Caffrey v. Brown

KRAMER, Judge,

concurring:

I write separately in response to part B of the dissent. Whatever ambiguity may have existed after the issuance of Russell v. Principal, 3 Vet.App. 310 (1992) (en banc), regarding the possibility of basing clear and unmistakable error (CUE) on a duty to assist violation (the sole basis for the dissent), such possibility has been put to rest by the Court’s recent decision in Damrel v. Brown, 6 Vet.App. 242 (1994). In short, Darnrel did nothing more than synthesize the Russell test into three prongs, all of which must be satisfied in order to have CUE:

(1) “[ejither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.

Damrel, 6 Vet.App. at 245 (quoting Russell, 3 Vet.App. at 313-14 ) (emphasis added).

The reports of treatment at the Institute, Pennsylvania Hospital, were not in the record at the time of all adjudications between June 1975 and March 1988, in which appellant alleges CUE. The language of prong (3) certainly eliminates any aspirations that the dissent may have in trying to reconstruct a record that did not exist at the time of the prior adjudications. This language, for all intents and purposes, is taken verbatim from the language'of Russell, supra, at 314 , which states that “[a] determination that there was 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] or BVA decision.” To the extent that the dissent hints that there may be “wiggle room” for going outside the record because of prong (1) (correct facts known at the time, but not before the adjudicator), such a reading would necessitate the existence of an inconsistency between prongs (1) and (3) in order to obtain the dissent’s hoped for, but unsustainable result. The case law of this Court clearly indicates that constructive receipt applies only to VA records. See Bell v. Derwinski, 2 Vet.App. 611 (1992). Simply put, prong (1) means that facts so known at the time to be correct were in the VA record, but somehow were not actually in front of the adjudicator. For example, an appellant had submitted three items of evidence, all indicating a date stamp of receipt by the VA prior to the adjudication in question; however, in rendering a decision, the adjudicator specifically stated that the record contained two pieces of evidence submitted by the appellant. It is only in such a case that both prongs (1) and (3) can be satisfied, certainly not the situation here. Not to limit prong (1) to that evidence in the possession of the VA at the time of a particular challenged adjudication would require this Court to resolve disputes regarding what evidence could have been put into the record existing at the time such adjudication was made, perhaps decades ago. Such a process would involve ill-advised speculation by the Court, and, in my view, would provide unwise incentive to submit newly created evidence that purports to be outcome determinative and which bears a date prior to that of the adjudication which is the subject of the CUE claim.