Adverse Presumption Rule When Claim Evidenc Is Lost By Va

[add55p]

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!

[Dave Jones]

I too have ben searching for cases involving the " adverse presumption rule " and although I have researched hundreds of cases where the veteran and his representative try to introduce that " rule " I have not found one instance where the court will find that VA was guilty of intentionally fouling, losing or destroying veterans records even in spite of the O.I.G.'s reports of 2008 and 2015 and admission by VA employees that they willfully destroyed veterans files and management failed to implement the safe guards by the OIG to prevent just that.  It's kinda like trying to find one doctor to testify against another doctor for mal practice.  It hardly ever occurs.  My e mail is itowdavej@yahoo.com.  Let me know if you find such a case.

[pacmanx1]

On 10/19/2021 at 11:50 AM, Dave Jones said:

I too have ben searching for cases involving the " adverse presumption rule " and although I have researched hundreds of cases where the veteran and his representative try to introduce that " rule " I have not found one instance where the court will find that VA was guilty of intentionally fouling, losing or destroying veterans records even in spite of the O.I.G.'s reports of 2008 and 2015 and admission by VA employees that they willfully destroyed veterans files and management failed to implement the safe guards by the OIG to prevent just that.  It's kinda like trying to find one doctor to testify against another doctor for mal practice.  It hardly ever occurs.  My e mail is itowdavej@yahoo.com.  Let me know if you find such a case.

Since this thread is several years old you should start your own/new thread.

[carlie]

"The Secretary argues for affirmance, because, he argues, the appellant has made no factual

or legal challenge to the decision, he does not point to any error by the Board, and he does not take

issue with the plausibility of the Board decision, the evaluation of the evidence, or the reasons or

bases for the Board's decision. He also states that the appellant's policy argument advocating

application of an adverse presumption is misconceived.

Finally, the Secretary

argues that the adoption of an adverse presumption in cases where records are lost or destroyed

would act to shift the burden of proof from the appellant to the Secretary, in contravention of statute.

The appellant would have this Court develop an adverse presumption against the Secretary

based on the 1973 fire at the NPRC. The appellant relies upon an article that concludes the origin

of the fire was never determined. Walter W. Stender & Evans Walker, The National Personnel

Records Center Fire: A Study in Disaster, 37 THE AME RICAN ARCHIVIST, 521, 544 (1974). There

are existing presumptions for service connection that have been created by Congress and codified

in statute. The existing presumptions recognized in the VA statutory scheme generally relate to

circumstances involving combat. See 38 U.S.C. §§ 1116, 1117, 1118, 1133. The appellant does not

argue that the presumption that he seeks is derivative of any of these presumptions, or is even

implied by any other statute or regulation.

The Secretary argues for affirmance, because, he argues, the appellant has made no factual

or legal challenge to the decision, he does not point to any error by the Board, and he does not take

issue with the plausibility of the Board decision, the evaluation of the evidence, or the reasons or

bases for the Board's decision. He also states that the appellant's policy argument advocating

application of an adverse presumption is misconceived. Furthermore, he argues that, because the

appellant offers no facial challenge to the Board decision, and explicitly waives all procedural issues

on appeal, the appellant has abandoned the opportunity to challenge the Board's findings. Moreover,

the Secretary asserts that the appellant's argument that the burden of proof should shift to the

Secretary in cases where records are lost or destroyed is misconceived because the Court has

previously addressed the issue and VA has acted in accord with the law. Finally, the Secretary

argues that the adoption of an adverse presumption in cases where records are lost or destroyed

would act to shift the burden of proof from the appellant to the Secretary, in contravention of statute."

http://38uscode.com/Courts/VetCourt/2005/Cromer_03-0133.pdf

[add55p]

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.