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Smrs Considered Lost By Va In Decisions

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add55p

Question

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..

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I believe "Absence of evidence" is not the same as "evidence of absence".

In other words, if your service records are gone, this does not mean you did not have a disease or injury incurred in service. It means your records can not be found to confirm it.

However, the RO regularly denies claims based because "the records do not show evidence of xxxxxx" when the records are absent.

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Is it possible that maybe you applied for SSDI and the records (SMRs) are still at the SSA office?

"When SMRs are lost or missing, VA has a heightened obligation

to satisfy the duty to assist."

and

"In other words, the legal standard for proving

a claim is not lowered; rather, the Board's obligation to

discuss and evaluate evidence is heightened. Russo v. Brown,

9 Vet. App. 46 (1996). Missing records, while indeed

unfortunate, do not obviate the need for probative medical

nexus evidence causally relating the current disability at

issue to the veteran's military service. See Milostan v.

Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v.

Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v.

Derwinski, 1 Vet. App. 365, 367 (1991))."

http://www.va.gov/vetapp08/Files3/0823153.txt

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Add: Were any of these missing copies of your SMR's ever in your possession or that of your VSO-Rep? When I reviewed my C-File this past 01/2014, everything evidence wise that was in the VA C-File was also in my personal VA Claims File that I maintain. I have no idea of exactly how my 2 different VSO's have maintained the copies that I made available to them, but I have to believe they were scanned into my VSO File. I gotta ask, how did the VA get copies of SMR's that you don't have copies of in your own or your VSO's claim file. I understand you can't go back and unscrew the pooch but so other Vet's don't make the same mistake, any info would be appreciated. The VA is definitely capable of making grievous errors in the handling of our claims but sometimes we are culpable to a certain degree. Hopefully others can learn from our mistakes, we just have to be candid in our assessments of fault.

Semper Fi

Gastone

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