir. 2016) (“‘[A]ppellate tribunals are not appropriate
fora for initial fact finding.’” (quoting Hensley v. West, 212
F.3d 1255, 1263 (Fed. Cir. 2000)); Andre v. Principi, 301
F.3d 1354, 1362 (Fed. Cir. 2002) (“We have recognized that
38 U.S.C. § 7261(c), which provides that ‘[i]n no event shall
findings of fact made by the Secretary or the Board . . . be
subject to trial de novo by the Court,’ prohibits the Veter-
ans Court from making factual findings in the first in-
stance.”); Webster v. Derwinski, 1 Vet. App. 155, 159 (1991)
(“Because we are a Court of review, it is not appropriate for
us to make a de novo finding, based on the evidence [of a
factual matter].”).
    The determination of whether a particular item is rel-
evant typically turns on “the evaluation and weighing of
evidence,” tasks that “are factual determinations commit-
ted to the factfinder—in this case, the Board.” Deloach v.
Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013). The Veter-
ans Court “must review the Board’s weighing of the evi-
dence; it may not weigh any evidence itself.” Id.
    This court’s decision in Sullivan v. McDonald, supra, is
on point. There, the court held that the Veterans Court
had engaged in improper appellate factfinding when it
found that certain medical records were not relevant, an
issue that the Board in that case had not considered. Sul-
livan, 815 F.3d at 792.
    The same analysis applies here. In finding that the
Western Orthopedics records “would not assist in substan-
tiating the missing element of [Mr. Abels’] claim for service
connection” and therefore were irrelevant, the Veterans
ABELS v. WILKIE                                             7



Court drew factual conclusions about what the missing rec-
ords would likely reveal and what inferences about causa-
tion the examining physician could draw based on Mr.
Abels’ current condition. 1 In light of the Veterans Court’s
role as a reviewing court, those factual determinations are
not within its authority to make in the first instance.
     The government defends the Veterans Court’s determi-
nation that the Western Orthopedics records would be ir-
relevant on the ground that in substance what the
Veterans Court did as to that issue was to make a finding
of harmless error on the part of the Board. See Appellee’s
Br. 29–30. It is true that the Veterans Court has statutory
authority to make determinations of harmless error, see 38
U.S.C. § 7261(b), an authority that authorizes the court to
consider “the facts and circumstances of the particular
case,” see Shinseki v. Sanders, 556 U.S. 396, 408 (2009).
But that is not what the Veterans Court said it was doing
in this case. In sequential portions of its opinion, the court
addressed, first, the issue of the relevance of the Western
Orthopedics records and, second, the issue of whether the
Board erred by not providing adequate reasons and bases
for its decision not to obtain those records. As to the sec-
ond, the court expressly based its decision on harmless er-
ror. But as to the first, the court made no mention of



    1   The government acknowledges that the Veterans
Court’s determination that the Western Orthopedics rec-
ords would not assist Mr. Abels’ claim is an issue of fact.
See Appellee’s Br. 18. Although the government makes
that assertion in the context of its argument that this court
lacks jurisdiction over Mr. Abels’ appeal, the point is
equally applicable to the scope of the Veterans Court’s au-
thority to review decisions of the Board of Veterans’ Ap-
peals and the limitations on the authority of the Veterans
Court to make initial findings of fact. See Sullivan, 815
F.3d at 792–93.
8                                             ABELS v. WILKIE




harmless error and instead found that the Board commit-
ted no error at all, based on the court’s analysis of the rel-
evance issue. The government’s argument that the court’s
decision on the issue of relevance can be sustained on a
harmless error theory is thus contrary to the grounds ex-
plicitly invoked by the court to support its ruling.
    We vacate the judgment of the Veterans Court and re-
mand for further proceedings with regard to the Western
Orthopedics records, which we understand the appellant
has obtained and is prepared to submit into the record on
remand.
             VACATED AND REMANDED
