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Missing Documents from VHA


SgtStelmo

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I was not surprised when I read about the shredded documents that was above this thread.  Perhaps I will relay part of my story.  At this point useless to detail all my disability claim problems, but suffice to say I was initially denied due to a false statement. (Please See, 18 U.S.C., Section 1001).  What compounded this was that I had no idea this false statement was even asserted until I got my initial denial letter.

Subsequently I received a letter from the VA telling me they were going to take away my co-payment exemption for the failure to file an updated means test.  This is sort of where I got too smart for my own britches.  It was mere inadvertence that I did not file an updated means test, but looked at this letter as a sort of godsend.  In this situation the VA was proposing taking away a means tested benefit.  I have read (many times) an article published in the VA Law Review.  This Memorandum of Law can be found at this URL: https://www.bva.va.gov/docs/VLR_VOL3/4-DeutschAndBurriesci-DueProcessInTheWakePages220-262.pdf.

Now I knew (assuming of course that the VA will follow the law) that before the VA could take away this means tested benefit I was entitled to an evidentiary hearing with the right to compel the attendance of witnesses.  After all, not only is this constitutional law, but the VA's own lawyers admitted such in the above referenced article.

So I followed the directions in the VA's letter on how to perfect my appeal.  I filed a NOD with my local facility.  Because nothing moves quick in the VA I sat back and waited.  Next thing I know I am getting bills from the VA.  They had directions on what to do if I challenged the fee's and followed their directions explicitly.  Next thing I know my Social Security disability was being garnished to pay the co-payments.  Come to find out all my NOD and my objections were all 'lost'.

Fortunately time was not yet of the essence so I filed an Amended Notice of Disagreement and hand delivered it and had them date and stamp my copy.  Still got lost.  By that time I was educated in VA deception so I had made sure I emailed a copy to the Director of the Facility.  (firstname.lastname@va.gov works 99 % of the time).  This, if nothing else, provided me an electronic footprint that a subpoena duces tecum will conclusively and incontrovertibly establish.

I am still waiting on my hearing.  In the absence of a hearing, I am even still waiting on a decision which would open a normal appeals route.  Regardless, got it to the BVA via mandamus.  Had my BVA hearing which I would categorize as 'confrontational'.  The BVA judge wanted me to waive AOJ consideration of evidence but that is just not going to happen.

Now why is this happening?  This is supposition but I nonetheless assert that the VA has clearly figured out I want to compel the two people who made false statements to testify under oath.  Let me go off on a tangent.  It angers me that the Veteran and any witnesses he uses must provide sworn testimony.  Yet the VA personnel do not have to be under the same penalty.  Yes, there is still the felonious false statements offense, but that applies to Veteran's as well.  Just seems to me that the fundamental fairness of the system would require the same level of jeopardy.  End of tangent.

So I anticipate my BVA transcript to be followed by my decision.  I assume it will be an adverse decision.  Admittedly, I have not written a brief in decades, but I think I will still manage to get it done.  Keeping my fingers crossed for a precedential decision from the CAVC but time will only tell.

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Good for you for going after VA in the "missing documents".  I have often thought of doing so myself, but have mostly managed to get my benefits using other means.  In October, 2008, the VAOIG, in an inspection of several RO's found Veterans evidence inappropriately in the bin to be shredded.  This was in several VARo's, not just one.  

In response to the negative publicity of what VA used the euphemism, "The October incident", then VA sec Peake publicly stated that (shredding) Vets evidence was unacceptable, and employees would be held accountable, and "Veterans would be beleived" that they submitted this document on the date the v'et gave.  

Vets, who thought they may be victims of shredding, were given a 6 month window to submit a "Special handling due to mishandled evidence".  I did so in Dec. 2008 in the VA's permitted "window".  

However, I really never got any satisfaction from my Special handling request, but, in my records, it shows that an employee opined,"this isnt a valid shredding case" because (some!) of the documents shredded were outside of the 18 month window that VA arbritrarily set.   In other words, we could ask for special handling within 6 months, but that only included documents in the 18 month period around oct 2018.  

My "special handling" request disappeared out of the RBA, but, the employees references to it remain.  I also complained to the VAOIG that I was a victime of shredding, and they sent me a notice, in writing, to "tell the VARO you were shreded".  

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I never was the victim of shredding as far as I know.  Once the San Diego VA made all of my medical records disappear.  The Assistant Secretary of the VA told my congressman that I had never been to their facilities.  I had copies of my visit to the ER and the follow up appointment.  Other records were never seen again.  I tried to make an appointment after this and the VA said their records indicated I had missed three appointments, when I had never been there.  Funny how that happens.

Another time my record disappeared from the Oregon VA and turned up in Alaska a year later.

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Let me add one other point about shredding.  It is a criminal violation of the Federal Records Retention Act.  But nobody is ever held accountable so if there is no jeopardy is it a real crime?

I also wasted my time once actually talking to a VAOIG special agent and recommended they could monitor the trash cans in the hospital.  The philosophy at the VA is, why work when one can just as easily use the circular filing bin (trash can).

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2 hours ago, vetquest said:

I never was the victim of shredding as far as I know.  Once the San Diego VA made all of my medical records disappear.  The Assistant Secretary of the VA told my congressman that I had never been to their facilities.  I had copies of my visit to the ER and the follow up appointment.  Other records were never seen again.  I tried to make an appointment after this and the VA said their records indicated I had missed three appointments, when I had never been there.  Funny how that happens.

Another time my record disappeared from the Oregon VA and turned up in Alaska a year later.

This is truly sad.  If one tried they could not make up this kind of reprehensible conduct.

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Vets dont know their evidence was shredded until its too late.  I applied in 2002, and did not find out my records were shredded until 6 years and multiple denials, later.  

The good news is, we now send records to Janesville, where a third party scans them in, so its more difficult for VA to lose records WE SEND THEM.  This does not mean they cant shred records they already have.  

The method VA used to "fix" the  2008 scandal where Vets records were found to be in the shredder bin at multiple RO's was to discontinue inspections of shredder bins!!!!!

This is like finding a roaches on a resteraunts inspection, and "fixing this" by not ever having any more inspections on that resteraunt!!!!

There is no doubt that VA can now delete our records electronically...with the delete key.  For proof of this, the VA HAS ALREADY admitted when some Vets opted into RAMP, their claim was "deleted" instead.  We need to hold those accountable, and that is still not happenening.

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