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Clear And Unmistakable Error
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Read Disability Claims Articles
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mobie16r
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(a) General. Clear and unmistakable error is a
very specific and rare kind of error. It is the
kind of error, of fact or of law, that when called
to the attention of later reviewers compels the
conclusion, to which reasonable minds could not
differ, that the result would have been manifestly
different but for the error. Generally, either the
correct facts as they were known at the time were
not before the Board, or the statutory and
regulatory provisions extant at the time were
incorrectly applied.
(:P Record To Be Reviewed. (1) General review for
clear and unmistakable error in a prior Board
decision must be based on the record and the law
that existed when that decision was made.
(2) Special Rule For Board Decisions Issued On Or
After July 21, 1992. For a Board decision issued
on or after July 21, 1992, the record that existed
when that decision was made includes relevant
documents possessed by the Department of Veterans
Affairs (VA) not later than 90 days before such
record was transferred to the Board for review in
reaching that decision, provided that the documents
could reasonably be expected to be part of the
record.
© Errors That Constitute Clear And Unmistakable
Error. To warrant revision of a Board decision on
the grounds of clear and unmistakable error, there
must have been an error in the Board's adjudication
of the appeal which, had it not been made, would
have manifestly changed the outcome when it was
made. If it is not absolutely clear that a
different result would have ensued, the error
complained of cannot be clear and unmistakable.
(d) Examples Of Situations That Are Not Clear and
Unmistakable Error:
(1) Changed Diagnosis. A new medical diagnosis
that "corrects" an earlier diagnosis considered in
a Board decision.
(2) Duty To Assist. The Secretary's failure to
fulfill the duty to assist.
(3) Evaluation Of Evidence. A disagreement as to
how the facts were weighed or evaluated.
mobie16r
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