Jump to content
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims


    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   


  • Advertisemnt

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Sponsored Ads

  • Searches Community Forums, Blog and more

  • 0
Sign in to follow this  

Berta opinion request: Crippen (1996) in this situation


Given this ruling:


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.

- 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? 


Share this post

Link to post
Share on other sites

Recommended Posts

  • 0

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.



  • Like 1

Share this post

Link to post
Share on other sites


  • 0


Looks like you have did your homework!

Way to Go Buddy

  • Like 1

Share this post

Link to post
Share on other sites
  • 0

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.


Share this post

Link to post
Share on other sites
  • 0

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.”



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.





  • Like 1

Share this post

Link to post
Share on other sites
  • 0


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.


Outstanding Ms berta

Edited by Buck52
  • Like 1

Share this post

Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
Sign in to follow this  

  • Popular Contributors

  • Ads

  • Ad

  • Latest News
  • Our picks

    • Military Service Records - Military personnel records can include DD 214s/Separation Documents, service personnel records found within the Official Military Personnel File (OMPF), and medical Records. Military personnel records can be used for proving military service or as a valuable tool in genealogical research.
      • 0 replies
    • So I've been in a basic power chair (Q6 Edge) since 2015. Late 2016 was also fitted for a TiLite TRA manual (also keeping powerchair). 2017 was approved by Tampa VA for clothing allowance for lower. 


      Moved to Battle Creek VA late 2017. Since then was issued new basic powerchair (Quickie P222-SE) to replace broken Q6. Still use TiLite also now can lightly ambulate with Forearm crutches.

      Use crutches 50%, and both chairs 25% each.

      Was approved for 1 clothing allowance this year for forearms crutches for upper.


      Was denied 2nd for chair/lower that was awarded last year because Chief Prosthetic states "powerchair takes precedence, you were issued that so you are to use only the powerchair".

      Also powerchair has gap between seat and leg mounts where clothes do get caught and tear. Clinician was I'll put it back in but"power chairs dont get clothing allowances", and "any review or appeal will only come back to me"

      I was approved for powerchair/custom manual combo clothing allowance last year; How do I word an appeal for the lower clothing allowance this year?

      My local DAV rep at the VA has no clue on how to handle this.

      • 6 replies
    • Thank you.  I’m not exactly sure of how I will file it.  If it is secondary to TBI, would it be pyramiding?
    • I understand what you are saying. Does it sometimes take awhile to update the VA letters and disabilities info online after it closes.....in my case on a Saturday ? Some on other posts on here says no and some say yes so I'm just curious about the inconsistency regarding that if it is yes and no.
    • I understand what you are saying. Does it sometimes take awhile to update the VA letters and disabilities info online after it closes.....in my case on a Saturday ? Some on other posts on here says no and some say yes so I'm just curious about the inconsistency regarding that if it is yes and no.

Important Information

{terms] and Guidelines