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Cue_eprecedent O.g.c. Opinion_aoj's Failure To Consider Records


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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.

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Could a CUE, that succeeded after Bell (July 21,1992) regarding records prior to Constructive Notice-still be found in a claim that contains legal error (wrong diagnostic code due to the lack of or misplacement of evidence prior to July 21, 1992?)-

Actually two separate CUEs. The successful CUE could support the older CUE that fell under the constructive notice rule-

Not because the records were not considered but that perhaps, the vet's rating was based on wrong DC code because the records were not there?

(Now I wonder if any of what I just said makes sense.)

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Terry- a CUE can go way back-----

if the Constructive Notice Rule in Bell has nothing to do with the CUE-

Myler V Derwinski - (CUE found by CAVC in a final Nov 1953 decision)

Look V Derwinski- 1962 decision contained CUE

Bentley V Derwinski- CAVC reversed BVA determination by finding that a CUE had occurred in a Feb 1960 rating decision where they gave the vet the wrong diagnostic code. They had awarded 40% but the vet matched the diagnostic and rating criteria for 60%.

Widows have succeeded in CUEs too involving much retro-

If a CUE claim can be developed without Constructive Notice Rule- that is -if what the VA had without the additional records in VA's possession -could be manipulated to show legal error was committed-

in any different regard- then the vet can succeed on CUE-and earlier retro-

The CUEs above had nothing to do with Constructive notice-solely legal error in rating criteria or diagnostic code.

A Cue is a collateral attack-therefore I think worth examining every avenue of approach to combat legal error-if it exists- it takes time to find these errors but if they are there, they are worth fighting over.

CUE claims , at BVA and CAVC whether denied or successful contain so much info as to what is and what is not legal error.

Edited by Berta
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" Its like im walking through Alice and wounde land reality."

Yeah- I feel like that too with the VA sometimes Terry-

I also believe that they will try to confuse the issues in order to deny and therefore get something off their desk-

I sent the VARO some time back a letter to clarify my issues there-

What I got back (from their director) was a hoot-

I corrected it and sent it back to them-

one part angered me- they said my Bonny V Principi claim was "in appeals"-

but they never decided it and should have given it to counsel- it rests on a legal issue.It had to be filed as a claim and then they should have presented it to counsel as a legal question.That is where some of the Presedential ops come from-VARO referrals on a claimants legal issue-

I was so mad I wrote to General Counsel about this and in three weeks they did what the VA couldn't do in over three years-

They accepted jurisdiction and will contact me directly on this issue which will-if they see it my way- affect other 1151 death claimants.

Another issue they mentioned- that was most bizarre- they said they could re-open my old PTSD contributing to death claim as a re-opened CUE-and would send me VCAA letters on this and my other cue claims - yeah right- the VA does NOT send VCAA letters on CUES)

I dont want that-I want direct SC death due to AO.They are working on that claim now-

I did say however that I anxiously awaited all the VCAA letters on my CUE claims-ha ha-

and more info on their attempt to re-open the PTSD CUE.

My local vet rep got this quick-I sure knew what they were selling- award on PTSD contributing to death and therefore no retro under Nehmer- in their dreams----

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