PREC 12-95    Clear and Unmistakable Error -- Constructive Notice of VA Medical Records    Citation: Vet. Aff. Op. Gen Couns. Prec. 12-95, VAOPGCPREC 12-95, 1995

QUESTIONS PRESENTED:

a.  Under the constructive-notice rule of Bell v. Derwinski, 2 Vet. App. 611 (1992), may the failure of an agency of origi­nal jurisdiction (AOJ) to consider pertinent Department of Veterans Affairs (VA) medical records in existence at the time of its prior final decision constitute clear and unmistakable error, even though such evidence was not actually in the rec­ord before the AOJ?

b.  Would those circumstances constitute clear and unmistak­able error only when the prior final decision of the agency of original jurisdiction was rendered after July 21, 1992, the date of the Bell decision?

c.  If those circumstances would not constitute clear and un­mistakable error as to prior final AOJ decisions rendered before July 21, 1992, would the effective date of an award of benefits in a later reopened claim after July 21, 1992, based on preexisting VA medical records be the date the reopened claim is filed?

HELD:

a.  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.

b.  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.

c.  When, subsequent to a final AOJ denial prior to July 21, 1992, a claim is reopened after July 21, 1992, and benefits are awarded on the basis of evidence in the VA’s possession but not actually in the record at the time of the A0J denial, the effective date of that award will generally be the date on which the reopened claim was filed, as provided by 38 U.S.C. § 5110(a).