Hayre v. West Jr.

Decision Date16 August 1999
Parties(Fed. Cir. 1999) GARRETT V. HAYRE, Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee. 98-7046 DECIDED:
CourtU.S. Court of Appeals — Federal Circuit

Domenique Kirchner, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were David M. Cohen, Director, Kirk T. Manhardt, Assistant Director, and Luke Levasseur, Attorney. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, SCHALL, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

DECISION

Garrett V. Hayre appeals from the decision of the United States Court of Appeals for Veterans Claims,1 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.

BACKGROUND

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).

DISCUSSION

A. Standard of Review

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. § 7292(d)(1) (1994). Except to the extent that an appeal presents a constitutional issue, we may not review a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case. See id.

B.Analysis

On appeal, Mr. Hayre asserts that he is entitled to an earlier effective date for service connection of his PTSD because he notified the RO in his 1972 application of the specific dates and VA medical facilities where he had been treated while in service for psychiatric problems. He contends that denial of his claim in 1972 was "clearly erroneous" because, when the RO rendered its decision, it had not obtained the psychiatric SMRs that he had requested and had failed to afford him a VA examination. Had the VA fulfilled its duty to assist him before adjudicating his claim, Mr. Hayre asserts, the record would have been complete and service connection accordingly granted at that time. Thus, Mr Hayre essentially argues that all determinations regarding service connection made after 1975 but before the December 18, 1992, decision were the product of "legal error of the sort that should be contemplated in the CUE analysis" because the decisions were based on a record that was incomplete due to a breach of the duty to assist.

The Secretary of the Department of Veterans Affairs ("Secretary") responds that the RO did not breach its duty to assist Mr. Hayre. In 1972, the RO sent a specific request, by date and place, for medical records to the NPRC. The Secretary agrees with the Court of Appeals for Veterans Claims that "this request for information satisfied any obligation the VA had to assist the appellant." Hayre Decision, slip op. at 3 (citation omitted).

That interpretation of the duty to assist is incorrect as a matter of law because a single request for pertinent SMRs specifically requested by the claimant and not obtained by the RO does not fulfill the duty to assist. Congressional mandate requires that the VA operate a unique system of processing and adjudicating claims for benefits that is both claimant friendly and non-adversarial. An integral part of this system is embodied in the VA's duty to assist the veteran in developing facts pertinent to his or her claim. See Littke v. Derwinski, 1 Vet. App. 90, 91 (1990). The cornerstone of the veterans' claims process is 38 U.S.C. § 5107(a), which was enacted in 1988 (formerly § 3007(a)) when it was added by the Veterans' Judicial Review Act, Pub. L. No. 100-687, § 103(a), 102 Stat. 4105, 4106 (1988) ("The Secretary shall assist such a claimant in developing the facts pertinent to the claim."). See id. In enacting 38 U.S.C. § 5107(a), Congress was codifying the VA's obligation to assist claimants, which had existed in 38 C.F.R. § 3.103(a) since July 18, 1972. See 38 C.F.R. § 3.103(a) (1987) ("It is the obligation of [the VA] to assist a claimant in developing the facts pertinent to his [or her] claim . . . .").

Once a claimant has submitted a well-grounded claim to the RO, the burden shifts to the Secretary to "assist the claimant in developing facts pertinent to the claim," 38 U.S.C. § 5107(a) (1994), and "to make all possible efforts to obtain and assess records relevant to an evaluation of the disability," ...

To continue reading

Request your trial
24 cases
  • Cook v. Principi
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • December 20, 2002
    ...("CUE") under 38 U.S.C. § 5109A . See id. at *2-*5. The Veterans Court also rejected Mr. Cook's argument that, under Hayre v. West, 188 F.3d 1327 (Fed.Cir. 1999), the RO's alleged failure to give him a proper medical examination rendered the RO's denial of service connection non-final. Coo......
  • Disabled American Veterans v. Gober
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • December 8, 2000
    ...record that is required to establish a finding of CUE). This court has come to a similar conclusion. See Hayre v. West, 188 F.3d 1327, 1332-33, 1333 n.3 (Fed. Cir. 1999) (noting that a breach of the duty to assist "is not an error of the sort that should be contemplated in the CUE analysis,......
  • National Organ., Vet. Advoc. v. Sec., Vet. Affairs, 02-7357.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • January 10, 2003
    ...be allowed. Although in Cook v. Prinicipi, No. 00-7171 slip op. at 8 (Fed. Cir. December 20, 2002) (en banc), we overruled Hayre v. West, 188 F.3d 1327 (Fed.Cir.1999), and held that "[t]he statutory scheme provides only two exceptions to the rule of finality," Cook, slip op. at 8, the statu......
  • Gallegos v. Principi, 01-7037.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • March 15, 2002
    ...of reasons for the decision and a summary of the evidence considered by the VA. 38 U.S.C. § 5104(b) (1994); see also Hayre v. West, 188 F.3d 1327, 1334 n. 4 (Fed.Cir.1999). Such notice, which a veteran receives before the NOD filing deadline, see § 7105(b)(1), provides the veteran with enou......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT