Absence of Evidence is not Negative Evidence


Yes, I know that one is a mouthful.  However, how many times have we read where the Veteran was denied because “the record shows no evidence of treatment” for this malady?

This is precisely what the vA is doing.  They are saying because we can’t find it in the records, it did not happen.   It isn’t necessarily true. or the reverse… because it’s absent, it proves you are not telling the truth. That is negative evidence that says they cannot trust your lay testimony.

I will propose that “documentation in the SMR’s” is independent of whether or not we actually have a disease or injury in service.  Why?  There are numerous reasons why it is that there is nothing in your medical record suggesting treatment for the malady, but you do, in fact, still have a disease or injury inflicted in service.  Here are some of the possible reasons:

1.  The evidence was lost. (Most frequent mistake)

2.  The Veteran was treated for the condition in service, but there was no record to begin with.  Maybe the medic who treated you thought it was more important to treat the next guy, than to fill out a medical record, that would be difficult or impossible to keep in this battle anyway.   Maybe the medic was just too scared of those bullets flying overhead,  or could not find his pen.    Or, maybe the doctor was lazy, and did not write it down.

3.  Perhaps the Veteran was treated for his malady “outside of normal channels”.  Maybe he had to get treatment from a private hospital, instead of the military one.  For example, I was personally treated at a private hospital because the local VAMC was “full” and not accepting new patients, and it was an emergency.   This is not against the law.    This hospital could be closed, could have burned down, etc, and the records were not recovered.  Or, the hospital may charge a fee for the records and the VA refuses to pay.

Now, lets consider when the SMR’s have “negative evidence” as opposed to just nothing there.  You go to the doc and tell him you think you broke your leg, or at least sprained it.  He does an Xray, and an MRI.  He writes in your record, “There was no evidence of a fracture or even a sprain” in the Xrays.   Now THIS is negative evidence, and the Board can deny based on this negative evidence.    This is a legitimate denial where the Veteran will need to overcome this negative evidence. It does, however, qualify under Wilson v. Derwinski though. The mere mention of treatment or the reporting of symptoms is proof of  injury.

But, I digress.  Back to the guy who got treated, as in one of the above scenarios  but there is nothing in the record.   Remember these numbers.  They have been known to “sign retro checks”.    They are your friend.   Are you ready for them?   Here they are:  38 CFR § 3.156 (c).

3.156 (c) was written to protect Veterans against vA’s (and the military’s) bad filing habits. If you were denied in 1994 and just now found old records, they can be used to revisit the 1994 denial.  If they are instrumental in proving your case, you win.  You found those old service records, and there is, in fact, documentation of this malady.   But it further says that you get your retro check, BUT, ONLY if you tell them about 3.156(c).   Why?  Because, most of the time the VA won’t tell you about this.  They will just award you with a bad effective date, hoping you won’t remember these numbers and explain them to the judge. Worse, you have to mention this during the course of the claim and before the BVA decision is final.

3.156(C) can beat “absence of evidence”.   But 3.156 (c) won’t beat “negative evidence”.    To beat that negative,  you need an IMO or IME from your doctor, not vA’s.

You may have to read this again.  Your retro may just depend on understanding this.  The VA hopes you won’t.

Does anyone have a pen?  I need to document this injury.

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2 Responses to Absence of Evidence is not Negative Evidence

  1. Karen S. says:

    Can I use this when the VA can’t find something I sent? Is there a CAVC case to refer to? TY

  2. Kiedove says:

    Thank you.

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