       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 RICHARD B. HIME,
                 Claimant-Appellant,
                           v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2011-7057
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-2236, Judge William A.
Moorman.
             ____________________________

             Decided: September 15, 2011
             ____________________________

    SANDRA W. WISCHOW, Goodman, Allen & Filetti, of
Richmond, Virginia, argued for claimant-appellant.

    RENEE GERBER, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
HIME   v. DVA                                              2


and MARTIN HOCKEY, Assistant Director. Of counsel on
the brief were DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, and AMANDA R. BLACKMON, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
               __________________________

 Before RADER, Chief Judge, and LOURIE and O’MALLEY,
                    Circuit Judges.
   Opinion for the Court filed by Circuit Judge LOURIE.
   Dissenting opinion filed by Circuit Judge O’MALLEY.
LOURIE, Circuit Judge.
     Richard Hime appeals from the decision of the United
States Court of Appeals for Veterans Claims (“the Veter-
ans Court”) holding that the Department of Veterans
Affairs (“VA”) had fulfilled its statutory duty to assist and
affirming the denial of his request to reopen his claim for
entitlement to service connection for his hip bursitis.
Hime v. Shinseki, No. 08-2236, 2010 WL 2978498, at *1
(Vet. App. July 29, 2010) (“Veterans Court Op.”). Because
we conclude that Hime’s challenges are outside the scope
of our jurisdiction, we dismiss.
                       BACKGROUND
    Hime served on active duty in the U.S. Navy from
1966 to 1970. During service, he injured his right shoul-
der and was granted service connection for his shoulder
disability as of 1979. On June 3, 1981, Hime was treated
by a VA physician, Dr. Palmer, for his right shoulder
condition and sent to physical therapy for two weeks. Dr.
Palmer recommended that Hime use his left hand instead
of his right in order to alleviate some of the right shoulder
pain. A few weeks later, on August 5, 1981, Dr. Palmer
3                                                HIME   v. DVA


wrote another treatment plan for Hime, this time for
bursitis in his left hip.
    In 1982, Hime filed a claim for bursitis of the left hip
as secondary to his right shoulder disability, contending
that it had resulted from performing various actions with
his left hand to avoid further injury to his right shoulder.
He submitted an opinion from Dr. Palmer stating that the
bursitis was directly related to the service-connected
condition of his shoulder. The Board of Veterans’ Appeals
(“the Board”) denied Hime’s claim in 1983, explaining
that Hime had almost full function of his shoulder and
that the bursitis had been diagnosed years later. The
Board also stated that it had considered Dr. Palmer’s
statement in coming to its conclusion. Id.
     In 2005, Hime submitted a request to reopen his claim
for service connection for bursitis. In support of his claim,
he submitted three pieces of evidence: (1) Dr. Palmer’s
medical statement from 1982, (2) a statement dated 2007
from a private physician on a matter unrelated to bursi-
tis, and (3) VA medical progress notes from 1981. The VA
medical progress notes that Hime submitted were not in
his original claim file. One of the progress notes indi-
cates, inter alia, that Hime received physical therapy at
the VA medical center in June 1981 for his right shoulder
disability. However, Hime did not obtain or submit any
individual records of those therapy sessions.
     The Regional Office (“RO”) denied the request, finding
that none of the evidence submitted was new and mate-
rial. On appeal, the Board agreed. It noted that Dr.
Palmer’s medical statement was considered by the VA in
its 1983 decision, and therefore that evidence was not
new. It found that the other evidence, including the 1981
treatment notes, was new, but not material, as it did not
address the relationship between the hip condition and
HIME   v. DVA                                            4


the shoulder disability—the unestablished element in the
1983 decision. Id. It explained that the treatment notes
merely demonstrate a diagnosis of the right shoulder
disability, a fact that had long been established.
    The Board further found that the VA had satisfied its
duty to assist pursuant to 38 U.S.C. § 5103A(a) and 38
C.F.R. § 3.159(c) because it had “obtained records of
treatment reported by [Mr. Hime], including service
medical records, VA medical center (VAMC) records and
private medical records [and there was] no indication
from the record of additional medical treatment for which
the RO ha[d] not obtained, or made sufficient efforts to
obtain, corresponding records.”
    The Veterans Court affirmed the Board’s decision.
Hime argued to the Veterans Court that the VA had not
satisfied its duty to assist him in obtaining VA records
because the 1981 treatment notes, which he had obtained
and submitted, were not in the original records obtained
by the VA. Because the newly submitted treatment notes
indicated that Hime was undergoing physical therapy in
1981, Hime argued that there likely existed additional
records related to that therapy, such as individual ther-
apy session records, that could contain information rele-
vant to his bursitis claim. Hime’s argument was that
because he had identified potentially relevant records
that likely existed but he had not been able to obtain, the
VA had a duty to seek out and obtain those records for
him prior to deciding his claim for service connection for
bursitis of the left hip.
    The Veterans Court rejected that argument, explain-
ing that those notes simply stated that Hime had bursitis,
but failed to provide any type of nexus evidence or estab-
lish that there existed any other records not reasonably
obtained by the VA. Veterans Court Op. at *4. The court
5                                                HIME   v. DVA


