Smrs Considered Lost By Va In Decisions

[add55p]

Does anyone have any solid information that would support a denial solely because service medical records word missing and repeatedly considered lost by VA.

The claim is now in the BVA appeals phase and I am thinking that there must be some precedent cases out there to support a Veterans claim when service treatment records are lost while in the possession of the Department of Veteran Affairs.

While the VA states that the SMRs are considered lost, there is documentation, in the form of a letter from the National Personnel Records Center (NPRC), in the claims file that clearly states that the Service treatment records were sent to the Department of Veterans Affairs.

The last SSOC stated the denied "because your service treatment records are unavailable".

Please provide any information that you may have to help put together a good letter for inclusion in the BVA appeal evidence based off of this situation..

Thank you..

Add

[add55p]

Free Spirit

Did the below statement work for you or are you still waiting for a decision??

"Additionally, as the Regional Office was aware of the fact that my husband’s discharge physical has disappeared from his file (due to my repeated requests that they look for it), they had a heightened duty to consider the applicability of the benefit of the doubt, to assist in developing the claim, and to evaluate and discuss the evidence favorable to the claimant. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991)."

Thanks

Add

[broncovet]

The regulations involving lost service records are not all that "Veteran Friendly". This is why the VA did and does get away with shredding Veterans records and has been caught at it in 2008. In the regulation it assumes they will be found. The best advice I have is to try to find as many as you can, such as hospital visits, etc.

The regulation dealing with lost service records is 38 CFR 3.156 as follows:

3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

Cross References:

Effective dates—general. See § 3.400. Correction of military records. See § 3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

[free_spirit_etc]

Chuck75

Thanks for the information..

I cannot believe that there is no Veterans that have won there claim in the VA appellant process because of no service treatment records.

You don't actually win the case because there are no service treatment records. But especially if the VA lost the records, they need to let you show the evidence in other ways. They should not be able to deny a case based on the absence of SMRS.

I understand that the SMRs are important to get you pass the first requirement (In service occurrence), however, there has to be another way to get pass this step requirement, minus service treatment records.

IMOs can sometimes help. I see in another thread you got buddy letters. This might help.

I am asking for someone that knows of any VA case law or Court precedent that may be used to strengthen the evidence to support the claim without SMRs during the BVA appeal process..

There is case law that the VA has to give you heightened benefit of the doubt, assist you in developing the claim, etc.

I apologize, but I am not familiar with your case, what you are trying to show, or what evidence you have. I would build my argument piece by piece pointing out what the evidence actually shows, and point out that you have repeatedly requested the records, and the VA has lost them.

Here is an example of part of my argument where the VA doctor had said my husband was not exposed to asbestos because he was not part of any occupational screening program. Those programs were not even in existence when my husband was an electrician in the AF.

1. The Regional Office was in error to use the March 19, 2002 VA examiner’s medical opinion to deny my claim, as the opinion was based on the examiner’s erroneous assumption that my husband was not exposed to asbestos. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board erred in relying on a medical examiner who “ultimately relies not on the objective medical evidence, but rather the absence of such in reaching her opinion”)

Add

Add

[free_spirit_etc]

Free Spirit

Did the below statement work for you or are you still waiting for a decision??

"Additionally, as the Regional Office was aware of the fact that my husband’s discharge physical has disappeared from his file (due to my repeated requests that they look for it), they had a heightened duty to consider the applicability of the benefit of the doubt, to assist in developing the claim, and to evaluate and discuss the evidence favorable to the claimant. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991)."

Thanks

Add

I actually got my decision Saturday. My claim was granted. It was not based on this. I actually had two strong IMOs. But this pointed out to them that they did have a heightened duty to consider the evidence presented, and discuss any and all evidence that was favorable to my claim if they denied it.

You can Google the case and find other instances when that argument was used, and quote the one that works the best.

I actually wrote to the BVA while I was waiting for my hearing and informed them that the VA had not been able to locate my husband's discharge physical. I told them I wanted to obtain an independent medical opinion, but would like to obtain a copy of the discharge physical before obtaining the opinion and so the physician could have the entire record. When they informed me my hearing was scheduled, I wrote to them again, and requested a postponement, as I still had not heard whether the BVA located the discharge physical. I got a letter a couple weeks later letting me know they could not locate it.

In the very least, I was trying to assure that I didn't pay a lot for IMOs only to have the VA pull the discharge physical out of their pocket at the hearing, and say the IMOs were not "adequate" as the doctors had not discussed the discharge physical.

I went ahead and obtained the IMOs, and sent the doctors a copy of my letter requesting the discharge physical, and a copy of their letter stating it could not be found. The doctors noted that in the IMOs -- that they had reviewed the records and there was no discharge physical.

But my husband had been cheated out of benefits on previous claims because they told him his medical records didn't show this or that. But they failed to mention that his discharge physical was missing.

Edited November 24, 2014 by free_spirit_etc

[free_spirit_etc]

Bronchovet,

That was one thing that concerned me on my BVA case. They could have remanded it back for development, and looped it around for a long time while the VA pretended they were going to look for the missing records. I am glad they did not do that.

The regulations involving lost service records are not all that "Veteran Friendly". This is why the VA did and does get away with shredding Veterans records and has been caught at it in 2008. In the regulation it assumes they will be found. The best advice I have is to try to find as many as you can, such as hospital visits, etc.

The regulation dealing with lost service records is 38 CFR 3.156 as follows:

[free_spirit_etc]

add55p,

I am sorry I am not very familiar with your case. Is there a place where you posted more about it?

Maybe if we saw the previous denial and your NOD - some of us could help you strengthen your argument.

Had your hearing been scheduled yet?