List Of Evidence

[Jayg]

Ok, one more thing...

It has been suggested I check the "list of evidence." How do I do that? Do I request a copy from the VARO? Show up and ask to see it, make an appointment to see it???

Thanks

[carlie]

I see Bell as a very important case.

I'm not positive ...but... I think it sets precedent.

carlie

[Vync]

Awesome work Kelly. Once (if) they send me my C-file, I am going to try to verify if this is a factor for my claim.

[john999]

What about before 1992? I guess the VA does not want to go back to far as the cost gets higher.

[Vync]

Good question there John999...

[akwidow]

Yes, I am curious as well. Bell v derwinski applies to my late hubby's 90's application for sc for ptsd, as they failed to consider his counseling records....

he also applied in the 80's, and also got a rubber stamp denial with more counseling records in their hands. No C&P's either time back then...

[smilen66]

Here you go:

DECISION ASSESSMENT DOCUMENT

O. G. C. << Precedent>> 12-95 (5/10/95)

HELD: (1) With respect to final agency of original jurisdiction (AOJ) decisions rendered on or after July 21, 1992, an AOJ'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.

(2) With respect to final AOJ decisions rendered prior to July 21, 1992, an AOJ's failure to consider evidence which was in VA's possession at the time of the decision, although not actually in the record before the AOJ, may not provide a basis for a finding of clear and unmistakable error. The effective date of a reopened claim in this type of case will generally be the date the reopened claim was filed, as provided by 38 U.S.C. § 5110(a).

ANALYSIS: The General Counsel began the analysis in this opinion by noting that a clear and unmistakable error must be based on the record and the law that existed at the time of the prior agency of original jurisdiction (AOJ) decision and must affect the outcome of the claim. Specifically, a claim that an AOJ committed clear and unmistakable error in failing to consider pertinent evidence must be based upon evidence which was in the record before the AOJ at the time of the prior decision. Russell v. Principi, 3 Vet. App. 310, 314 (1992); Caffrey v. Brown, 6 Vet. App. 383 (1994).

In Bell v Derwinski, 2 Vet. App. 611 (1992), which was decided on July 21, 1992, the Court of Veterans Appeals created the constructive notice rule. That is, that medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision. Accordingly, as to final decisions made on or after July 21, 1992, evidence which was in VA's possession at the time the AOJ decision was made will be deemed to have been in the record before the AOJ at the time of that decision. The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.

However, the General Counsel pointed out that the rule announced in Bell may not be applied retroactively to establish clear and unmistakable error in decisions which were final prior to the Bell decision. In reaching this conclusion, the General Counsel cited Damrel v. Brown, 6 Vet. App. 242 (1992), which dealt with an allegation of clear and unmistakable error in a case dealing with constructive notice of insurance records. In Damrel, the Court found that the constructive notice rule first announced in Bell was not applicable to decisions which became final prior to July 21, 1992, the date of issuance of the Bell opinion.

As for the effective date of a reopened claim in which the original claim was finally denied prior to July 21, 1992, the General Counsel found that the effective date should be the date of the reopened claim. [Note that the General Counsel cautioned that "such records may themselves constitute informal claims, which can have implications for the effective date of resulting awards. 38 C.F.R. § 3.157."] The opinion referred to VAOPGCPREC 10-94 which concluded that a judicial << precedent>> opinion does not constitute a liberalizing "law or administrative issuance" within the meaning of 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114.

NOTE: Regarding effective dates, see VA General Counsel << Precedent>> Opinions 9-94 and 10-94 for information relating to the effect of new judicial << precedents>> on "pending" and "final" claims.

RECOMMENDATION: M21-1, Part VI, par. 2.16, relating to clear and unmistakable error, should be amended to reflect that a decision maker may find clear and unmistakable error in decisions which became final after July 21, 1992, based upon constructive notice of medical records. [This is the date of Bell v. Derwinski, 2 Vet. App. 611 (1992), which instituted the constructive notice rule.] If the decision was final before July 21, 1992, there would be no clear and unmistakable error based on the constructive notice rule.