specifically found that the new evidence submitted by
Hime failed to “establish the existence of additional
missing medical records.” Id. The court therefore con-
cluded that the VA had made reasonable efforts to assist
Hime in obtaining medical records necessary to substan-
tiate his claim and therefore fulfilled its duty to assist.
Id. Hime filed a motion for reconsideration and, in the
alternative, for a panel decision. That motion was denied.
Hime v. Shinseki, No. 08–2236, 2010 WL 3759887 (Vet.
App. Sept. 24, 2010). Hime then timely appealed.
                        DISCUSSION
    This court’s jurisdiction to review decisions of the
Veterans Court is limited by statute. 38 U.S.C. § 7292.
We “have exclusive jurisdiction to review and decide any
challenge to the validity of any statute or regulation or
any interpretation thereof [by the Veterans Court] . . . ,
and to interpret constitutional and statutory provisions,
to the extent presented and necessary to a decision.” Id.
§ 7292(c). We may not, however, absent a constitutional
challenge, “review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2).
    Hime argues that the VA made no attempt to obtain
his physical therapy treatment records from the VA
medical center even though he provided sufficient infor-
mation indicating the existence of those records, and yet
the Veterans Court found the duty to assist fulfilled.
Hime therefore contends that in affirming the Board’s
decision, the Veterans Court necessarily held that the VA
had no duty to assist him. Hime argues that the Veterans
Court’s holding can only stand under an incorrect inter-
pretation of 38 U.S.C. § 5103A(c)(2): that the VA would
have no duty to find and obtain VA treatment records
even when the veteran submits sufficient information
HIME   v. DVA                                              6


supporting the likely existence of such records. According
to Hime, the Veterans Court’s interpretation renders the
duty to assist meaningless because it requires the veteran
to obtain and provide records himself because, in his view,
that would be the only way to demonstrate that the
records actually contain the necessary evidence to sub-
stantiate his claim. That, Hime continues, imposes an
improper burden on the veteran that cannot be supported
by a reasonable reading of the statute. Thus, Hime urges
that this court has jurisdiction in this case and that we
should correct the VA’s improper interpretation of the
statute.
     The government responds that we lack jurisdiction to
review the Veterans Court’s decision in this case because
it is an application of law to facts. The government con-
tends that the Veterans Court did not interpret
§ 5103A(c)(2) to mean that the VA had no duty to assist
Hime in obtaining medical records and that Hime’s dis-
agreement is really with the factual inferences that the
Board made as well as the Veterans Court’s determina-
tion that the VA had satisfied the duty to assist. It points
out that Hime did not specifically inform the RO that
additional records could be missing. Thus, it contends,
there was no reason for the VA to infer the existence of
missing records merely from the existence of the 1981
treatment notes or to conclude that reports of the individ-
ual physical therapy sessions, even if they existed, would
contain any relevant information.
    We agree with the government that the question pre-
sented here is whether the Board made clearly erroneous
factual findings or incorrectly applied the law to the facts
of this case, both of which are beyond our jurisdiction. See
38 U.S.C. § 7292 (absent a constitutional issue, this court
“may not review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
7                                              HIME   v. DVA


