A Widow's Extraordinary Case

[Berta]

I am posting this in claims research so many will read.I sure wish this widow was here.

They think us survivng spouses are stupid and make things worse for us if they can.

I was researching some ADRB cases at the BVA this AM for Jstone1950 in our eligibility forum ( please take the time to offer comments there to his situation if you can)

and I found this stunning example of how the VA treats widows:

In part:

“The service member served in the Puerto Rican Army National Guard from January 21, 1973, to August [redacted], 1975. He was on active duty for training from July 6, 1975, to August [redacted], 1975. He passed away on August [redacted], 1975, while on active duty. The appellant is the service member's widow.”
"FINDINGS OF FACT

1. In 1975, an unappealed RO decision denied the surviving spouse's claim for service connection for the cause of the Veteran's death

2. Evidence submitted since the RO's 1975 decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death.

3. The Veteran was on active duty for training from July 6, 1975, to August [redacted], 1975.

4. The Veteran died while he was on active duty. A Department of Defense Report of Casualty form positively shows that at the

Following his death, the Army National Guard concluded that when the service member was transferred to the VA facility, he came off of his active duty for training orders. Hence, per the Puerto Rico Army National Guard, when the service member died, he was not on active duty.

Following her husband's death, the appellant filed a claim for VA compensation benefits. Per the reconstructed folder, it appears that the RO denied the appellant's request for dependency and indemnity compensation (DIC) benefits. This occurred in 1975."

(He developed a serious medical condition and came “OFF” active duty? BS to that)

The veteran subsequently died ...the autopsy findings are noted in this decision.

From the decision of the BCMR, an entity of the Department of the Army and the Department of Defense, the RO originally denied the appellant's claim for DIC benefits in 1975.  It appears that the basis for the denial was the then misclassification of the Veteran's service as inactive duty service.  The appellant was notified of that decision but she did not file a notice of disagreement within one year; hence, it became final.  38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1975); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011).  It does not appear that new and material presented within one year of that determination pursuant to 38 C.F.R. § 3.156(b).

Since that time, the appellant has submitted a corrected DD Form 1300 (Report of Casualty), various pieces of correspondence from the appellant to the Department of Defense, a copy of the actions by the BCMR, and other documents.  The additional evidence is new as it was not of record at the time of the 1975 decision.  These pieces of evidence are not cumulative in that it possibly substantiates a previously unestablished fact - that the service member died while he was on active duty.  Hence, it is the conclusion of the Board that this evidence is material because it does relate to a previously unestablished fact necessary to substantiate the claim.  Thus, in accordance with Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) and Rodgers v. Shinseki, 2009 WL 3236281 (Vet. App.), along with Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board concludes that the appellant has submitted evidence that is new and material, and the issue involving entitlement to service connection for the cause of the service member's death is reopened.  

Twenty three years later, the appellant sought to obtain additional information from the Adjutant General of Puerto Rico. While the Adjutant General's Office responded to the appellant's inquiry, there is no indication that the Office followed through on any of the taskings that it volunteered to undertake. Approximately four years later, in 2002, the appellant contacted the Board for Correction of Military Records (BCMR), of the Department of Army, and requested that a review of her husband's case be undertaken. The BCMR reviewed the appellant's assertions and found that the service member's National Guard unit erred when it did not extend his active duty for training tour date to August [redacted], 1975. The BCMR further found that since the service member was on active duty, he was entitled to basic pay and allowances for the extended time period. Finally, the BCMR concluded that a line of duty determination should have been conducted by the service member's unit. (Such a determination has never been accomplished.)
"Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (2011).

In this instance, there is no evidence, either medical or circumstantial, suggesting that the service member's venture to the San Juan VA Hospital was the result of willful misconduct. The service member was transferred to the hospital by his military unit because of a medical condition. He died in that same hospital, while on active duty, following two medically-directed surgeries. The surgeries were not the result of willful misconduct; they were the result of medical analyses of the symptoms presented by the Veteran and the test results obtained during his admission at the hospital. Upon a review of the evidence, there is no indication that the Veteran's untimely and unfortunate death following the second surgery was due to his own willful misconduct.
Here, the Department of the Army, through the issuance of the correction of the record via the BCMR, has acknowledged that the Veteran was on active duty for over thirty days. The hospitalization records clearly show that the Veteran died while he was on active duty. Regardless of the underlying medical reason for his death, the Veteran still died while he was on active duty. Per 38 U.S.C.A. § 1310(b)(2) (West 2002), dependency and indemnity compensation will be paid to the surviving spouse of a veteran who dies after December 31, 1956, if that veteran dies while on active military service. As such, the appellant's claim for entitlement to service connection for the cause of her husband's death is granted.


ORDER

New and material evidence has been received to reopen the claim for entitlement to service connection for the cause of Veteran's death; to this extent, this portion of the appeal is granted.

Entitlement to service connection for the cause of Veteran's death is granted.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp11/Files5/1143374.txt

from 1975 to 2011 is a nice chunk of DIC change.

However the widow will have to file CUE on the initials denials to get all of the retro.

This stuff really upsets me..and fortunately this widow could not buy what the VA was selling.Nor the BS from the DOD.

The decision reveals reconstructed or missing records, and also the inability of unwillingness of VA claims adjudicators to read probative evidence.

I think VA thinks widows aren't computer literate enough to get on the vets web sites and figure out what they can do to succeed.

Make sure your hadit password is in your death file along with your DD 214 and any other pertinent VA claims info.

The widow was represented by the DAV. I had the DAV as POA long ago and they didn't have a clue.

Thy didnt even pick up on the fact her VCAA letter was completely deficient.

I dont even see in this decision whereby the DAV even offered a 646 to support her case.

I know she [probably did all of this leg work herself. And she deserves, not a retro DIC to her re-open date (2005 I think)but also she should push,under CUE, for DIC back to 1975.

They owe her 36 years of DIC. But I wonder if her DAV rep will even consider a CUE claim on the initially denied DIC claim in 1975.

[carlie]

Berta,

Good find - I sure am glad she continued to pursue this claim and find it

such a shame that she might need to follow up with a CUE for the earlier effective date.

I read the Remand also and see some good things in it.

REMAND

As noted in the Introduction, the appellant has expressed disagreement with the RO's denial of a service-connected burial allowance to include a plot or internment allowance burial benefits. As a timely notice of disagreement has been filed, the Board's jurisdiction has been triggered and this issue must be REMANDED so that a statement of the case on the underlying claim that adequately notifies the appellant of the action necessary to perfect an appeal may be provided. See Manlincon v. West, 12 Vet. App. 238 (1999).

As an aside, the Board also notes that the appellant has stated that even though the Department of Defense, through the action of the BCMR, changed her husband's military active duty status from inactive duty for training to active duty for training, and has awarded her pay and allowance benefits, there is no indication that any other possible survivor's benefits that may forthcoming from the Department of the Army and/or the Puerto Rico Army National Guard have been awarded to the appellant. It may be, depending upon the current Department of Defense and Department of the Army regulations, that the appellant may be entitled to a military widow's identification card, TRICARE benefits, Serviceman's Group Life Insurance (SGLI) benefits, and any other benefits that may be awarded to an individual whose spouse dies while on active duty. As such, the appellant is strongly encouraged to contact the Legal Office at US Army Fort Buchanan and seek the assistance of a casualty assistance officer who should be able to assist her in discovering what benefits may be due to her. It is further noted that it is the appellant's responsibility to seek such assistance and that Department of Defense benefits do not fall within the purview of the VA.

Therefore, the case is REMANDED to the AMC for the following development:

1. The AMC should obtain from the appellant permission to release a copy of this Decision/Remand so that this document may be forwarded to the BCMR for inclusion in her records at BCMR. The address for the Board for Corrections of Military Records is 1941 Jefferson Davis Highway, 2nd Floor, Arlington, Virginia 22202-4508, and the docket or file number is AR2001059913.

Also, with the appellant's permission, a copy of this Decision/Remand should be sent to Chief, Army National Guard Bureau, ATTN: NGBARH-E, 1411 Jefferson Davis Highway, Suite 3900, Arlington, Virginia 22202-3231, and The Adjutant General, Puerto Rico, ATTN: MPMO, 218 Brooke Street, Fort Buchanan, Puerto Rico 00934. Included with a copy of this Decision/Remand should be a request that the organization contact the appellant so that she may be informed of any Department of Defense benefits that she may be eligible for but has not yet received. A copy of the request should be included in the claims folder.

2. The AMC should then issue a statement of the case as to the issue of entitlement to a service-connected burial allowance to include a plot or internment allowance burial benefits. The appellant should be apprised of her right to submit a substantive appeal and to have her claim reviewed by the Board. The AMC should allow the appellant and her accredited representative the requisite period of time for a response. If the appellant properly perfects her appeal with respect to this issue, the claim should be returned to the Board for review. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

[free_spirit_etc]

Wow! Amazing!