Veteranclaims’s Blog

April 9, 2009

Update: Shredding of veterans records

Those veterans affected by VA’s admitted shredding and removal or records from their claim folders should read the following court decisions given the FedCir comment in Jandreau v. Nicholson seems to be of particular importance, the FedCir stated: “The rule announced in Buchanan is particularly important when veterans’ service medical records have been destroyed.” You can see our posting of BUCHANAN v. NICHOLSON, No. 05-7174 or go to the FedCir. posting at BUCHANAN v. NICHOLSON, No. 05-7174

We suggest that you read the complete decision, here are excerpts from Buchanan:

“Because the Veterans Court accepted the Board’s legally erroneous interpretation of the statutory and regulatory provisions pertaining to a veteran’s ability to prove service connection through competent lay evidence, we vacate the Veterans Court decision and remand for reconsideration of all of the evidence of record, including the lay evidence, under the correct statutory and regulatory construction.

“… nothing in the regulatory or statutory provisions described above require
both medical and competent lay evidence; rather, they make clear that competent lay
evidence can be sufficient in and of itself.”

“Under the correct interpretation of the relevant statutory and regulatory provisions, however, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.”

This seems to support the Veterans Court’s decision in Cartwright v. Derwinski, where the court stated: “Appellant’s sworn statement, then, unless sufficiently rebutted, may serve to place the evidence in equipoise.”

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