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Showing results for tags 'crippen'.
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Berta opinion request: Crippen (1996) in this situation
Vync posted a question in CUE Clear and Unmistakable Error
Given this ruling: 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?