the facts of a particular case”). The VA’s duty to assist
claimants is codified at 38 U.S.C. § 5103A. The VA has a
duty to “make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claim-
ant’s claim.” Id. § 5103A(a)(1). Section 5103A(c), entitled
“Obtaining records for compensation claims,” describes
the types of records the VA must assist the veteran in
obtaining:
    (c) Obtaining records for compensation claims.—
    In the case of a claim for disability compensation,
    the assistance provided by the Secretary under
    subsection (b) shall include obtaining the follow-
    ing records if relevant to the claim:
    (1) The claimant’s service medical records and, if
    the claimant has furnished the Secretary informa-
    tion sufficient to locate such records, other rele-
    vant records pertaining to the claimant's active
    military, naval, or air service that are held or
    maintained by a governmental entity.
    (2) Records of relevant medical treatment or ex-
    amination of the claimant at Department health-
    care facilities or at the expense of the Depart-
    ment, if the claimant furnishes information suffi-
    cient to locate those records.
    (3) Any other relevant records held by any Federal
    department or agency that the claimant ade-
    quately identifies and authorizes the Secretary to
    obtain.
Id. § 5103A(c) (emphases added). The corresponding
regulation, 38 C.F.R. § 3.159(c), also lists a claimant’s
relevant VA medical records as a category of records that
the VA is required to obtain with regard to a veteran’s
claim for disability compensation. There can be no doubt
HIME   v. DVA                                             8


that Congress intended the VA to assist veterans in
obtaining records for compensation claims, and the duty
to assist requires the Secretary to make reasonable efforts
to obtain “evidence necessary to substantiate the claim-
ant’s claim for a benefit.” Golz v. Shinseki, 590 F.3d 1317,
1321 (Fed. Cir. 2010).
    On the other hand, the duty to assist is not boundless
in its scope, and the statute is explicit that only those
medical records that are relevant to the veteran’s claim
must be sought. Id.; see also McGee v. Peake, 511 F.3d
1352, 1357 (Fed. Cir. 2008) (“Congress has explicitly
defined the VA’s duty to assist a veteran with the factual
development of a benefit claim in terms of relevance.”).
Relevant records for the purpose of § 5103A are those
records that relate to the injury for which the claimant is
seeking benefits and have a reasonable possibility of
helping to substantiate the veteran’s claim. Golz, 590
F.3d at 1321.
     With regard to the new evidence submitted by Hime,
viz., the 1981 treatment notes, the Board made, and the
Veterans Court affirmed, two separate findings that Hime
appears to challenge: (1) that it failed to support the
requisite nexus between his hip and shoulder conditions,
and (2) that it failed to establish that there existed any
other records not reasonably obtained by the VA. Veter-
ans Court Op. at *4. Hime challenges both of those find-
ings to argue that the court’s conclusion that the VA had
fulfilled its duty to assist resulted from an incorrect
interpretation of the statute. We disagree.
    The first of those findings goes directly to the rele-
vance of any physical therapy treatment that Hime un-
derwent for his shoulder condition in 1981 to his present
claim for hip bursitis. Hime argues that the relevance of
the physical therapy records is unquestionable. He points
9                                               HIME   v. DVA


out that the treatment notes indicate that he was under-
going physical therapy for his right shoulder disability in
1981, and that he had modified his physical activities
because of his shoulder disability. According to Hime,
because his claim is for hip bursitis as an injury secon-
dary to his right shoulder disability, any records devel-
oped during the physical therapy for his shoulder
disability would be relevant to his claim.
      The Board reviewed the treatment notes and made a
factual determination as to whether they provided the
requisite nexus to support Hime’s claim. The June 22,
1981, note specifically states that physical therapy of
Hime’s right shoulder provided only temporary relief and
the resulting improvement was so small that the therapy
was terminated. The Board reviewed that note and found
that it “does not relate to the unestablished fact necessary
to substantiate the claim.” In effect, the Board found that
the 1981 physical therapy of Hime’s right shoulder was
not relevant to establishing the “relationship between the
veteran’s bursitis of the left hip and his service connected
shoulder condition”—the unestablished element in the
1983 Board decision. This is a fact-based determination
over which we have no jurisdiction. 38 U.S.C. § 7292; see
Golz, 590 F.3d at 1322 (“The Board’s factual finding that
. . . records would not be relevant to [the veteran’s] claim
is not reviewable by this court.”).
     Hime next argues that even though the Board found
that the treatment notes failed to establish the requisite
nexus between his hip and shoulder injuries, the VA was
still required to obtain and review the physical therapy
records before deciding that they were irrelevant for
purposes of § 5103A. That argument fails in light of our
recent precedent. Golz, 590 F.3d at 1323 (“It is not the
case that the government must obtain records in every
case in order to rule out their relevance.” (distinguishing
HIME   v. DVA                                            10


Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009))).
In Golz, we rejected the veteran’s argument that the VA
was obligated to obtain Social Security Administration
records relating to a back disability to support the vet-
eran’s claim for service connection for post-traumatic
stress disorder even though the Board had made a factual
determination that those records would be irrelevant to
the veteran’s claim. Id. at 1322. We explained that the
legal standard for relevance requires the VA to obtain
records only if there exists a reasonable possibility that
the records could help the veteran substantiate his claim
for benefits. Id. at 1323.
    As in Golz, the Board in this case made a factual de-
termination that Hime’s treatment notes, including
statements that he received physical therapy for his right
shoulder condition, failed to establish the requisite nexus
element for his claim relating to bursitis, and where there
is no nexus, there can be no relevance. It would thus be
contrary to the plain language of the statute and our
precedent to require that the VA obtain detailed records
of the physical therapy even where there is no reasonable
possibility that they would aid in substantiating Hime’s
claim. See 38 U.S.C. § 5103A(c)(2) (“Records of relevant
medical treatment . . . .” (emphasis added)); see also Golz,
590 F.3d at 1323 (“There must be specific reason to be-
lieve these records may give rise to pertinent information
to conclude that they are relevant.” (emphasis added)).
We therefore conclude that the Veterans Court did not
independently construe section 5103A but rather followed
established law in affirming the Board’s decision. See
also Darlington v. Shinseki, 415 Fed. Appx. 253, (Fed. Cir.
Feb. 22, 2011) (declining to find an error in the Veterans
Court’s interpretation of section 5103A where the veteran
challenged the Board’s factual determination on relevance
of records). Moreover, its determination that Hime’s
11                                             HIME   v. DVA


treatment notes relating to physical therapy of his shoul-
der failed to provide nexus evidence for his hip claim is a
factual one that is not within our jurisdiction.
    Likewise, the Board’s second finding that Hime’s
treatment notes failed to establish the existence of any
other records not reasonably obtained by the VA also
requires resolving disputed facts and applying the law to
those facts, each of which is beyond our jurisdiction.
Hime argues that by submitting the June 22 treatment
note, he provided sufficient information indicating that
physical therapy occurred between early June and June
22, 1981, and that there may exist at the VA medical
center individual records of each of those therapy ses-
sions. That, according to Hime, constitutes sufficient
information under the statute to trigger the VA’s duty to
assist so as to require the VA to seek out and obtain any
treatment records that may exist for his physical therapy.
     We disagree. The statute plainly requires the veteran
to “adequately identify” the relevant records that the
veteran desires the VA to obtain. 38 U.S.C. § 5103A(b).
The subsection relating to medical treatment records
specifically states that the VA’s duty to assist is only
triggered “if the claimant furnishes information sufficient
to locate those records.” Id. § 5103A(c)(2).
    As the government points out, Hime did not in any
way inform the RO that he was seeking additional records
that were not a part of his file, or that he believed addi-
tional records even existed. The government further
states that the treatment notes that Hime submitted do
not indicate that there are any additional physical ther-
apy records. Yet Hime argues that the VA, based merely
on his submission of the treatment notes, should have
inferred that additional physical therapy records had to
be sought out and obtained under its duty to assist. In
HIME   v. DVA                                            12


essence, Hime argues that the duty to assist requires the
VA to seek out additional medical records whenever
evidence submitted by the veteran even remotely suggests
that additional records may exist. That interpretation of
§ 5103A is contrary to the plain language of the statute.
See Loving v. Nicholson, 19 Vet. App. 96, 103 (2005)
(concluding that the VA’s duty to assist had been fulfilled
because “at no time during the pendency of his claim
before VA, did Mr. Loving ever identify any additional
medical records or quality-assurance reports or request
VA to provide them nor explain how they might be rele-
vant to his claim”); see also Canlas v. Nicholson, 21 Vet.
App. 312, 317 (2007) (“The duty to assist is not a license
for a fishing expedition to determine if there might be
some unspecified information which could possibly sup-
port a claim.”). We therefore conclude that the question
whether Hime established that there existed any addi-
tional records not reasonably obtained by the VA is a
straightforward one of application of law to disputed facts,
one that we are not at liberty to review.
    Hime argues that we are bound by our precedent in
Moore, in which we held that the VA had an obligation to
obtain service medical records that predated the period
for which the claimant sought compensation. 555 F.3d at
1373-74. We explained that the Veterans Court’s decision
in that case, categorically ruling such “predated” records
as irrelevant to the veteran’s claims was an incorrect
interpretation of the statute, contrary even to its own
regulation. Id. at 1373. Thus, Moore, like Golz, addressed
the meaning and scope of the term “relevant records” as
used in the statute. In Moore, we were not presented with
the question presented here, viz., whether a veteran has
provided sufficient information to adequately identify the
records to be obtained, which in our view constitutes
application of law to fact. The records actually at issue in
13                                               HIME   v. DVA


