By statute, veterans are eligible for disability compensation benefits for illness or injury connected to the veteran’s service in the armed forces. The process of seeking benefits is intended to be non-adversarial and requires VA to assist veterans in developing their claims. Unfortunately, VA’s nagging problems including poor management and a lack of accountability produce well-documented and devastatingly negative effects on veterans. These effects are not limited to veterans receiving disability benefits but extends to veterans who never make it past the claim stage because their claims are denied. Typically, service medical records are used to establish service-connection. When those records are unobtainable, there are alternative sources of medical or lay evidence that can be used to establish service-connection. But when service medical records are lost or destroyed and there is no other contemporaneous medical evidence, the veteran likely suffers an absolute bar to receiving a favorable decision about service-connection. Any decision made without service medical records is necessarily based on a lack of evidence rather than an evaluation of the evidence. This article proposes administrative and statutory remedies to give the veteran a presumption of service-connection. Such presumption would require the veteran to provide two forms of alternative evidence, including the veteran’s own statements, to support service-connection. The government would then have the opportunity to rebut the presumption by proving impossibility of the existence of the event, injury, or disease.
Jessica L. Wherry,
Interminable Parade Rest: The Impossibility of Establishing Service Connection in Veterans Disability Compensation Claims When Records Are Lost or Destroyed,
83 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol83/iss2/11