TN 36 (09-15)

A. Introduction to new evidence related to the prior determination or decision error exception

This category of exception applies if:

1. New evidence that relates to the prior determination or decision refutes the conclusions that were based on the prior evidence; and

2. Substantial evidence shows the claim would not have been allowed or continued if the new evidence had been considered at the time of the prior decision.

In deciding whether this category of error applies, carefully consider whether any new evidence provides useful medical information about the status of the impairment(s) at the time of the prior decision.

B. Examples

1. Tumor - Error applies

Current evidence might show that a tumor thought to be malignant was actually benign.

2. Heart disease - Error applies

a. Comparison Point Decision (CPD)

At the time of the prior decision, the adjudicator found the individual disabled based on listing 4.04B.1 and evidence showing required EKG abnormalities. The file at that time did not include treadmill exercise test (TET) results.

b. Continuing Disability Review (CDR)

The evidence received in connection with the CDR includes acceptable current TET results and acceptable TET results from the time of the prior decision. The provisions of listing 4.04B apply only in the absence of acceptable TET results (from the appropriate time). Therefore, the TET results from the time of the prior decision render listing 4.04B inapplicable with respect to the prior decision. The TET results show that the impairment did not (and does not) meet listing 4.04, thus refuting the prior conclusion that listing 4.04 was met. If the prior TET results had been considered at the time of the prior decision, the claim would not have been allowed. Find the prior decision in error.