Moore were the veteran’s service medical records, i.e.,
records developed during service, which the veteran’s
department already possessed and the issue of identifica-
tion did not arise. Id. at 1370. As the government points
out, that distinction between the types of veteran’s medi-
cal records, e.g., records in the possession of the veteran’s
department versus records at a VA or even a non-VA
health-care facility somewhere across the country is
highlighted in the statute itself. Compare 38 U.S.C.
§ 5103A(c)(1), with § 5103A(c)(2). The holding in Moore is
therefore inapposite to the issue presented here.
    Hime argues that this is a case where “the material
facts are not in dispute and the adoption of a particular
legal standard would dictate the outcome of a veteran’s
claim, [such that] we treat the application of law to un-
disputed fact as a question of law.” Conley v. Peake, 543
F.3d 1301, 1304 (Fed. Cir. 2008). That, however, is not
correct. As discussed above, there are facts in this case
that are disputed between the parties, particularly includ-
ing the possible relationship between the shoulder and
hip injuries as well as the likelihood that additional
searching for unidentified records would turn up relevant
evidence; the Veterans Court reviewed the Board’s factual
determinations and application of law to those facts. See
Veterans Court Op. at *4 (affirming the Board’s finding as
not clearly erroneous). In affirming the Board, the Veter-
ans Court relied solely on the plain language and on our
prior interpretation of section 5103A. Hime’s challenges
on appeal therefore do not fall within the scope of 38
U.S.C. § 7292.
                       CONCLUSION
   We have considered Hime’s remaining arguments and
do not find them persuasive. Accordingly, we dismiss
Hime’s appeal for lack of jurisdiction.
HIME   v. DVA               14


                DISMISSED
                  COSTS
No costs.
        NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               __________________________

                  RICHARD B. HIME,
                  Claimant-Appellant,
                            v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
               __________________________

                       2011-7057
               __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-2236, Judge William A.
Moorman.
              __________________________

O’MALLEY, Circuit Judge, dissenting.
    The majority concludes that we lack jurisdiction be-
cause Richard Hime is asking us to resolve disputed
material facts and apply the law to those facts. The facts
material to the analysis of the VA’s duty to assist, how-
ever, are undisputed. We must decide only whether the
undisputed, material facts are sufficient to invoke the
duty to assist as a matter of law. Because those facts are
sufficient, I would vacate the denial of claim entitlement,
remand this case, and instruct the VA to attempt to locate
the physical therapy records.
HIME   v. DVA                                             2


    Section 5103A contains requirements, two of which
are at issue in this case, that a claimant must satisfy to
invoke the VA’s duty to assist in locating treatment
records at a VA healthcare facility. First, a claimant
must demonstrate that the records are relevant. 38
U.S.C. § 5103A(b)(1), (c)(2). A single, undisputed fact in
Mr. Hime’s case satisfies the relevancy requirement: that
the Board concluded in its 1983 opinion that Mr. Hime’s
right shoulder should not have caused him significant
functional problems. Mr. Hime seeks the physical ther-
apy records because he wants to prove that he did experi-
ence functional problems in his shoulder. If Mr. Hime can
prove that fact, he anticipates proving that, because of
those functional problems, he was directed and effectively
forced to use his left arm, almost exclusively, which, in
turn, caused his left-hip bursitis. Mr. Hime, in other
words, is attempting to rebut a Board finding in a case
that he is seeking to reopen. Here, there is no dispute
that the records at issue are physical therapy records
relating to Mr. Hime’s right shoulder injury, the very
injury whose severity was at issue in the Board’s deter-
mination.
     Records are relevant for the purpose of Section 5103A
if they relate to the injury for which a claimant is seeking
benefits and have a reasonable possibility of helping to
substantiate the claim. Golz, 590 F.3d at 1321. I would
hold, as a matter of law, that treatment records fall
within the definition of relevancy if, based on a claimant’s
description of them, the records could assist in a claim-
ant’s rebutting a prior Board finding in a case that the
claimant seeks to reopen.
    The majority believes that we cannot resolve the rele-
vancy requirement as a matter of law because a factual
dispute exists as to whether there is a relationship be-
tween Mr. Hime’s shoulder and hip injuries. That fact is
3                                               HIME   v. DVA


