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]

If the rating would have impacted you in 1999 I meaning you didn’t have 100% then) I would definitely file a CUE claim on this.

Crippens is basically what I have been saying here about 38 CFR 4.6.

Same principle of CUE, different lingo.

CUE: in your case----

Legal error based on rating criteria at the time, error that had a manifested detrimental outcome (meaning  if they owed you more comp due to the error) and based on medical evidence that was established at time of the Cued decision.

 

I think you have all you need to file CUE on this. Although the older C & P in your C file ( yeah I found  missing stuff in mine too and even a critical Exam the VA said Never existed.)  might not be dated, the doctor referred to it so that proves it was ‘missing’.

CUE claims have to be worded carefully and can be short and sweet, and just focused on the CUE criteria itself and referring to the evidence that proves the CUE.

We have some templates here.

Make sure you put the exact date of the RO decision you are filing CUE on and then I always refer them to and enclose a copy of that decision as evidence.

 

 

[Buck52]

Vync

Looks like you have did your homework!

Way to Go Buddy

[Vync]

Thanks Berta and Buck!

Luckily, the first exam is dated.

Back in 1999, I had a 40% rating (20/10/10/10). If I win this, then it becomes 50% (20/20/10/10).

 

I have some other strangeness regarding some older ratings, so I am going to go the lawyer route.

 

[Berta]

My Original heart Disease Cue was much shorter than this but I re wrote it for you with more info in it that shows how we have to support this type of claim.

 

This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A.

 

 

In the enclosed 1998 DIC award letter rating I received the VA failed to acknowledge and rate the deceased veteran’s heart disease,which was one of the “ multiple deviations “ in medical care that  the decision under Section 1151 was based on.

Exhibit A 1998 VA DIC award and rating sheet                4 pages

 

I have enclosed  as Exhibits B and C, further medical documents in VA possession at time of the 1998 decision that prove that veteran’s heart disease was undiagnosed and untreated and contributed to his death.

 

 

Exhibit B  VA Peer Review March 1995 reguested by Regional Counsel and prepared by Dr XXXXXXXXXXXX, Bath VAMC.   malpractice on heart  6 pages

 

 

Exhibit C        VA Central Office Strategic Health Team Cardiology report  regarding malpracticed and defined “ multiple deviations” that all “ hastened” the veteran’s death                                             2 -pages

 

The veteran’s undiagnosed and untreated heart disease had been established in multiple VA medical records as well as at VA Office of General Counsel , for my FTCA case, and at VA Central Office and their findings were sent to the Buffalo VARO by me, via priority mail ,prior to this decision and were ignored.

 

The legal error to my detriment as the surviving spouse was that no rating or acknowledgement whatsoever for made on the 1998 rating sheet for Rod’s heart disease.,yet the award letter clearly states it was one of “multiple deviations from a usual standard of care and all of these deviations hastened the veteran’s death.”

 

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This can be used as a template and there are more templates here but this covers the main points:

 

Defining the exact legal error with proof from the past decision.

Stating the outcome was detrimental to yuou (because if the error had not been made, they would have owed you more cash)

 

Making sure they had the established medical record in their possession (regardless of where it was, as long as it was at VA.

 

Checking the ratings for the year you are claiming CUE was made.

Going over 38 USC 5107 and info here for the best way to word and present this type of claim.

 

 “lack of proper rating” or of any rating they should list and rate is a CUE.

 

I didn’t know this was an IHD situation until the AO  IHD regs came out .By then this CUE had been at my RO for 6 years, set for BVA transfer but the Nehmer RO awarded this CUE and 2 others I had pending because they all had impact on a proper IHD Award.

 

Of course I have to prove that this unacknowledged heart disease was, in fact, ischemic heart disease so that involved a lot more work on my part reviewing the medical records. No where in any VA document or record was this stated as being ischemic heart disease.

The ECHO and EKGs did…and the autopsy.

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[Buck52]

Vync

Sounds like to me you got this one,  but remember with CUE how the VA can come up with there own B.S...But I do think you got this one , and what a great time for you and your family too, with the new member of your family coming soon...this will be a great Award for you and your family.

I am wishing you the best my friend.

...................Buck

Outstanding Ms berta

Edited October 18, 2016 by Buck52

[FormerMember]

Be prepared for one thing. In all my CUE adventures, I have won none at the RO level. VA raters have consistently denied based on decidedly flawed logic. I ended up taking one to the CAVC as an Ex Writ in January 2015 leaning entirely on equitable tolling. It's mighty hard to answer a SOC when you're belly up in a VAMC. Without batting an eye, and surely not admitting CUE, they hurriedly revised it 41 days after the filing. It was the difference between awarding SMC S in 2007 versus 1994. VA will twist the regulations around to read something entirely different just as they did on my ILP greenhouse request. I agree with Berta. Nothing ventured, nothing gained. However, in your case, having a C&P that uses language clearly and unequivocally entitling you to a certain rating that they admit they lost is a pretty damning document. 

Think of the Presumption of Regularity as a philosophy. It is presumed (never assumed, however) that VA personnel are adept at their profession and always do the right thing. To rebut that presumption, you have to use the Rizzo/ Butler test. What appears regular-is regular. But what appears irregular is irregular. It would be irregular to ask for an additional C&P within two years if you just did one. If they lost the first one, that rebuts their hallowed presumption. The whole adjudication must be thrown out and a de novo review performed. I can almost bet that VA will initially go down the CUE denial path and say CUE can never rest on how the evidence was decided in retrospect. You may have to go higher for justice but what the hey. You have all the time in the world.

This also reinforces what I've been hammering on Vets for years about. Get the c-file. This is the document VA is using to deny you with. Since they pretty much manage to step on their necktie 67% of the time, what makes your individual case immune to that statistic? The only way you can unearth the error is to have the file to examine in minute detail. Don't expect VA to be the stand up guy and go back to find and fix it. That's how you got in this pickle the first time-probably without a good representative guarding your best interests. 

Win or Die