Berta opinion request: Crippen (1996) in this situation

[Vync]

Given this ruling:

Quote

Crippen, at 9 Vet. App. 421 (1996)
[A] CUE claim that was premised on an RO's clear failure to consider certain highly probative evidence, in violation of the regulation requiring adjudications to be based on all evidence of record (38 C.F.R. § 3.303(a)), did present a viable theory for a CUE claim.  That is, challenging a failure to consider such evidence is not challenging the weighing or evaluation of evidence; it is asking that such process take place for the first time and thus does not constitute the reweighing or reevaluation that Russell and its progeny have proscribed.

I have heard that the Presumption of Regularity (PoR) means that we are supposed to assume:
- The VA is assumed to have faithfully executed their duties
- C&P exam results were sent to and received by the VARO in time to be adequately weighed in a decision
- "All evidence of record" means "everything" was used in a decision, even if not specifically stated
- The VA does not have to specifically state which C&P exams were used in a decision

 

Here is a potential VA screw up: One of my initial ratings was granted at 10%, but given the details below, I am wondering if it should have really been 20% instead.

This is a really old, finalized claim. I had an initial first C&P exam in November 1999. The doc requested some imaging be performed outside the VA and it was done a couple of weeks later. I thought that was the end of it, but a week later was brought back in for a second C&P exam because they could not find the results of the first one. In March 2000, I received an initial award letter and the condition was rated at 10%. No NOD, decision became final.

Many years later, I requested a copy of my c-file. While going through it, I found a copy of the first November 1999 exam. I compared it to the rating criteria of the time and it qualifies for 20%, which is higher than the 10% from the second exam. My copy of the first exam is a single page and contains the VARO three digit number on the front, but the back is not date/time stamped showing when the VARO received it. Numerous copies of VA transmittal and AMIE printouts in my c-file, but none show when the first exam was sent to or received by the VARO.

Facts:
- The same C&P doctor performed both exams.
- The doc stated in the second exam that I was brought back for re-exam because the material from the first exam was misplaced.
- The March 2000 award letter only mentions the second C&P exam.

If the VA had not misplaced the first exam, then the first exam would have been weighed and my initial rating would have been 20% instead of 10%. 

Would the Crippen decision potentially apply in this situation?

If a VA employee states that evidence was misplaced, would the VA be required to prove when it was found and that it was weighed? 

 

[Berta]

"Facts:
- The same C&P doctor performed both exams.
- The doc stated in the second exam that I was brought back for re-exam because the material from the first exam was misplaced.
- The March 2000 award letter only mentions the second C&P exam. "

Of course it does, because the initial exam, I assume, from your posts ,was favorable for the higher rating.

You could use as a point of argument,that the same C & P doctor had no time to get back to med school between the exam time frames, to learn  more medically  in the second exam,  than in the initial one he did..

He was surely competent enough to render the favorable opinion in the first exam.

(that is probably why it was missing)

However CUEs really should not hold extemporaneous rhetoric and should stick  to the facts...but that is a fact... the same doctor had two different views of the same disability for the same veteran,...

I wonder what would happen if he had to do a third C & P on you.........maybe he would say you have been miraculously cured.

 

 

 

 

 

 

[Vync]

I am fortunate that the C&P doc was honest.

Time to schedule a visit to the VARO to view my c-file in person... The copy I received in the mail a few years back doesn't contain all of the transmittal and receipt information.

I assume the c-file ever left the VAMC during the three and a half weeks spanning the first exam, imaging study, and second exam.

The first exam contained a diagnosis, imaging consult request, and worse ROM values. The doc wrote the nexus opinion in the second exam after reviewing the imaging findings.

[FormerMember]

The VA must be practicing Catholics. They subscribe to the theory of Immaculate Recovery.