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Has anyone recently been able to get a copy of their VA medical file from before VA medical file digitalization?  Approximately 20 to 25-year-old documents.

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If its that old then its likely been scanned, if you are talking strictly VA folder. Other stuff not yet incorporated into VA that old would be at NPRC. 

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I have tried the VA Records Management Center for documents removed from my VA Compensation and Pension File.  Missing are progress notes a West LA VARMC from 1990 to 1992 at the Seizure Clinic and the Back Clinic.  References to them prove they once existed and were requested by VARO.  Possible they were never in the C&P file.  My copies became paper machete in a flood.

All I get when requesting the BVA Medical Division hard copy medical file is a copy of the C&P file that I already have.

There was an article a couple of years ago about an VA OIG found "five plus mile high" stack of documents the VA had not scanned.  I believe my medical file is in that stack that is never intended to be scanned.

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There is a rumor of a "magnetic force" at VA which magically attracts documents favorable to the Veteran and discards or loses them, or sometimes places those in another Veterans file.  

To overcome this magnetic attraction to the trash can, keep your own copy, just in case your copy at the VA gets "pulled into the trash can".  

It seemed to have happened at Cushman VS Shinseki, one of the Veterans claimswas a victim of this magnetic force, and got sucked into the trash can.  

Source: https://caselaw.findlaw.com/us-federal-circuit/1346393.html

Incredibly, even electronic claims can be "sucked into the trash can".  No VA employees have ever been disciplined for this, so it had to be a magnetic type attraction, right?  

My advice is to contact West LA VAmedical clinic, and request a copy.  Maybe they have plastic trash cans which dont attract VA's favorable evidence like at the VARO.  

 

Edited by broncovet (see edit history)
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10 minutes ago, broncovet said:

There is a rumor of a "magnetic force" at VA which magically attracts documents favorable to the Veteran and discards or loses them, or sometimes places those in another Veterans file.  

To overcome this magnetic attraction to the trash can, keep your own copy, just in case your copy at the VA gets "pulled into the trash can".  

It seemed to have happened at Cushman VS Shinseki, one of the Veterans claimswas a victim of this magnetic force, and got sucked into the trash can.  

Source: https://caselaw.findlaw.com/us-federal-circuit/1346393.html

Incredibly, even electronic claims can be "sucked into the trash can".  No VA employees have ever been disciplined for this, so it had to be a magnetic type attraction, right?  

My advice is to contact West LA VAmedical clinic, and request a copy.  Maybe they have plastic trash cans which dont attract VA's favorable evidence like at the VARO.  

 

This magnetic attraction is bipolar.  My file has a NJ punishment for a Mr. Brayfield from a base I was never at to disparage my honesty.  And a document belonging to another veteran examined by the same C&P physician on a Mr. Foster's back condition that dated from 1984 10 years after I got out of the service and unrelated to my request for SC of a back injury caused by a confirmed "altered state of consciousness" causing my 1990 MVA 6 years later.  Mr. Foster's date of back injury was cited as the reason my back injury was earlier than my MVA.

Trying to get these issues sorted out by the BVA in this no hearing decision.

I put a motion in to the BVA to redact those documents from my file and ensure copies of them are in the appropriate veteran's files.

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Cannot say how very helpful the Cushman v Shinseki case is to me.  A lot of similar problems in my file.  My problem will be timeliness.  I am timely as far as after my discovery of the problem and the application of the decision to all of Cushman's BVA decisions is helpful.  

I have a denial of certification of issues at stake in my 1985 PTSD diagnosis in a C&P examination by the Chief of Psychiatry.  It will be a little harder to tie up, but I think it is there.  The refusal to certify the issue by VARO is also a denial of due process.

I have a bunch of these issues in my file.  I claimed them in the unprocessed 11/94 response to the 5/94 SOC in 1994 on a 1995 Decision that I had not submitted a timely reply to the SOC and closed the case in July of 1995.

 

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Someone with a better memory than myself (and that is just about anyone who is not intoxicated or on drugs..lol) my recall what year, but, I think it was Dr. Peake (former VASEC) who gave Veterans 18 months to file a "Special handling request for mishandled evidence" (aka shredded evidence).  

If I recall, that was year 2008, sometimes called "the october incident".  During that year, the VAOIG found evidence from Veterans files "in the shredder bin", in at least 3 seperate regional offices.  

As a response, Dr. Peake gave Veterans 18 months to file the Special handling request. 

