Before Newman, Schall, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Gajarsa, Circuit Judge.
Appealed from: United States Court of Appeals for Veterans Claims Judge Ronald M. Holdaway
Garrett V. Hayre appeals from the decision of the United States Court of Appeals for Veterans Claims, *fn1 Hayre v. Gober, No. 95-984 (Mem. Decision Dec. 2, 1997) (hereinafter "Hayre Decision") affirming the decision by the Board of Veterans' Appeals ("Board") declining to reopen Mr. Hayre's claim on the basis of clear and unmistakable error ("CUE") due to a breach of the duty to assist. For the reasons set forth below, we affirm-in-part, vacate-in-part, and remand.
Mr. Hayre served on active duty in the United States Marine Corps from June 1969 to October 1971. On September 29, 1972, he filed an application for disability compensation for a "nerve problem." On his application form, Mr. Hayre specifically noted that he had been treated while in service for "nerves" in June 1971 at Cherry Point, North Carolina, and that he had "talked to [a] psychiatrist" in October 1971 at Quonset Point, Rhode Island. On October 11, 1972, the Department of Veterans Affairs (formerly the Veterans Administration) ("VA") Regional Office ("RO") sent a request for service medical records ("SMRs") to the National Personnel Records Center ("NPRC").
On November 15, 1972, the RO rejected Mr. Hayre's claim in a denial notice that explained: "[w]e do not find in your medical records or elsewhere any evidence of the existence of a nervous condition." The denial notice did not state that the RO had failed to obtain the requested records. Mr. Hayre did not appeal the RO decision. The RO denied requests to reopen Mr. Hayre's claim for service connection of an acquired psychiatric condition in April 1977, March 1979, and January 1982. Mr. Hayre did not appeal any of the above rating decisions to the Board.
On September 9, 1992, the RO in Columbia, South Carolina, received Mr. Hayre's application for disability compensation, which alleged service connection for post-traumatic stress disorder ("PTSD"). On November 7, 1992, Mr. Hayre underwent a VA examination for PTSD. He was diagnosed with chronic PTSD, dysthymia, and a personality disorder. On December 18, 1992, the RO awarded service connection and a 50% disability rating for PTSD.
In April 1993, Mr. Hayre's accredited representative filed a Statement in Support of Claim that the 1972 decision was "clearly erroneous" because the RO had not obtained the psychiatric SMRs that he had requested and had failed to afford him a VA examination. The representative therefore argued that an earlier effective date for the PTSD service connection was in order. The RO denied his claim for an earlier effective date because the available evidence obtained in 1972 did not demonstrate the reasonable probability of a valid claim to warrant a VA examination. The RO did not respond to Mr. Hayre's argument regarding the failure to obtain the requested psychiatric SMRs.
In July 1993, Mr. Hayre's accredited representative filed an appeal to the Board and stated that the issue was "[w]hether the rating of [November 6, 1972] was clearly erroneous in the decision to deny the claimed nervous condition." The representative claimed that the 1972 rating action was erroneous because the RO had failed properly to assist Mr. Hayre in developing his claim. The Board found that Mr. Hayre's claim of CUE was not well-grounded because a breach of the duty to assist under 38 U.S.C. § 5107(a) cannot, as a matter of law, be CUE. See Caffrey v. Brown, 6 Vet. App. 377, 382-383 (1994) (holding that a breach of the duty to assist cannot constitute CUE because claimants cannot show that fulfillment of the duty to assist would have manifestly changed the outcome of the prior decision).
Mr. Hayre appealed the Board's decision to the Court of Appeals for Veterans Claims, which affirmed the Board's decision. The court held that Mr. Hayre "has not presented a well-grounded claim of CUE because he has not specified a factual or legal error in the 1972 rating decision that would have changed the outcome." Hayre Decision, slip op. at 3. The court also held that the RO's 1972 request for information satisfied "any obligation [the VA] had to assist the appellant." Id. (citing 38 C.F.R. § 3.159(b) ("When information sufficient to identify and locate necessary evidence is of record, [the VA] shall assist a claimant by requesting, directly from the source, existing evidence which is either in the custody of military authorities or maintained by another Federal agency")). The Court of Appeals for Veterans Claims therefore affirmed the Board's holding that Mr. Hayre's claim of CUE was not well-grounded in a Memorandum Decision dated December 2, 1997, which became final when the court denied a motion for reconsideration, see Hayre v. Gober, No. 95-984 (Judgment Dec. 29, 1997).
Our review of decisions of the Court of Appeals for Veterans Claims is limited. Under 38 U.S.C. § 7292(c), we have the exclusive jurisdiction to "review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under [section 7292], and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c) (1994). We have the authority to decide all relevant questions of law and can set aside a regulation or an interpretation of a regulation relied upon by the Court of Appeals for Veterans Claims when we find it to be arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observance of procedure required by law. See 38 U.S.C. ...