My husband died in motorcycle accident

[page1006]

My husband was a veteran of the Gulf War Era. He served in the U.S. Army from January 2004 to January 2008, including a tour of duty in Iraq from January 12, 2006 to February 17, 2007and, then, reactivated for additional active duty from January 4, 2009 to January 29, 2009. He filed an original disability claim that was received on July 31, 2009. He was also previously seen in SWS in October of 2007 along with being enrolled in the Army Substance Abuse Program. My husband was honorably discharged. 

Decision:

1. Service connection for post traumatic stress disorder, with alcohol and drug abuse and dependence is granted with an evaluation of 10 percent, effective January 30, 2009.

2. Service connection for migraine headaches was denied.

3. Service connection for chronic strain of the thoracic spine was denied.

When my husband was reactivated for additional active duty he was diagnosed with Chronic Post Traumatic Stress Disorder with the recommendation that he be removed from training. He was discharged from active duty on January 2009, to return home. On April 20, 2010 we received an unexpected amount of money on our account and found out that way that my husband was granted 10 % disability which he was very upset about. He planed to appeal this decision. Unfortunately he passed away in a motorcycle accident 3 days later. He passed away 3 days after his 25th birthday. I became a widow and a single mom at the age of 25. My son was 18 months old at the time. 

He purchased the motorcycle in March of 2010 and died in April of 2010. I am convinced that my husband experienced an episode right before the fatal accident. He died 0.3 miles away from his mother's house. He moved to that house when he was 15. He was very intelligent and knew those streets very well that's why I don't believe that what happened that day was just an accident. Witnesses reported observing the motorcycle being operated in a reckless manner. He was riding on the rear wheel only prior to the intersection. He was wearing a helmet but the helmet was not properly fastened. The investigation indicated that excessive speed and reckless driving on my husband's part contributed to the crash. There was no alcohol or drugs found in his system.

My husband was a very cautious driver before his deployment to Iraq. After he returned from Iraq he seemed to always be looking for that "adrenaline rush." I was scared to be in the car with him after he came back home. He almost killed us twice. He also started drinking and driving which worried me a lot. He was a medic in the military and experienced numerous incidents involving direct fire, explosions, mortars etc. as well as his vehicle/ convoy getting hit with IED's on 2 occasions etc.

I submitted a new claim in 2010 with the help of the American Legion in DC. The claim was denied. In 2013 I appealed the claim and went in front of a judge and now I am just waiting on a decision to be made. I recently found a video of him recording himself while drinking and driving. In the video he is seen speeding on the German Autobahn while holding a big can of beer in his hand. I was wondering if it would hurt or maybe help my case if I submit the video to the Board of Appeals. I was told I could still submit more evidence if I chose to do so. I also would like to submit a new statement if possible since my first statement was written during a hard time in my life. I didn't give it much thought since I was going through a lot at the time. 

I had no idea at the time of the accident how many soldiers died in noncombat motor vehicle crashes after returning home. I read somewhere that men who served in the wars in Iraq or Afghanistan have a 76 percent higher rate of dying in vehicle crashes than people in the general population. I wish I had known these scary facts before I lost my best friend. I was wondering if you guys on here, with a little more experience than me, know whether I have a chance of winning this case or not. Also, would like to know if it helps more if I find a lawyer now or if it is too late? I wasn't able to find a lawyer in my area. I would really appreciate any advice I can get. It's been 6 years now since my husband passed away. Thank you!

 

Edited May 23, 2016 by page1006

[page1006]

Decision:

1. Service connection for post traumatic stress disorder, with alcohol and drug abuse and dependence is granted with an evaluation of 10 percent, effective January 30, 2009.

2. Service connection for migraine headaches was denied.

3. Service connection for chronic strain of the thoracic spine was denied.

 

The reason for the 10% is attached. 

 

[Buck52]

I don't much think the VA will award a DIC if your hubby died from his INJURIES due only from his Accident.

But I would think a lot like you that something triggered his ACCIDENT due to his SC DISABILITY  Prior the Accident .

that maybe hard to prove and I think your going  to be in a hard fight with the VA on this....you may check with Mr Walsh and ask him if he has any experience in a claim like this ?

It will probably all come down to his autopsy report.

order his C-FILE IF YOU HAVE NOT ALREADY  AND DIG FOR EVERY MEDICAL RECORDS YOU CAN FIND ON HIM  PRIOR MILITARY AND POST MILITARY

This case has absolutely nothing to do with your case  but it provides the clarity that involves a DIC Claim...this particular case the  widow won  but read this docket and you will see just how the VA is.

