Use Of Tape Recorder During C&p Exam

[tssnave]

At some point in my claims process I got a copy of the precident about using a tape recorder during a C&P exam (please note - I am NOT talking about a claims hearing but only about a C&P exam). I have just uncovered that document and it can be found here:

http://www.va.gov/ogc/docs/1991/PREC_04-91.doc

I have two questions:

1. Where can you find VA precedent papers like these? Please post a link to a search engine or where on the VA site you can find them. I know in another thread Wings posted another precident on another topic so I'm hoping there's a place on the internet to search for them.

2. Does anyone know or know how to find out if there's been any precident since this 1991 ruling that ALLOWS the use of a tape recorder or other recording device during a C&P exam?

Thanks,

TS Snave

[yoggie2]

I went to the VARO here in INDY and I was pissed to be denied so thinly on a MH eval that was plan ridicules. I stated it to the VA rep and stated I had recorded it on my "Cell Phone" and this Dr was clearly leading me to a diagnosis instead of making a diagnosis. Clearly he is in ERROR in his report, "he lied and I can prove it" and I can still prove it with out a recording but this is not the point. I was told then and there it was against the LAW to tape or recording a C&P Exam. I still to this day still can't find a thing on "Taping a C&P" either way because I was worried about my own skin for saying something out of rage and anger. I am glad someone brought this question up because I my self am still looking for a solid answer. Not that I'm worried but if I can I will go with a recording device of some type.....

Edited July 31, 2008 by yoggie2

[rentalguy1]

something else we are all forgetting here is a tactic the VA uses all the time that we could turn around on them. I have read several BVA cases where a vet gets an IMO, but the VA won't accept portions of it because it is the vet telling his story, and it is not backed up by any kind of a record. Therefore, if a C&P examiner states that a vet has tattoos from childhood when that isn't the case, an argument can be made by the vet that the tatto claim is unsubstantiated. It might just work...

[ruby]

To research this area look at federal cases that involve recordings--or just google is it legal to tape record in a federal setting without permission.

This would be covered under case law. There may not be anything in writing, I believe there is. It's case law you need.

I use to have it but I can't find it now.

I can assure you if you ask they are going to say NO or its illegal. Don't tell anyone your recording. If you really need help then call an attorney that does federal cases--and ask if its legal and where would you find that law.

Or you can go to a law library and ask them to help you locate it.

The VA as an insitution may say you can't, but policy's can not trump the law.

Just as state laws can't trump federal laws, unless federal laws say they can.

If you sue someone under the federal court system its OK to tape anyone without there knowledge, however if your in a 2 party state such as Florida and your in state court and you tape without anyones knowledge its illegal.

Now if you use a tape recorder to help you in your daily life, it would be hard to prove the recorder did not accidental go off, since it is voice activated.

Anyone who's memory is impaired can say they use a tape recorder to ensure the accuracy of what transpired.

RENTAL,

That's a good poiny use it to your advantage. Then the Courts would have to make a decisivie decision on that issue.

[vaf]

SONY ICD-8500, about four inches long, a little over an inch wide, and 3/4 of an inch thick - inconspicuous. Walmart, around $50.

Two hour capacity, voice activated, runs on two triple A batteries.

I recommend it highly for anyone having problems of the sort where a contraption like this comes in handy.

[tssnave]

Carlee - While I agree with you about a VA hearing being a legal proceeding and the VA is paying for a C&P exam, I have another take on these facts:

The C&P exam and VA hearing are both mechanisms, paid for by the VA, by which the VA gathers evidence in the legal matter of a veteran's disability claim. While they allow the recording of the evidence gathering in one avenue (hearing) they deny the recording of evidence in another avenue (C&P exam). This is incongruent to me.

I would love to hear Berta or some other leagle beagle chime in on the general legal rules of evidence and discovery to understand why this incongruency is legal.

Thanks to all who chimed in on this post. Since there doesn't seem to be any precedent that supercedes the VAOPGCPREC 04-91 prohibiting the use of a recording device during a C&P exam, I believe the precedent still stands. If anyone reads anything different that is binding on the VA, please post the citation.

Thanks,

TS Snave

Edited August 7, 2008 by tssnave

[Chuck75]

After reading the VA general counsels opinion--

The view taken is that if it's not explicitly permitted, then it's not allowed is a typical bureaucratic governmental attitude. The opinion is correct in that there seems to be no explicit right to record by law, just as there is no explicit denial.

And this attitude runs counter to constitutional language that basically says just the opposite. In the absence of a regulation, law, or directive specifically prohibiting recording, recording should be legal.

Since federal laws are involved, allowing recording if one person is aware, recording should be "legal".

But, that's just my personal opinion.

At some point in my claims process I got a copy of the precident about using a tape recorder during a C&P exam (please note - I am NOT talking about a claims hearing but only about a C&P exam). I have just uncovered that document and it can be found here:

http://www.va.gov/ogc/docs/1991/PREC_04-91.doc

I have two questions:

1. Where can you find VA precedent papers like these? Please post a link to a search engine or where on the VA site you can find them. I know in another thread Wings posted another precident on another topic so I'm hoping there's a place on the internet to search for them.

2. Does anyone know or know how to find out if there's been any precident since this 1991 ruling that ALLOWS the use of a tape recorder or other recording device during a C&P exam?

Thanks,

TS Snave