Bell V Derwinski

[Berta]

http://www.va.gov/vetapp02/files03/0212490.txt

The board makes this statement as to the veteran's claim:

"While these 1980 VA medical records predate the 1985 final

rating decision, and while records generated by VA facilities

are now generally constructively of record regardless of

whether those records are physically on file, Bell v.

Derwinski, 2 Vet. App. 611, 613 (1992), the constructive

notice doctrine does not apply to VA adjudications dated

prior to the issuance of the decision in Bell, i.e. before

July 21, 1992. See Lynch v. West, 12 Vet. App. 391 (1999).

Thus, VA treatment records pertaining to the right ear, dated

from 1980 to the present, which are physically located in

claims files after the 1985 rating decision, constitute new

evidence that was not available in either actual or

constructive fact to the 1985 rating board"

"The evidence of record at the time of the 1985 rating

decision included the veteran's service medical records.

Those revealed a February 1971 enlistment examination report

in which the appellant reported preservice ear, nose or

throat trouble, as well as "running ears." The examiner,

however, found no sequelae, and the veteran was found fit for

enlistment. Service medical records dated in June 1972, note

the appellant's report of a long history of recurrent

drainage from the right ear. Physical examination at that

time resulted in a diagnosis of recurrent otitis media. At a

February 1973 examination conducted prior to the veteran's

separation from his first term of service right ear otitis

was not found.

At the veteran's August 1975 reenlistment examination for the

second period of service he noted that he had previously been

discharged or rejected from military service due to right ear

infections. The examiner, however, found that the appellant

was asymptomatic at the time of reenlistment. No treatment

was provided during the appellant's second term of service.

His September 1976 discharge examination, however, diagnosed

right otitis externa."

The decision is interesting-as this was a re-opened claim for otitis externa. Prior claim had been denied without appeal.

"ORDER

As new and material evidence has been submitted, the claim of

entitlement to service connection for right ear otitis is

reopened.

REMAND

Before reaching the merits of the claim of entitlement to

service connection for right ear otitis, the Board finds that

the RO must address the whether there was clear and

unmistakable error in the July 1981 decision which denied

service connection for right otitis media. As this question

may not initially be addressed by the Board, a remand is

required."

The BVA saw the potential evidence of CUE in the 1981 decision and called it to the ROs attention.

I think this is what happened to me- someone at the RO saw my older BVA CUE of 1998 which I did not pursue and the VARO filed a Motion at the BVA to reconsider this CUE.

The VA can CUE it's own past decisions.

But I am baffled by this part:

"While these 1980 VA medical records predate the 1985 final

rating decision, and while records generated by VA facilities

are now generally constructively of record regardless of

whether those records are physically on file, Bell v.

Derwinski, 2 Vet. App. 611, 613 (1992), the constructive

notice doctrine does not apply to VA adjudications dated

prior to the issuance of the decision in Bell, i.e. before

July 21, 1992. See Lynch v. West, 12 Vet. App. 391 (1999).

Thus, VA treatment records pertaining to the right ear, dated

from 1980 to the present, which are physically located in

claims files after the 1985 rating decision, constitute new

evidence that was not available in either actual or

constructive fact to the 1985 rating board."

They are saying the records physically in the veteran's files after the 1985 decision are new and material for a re-open yetthey also produce the basis for the BVA to ask the RO to consider twhether a CUE had been committed in the 1985 decision.

Any thoughts?

Edited November 28, 2006 by Berta

[carlie]

Berta,

So from reading the full decision it seems to me that the 1980 records had never been considered as evidence in any past decision, is this your take?

carlie

[Berta]

That is what I thought too----

The veteran's SMRs reflected evidence of the claimed disability. That is the first enlistment period does-

The second enlistment shows:

"The evidence of record at the time of the 1985 rating

decision included the veteran's service medical records.

Those revealed a February 1971 enlistment examination report

in which the appellant reported preservice ear, nose or

throat trouble, as well as "running ears." The examiner,

however, found no sequelae, and the veteran was found fit for

enlistment."

The veteran during the second enlistment received no treatment for the ear problem.

I dont see where the CUE would be unless the RO failed to rate the ear problem????or did rate it as NSC?

I sure wish we could access VARO decision themselves to see exactly how- in this case- the BVA saw a bases for potential CUE.

Maybe the RO said in 1985 it was not "well grounded"???

Edited November 28, 2006 by Berta

[carlie]

VA was great as using not well grounded even though it conflicts with

WAS found in SMR's.

carlie