Allen V Principi, 

The autopsy report establishes that the Veteran's death, although due to an overdose, was accidental.  Therefore, regulations governing claims for service connection when willful misconduct is at issue are not applicable.  38 C.F.R. §§ 3.1, 3.301.  Each of the three medical opinions of record is favorable to the appellant's claim.  

There is no medical opinion which is unfavorable to the claim.  The RO determined that the private clinical records from Dr. RC were unfavorable to the appellant's claim.  The Board finds that the statement by Dr. RC that fentanyl was being used, in part, to treat abdominal pain, is not unfavorable to the claim, since service connection was in effect for gastritis due to NSAIDs and no cause for abdominal pain, other than gastritis due to NSAIDs, was diagnosed.  

Other evidence, including the August 2000 Naval Medical Center report and the service treatment records, are either favorable to the claim or are neither favorable nor unfavorable.  The Board finds that the Veteran's use of fentanyl, venlafaxine, and Benadryl cannot be disassociated from his service-connected disabilities.  There is no specific evidence as to the reason zolpidem (Ambien) was prescribed.

There is medical evidence and opinion favorable to the claim, as well as evidence that is neither favorable nor unfavorable.  The Board finds that the favorable evidence is at least in equipoise with the evidence found by the RO to be unfavorable.  When evidence is in relative equipoise, reasonable doubt must be decided in the appellant's favor.  Resolving doubt in the claimant's favor, an award of service connection for the cause of the Veteran's death is warranted.  


ORDER

The appeal for service connection for the cause of the Veteran's death is granted.  

https://theveteransdisabilitylawfirm.com/2013/09/18/what-does-equipoise-mean/

Edited May 8, 2016 by Buck52

[Buck52]

I had figured your hubby was at least 70% SC for PTSD.

& taking treatments and medications from the VA.

The only good part from all of this is that he was diagnosed for PTSD and was Service Connected before his death.

''smoothing effects''  the VA Will not use those as evidence.

 I Apologize I thought  that your Hubby recently passed from his Motor Cycle Accident.??

What you stated here  is not good, and this was in 2010 ?

''My husband was not on any medication.'' He used self-medication (marihuana and alcohol). The toxicology report shows negative for Ethanol and Drug Test. 

I filed an application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child on May 10, 2010. 

Just my opinion...like Ms Berta mention anything is a possiblity.

.............Buck

 Like this

[page1006]

13 minutes ago, Buck52 said:

I had figured your hubby was at least 70% SC for PTSD.

& taking treatments and medications from the VA.

The only good part from all of this is that he was diagnosed for PTSD and was Service Connected before his death.

''smoothing effects''  the VA Will not use those as evidence.

 I Apologize I thought  that your Hubby recently passed from his Motor Cycle Accident.??

What you stated here  is not good, and this was in 2010 ?

''My husband was not on any medication.'' He used self-medication (marihuana and alcohol). The toxicology report shows negative for Ethanol and Drug Test. 

I filed an application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child on May 10, 2010. 

Just my opinion...like Ms Berta mention anything is a possiblity.

.............Buck

 Like this

•  

Yes, I filled the claim when my husband passed away. It was denied in 2012. I appealed with the help of the American Legion. They represented me at the scheduled hearing before a Veterans Law Judge of the Board of Veteran's Appeals in 2013. The people from the American Legion asked for the toxicology report but told me the autopsy was not needed. I hope I can still get the report now if needed. 

[Buck52]

Yes I understand...was he rated 10% for PTSD  and had other contentions he was SC for bringing up his rating at a 100% rating?

 your going to need a lot more evidence and his autopsy report is going to have connect things together for this type of claim if not probably be denied.

 you need medical evidence if  the medications he was taken/could cause a seizure  ect,,ect,,

So you need anything he  was taking as for as medications  for his 10% PTSD, All episodes he encountered  before the Accident   what medications if any? he was taking? was he in treatment for his  S.C. PTSD ? from VA or private? was he seeing a VA therapist  or Private?

OTC Meds, his behavior is important  with your lay statements

Find all medical records that you possibly can....read up on his STR's...Find any thing that would help substantiate your claim.

 Mr Walsh will let you know what all he needs....but remember Medical Evidence is the best you can have to help you win.

 This is just my opinion & not legal advice.

 

.............Buck

Edited May 8, 2016 by Buck52

[Berta]

I  have read at least 30 BVA decision on DIC regarding Motor vehicle accidents and so far found only one, a denial that the AL held POA on....

Before you have further contact with Bob Walsh can you please answer these questions?

Was the case on Remand, meaning the BVA sent to back to the RO of original jurisdiction?

What was the date of that remand and do you have a Docket and Citation number for it?

Was it after the VLJ hearing?

What is the last letter or decision you received from the VARO or the  BVA? and it's date?