Recording An Examination

[carlie]

This has been questioned several times and I always responded we

have no legal right to record a VA examination.

I finally found the reg on it again, so I could post it.

carlie

http://www.warms.vba.va.gov/admin21/m21_1/...3/ch03_seca.doc

Section A. Examination Requests

f. Veteran's Legal Rights

A veteran has no legal right to

· be accompanied by counsel during an examination, or

· record an examination.

Edited August 29, 2009 by carlie (see edit history)

[magician2000]

Carlie... I really have wondered why you would want to. I have only had one C&P exam, it was done poorly, but I made sure that I made copies of all of my VA Progress Notes (Yes I know that the RO should have access to them, but he never requested them for what ever reason.) and they showed a more accurate picture then what the C&P doctor had written in his report. Because of this, and the fact they I did not know anything about FOIA. I didn't find this out till the first decision was made. But as soon as RO had all the correct info, I got a fair rating. I just had a six month delay in getting the rating.

[john999]

The VA does not want any person with legal knowledge of VA procedures to be in the C&P exam room. 99% of exams would be thrown out as inadequate, or biased.

[carlie]

Carlie... I really have wondered why you would want to. I have only had one C&P exam, it was done poorly, but I made sure that I made copies of all of my VA Progress Notes (Yes I know that the RO should have access to them, but he never requested them for what ever reason.) and they showed a more accurate picture then what the C&P doctor had written in his report. Because of this, and the fact they I did not know anything about FOIA. I didn't find this out till the first decision was made. But as soon as RO had all the correct info, I got a fair rating. I just had a six month delay in getting the rating.

magician2000,

1) A claimant would want to record an examination, to be able to provide

proof of what was TRUTHFULLY stated and done at the examination.

2) I consider you to be lucky and fortunate that your RO did get the correct info.

and you feel you got a fair rating.

I feel most here would tend to agree with me that ONLY having a six month delay

in getting a rating would be very welcomed by us.

I am glad you were happy with the claims process and the results you received.

jmho,

carlie

[mrsvet28]

magician2000,

1) A claimant would want to record an examination, to be able to provide

proof of what was TRUTHFULLY stated and done at the examination.

2) I consider you to be lucky and fortunate that your RO did get the correct info.

and you feel you got a fair rating.

I feel most here would tend to agree with me that ONLY having a six month delay

in getting a rating would be very welcomed by us.

I am glad you were happy with the claims process and the results you received.

jmho,

carlie

If you remember when I wanted to with MRvet.....off she sent me with the VA police :D

[Chuck75]

A C&P examination is an administrative event, not a medical event, since it has little or no relationship to actual medical treatment. There is a right to have counsel present when any party appears before any sort of government administrative hearing or process that the party is required to attend.

As I remember, the VA is not exempted, even though it likes to say so.

A mere statement in a VA reg or practice letter does not change long standing law. Unfortunately, there are several ways the VA can attempt to weasel out.

Refuse to conduct the C&P, provide an opinion without an exam, etc.

This has been questioned several times and I always responded we

have no legal right to record a VA examination.

I finally found the reg on it again, so I could post it.

carlie

http://www.warms.vba.va.gov/admin21/m21_1/...3/ch03_seca.doc

Section A. Examination Requests

f. Veteran's Legal Rights

A veteran has no legal right to

· be accompanied by counsel during an examination, or

· record an examination.

[timetowinarace]

As far as I know, Federal law still allows the recording of conversations as long as one party to the conversation knows about it. VA regulations are not above the law. If I was of a mind to record an exam, I would not inform or ask to do so.

I have done this several times. Not with the VA. Once at request of an attorney during a medical exam on my wife for a civil case(auto wreck), simular to a C&P but with the insurance co. paid Doc. And I carried a small micro recorder when I was having difficulties at work, recording my superviser telling me I must work with materials that made me sick with no protection even though I had a note from their doctor that I was not to do it, or go home with no job. I won a judgement from OSHA due, in part, to the tape.

What the benifits would be in the VA setting, I'm not sure.

[Pete53]

If the Veteran to be examined requests someone to accompany them using the American Disabilities Act asking for accommodation I do not see how the VA can decline. My wife was with me for all my C&P's after the first one and this goes back to 1993

[purple]

I rarely let the VA tell me what to do....they are so clueless.

[Testvet]

they have let my wife in for all exams except mental health for some reason the shrinks are the ones afraid of having witnesses present....maybe they have persecution complexes?

[carlie]

The topic only regards:

f. Veteran's Legal Rights

A veteran has no legal right to

· be accompanied by counsel during an examination, or

· record an examination.

It has nothing to do with someone's hubby or wife or neighbor

nor sneaking devices into record the examination.

As I said in the original post of this thread -

the question of veteran's rights to record an examination

come up every once in a while.

What I've posted is what the reg states - take it or leave it.

carlie

[Philip Rogers]

carlie: not to rain on your parade but m-21 is just the VA's interpretation of how to administer 38 CFR, which is actually the VA's interpretation of 38 USC. So technically it's not a reg. We still appreciate you, tho!!!!!!!!!!! ;-)

pr

The topic only regards:

f. Veteran's Legal Rights

A veteran has no legal right to

· be accompanied by counsel during an examination, or

· record an examination.

It has nothing to do with someone's hubby or wife or neighbor

nor sneaking devices into record the examination.

As I said in the original post of this thread -

the question of veteran's rights to record an examination

come up every once in a while.

