  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. Da-
vis, Judge Mary J. Schoelen, Judge Margaret C. Bartley.
                 ______________________

                Decided: March 13, 2019
                ______________________

    MEGHAN GENTILE, Veterans Legal Advocacy Group, Ar-
lington, VA, argued for claimant-appellant. Also repre-
sented by HAROLD HAMILTON HOFFMAN-LOGSDON, III.

    ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented 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 ser-
vice-connected compensation for post-traumatic stress dis-
order (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 bene-
fits. 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 regu-
lations 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 ap-
ply for one or more benefits . . . from a claimant . . . may be
JONES v. WILKIE                                            3



send the applicant a formal application form, and, assum-
ing 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, ef-
fective 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 re-
ally 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 rec-
ords 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 af-
firmed 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 com-
plete 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 Veter-
ans 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 com-
munication 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 deci-
sion “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 le-
gal 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 mer-
its—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 be-
fore 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 actu-
ally reviewed Mr. Jones’s treatment records. The Secre-
tary 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 post-
service 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 . . . re-
mand 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 Vet-
erans 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 stat-
ute 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 claim-
ant 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 rec-
ords 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 as-
sistance to a claimant under this section if no reasonable
possibility exists that such assistance would aid in sub-
stantiating 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 appear-
ing 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 entitle-
ment 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 Vet-
erans 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 rec-
ord substantiating a veteran’s claim is “low” or “extremely
low.” Rather, the applicable standard is whether “no rea-
sonable possibility exists that such assistance would aid in
substantiating the claim.” 38 U.S.C. § 5103A(a)(2) (empha-
sis added). Thus, to trigger the VA’s duty to assist, a vet-
eran 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 medi-
    cal 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 rec-
    ords of examination or treatment at non-VA facili-
    ties 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 ex-
amination 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 treat-
ment 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 unpersua-
sive. 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 claim-
ants 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 rel-
evant 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 re-
mand 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 de-
termine 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 treat-
ment 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 in-
stance. 6



    5   The Secretary attempts to distinguish Moore on the
grounds that it involved a claim for a higher disability rat-
ing, and the missing records related to a recent hospitali-
zation. However, the Secretary does not explain why these
distinctions would make a difference regarding the VA’s re-
quirement 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.
