Mishandle Service Medical Records At Va

[add55p]

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).

[jbasser]

You need to closely look at the following. Title 38 CFR 3.156 C.

Your answer lies in t here.

[add55p]

Jbasser

I will try to find the reference and read it.

Thank you for sharing this with me.

[add55p]

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.

[john999]

Even when the VA has lost or excluded either medical evidence or medical records and you can prove it you don't always win a CUE. The lost or excluded evidence must undeniably prove that you deserve a higher raring or service connection. So you lost records say you have severe PTSD and the VA says you don't have it. Those lost records must undeniably prove to reasonable minds you deserve a higher rating or SC.

[add55p]

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]

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.

It may be time to call the RO and your VSO and plan a trip to view your claims folder. That activity often gets things jump started.

You have that right to do so.

J