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Carlie Based on this decision, the court stated that the veteran could not prove bad faith or negligent destruction on the part of the VA and continued to deny the claim. I could argue that I have proof that my service medical records were in fact in the VA's possession (as admitted by their agency in writing), and the VA was negligent because my records were lost while in their possession. I am not sure that this argument would meet the Negligent Destruction of documents as the court quotes. I personally fill that it was negligent destruction, especially, since the 2008 mishandled document incident. Thank you for sending me this information! The more leagl references that I can somehow associate with my claim may very well help me get a favorable decision in the long run.

Ketchup56 You give me hope! You are correct about the HADIT Forum. I learn something from a post every day. Good luck on your claim and if possible, let me know the outcome. I understand that the VLJ decison may take a while.

Does anyone know of a Board or Court decision where a Veteran was awarded a claim due to the Adverse Presumption rule. This rule as I understand it, is almost like the Constructive notice rule (discovered that evidence was at VA but not considered). The Adverse Presumption rule, I believe, hinges on the fact that VA made an error or because of that error, the evidence was known to have been in the VA's Possesion was lost and despite repeated, thorough seaches of the agency, was never located. I understand that without the evidence, the VA cannot determine if it would have awarded the claim or not. However, the fact that VA lost the evidence, almost assures that it will never be considered and the veteran loses out right. If anyone does know of a favorable claim (Board or Court) decision that was awardwd based on the Adverse Presumption rule, please let me know what the decision was and where I can find it. I really appreciate your past replies to my other posts!

Berta I am sorry that you and your husband had to endure such negative administrative behavior from a Federal Ageny (VA). I truly respect and appreciate the information that is contained in your reply. No I did not or have not ever applied for SSI benefits. Just so you know; I forgot to mention that my VSO also sent me an email stating that there was an entry in (COVERS)Control of Veterans Records System that showed that the VA Records Management Center (RMC) sent my SMRs to VA in 2007. After doing some reading, I discovered that the Records Management Center is part of the VA and houses VA archived claim folders and medical records. The VSO stated that he checked my claim file and the SMRs were not in the C-File. It is very unfortunate that I have to suffer because the VA intentionally destroyed or mistakenly lost my SMRs. I am litterally suffering because of their gross negligence. It is unbelievable that the US Government let the VA get away with something so blatent.

John I do not no about being inside of the claim folder, but I know that the VA had them at some point and time. That is why I asked for reconsideration of this claim in hopes that someone would actually go and check. But as of 2009, noone has.

Thanks John! Carlie The 3 evidence documents that I have is 1. A printed IRIS reply from VA stating that my service medical records were received and should be associated with my claim soon. 2. A letter from the national personnel records cented dated November 2007 stating that my service treated records were signed out to the department of veterans affairs. 3. A letter from my previous VSO informing me that he read a VA comfirmation document in my file that stated my service treatment records were transferred to the VARO. The department of Veteran Affairs continues to deny my claim because the my service treatment records are unavailable for review. I have on three occasions addressed these three documents in an IRIS inquiry and sent them to VA in support of my claim for reconsideration. I never received and IRIS reply and there has been no movement in ebenefits for my claim since 2009 (Review of Evidence).

John I understand that the service medical records are essentional to certifying in service ocuurence of a claimed condition and you have a very narow chance of getting an award without the in service proof. The problem that I am having is that the VA is ignoring my alternative evidence, pr their regulation. According the 38 CFR, VA/BVA has a heightened duty to assist when the Vetran's records were in the custody of a government agency and subsequently lost. Are you suggesting that there is no way that an award can be granted absent the Service Medical Records?

Jbasser I read Title 38 CFR 3.146 C and it states that if SMRs are located at a later date, the effective date can be the date of the original claim. My problem is that while I have 3 factual evidence documents to support that my service medical records were sent to the Department of Veterans Affairs, there is no indication that the SMRs will surface support me even getting an award. I am hoping that the Department of Veteran Affairs finds my records that were shown to be in their possesion in 2007. Would this paricular situation be hinges on The Construction Notice Rule". It is very unfortuenate that the burden of proof is on the Veteran to prove in service occurence when the VA had and lost the SMR that would prove the veteran's case.

Jbasser I will try to find the reference and read it. Thank you for sharing this with me.

Has anyone on this site or know of someone that had their claim awarded in accordance with Secretary Peake's Mishandled claim Fast Letter 08-41 based on missing service medical records that were in the possession of the VA, but subsequent misplaced or lost? In my case, I submitted three pieces of evidence documenation to the Department of Veterans Affairs that state that my SMRs were sent to their agency in 2007. The VA denied my claim in 2008 stating that service medical records were not available for review, therefore their is no proof of in service incurrence of my current claimed condition. Just before the Novemeber 2009 deadline for submitting mishandled documents contentions, I requested reconsideration of my denied claim under the fast letter instructions. VA is reconsidering the claim. In response to their VACC Notice for this special claim for reconsideration under fast letter 08-41, I sent in the confirmation notice that I had received the VCAA notice and resent the 3 evidence documents showing that my now missing SMRs were sent to their agency in 2007. The 2007 claim is back in the review of evidence status on ebenefis and has been there since 2009. No movement what so ever. I read that VA sometimes closes claims after one year of inactivity, but I have checked and this is not the case with mine. I am not sure what the are doing. The VSO rep that I had was dismissed by me because he stated that despite me having the fact documents showing that the SMRs were shipped to VA, until they find the SMRs and prove the condition was noted in service, I was wasting my time submitting a request for reconsideration under the fast letter. The VSO stated that he would not assist in the fast letter reconsideration becasue it was a waste of time. Unfortunately, the way I read the Fast Letter 08-41 instructions, I truly believe that I have a chance. Could it be that the evidence documents that showed my SMRs being sent to thier agency trigerred VA to conduct an all out search of their facility for the missing SMRs? If the SMRs are found, all of the evidence to support my in service incurrence evidence would be in them. This is the only reason that they give for the denial. I have also sent alternative evidence (letter from sister, my in service company commander, and the name of the Army doctor and various Army hospitals that treated me during service).