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At What Point Does The Va Admit They Cannot Find Your Smrs?


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18 replies to this topic

#1 TexasCop

 
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Posted 30 July 2012 - 03:35 PM

I just finished my 4th month since I filed my claims and I'm still in the "under review" status. Not shocking, I'm still early into the game. However, they cannot find my SMRs. My Congressional review is also coming up empty. The VA is pointing their fingers at the NPRC and the NPRC is pointing their fingers at the VA. At what point do they just throw their hands up and admit they cannot find them?

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#2 jbasser

 
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Posted 30 July 2012 - 04:39 PM

Keep in mind for future reference the terms of t he reg 3.156 ( Service department records)
They do this as a way to eat up precious time the Veteran has. The old story was the fire in St Louis they told everyone back in the 80s to make them go away.

J

#3 TexasCop

 
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Posted 30 July 2012 - 07:42 PM

I served from 1990-1994. It was in 1993, I believe, when they created the separation between personnel files and medical records for the Army. Probably misfiled somewhere. :-(

#4 Berta

 
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Posted 31 July 2012 - 07:33 AM

The St Louis Fire was in 1973 so the VA cant use that excuse (however we had a vet here years ago who they told his SMRS were destroyed in the St Louis fire but the veteran had not joined the Military until MANY years AFTER the fire)

Have you possibly applied for SSDI during the VA claims process and is it possible that the SSA still has your SMRs?

ave you personally contacted NARA to get them with a SF 180?

http://www.archives.gov/st-louis/

"The VA is pointing their fingers at the NPRC and the NPRC is pointing their fingers at the VA."

Has the NPRC stated in writing that your SMRs have been sent to the VA?

I would believe the fingers of the NPRC over the VA's fingers.


"4th month since I filed my claims"

Have you received a VCAA letter yet?

#5 TexasCop

 
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Posted 31 July 2012 - 09:14 AM

My biggest mistake was filing a claim, then asking for copies of my SMRs. Here's a brief synopsis of what I went through.....

Submitted an online request to the NPRC for my SMRs. A few weeks later I get a letter stating that since I ETS'd after 1993, all SMRs went straight to the VA.

I call the VA 800 number. They say that once my claim was received, all files they had on me went to the WACO VARO.

I submit a written request to the WACO VARO for copies of my SMRs. They write back stating they don't have them and to contact the NPRC.

I resubmit a request to the NPRC, requesting the records and referring to the letter from WACO VARO. A few weeks later I get a written response that since I ETS'd after 1993, all SMRs went straight to the VA.

I call the VA again and tell them what the NPRC has now said twice. They order a copy of my entire c-file from WACO VARO. Few weeks later, I get a parcel from WACO. It contains the claims I filed online, but no SMRs. They attach a letter stating my SMRs are at the NPRC.

I call the NPRC on the phone and talk to a technician. I'm on the phone with him as he pulls my file and confirms no SMRs.

I call the VA and tell them that I know the NPRC doesn't have the files, WACO says they don't have them, so they must still be at the VA RMC. They tell me they can't help me, they sent everything to WACO.

I submitted a Congressional Inquiry. So far they're getting the same benign responses from all three departments. :-(

#6 Berta

 
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Posted 31 July 2012 - 09:58 AM

WOW what a runaround---


and a very good reason to contact your Congressman.

If these records are completely probative to your claim, and the VA lost them, the VA has a heightened duty to assist you
and to fully consider Benefit of Doubt::

“Where, as here, a Veteran's records have been lost while in the government's possession, VA has a heightened duty to assist the Veteran by advising him of alternative forms of evidence that can be developed to substantiate the claim, and explaining how service records are maintained, why the search was a reasonably exhaustive search, and why further efforts to locate the records would not be justified. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). In addition, VA has heightened duties to consider the benefit of the doubt rule, assist in developing the claim, and explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005); Washington v. Nicholson, 19 Vet. App. 362, 370-71 (2005). No presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). In this case, VA advised the Veteran of numerous examples of evidence that could be developed to substantiate his claims in its May 2003, July 2005, and September 2005 letters. Moreover, in the above paragraphs, VA explained that it had contacted the NPRC, the Veteran's Commanding Officer, PIES, and ARPERSCOM/AHRC, and did not stop contacting them until a reply was received; that the search was therefore a reasonably exhaustive search under 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159©(2); and that further efforts to locate the records would not be justified because those institutions did not have the requested records. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). “

from:http://www.va.gov/ve...es1/1109596.txt

If these SMRs reveal the nexus you need for SC, have you tried to obtain buddy statements to support the nexus?


If you have a Senator or Congressman in you state who sits on either the House or Senate Veterans Affairs Committee or, better yet, on the Sub Committee for Disability and Memorials, they too should get a letter on this from you , as you are being prevented from pursuing your claim adequately and this unconscionable crap adds to the backlog.

#7 Berta

 
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Posted 31 July 2012 - 10:08 AM

I just checked and unfortunately their are no Texas reps on the H/S subcommittees.

The VA blatantly lied to my Congressman and to 2 Senators years ago about SSA records.

