Lost active duty medical records, now what?

[allansc2005]

OK folks here's a tough one.

Got a veteran who served active duty army from 1976-1979, one tour in Korea, then got out in the states in 1979. No reserve time, no further military duty.

The veteran was diagnosed with Obstructive Sleep Apnea POST military, has a long history of sinus problems, BOTH in and out of the military, and his Dr. has agreed to write him a Nexus letter on the condition he can provide his ACTIVE duty medical records.

The problem is that NO active duty medical records came with his C-File! Here is a list of every place he/we have searched:

1. NPRC(no his records did not burn up there)

2. ALL VA hospitals he has been associated with, including his home town VA, the VA where he got out of the army, and all VA hospitals where he lives.

3. The VA itself told the veteran they can't find his records as well.

Also note that the veteran was NEVER hospitalized in a VA facility.

So now what? Where else do we search?

Thanks

Allan

2-2-0 HUAH!

[Buck52]

It seems the NRPC referred me to  Ft Knox Ky...its been a few years  and I will look for that phone #  but Ft Knox is where they store a lot of military records  and you call this # and they ask for your service # or SS #  the Army used my SS # the whole time and still does.

 they put that number into their system and it generates up anything any records they have for that particular Veteran...in the mean time you may call Ft Knox & Check with the information dept on that post...I'll look for that number...but they did not find anything on me...but they might be able to help you guys?

[allansc2005]

Thanks Buck, will wait for that number.

On a funnier note, I'm thinking about teasing Berta on this one, she usually has the answers, but like us, she is stumped!

Allan

2-2-0 HUAH!

[Berta]

I sure am!  But don't disregard the value of those buddy letters....he has more than one- Always a good sign....

And you stated here:

"The VA itself told the veteran they can't find his records as well."

So they have an "enhanced Duty to assist him"and if he has just the buddy letters, and they are all significant for snoring or oversleeping for duty or general malaise sometimes or any other symptom of the SA, and/or the sinus condition,, the VA will have to give those letter weight unless the VA comes up with some proof that he did not snore a lot in the Mil.

Dont forget Allan-VA told me a few times that some critical evidence they had  never turned up ,and never 'existed' when I FTCAed them but the MF put it back into my C file when I re opened my claim 5 years later.( DMII death from AO)

MF - the Mysterious Force employed by my VARO (Buffalo) to remove the good stuff so they can deny, and who often puts it back into the records or  file , hoping you never re open the claim and find it. .

I used the critical evidence they lied to me about above, when I again filed another claim and it helped produce my Ao IHD award.

The DMII and the IHD were Never treated or diagnosed by VA but I proved this as part of my FTCA and other direct SC claims, so one must Never Give Up.I dont think the MF works just at my VARO. I think VA has plenty of MFs.

[Berta]

"In Dixon v. Derwinski, 3 Vet.App. 261 (1992), the Court held that an inability to find service treatment records results in enhanced duty to assist. When a claimant's service treatment records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony or other documents created while he was in service, to support his claim. Although the August 2011 letter from the RO requested that the Veteran send copies of any records he has in his possession or any other evidence he would like to have considered, the letter did not advise the Veteran that he could provide information from alternate sources such as statements from military medical personnel (nurses, medics, corpsmen, doctors); "buddy" statements or affidavits from people who knew him while he was in service and knew of any disability the Veteran had while he was on active duty; state or local accident and police reports; employment physical examinations; medical evidence from hospitals, clinics, and private physicians by which, or by whom, he was treated after service; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examinations. Id."

https://www.va.gov/vetapp12/files2/1209770.txt

Although BVA decisions are not claims evidence ,even when the circumstances might be  the same (as each claim is specific to only the  veteran claimant)

BVA legal Citations Are evidence and you could whip out this decision or Dixon V Derwinski to go with  , as evidence, the buddy statements.

The VA didnt want to pay me my FTCA offset-Very few -(I might be the only one) FTCAers never get a offset refund unless they had same situation I had.

But the BVA in a prior BVA case I had ,prior to my BVA DMII death award, gave me a clue, and specifically stated ( They rendered that case moot because I won it at the RO level and didnt know I should have withdrawn the appeal)but glad I didnt, 

the BVA stated in the moot claim (1998? ) that if I ever won for direct SC death the FTCA offset would have to be refunded to me.

I sent the RO that whole award highlighting what BVA said when I won for direct SC death and they still refused to pay me. Then I called the OGC lawyer up who *I had negotiated with and told him VA owes me more money. He was horrified to hear that from me and had said in 1997 I was too tough for the OGC.(because I had excellent evidence and negotiated for what I wanted, with no problem ) and he got some honcho from OGC to call my VARO and then they sent me a letter saying they were ordered to refund my offset by General Counsel.

So no one should ever overlook any BVA decisions as evidence if they cite a legal issue that applies to the claim.

And even M21-1MR specific excerpts  can be used as evidence...I have used that many times.One helped me prove wrongful death under 1151/FTCA.

 

[Buck52]

ALLAN

I've look and looked for that number  and I can't seem to find it   they probably would be no help anyway  this is the place they store older records that are closed out or not been active for years.

you might try calling into the hadit show tonight at 7:00PM EST

Ask Alex if he has any Ideals what you guys can try? to get his records

the # for the show is  347-247-4819...1

[allansc2005]

Berta Berta Berta...just when I THOUGHT I had you stumped, here you come with the law(s)! BWAAAA!!

Seriously though, we will cite that court ruling should it come into play.

Another snag here though is that the veteran's private doctor is willing to write a Nexus letter(He's pro military), however, he's asked for the veteran's active duty records, which at this point are 10-10 and in the wind!

So here's our game plan:

1. Wait for all the requests for those records to be answered, be they with or without the medical records in tow.

2. Gather all the Buddy Statements, which thanks to hadit.com I have the format for as it pertains to Obstructive Sleep Apnea.

3. Have the veteran get a "feel" from his doctor to see IF he would be willing to write that Nexus letter based on the buddy letters alone, if necessary.

4. While I'm waiting, find another tough question for Berta to answer.

 

Allan

2-2-0 HUAH!