No one has ever explained how/why there was this 18 month limit.  I call this 18 month limit "arbirtrary and capricious", because there is no evidence that shredding Vets evidence "was limited to this 18 month period".  

Instead, I have heard of ancedotal evidence that misplacing/mishandling/shredding/deleting Veterans favorable evidence has been going on since the 1990's, and there is not real evidence it has ever stopped.  So, why this 18 month limit?  That 18 month limit is arbritrary and capricious. 

Quote
ar·bi·trar·y
 
adjective
 
  1. based on random choice or personal whim, rather than any reason or system.

and 

Quote
capricious:
 
Dictionary
Definitions from Oxford Languages · Learn more
 
adjective
 
  1. given to sudden and unaccountable changes of mood or behavior.

In my lay opinion an 18 month limit on Veterans ability to challenge VA's loss or altering of evidence is "unaccountable" and based on a "personal whim", not on any evidence or system.  That is, it meets the definition of "arbitrary and capricious".  

In short, "its ripe for a court challenge" to the 18 month limit, and Veteran were only allowed 18 months to challenge (loss of evidence) with a special handling request.  So, if you had evidence "lost" inside or outside of this short 18 month window, you should get special consideration and special handling.  

Dr. Peake is quoted as saying "accountability for employees" and Veterans, who have been shreded, will be able to resubmit evidence and that evidence accepted.  

As far as I know, there has been 0 accountabiity, and no employees ever faced discipline for shredding or mishandling Veterans evidence.  

You know VA will fight you (likely), but this may be a great time to consider a superlawyer, such as Ken Carpenter, to hold VA accountable at least in your case.  

Reading some CAVC/Federal circuit cases, paraphrasing, is the CAVC accepts the board's findings unless they are "arbitrary and capricious".   Thus the definition.  

Hope this helps a Vet.  No, Im not a lawyer and Im "completely unqualified" to make an arbitrary and capricious determination.  For that, you need a great law firm.  So, my advice is to consider taking one on in the near future, if the opportunity presents itself.  

My unqualified lay opinion is that you should hire an attorney AFTER a board denial, because, at the CAVC level, EAJA nearly always pays the attorney fees, not you.  There are lawyers who will review a board decision at no cost to you, and, if they find error (often), they will often represent you for eaja fees only and at no cost to you.  Source:  My own experience with BVA/CAVC.  

 

Edited by broncovet (see edit history)
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The firm I contacted that seems legit because they are not looking through appeals before the board to grab low hanging fruit is there if I need them to appeal the BVA decision. 

I have tried to get the BVA Judge to address the facts by stating what I believe are the facts referencing specific supporting documents.  Will have to wait and see how it turns out.  But it appears from Cushman v Shinseki that the BVA Judge will have to at least counter from other documents, not just VARO findings and decisions that vaguely reference the collection of documents without specificity.

The problem is getting the BVA Judge to weigh in on the "facts".  And in the past, getting issues before the BVA.  With the 10182 form that goes directly to the board, the VARO removal of certification of issues to the board, VARO can no longer deny even appeal by refusing to certify the issue.

The shredding started long before the 1990s. May have even started before Reagan's war on entitlements.  WWI veterans were removed from the Washington Mall by McArthur on order of the President for trying to collect on their Warrants.  Revolutionary War veterans had their warrants delayed until they sold them to the bankers for 10 cents on the dollar.

Apparently, the wars up to the Civil War were similarly treated until and even after the Debt Clause in the Fourteenth Amendment was enacted with the statement, "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned". 

Before online, the law books with abridged references to cases had two full large texts on the Fourteenth with not one case on Section 4 quoted above. The guarantee of "pensions and bounties" for veterans apparently only applies to insurrection or rebellion, not to general defense.  I question that was the intent given the history of veterans of war before that amendment unless the "bankers' intent" was paramount.  Essentially the courts have written out Section 4 of the Fourteenth.

It appears to me that that section of the Fourteenth is the basis for entitlements that Reagan declared war upon.

This is where I believe "arbitrary and capriciousness" is really rooted though it is not quoted in the court decisions.

I am not an attorney either and intend on having one before I go to the CAVC again.  I did not understand the vary basic that lower courts and juries are the "fact finders".  Attorneys do not usually tell you that when you are trying to appeal the fact finding that cannot be appealed unless it can be shown to meet that "obvious arbitrary and capriciousness" in Cushman v Shinseki. 

 

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