Here's a list of recent (2002-2005) CUE decisions concerning specifically "FAILURE TO CONSIDER EVIDENCE". I included a short quote from the decision to help you decide which might be helpful.
Will be going through CVAC's decisions soon also. If I find anything I think might help you I'll post it here.
rating decision failed to consider evidence of a PTSD stressor found in the veteran's service medical records, and even noted on a deferred rating decision prior to the VA examination in November 1997. 4. The unappealed April 1990 RO decision, which denied service connection for PTSD, was undebatably erroneous in failing to consider a confirmed diagnosis of PTSD based on stressful combat experiences; and, if such error was not made, the veteran would have then been granted service connection for PTSD.
Neither of these cited VA treatment records, nor any of the other medical records that were before the RO in April 1994, contain a diagnosis, assessment or impression of PTSD. The RO specifically noted the September 15, 1993 report in its April 1994 rating decision, but correctly noted that the report did not contain a diagnosis of PTSD. Because the report was noted in the rating decision, it cannot be held that the RO committed CUE by failing to consider that evidence.
The failure to obtain the VA medical records is particularly significant because in Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA medical records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review.
&
the RO in these decisions, as well as the Board in the current decision, was only providing a summary of the evidence of record rather than a detailed account of all information contained therein. In Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000) the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "absent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's determination of the service connection must be presumed to have been reviewed by the Department of Veterans Affairs, and no further proof of such review is needed."
The September 1989 rating decision failed to consider applicable law and evidence favorable to the veteran's claim.
&
If VA had considered the provisions of section 1154(:P, incurrence of acoustic trauma during the veteran's combat service would have been conceded (especially in light of the lack of service medical records), and if VA had further considered the private medical evidence, a then- current hearing loss disability and a relationship between that disability and service would have been acknowledged.
Although the CAVC has recognized that a viable CUE claim may be premised on the theory that the RO had failed to consider evidence of a high probative value, the Court has made it clear that, for such a claim to succeed as to an RO decision issued prior to February 1990, the RO must have denied the very existence of the evidence. See Glynn v. Brown, 6 Vet. App. 523, 531 (1994)
Upon review of the 1987 decision, the Board notes that although the decision did not specifically refer to the 1982-4 medical records in its discussion of the facts, there is no indication that this evidence was not considered by the Board in reaching its final determination.
&
The September 1987 Board decision, moreover, pre-dated the provisions of 38 U.S.C.A. § 7104(d)(1), enacted in February 1990, which now requires that Board decisions contain "Reasons and Bases" for Findings of Facts and Conclusions of Law. Although the September 1987 decision arguably would not pass muster today, today's standards cannot be applied to it. See 38 C.F.R. § 20.1403(B).
The VA is deemed to have constructive knowledge of those records and, in this case, has actual knowledge of the existence of those records. As such, they are considered to be evidence that is of record at the time any decision is made and should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). See also, VAOPGCPREC 12-95, 60 Fed. Reg. 43,186 (1995) (". . . With respect to final agency of original jurisdiction (AOJ) decisions rendered on or after July 21, 1992, an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error if such failure affected the outcome of the claim. . . . ").
&
However, these criteria were not in effect at the time of the May 1994 rating action. The then applicable criteria were contained in 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The RO must initially consider the impact of the old criteria, prior to a decision by the Board. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).
With regard to the alleged factual error - that the Board did not consider a March 27, 1995 VA examination report - the evidence demonstrates that a copy of this report was in fact of record at the time of the June 2001 Board decision. The Board was not specifically required to mention every item of evidence of record it reviewed in reaching its conclusion, even though its review of the "record" began at least from the most relevant period in 1990, through 2000.
Mere disputes as to how the Board evaluated the evidence are not CUE. 38 C.F.R. § 20.1403(d). In contrast, failure to consider evidence of record pertinent to the claim can be grounds for a finding of CUE in a decision of the Board. 38 C.F.R. § 20.1403(a).
Question
Angela
Carlie,
Here's a list of recent (2002-2005) CUE decisions concerning specifically "FAILURE TO CONSIDER EVIDENCE". I included a short quote from the decision to help you decide which might be helpful.
Will be going through CVAC's decisions soon also. If I find anything I think might help you I'll post it here.