I then got on the phone with SSA's main office in Baltimore and found out what happened ,after about an hour or more on the phone, and got it squared away myself but your situation is worse and deplorable- and maybe you should contact the WACO RO director with a copy of the responses you are getting (and a copy of your Congressional Inquiry request ).

#8 Chuck75

 
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Posted 31 July 2012 - 10:58 AM

The only things I can say are that:

The VA is and has been totally screwed up for decades. It's past time for law changes that impose penalty on such things as loss of records, blatant claims mishandling and improper denials.

It's strange that virtually all the time limits apply only to the veteran's side of claims. The VA has virtually no time limit to do just about anything.

In modern times, to save money, time, and cargo space, the military has disposed of in theater records that would help substantiate a valid VA claim.

When separating from active military service, it's imperative that a personal copy of all the records be in the departing members hands.

The screwy part of this is that the NPRC in St. Louis and the VA section having records custody are more or less at the same location.
Military Records Custodians have repeatedly complained that records lent to the VA disappear, or come back with missing documents.

Past Efforts to "re-constitute" records seem to have been abandoned.

Edited by Chuck75, 31 July 2012 - 10:59 AM.


#9 TexasCop

 
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Posted 31 July 2012 - 01:41 PM

I had two incidents that caused my injuries. One was a major car accident off-base that later caused my spine to develop DDD at the young age of 27. I never claimed it because of ignorance, assuming off duty accidents weren't eligible.

The second was a patellar subluxation while I was overseas. I was going to wait until I finished my law enforcement career before I claimed it. I don't want surgery until I retire in 2 years for fear of being put behind a desk.

Fortunately, I found a buddy who was stationed with me during the knee injury, so he issued a wonderful buddy letter. The accident, I was able to get a copy of the accident report. :)

#10 TexasCop

 
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Posted 11 August 2012 - 06:06 PM

At the request of my Congressman's office, I have submitted a letter to the VA advising I have submitted enough medical evidence for them to move forward and to ask them to accept what I have submitted under the "heightened duty to assist" rules. Stay tuned.

#11 broncovet

 
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Posted 11 August 2012 - 08:35 PM

You have been given good advice, and I want to keep Berta's court citation for future reference, its excellent.

I have this to add:

One good part of this very unfortunate situation is CFR 3.156 C. Paraphrasing, this says that if the VA loses then finds your SMR's, you can use this to get an earlier effective date, that is, when you are finally awarded benefits.

Of course, the hard part is getting to the award of benefits! Be proactive and try to find coroborating evidence for your claims. Are you seeking comp for PTSD? They have eased the stressor requirements for combat Vets. They have finally recognized that when you are being shot at, you dont have time to write down and document every injury.

Keep in mind the 3 hickson elements necessary to win your claim:
1. Current diagnosis. (No benefits will be paid for an injury in service that causes you no problems now..their is no "pain and suffering" for an injury)
2. An in service event where your malady was caused, or observed, or aggravated. Keep in mind, the presumption of soundness, which means that when you got your pre entrance physical, you were assumed healthy except where noted. If you "got sick" or suffered an injury in service, then the presumption means you did not have it before service, UNLESS it was noted on your pre entrance physical.
3. You nexus, or a connection between your current diagnosis and the in service event. You doc will need to provide a nexus.


Notice that SMR's are NOT one of the hickson elements required to win your benefits. Of course, item #2 above strongly suggests that you need to have a medical record of treatment for your malady in service to get benefits, BUT this is NOT always necessary. I will give two examples of why/when it is not necessary to be "treated" for your malady in service to get benefits for it later.
1. Within a year of your discharge, you seek medical treatment. There is a presumption, that if you are treated for it within a year of discharge, it happened during service.
2. Another example is hearing loss. You could well have been exposed to excessive noise, such as if you have a MOS related to aircraft engines. There often would NOT be a record of treatment for hearing loss, since in service, since it often takes many years for noise exposure to manifest itself with hearing loss. Finally, there are things like hep C. You could have gotten hep c in service and you may not have been diagnosed for hep c because, there may not have been a test for hep c while you were in service. (The test for hep c was made in about 1992)..One case where a Vet won hep c SC without an in service diagnosis of hep c is here:
http://www.va.gov/ve...es3/0723667.txt
There are many, many others. Remember, often the VA will deny these things (often on a wrong bases), and you will have to appeal them.

Edited by broncovet, 11 August 2012 - 08:39 PM.


#12 Stretch

 
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Posted 11 August 2012 - 09:45 PM

Also the VA can send a first, second, and third request for info. Each request has 30 days between.

#13 USNDW

 
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Posted 11 August 2012 - 11:15 PM

What if he can show that the VARO has never requested the records from anyone?

Did you happen to be treated at a hospital after your car accident? If you can, try to request records from the places you were treated. I know it has been a long time but last year I requested records from a hospital where I was treated 12 years ago.

Are there any family members who knew about the accident and injuries sustained? Besides buddy letters you can send in letters from family members.

