       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 PERRY R. ALEXCE,
                  Claimant-Appellant,

                           v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2010-7073
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 06-3559, Judge Robert N.
Davis.
             ___________________________

               Decided: October 6, 2011
             ___________________________

    NAOMI E. FARVE, of New Orleans, Louisiana, for
claimant-appellant.

    JANE W. VANNEMAN, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent-appellee. With her on the brief were TONY WEST,
ALEXCE   v. DVA                                            2


Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and BRIAN M. SIMKIN, Assistant Director. Of counsel
on the brief was DAVID J. BARRANS, Deputy Assistant
General Counsel, United States Department of Veterans
Affairs, of Washington, DC. Of counsel was KRISTIANA M.
BRUGGER, Attorney, United States Department of Veter-
ans Affairs, of Washington, DC.


                  __________________________

    Before LOURIE, BRYSON, and DYK, Circuit Judges.
PER CURIAM.

                          DECISION

    Perry R. Alexce appeals from the decision of the Court
of Appeals for Veterans Claims (“the Veterans Court”)
seeking to overturn a decision of the Board of Veterans’
Appeals that denied his request for an increase in his
disability rating for purposes of disability compensation
from the Department of Veterans Affairs (“DVA”).

                        BACKGROUND

     Mr. Alexce, a veteran, is currently receiving disability
compensation from the DVA for a service-connected post-
surgical knee condition. The DVA assigned him a disabil-
ity rating of 10 percent for his condition, effective Decem-
ber 4, 2001. Mr. Alexce requested that his rating be
increased, and he submitted medical records in support of
his request. A DVA regional office denied his request,
and the Board of Veterans’ Appeals upheld the regional
office’s decision not to increase his rating.
3                                             ALEXCE   v. DVA


    Mr. Alexce appealed that decision to the Veterans
Court. Before that court, Mr. Alexce made only a single
argument—that the DVA had destroyed certain medical
records that he had submitted in support of his claim for
an increased disability rating and that sanctions should
be imposed for the destruction of the records, including a
presumption that the records would have shown that Mr.
Alexce was entitled to a disability rating greater than 10
percent.

     The Veterans Court affirmed the Board’s decision, re-
jecting Mr. Alexce’s argument that the DVA’s destruction
of Mr. Alexce’s records entitled him to relief. The court
noted that, according to the DVA, the records that were
destroyed were duplicative of medical records already in
the claims file and that the destruction of duplicative
material is a standard procedure dictated by the DVA’s
internal adjudication procedure manual. In the absence
of evidence to the contrary, the court assumed that the
DVA had properly discharged its duties by destroying
only records that were duplicative. The court added that
“if it could be shown that documents were destroyed that
were both nonduplicative and relevant, such develop-
ments could have substantially different implications.”

    In a motion for reconsideration, Mr. Alexce did not
take issue with the DVA’s representation that the de-
stroyed records were duplicative, but argued that the
“unilateral removal of relevant documents from Appel-
lant’s claim file, without prior notice to Appellant, was a
violation of Appellant’s due process right to a fair hearing
and determination of his case.” The Veterans Court
denied reconsideration without comment.
ALEXCE   v. DVA                                          4


                       DISCUSSION

    Mr. Alexce renews his argument that the destruction
of his medical records constituted spoliation of evidence
and violated his due process rights. The government
responds that this court lacks jurisdiction to address
those claims and that, in any event, Mr. Alexce’s argu-
ment fails on the merits.

    Although the government contends that Mr. Alexce’s
argument is fact-based and therefore not within this
court’s jurisdiction, we understand his argument to be, at
least in part, that any destruction of medical records that
he submitted to the DVA constitutes spoliation and
violates due process, regardless of whether those records
are duplicative or relevant to his claim. As such, Mr.
Alexce’s argument is not fact-based; if his broad legal
theory were accepted, he would prevail. This court there-
fore has jurisdiction to address that argument. See An-
drews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005);
Morgan v. Principi, 327 F.3d 1357, 1363 (Fed. Cir. 2003);
Madden v. Gober, 125 F.3d 1477, 1480 (Fed. Cir. 1997).
Moreover, to the extent that Mr. Alexce’s argument is
constitutional in nature, the fact that we are asked to
address factual issues does not defeat our jurisdiction.
See 38 U.S.C. § 7292(d)(2).

    While we have jurisdiction to address Mr. Alexce’s ar-
gument, we find that it is entirely lacking in merit. There
is no evidence that the documents that were destroyed
were anything other than duplicative of records already in
the claim file. The only evidence in the record relating to
the destruction of documents is an entry made on a re-
gional office document stating “Duplicate VA tx [i.e,
treatment] records destroyed 2-17-05.” Mr. Alexce offered
nothing to suggest that any materials he submitted that
5                                            ALEXCE   v. DVA


were not duplicative were missing from the file, much less
suggesting what those materials might have said that
could be helpful to his claim.

     There is no force to the argument that the destruction
of duplicative materials constitutes spoliation of evidence
or that there is anything improper in the DVA’s practice
of retaining only a single copy of particular medical
records in veterans’ claim files in an effort to maintain
orderly records. The routine destruction of duplicative
documents does not present the risk of denying an adver-
sary access to relevant information, which is what the
doctrine of spoliation is directed to. See Jandreau v.
Nicholson, 492 F.3d 1372, 1375 (Fed. Cir. 2007) (holding
that an adverse inference for spoliation of evidence re-
quires proof that evidence was destroyed “with a culpable
state of mind” and that it was “relevant to the party’s
claim or defense”); see also Kirkendall v. Dep’t of the
Army, 573 F.3d 1318, 1325-27 (Fed. Cir. 2009) (spoliation
found when agency destroyed relevant documents in
violation its own document retention program and peti-
tioner made a “compelling case” that his effort to prove
his case was hampered by the destruction of the docu-
ments). There was no showing that the destruction of the
duplicate records in this case was contrary to routine
agency practice or was done to deprive Mr. Alexce of
relevant evidence, and there is no showing that the ab-
sence of duplicate copies of records already found in the
file in any way deprived Mr. Alexce of relevant evidence
with which to support his claim. Like the Veterans Court,
we therefore reject Mr. Alexce’s theory of spoliation.

    As for Mr. Alexce’s argument that the destruction of
his records deprived him of due process, Mr. Alexce did
not make that argument until his motion for reconsidera-
tion in the Veterans Court; it was therefore not timely
ALEXCE   v. DVA                                          6


raised. In any event, there is no force to the argument.
Due process ensures a party a meaningful right to be
heard with respect to the denial of important governmen-
tal benefits, including veterans disability benefits.
Cushman v. Shinseki, 576 F.3d 1290, 1298-1300 (Fed. Cir.
2009). The routine destruction of duplicative medical
records was not shown to have had any effect whatsoever
on Mr. Alexce’s right to be heard with regard to his claim
for increased disability benefits. Absent any arguable
effect on his ability to prove his right to those benefits,
Mr. Alexce cannot demonstrate an impairment of his
opportunity to be heard with respect to those benefits.
We therefore sustain the decision of the Veterans Court.

                      AFFIRMED

   No costs.