Angela
http://www.va.gov/vetapp05/files1/0503568.txt
rating decision failed to consider evidence of a PTSD stressor found in the veteran's service medical records, and even noted on a deferred rating decision prior to the VA examination in November 1997. 4. The unappealed April 1990 RO decision, which denied service connection for PTSD, was undebatably erroneous in failing to consider a confirmed diagnosis of PTSD based on stressful combat experiences; and, if such error was not made, the veteran would have then been granted service connection for PTSD.
http://www.va.gov/vetapp05/files2/0507968.txt
Neither of these cited VA treatment records, nor any of the other medical records that were before the RO in April 1994, contain a diagnosis, assessment or impression of PTSD. The RO specifically noted the September 15, 1993 report in its April 1994 rating decision, but correctly noted that the report did not contain a diagnosis of PTSD. Because the report was noted in the rating decision, it cannot be held that the RO committed CUE by failing to consider that evidence.
http://www.va.gov/vetapp05/files4/0522589.txt
The failure to obtain the VA medical records is particularly significant because in Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA medical records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review.
&
the RO in these decisions, as well as the Board in the current decision, was only providing a summary of the evidence of record rather than a detailed account of all information contained therein. In Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000) the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "absent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's determination of the service connection must be presumed to have been reviewed by the Department of Veterans Affairs, and no further proof of such review is needed."
http://www.va.gov/vetapp05/files1/0506205.txt
The September 1989 rating decision failed to consider applicable law and evidence favorable to the veteran's claim.
&
If VA had considered the provisions of section 1154(:P, incurrence of acoustic trauma during the veteran's combat service would have been conceded (especially in light of the lack of service medical records), and if VA had further considered the private medical evidence, a then- current hearing loss disability and a relationship between that disability and service would have been acknowledged.
http://www.va.gov/vetapp04/files/0400460.txt
Although the CAVC has recognized that a viable CUE claim may be premised on the theory that the RO had failed to consider evidence of a high probative value, the Court has made it clear that, for such a claim to succeed as to an RO decision issued prior to February 1990, the RO must have denied the very existence of the evidence. See Glynn v. Brown, 6 Vet. App. 523, 531 (1994)
http://www.va.gov/vetapp04/files3/0429423.txt
Upon review of the 1987 decision, the Board notes that although the decision did not specifically refer to the 1982-4 medical records in its discussion of the facts, there is no indication that this evidence was not considered by the Board in reaching its final determination.
&
The September 1987 Board decision, moreover, pre-dated the provisions of 38 U.S.C.A. § 7104(d)(1), enacted in February 1990, which now requires that Board decisions contain "Reasons and Bases" for Findings of Facts and Conclusions of Law. Although the September 1987 decision arguably would not pass muster today, today's standards cannot be applied to it. See 38 C.F.R. § 20.1403(B).
http://www.va.gov/vetapp04/files3/0427337.txt
The VA is deemed to have constructive knowledge of those records and, in this case, has actual knowledge of the existence of those records. As such, they are considered to be evidence that is of record at the time any decision is made and should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). See also, VAOPGCPREC 12-95, 60 Fed. Reg. 43,186 (1995) (". . . With respect to final agency of original jurisdiction (AOJ) decisions rendered on or after July 21, 1992, an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error if such failure affected the outcome of the claim. . . . ").
&
However, these criteria were not in effect at the time of the May 1994 rating action. The then applicable criteria were contained in 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The RO must initially consider the impact of the old criteria, prior to a decision by the Board. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).
http://www.va.gov/vetapp02/files01/0203173.txt
With regard to the alleged factual error - that the Board did not consider a March 27, 1995 VA examination report - the evidence demonstrates that a copy of this report was in fact of record at the time of the June 2001 Board decision. The Board was not specifically required to mention every item of evidence of record it reviewed in reaching its conclusion, even though its review of the "record" began at least from the most relevant period in 1990, through 2000.
http://www.va.gov/vetapp02/files01/0202027.txt
Mere disputes as to how the Board evaluated the evidence are not CUE. 38 C.F.R. § 20.1403(d). In contrast, failure to consider evidence of record pertinent to the claim can be grounds for a finding of CUE in a decision of the Board. 38 C.F.R. § 20.1403(a).
Link to comment
Share on other sites
Top Posters For This Question
3
1
1
1
Popular Days
Mar 1
4
Feb 24
3
Feb 25
1
Top Posters For This Question
Angela 3 posts
Ricky 1 post
Hoppy 1 post
SLEDGE 1 post
Popular Days
Mar 1 2006
4 posts
Feb 24 2006
3 posts
Feb 25 2006
1 post
7 answers to this question
Recommended Posts