#14 TexasCop

 
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Posted 12 August 2012 - 07:56 AM

broncovet, I was in a serious car accident in 1991. I was transported to Darnall Army Hospital at Fort Hood for cervical spine and shoulder contusions. I seemed fine until 1998 when my L-5 suddenly burst at the age of 27. I've had 2 corrective surgeries and am currently under chiropractic care for the problem. DDD is not genetic for me and the car accident was the only trauma in my medical history that could explain the early onset of the disease. Additionally, it was a side-impact (lateral impact) accident, which medical studies have shown put a torsional twist on the entire spine. I've submitted an IMO from Dr. Bash putting all that together for me, along with a slew of secondary issues I suffer from.

USNDW, I tried that and struck out. I was hospitalized twice while in service and both have said all my records were retired to archives in the 1990's.

#15 TexasCop

 
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Posted 12 August 2012 - 07:58 AM

Also the VA can send a first, second, and third request for info. Each request has 30 days between.


They keep sending requests to the NPRC. I have spoken directly to a technician at the NPRC while he had my microfiche on his screen and he confirmed that my STRs are not stored there. I ETS'd in 1994, so my files were SUPPOSED to go to the VA RMC. That apparently didn't happen.

#16 TexasCop

 
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Posted 12 August 2012 - 08:18 AM

Here was the letter:


Department of Veterans Affairs
Waco Regional Office
One Veterans Plaza
701 Clay Avenue
Waco, Texas 76799

To whom it may concern,

It is my understanding that the VA has had difficulty obtaining my Service Treatment Records from both the Veterans Administration Records Management Center and the National Archives, with respect to my pending compensation claims. To the best of my knowledge and investigation, this has been an ongoing and fruitless search since March 26th of 2012. I have submitted copious amounts of medical records, to include some Service Treatment Records, to your office, as well as lay statements from witnesses who are able to establish service connection for my injuries and illnesses. I request, under the heightened duty to assist rules set forth by [JOHN A. MURINCSAK, APPELLANT, V. EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. 2 Vet App 3632 Vet. App. 363; 1992 US Vet App LEXIS 1021992 U.S. Vet. App. LEXIS 102] that your office move forward with development of my pending issues and that I be afforded compensation exams as needed, under the VCAA of November 2000. For the VA’s review, I am also attaching an IMO from Dr. Craig Bash that should further serve to justify the VA moving forward with my claims, rather than waiting an inordinate amount of time for my STR’s.
 
 
Respectfully Submitted,
 
 
Clinton P. Turner III
United States Army Veteran

cc: Congressman Michael Burgess
Texas Veterans Commission Waco

(I redacted my personal info)

Edited by TexasCop, 12 August 2012 - 08:19 AM.


#17 tanker2

 
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Posted 12 August 2012 - 08:31 AM

advise you be specific when asking for medical records. i say this because i filed for in 1972 and was givin zero percent but service connected. i never thought much more of it. young and dumb til much much later when i found out i could appeal. i requested my military med records to review and found out they did not include my overseas med records. which contained of an operation and a 33 day stay in the hospital. oops..i had to request those specifically and then the ball got rolling.

#18 TexasCop

 
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Posted 12 August 2012 - 08:45 AM

advise you be specific when asking for medical records. i say this because i filed for in 1972 and was givin zero percent but service connected. i never thought much more of it. young and dumb til much much later when i found out i could appeal. i requested my military med records to review and found out they did not include my overseas med records. which contained of an operation and a 33 day stay in the hospital. oops..i had to request those specifically and then the ball got rolling.


I keep requesting every single medical record they have on file for me. If I'm entitled to them, I want them.

#19 JT24usn

 
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Posted 25 October 2012 - 07:13 PM

http://www.benefits....secC_2-8-11.doc

5. Requesting Federal Records, Continued

PRIVATE INFOTYPE="PROCEDURE"
f. Notifying the Claimant That Federal Records Are Unavailable
Use the table below to determine what action to take when notifying the claimant that VA has received an affirmative statement from a Federal records custodian that the requested records

do not exist or
are not in his/her possession.

Step
Action
1
Prepare a formal finding of Federal record unavailability as shown in M21-1MR, Part III, Subpart iii, 2.I.59.d.

Note: The formal finding of unavailability must be signed by
the Veterans Service Center Manager (VSCM), or
a VSCM-designee at the Coach level or higher.
2
Provide the claimant with an oral or written notice that

identifies the records that could not be obtained
briefly explains the efforts made to obtain the records
requests the claimant to
- furnish any records in his/her possession that VA could not obtain, and/or
- identify the possible location of the records
furnishes information about possible alternative sources of service records, and
describes the action VA will take on the claim if the evidence is not furnished or identified within 10 days from the date of the notice.

References: For more information on
the duty to notify claimants of the inability to obtain records, see 38 CFR 3.159(e), and
alternative sources for service records, see M21-1MR, Part III, Subpart iii, 2.

ALSO a little light reading
http://www.benefits....2/ch02_sece.doc

http://www.benefits....1/ch01_secc.doc

Edited by T8r, 25 October 2012 - 07:18 PM.





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