No active duty medical records, now what?

[allansc2005]

Got a veteran who's active duty medical records are missing, gone..zero, zilch..and the veteran is filing for Sleep Apnea which has been diagnosed by a private Dr. specializing in Sleep Apnea.

The veteran has a DBQ/Nexus from this Dr. mentioned above that clearly states "It's more likely than not that the veteran had Sleep Apnea while on active duty.."

ALL attempts have failed to find his medical records, including the VA themselves looking for them.

Other than buddy letters, how does the VA make a determination as to SC?

Are there current laws on the books that tells the VA how to deal with these lost active duty medical records in respect to claims?

Thanks,

Allan

2-2-0 HUAH!

 

 

[Berta]

Allan-Were his Military Personnel records lost as well?

If all attempts to obtain military records are exhausted , the VA then has an enhanced duty to assist, as explained in this recent BVA case:

"The record reflects that following the Veteran's period of active duty, he served in the National Guard until 2000. The record contains various STRs from his service in the National Guard, but the majority of the Veteran's service treatment records from his period of active duty have not been located, and the RO has done everything possible to locate them. See May 2010 VA memorandum and formal finding of unavailability of STRs. Then, pursuant to the Board's November 2014 remand directives, the AOJ contacted additional potential sources, including specific air force bases at which the Veteran thought that his records might be stored, but no additional records were located. Nonetheless, the Veteran's other STRs suggest that the Veteran was involved in an MVA in 1981, and the Board has conceded that the accident took place. It is noted that in such situations in which STRs are missing, not only does the Board have a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule, but an enhanced duty to assist. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This enhanced duty to assist was fulfilled as outlined above, and the Board's analysis of the Veteran's claim below has been undertaken under this heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. The Veteran's hearing testimony has been reviewed, and pertinent private medical evidence has been obtained."

https://www.va.gov/vetapp17/files4/1723803.txt

The case mentions the benefit of lay statements- or buddy statements.

If his personnel records show any evidence that he was late for duty or had sleepiness on duty, or if he can obtain buddy statements from members if his unit who slept close enough to him to observe snoring and sleep problems, the VA would consider those buddy statements.

In this case the BVA determined ways the veteran should have been notified as to providing more evidence:

"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."

They remanded his claim:

Part of the remand states:

"In light of the difficulty in obtaining the Veteran's service treatment records, the RO/AMC must identify for the Veteran the types of alternate or collateral sources of evidence that may assist in substantiating his claim, such as statements from service medical personnel and "buddy" certificates or affidavits. See Dixon v. Derwinski, 3 Vet.App. 261 (1992)."

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

 

[vetquest]

I would hope that an IMO written per VA specs should provide the nexus.  Buddy letters place you there and might show some connection.  The VA can service connect on this.  My neuropathy was SC due to an IMO when the C&P exam stated there was no nexus 25 years after the fact.  While I had service records, there was no relation in service records to the disability.  Good luck.