Before Mayer, Chief Judge, Rich and Michel, Circuit Judges.
The opinion of the court was delivered by: Michel, Circuit Judge.
Gary F. Lynch appeals from the decision of the Court of Veterans Appeals, affirming the denial of his claim for increased entitlement to disability compensation for post-traumatic stress disorder ("PTSD") for an earlier period of time. Lynch v. Gober, No. 95-1100 (Vet. App. Dec. 22, 1997). Lynch has already established entitlement to compensation for PTSD, effective May 7, 1990. However, Lynch argues that a July 1983 denial of his claim based on the same illness by the White River Junction, Vermont, VA Medical and Regional Office Center ("RO") was the product of clear and unmistakable error ("CUE"). Lynch seeks an earlier effective date (April 1983) based on the alleged CUE in the 1983 decision. The Secretary of Veterans Affairs ("Secretary") argues that this court lacks jurisdiction, that even assuming jurisdiction exists Lynch has waived certain arguments he makes on appeal and that in any event no CUE existed in the 1983 decision. The appeal was submitted for our decision following oral argument on December 8, 1998. Because from the decision of the Court of Veterans Appeals it is not clear whether we have jurisdiction, we vacate and remand.
Lynch served on active duty in the United States Army for nearly two years during the Vietnam War. On April 6, 1983, Lynch underwent a psychiatric examination at the medical division of the RO. He was diagnosed with PTSD at that time. Five days later, Lynch filed an application for disability compensation with the RO, alleging that he suffered from PTSD. Lynch did not reference the April 6 psychiatric examination, and the RO did not obtain a copy of the report summarizing the examination. Instead, the RO requested additional evidence from Lynch that would show that his claimed disabilities had been treated since his discharge from service in 1969. Lynch submitted private medical records showing treatment, but for unrelated conditions. In July 1983, the RO denied Lynch's claim, and Lynch did not appeal.
In May 1990, Lynch sought to reopen his claim based on PTSD by submitting medical records from 1989 and 1990 indicating that Lynch had PTSD. The RO also received the 1983 report of the psychiatric diagnosis, apparently for the first time. In March 1991, the RO granted service connection for PTSD, rated fifty percent disabling, with an effective date of May 7, 1990, the date of application for reopening. In February 1992, Lynch appealed this decision to the Board of Veterans' Appeals (the "Board"), contending that the effective date should have been made retroactive to the 1983 examination when he was first diagnosed with PTSD. While his appeal was pending, the RO increased Lynch's disability rating to one hundred percent, but with the same effective date of 1990 because the 1983 decision became final when it was not timely appealed.
In his appeal to the Board, Lynch argued that the RO decision should be reversed because the RO committed CUE by failing to consider the 1983 report diagnosing him with PTSD. In July 1994, the Board remanded the claim to the RO so that the RO could consider whether the its 1983 decision was based on CUE. In August 1994, the RO concluded that there was no CUE in its 1983 decision. The Board affirmed, stating that the RO's failure to consider the report was not CUE because the report was not in the record before the RO at the time of its decision and could not be considered "constructively" in the record under the case law as it stood in 1983.
Lynch appealed to the Court of Veterans Appeals, which affirmed in December 1997. The Court of Veterans Appeals noted that under its case law a determination of whether CUE occurred is based on the record and the law existing at the time the decision was made, in this case 1983. Under 1983 law and the record then before the RO, the Court of Veterans Appeals concluded that the report was not before the RO, either actually or constructively. The Court of Veterans Appeals acknowledged that its 1992 decision in Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam order), established a rule of "constructive notice" in cases such as Lynch's, that the records in the possession of the Department of Veterans Affairs ("DVA") are deemed part of the record before the RO even though such documents are not actually before the RO. However, the Court of Veterans Appeals declined to apply Bell to Lynch's claim because its decision in Damrel v. Brown, 6 Vet. App. 242, 246 (1994), established that the constructive notice rule of Bell would not be applied retroactively. Because the constructive notice rule was not in effect until 1992 when Bell was decided, the Court of Veterans Appeals concluded that the constructive notice rule did not apply, Lynch's report was not part of the record before the RO and therefore the RO did not commit CUE.
On appeal, as below, the issue is whether the RO is deemed to have had the report from the psychiatric examination before it as part of the record when it made its decision. Lynch contends that the 1983 report should be considered "on file" with the DVA not under Bell, but under 38 C.F.R. § 3.104(a) (1998) and therefore part of the record before the RO when it made its decision. The Secretary argues that (1) this court lacks jurisdiction because section 3.104(a) was not relied on by the Court of Veterans Appeals; (2) Lynch failed to raise this argument below, and should be barred from raising it on appeal; and (3) section 3.104(a) does not support Lynch's position and in any event should not be applied retroactively to Lynch's claim.
The Secretary argues first that this court does not have jurisdiction to entertain arguments relating to the validity or interpretation of section 3.104(a) because it was not argued before, cited by, nor relied upon by the Court of Veterans Appeals. This court's jurisdiction is strictly limited to Court of Veterans Appeals decisions made "with respect to the validity 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 of Veterans Appeals] in making the decision." 38 U.S.C. § 7292(a) (1994). Therefore, according to the Secretary, this court does not have jurisdiction to review the interpretation of section 3.104(a) because it was not relied on by the Court of Veterans Appeals in making its decision.
According to section 3.104(a), a final and binding decision is considered such "as to Conclusions based on the evidence on file at the time VA issues written notification . . . ." Lynch argues that "evidence on file" includes all evidence on file anywhere within the DVA, including reports such as his 1983 psychiatric examination that may not have actually been before the RO when it made its decision. According to Lynch, the Court of Veterans Appeals implicitly relied on an interpretation of section 3.104 in its interpretation of 38 C.F.R. § 3.105 (1998), which governs revisions of decisions that were based on CUE.
Although we believe we may have jurisdiction over Lynch's appeal, we are reluctant to assume jurisdiction because it is not clear from the decision of the Court of Veterans Appeals whether it implicitly relied on section 3.104. The broad issue before the Court of Veterans Appeals was whether Lynch could establish CUE in the 1983 decision, entitling him to an earlier effective date pursuant to section 3.105. However, the Court of Veterans Appeals may have implicitly construed section 3.104 in conjunction with 3.105 in concluding that no CUE existed. Because we cannot conclusively determine whether that was the case, we vacate and remand and request that the Court of Veterans Appeals clarify whether an interpretation of section 3.104 was relied on in any way in its decision. Even if the Court of Veterans Appeals ultimately concludes that it did not rely on such an interpretation, the Court of Veterans Appeals may wish to allow supplemental briefing to address the issue of the proper interpretation of section 3.104. Waiver
The Secretary contends that because Lynch did not cite section 3.104(a) in his briefs nor argue before the Court of Veterans Appeals its possible relevance to the issues, the argument has been waived. Although the Secretary acknowledges that Lynch's argument relates generally to whether a constructive notice rule was part of the law in existence at the time of the 1983 RO decision, he argues that section 3.104(a) represents a new theory in support of the general result Lynch is seeking.
We are not as certain as the Secretary that Lynch's section 3.104 argument was not raised below. We observe that if the issue was sufficiently raised to give this court jurisdiction, it was probably sufficiently raised to preclude waiver of that argument on appeal. In any event, in light of our remand to the Court of Veterans Appeals to indicate more clearly whether section 3.104 was relied on, we need not decide what arguments Lynch may have waived in this appeal. For the same reason, we decline to address whether section 3.104 implies a right ...