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Bva Decision


Charleese

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Hi everyone,

The attached BVA decision listed below is one that my husband and I believe should be attached to his 1958 claims NOD.

0605575.txt

We feel it is similar to his claim whereas VA hasn't found his 1958 application/claim as a result of no fault of his and due to the fact that the VA in Tazewell, Virginia no longer exist. As evidence of claims that were granted when claims were lost he is enclosing BVA decisions Citation Number 0325331 dated 9/29/03 and Citation Number 0605575. He states that Citation Number 0605575 is similar to my 1958 claim and states in the middle of Page 3 that: “The veteran’s service medical records and record of separation (DD Form 214) are not associated with the claims file. The NPRC indicates that this paperwork was destroyed in a fire at the facility in 1973. Additionally, the veteran has stated that he initiated a claim for service connection for his right wrist in 1971”. It goes on to state: “However, the current claims file only dates to 1991. It was indicated in the file that it had to be rebuilt because the Los Angeles RO, with whom the veteran first filed his claim, lost it. There was no record of the veteran having been awarded service connection in 1971. Nor was the veteran able to produce evidence that he had either filed a claim at that time or had been awarded service connection.” “In a situation such as this one, where service medical records arepresumed destroyed, the Board has a heightened obligation to explain its findings and conclusions and consider the benefit-of-the-doubt rule. O”Hare v. Derwinski, 1 Vet. App. 365 (1991). The bottom of Page 4 and top of Page 5 that “Because the veteran’s service medical records were apparently destroyed in a fire at the NPRC in 1973, and because his claim file was lost by the RO, necessitating rebuilding it in 1991, there is no medical evidence documenting the veterans’s reported right wrist injury in service. Therefore, the Board and the VA examiner had to rely on the veteran’s statements regarding his injury in service and the subsequent medical evidence that referenced this injury. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §3.159(a) (1)”. It goes on to state: “In this case, the veteran is competent to describe what injury he encountered during service and whether, and for how long, he wore a cast. As noted above, the Board at this point may rely on those recollections, given that contemporaneous records were lost as a result of no fault of the veteran. CF. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that while interest in the outcome of a proceeding “may affect the credibility of testimony it does not affect the competency to testify.” (citations omitted). Page 6 of citation sttes: “Given all the evidence listed above, and resolving the benefit of the doubt in favor of the veteran, the Board finds that service connection is warranted for a right wrist disorder.”

As many of you know my husband's 1958 claim is lost as well as his SMR's were burnt in 1973 fire. Even though they speak or right wrist, we feel if you substitue application/claim where wrist is you will get the same results. Please let us know what you think of this decision? Should we use it or not?

Thanks!

Charleese

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