immaterial to the duty to assist in this case. Although
Mr. Hime must prove that relationship to prevail on the
merits, Section 5103A does not require him to prove his
case on the merits to compel the VA to obtain treatment
records. The statute only requires him to demonstrate a
relationship to the claimed injury and a reasonable possi-
bility that the treatment records will help substantiate
his claim. Golz, 590 F.3d at 1321. That Mr. Hime is
attempting to rebut a prior Board finding in a case that
he is seeking to reopen, with records relating to an injury
on which that finding turned, indicates that a relation-
ship to the claimed injury exists and that the physical
therapy records could assist Mr. Hime in substantiating
his claim.
     In addition to the relevancy requirement, a claimant
must adequately identify the records sought and furnish
information sufficient to locate the records. 38 U.S.C.
§ 5103A(b)(1), (c)(2). No one disputes the following facts:
Mr. Hime filed a statement in support of claim, in which
he indicated that he received treatment at the VA Medical
Center in Hampton, Virginia. Progress notes indicate
that Dr. Palmer referred Mr. Hime for physical therapy
on his right shoulder around June 3, 1981, and that Dr.
Palmer concluded, on June 22, 1981, that the physical
therapy had little effect and discontinued it. The undis-
puted facts, therefore, indicate the nature of the treat-
ment that Mr. Hime received, the location where he
received it, the approximate timeframe when he received
it, and the referring doctor’s name. Clearly, such identifi-
cation is sufficient for the VA to locate those records.
Indeed, it is hard to imagine what more information a
claimant would need to provide the VA.
    The majority contends that Mr. Hime’s identification
was inadequate because he did not specifically tell the
regional office that he was seeking physical therapy
HIME   v. DVA                                            4


records. The statute, however, does not require literal
identification. It only requires that a claimant “ade-
quately identify” and “furnish[] information sufficient to
locate [the] records.” 38 U.S.C. § 5103A(c)(1), (c)(2). The
majority cites no authority that equates the statutory
requirements to literal identification.
    Instead, the majority relies on Veterans Court cases,
which we are not obligated to follow, and which are dis-
tinguishable on their facts. In Loving v. Nicholson, the
claimant never contended that additional medical records
existed until the Board, apparently on its own initiative,
mentioned the possibility that unspecified medical records
existed but concluded that the records would not have
affected the outcome of the case. 19 Vet. App. 96, 102
(2005). The case record appeared to lack any information
shedding light on what the supposedly missing medical
records were. See id. Mr. Hime’s submissions, by con-
trast, indicate on their face that Mr. Hime participated in
physical therapy during a particular timeframe, at a
particular facility, and at the direction of a particular
doctor. In Canlas v. Nicholson, the Veterans Court was
faced with a situation similar to that in Loving. The
claimant argued that the VA had a duty to locate what
appeared to be her deceased husband’s post-service gov-
ernment employment records because those records might
have contained the decedent’s military service number.
21 Vet. App. 312, 315, 317 (2007). The claimant failed to
specify, during the pendency of her claim, why that gen-
eral category of records could be reasonably expected to
disclose the decedent’s service number. Id. The VA had
far more specific information before it in Mr. Hime’s case
than it did in Canlas.
    The government suggests in its brief that there is no
way of knowing whether there are actually physical
therapy records to obtain even if the VA were to search for
5                                              HIME   v. DVA


them. Mr. Hime has submitted enough information that
the VA should at least investigate. The VA, in fact, sent
Mr. Hime a letter after the agency received his applica-
tion and informed him that the VA was responsible for
obtaining relevant records from any federal agency. Mr.
Hime was entitled to take the VA at its word. As we have
repeatedly stated, “[i]n close or uncertain cases, the VA
should be guided by the principles underlying this
uniquely pro-claimant system. VA has a duty to assist
veterans and is required to ‘fully and sympathetically
develop the veteran’s claim to its optimum before deciding
it on the merits.’” Golz, 590 F.3d at 1323 (quoting McGee
v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)). When in
doubt, the VA should attempt to locate the records.
    If the VA were to locate Mr. Hime’s physical therapy
records, I do not suggest that the Board would be obli-
gated to find that those records satisfy the materiality
prerequisite to reopening Mr. Hime’s case. I only propose
today that we hold that what Mr. Hime has done is suffi-
cient, as a legal matter, to invoke the VA’s duty to assist
and provide him another opportunity to argue for the
reopening of his claim if the VA finds the records. Accord-
ingly, I respectfully dissent.