What I've posted is what the reg states - take it or leave it.

carlie

[carlie]

carlie: not to rain on your parade but m-21 is just the VA's interpretation of how to administer 38 CFR, which is actually the VA's interpretation of 38 USC. So technically it's not a reg. We still appreciate you, tho!!!!!!!!!!! ;-)

pr

pr,

Well F me - I am glad you'r here to help me wake the heck up :)

I am wrong as it is only instruction and not a regulation and to you sir

I will gladly stand corrected on that

Please add you $5.00's worth on the subject itself.

carlie

[Commander Bob]

YES...Thank you carlie, for your posting. I have had tape recorders taken away from me on several occasions at VAMCs. If need be, Congress needs to pass a law allowing the veteran to bring recorders into all exams, meetings and hearings. Let's not forget cameras. Every time I go to my local VARO the "VA Police" LOL, take my cell phone away, because it has a camera, video and recorder built in. Congress is the solution. The Judicial branch would be loathed to get involved. It would be nice to get the Supreme Court to get involved, via a little known back door. A writ of mandamus presented directly to the U.S.S.C. ordering the VA to allow recording devices by the veteran. Article 1, 5, etc. We would need a Philadelphia lawyer type, to go for it. I truly belive that the VA is in violation of federal law, by disallowing us to record our visits with the VA.

Edited August 30, 2009 by Commander Bob 92-93 (see edit history)

[Commander Bob]

Carlie... I really have wondered why you would want to. I have only had one C&P exam, it was done poorly, but I made sure that I made copies of all of my VA Progress Notes (Yes I know that the RO should have access to them, but he never requested them for what ever reason.) and they showed a more accurate picture then what the C&P doctor had written in his report. Because of this, and the fact they I did not know anything about FOIA. I didn't find this out till the first decision was made. But as soon as RO had all the correct info, I got a fair rating. I just had a six month delay in getting the rating.

Good Evening Magician 2000, I am glad you got a fair rating. I would think, and hope that most vets get a fair rating. I appreciate, and understand the additional stress you experienced due to of the six month delay. In the old days, we use to call it, the Mail Box Blues. Also, I really wonder why anyone who has had to deal with the VA, or any federal agency , would not want the truth of the recorded voice of what transpired, in their pocket,

On the other hand, with my claim, I'm willing to wait till hell freezes over, to receive my fair and equatable rating from the VA. & DOD.

Edited August 31, 2009 by Commander Bob 92-93 (see edit history)

[Commander Bob]

... m-21 is just the VA's interpretation of how to administer 38 CFR, which is actually the VA's interpretation of 38 USC. So technically it's not a reg.... ;-)

pr

So, is it legal to bring a recorder into the VAMC? Or is the VA breaking Fed law with an illegal m-21 interpretation?

[cowgirl]

What if a request isn't honored? Recorded or accompanied, that is?

If the Veteran to be examined requests someone to accompany them using the American Disabilities Act asking for accommodation I do not see how the VA can decline. My wife was with me for all my C&P's after the first one and this goes back to 1993

Edited August 31, 2009 by cowgirl (see edit history)

[JADMP]

The M-21-1 and M21-1MR are binding regulations at the RO level. For some purposes it is binding on the BVA as well. One of the main issues is if certain regulations are substantive rules or interpretive regulations. If it is a substantive rule, then it is generally going to be binding on the BVA.

For discussion of some of these issues, you should look at VA. Gen. Coun. Prec. 7-92, Paralyzed Veterans of America v. West, 216 F.3d 1058 (Fed. Cir. 2000), and Haas v. Peake, 525 F.3d 1168 (2008).

Bottom line, I think that it would be very difficult to challenge the rule on not allowing recording of exams. Does not mean it can't be done, but I think it is an uphill battle.

[LarryJ]

The M-21-1 and M21-1MR are binding regulations at the RO level. For some purposes it is binding on the BVA as well. One of the main issues is if certain regulations are substantive rules or interpretive regulations. If it is a substantive rule, then it is generally going to be binding on the BVA.

For discussion of some of these issues, you should look at VA. Gen. Coun. Prec. 7-92, Paralyzed Veterans of America v. West, 216 F.3d 1058 (Fed. Cir. 2000), and Haas v. Peake, 525 F.3d 1168 (2008).

Bottom line, I think that it would be very difficult to challenge the rule on not allowing recording of exams. Does not mean it can't be done, but I think it is an uphill battle.

ANNNND, by the time you have gotten around to pissing EVERYBODY OFF, just consider what kind of decision you're gonna get on any and all claims that may be under your claim number?

Hmmmmmmm, lessee, I KNOW TEACHER.....CALL ON ME......I KNOW THE ANSWER (for once)!

[Commander Bob]

The Supreme Court has the power to issue a writ of mandamus outside it's appellate jurisdiction. Marbury v. Madison 5 U.S. ( 1Cranch ) 137 ( 1803 ). Although the U.S.S.C. hasn't used it's power in modern times, It still has the authority to issue them. If it's unconstitutional for the VA to not allow the veteran to record dealings with the VA. then the Judaical branch of our government must step in and remedy the issue. Do we have any takers???

[JADMP]

LarryJ,

You make a very good point. I generally try to comment only on the legal issues unless someone asks my thoughts on whether something is advisable.

Seems to me that the reason to try to record an exam is to show that it was inadequate. Oftentimes, an inadequate exam will be easier shown by failure of the exam to comment on a required point or the examiners failure to reconcile contrary evidence (treatment records, notes, or medical opinions). So, my thought is that there are many ways to win an issue and recording an exam is likely not the best way to do this. There may be circumstances where this is not the case, but in my view it makes more sense to take the issues head on and avoid "collateral issues" that most agencies or courts would be unlikely to entertain in the first place (and may be dismissed as an illegal recording...I did not mention this, either, but there may be Federal or State criminal law issues with making a surrepticious recording, depending on the circumstances). If the exam is inadequate, that is probably the issue to address head on.