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

[flores97]

Page1006, I apologize, I just realized you stated your husbands deployment report was not in his file, so VA probably did not have it. Yes, that could be crucial evidence, does AL have a copy, if not, make copies and provide them one ASAP

[Berta]

Flores you sure are on the ball with this and you are right....

If any type of substitution claim had been filed ( to include a NOD on the veteran's last decision and a potential accrued award) the inservice

records to include that deployment report would help.

He was definitely lowballed on the rating.

As I understand it a 21-534 is also to be considered as a substitution. But it might be too late for that.

When you get a chance, we have to determine something else, that those records Flores mentioned, would also be critical too.

 

The veteran’s rating was too low from what I see here.

 

Since the AL is still holding your POA as far as I can tell, this is something you need to ask them…and I suggest in email, not by phone.

 

You said your DIC claim was filed in the same year after your husband died.

That would you make you eligible for any accrued benefits on a successful outcome of a NOD filed on the rating.

 

As the recent BVA decisions show below, a 21-534 is also a claim for substitution.

 

Did the AL advise you further on that….what I mean is did they advise you to formally file a NOD on the rating, as the substituted claimant?

 

I saw no mention of that at all in the remand.

 

You could ask the AL if that claim ( under 5121A) is still pending.

 

Unless you received a decision that specifically addressed that issue…..

 

I know you have plenty to do as it is to try to keep this claim going.

 

Substitutions involve accrued benefits.

If the rating for PTSD was too low via additional evidence, and you were properly substituted on that claim, in time, that claimcould potentially have a monetary gain separate from the DIC.

 

If you do contact the AL on this, you could print off  my post here ,if they want to kinow what I mean.

 

The substitution regulatutions applied to your 2010 claim.

 

 

 

 

 

“Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant.  The newly revised statute provides that, "If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion."  38 U.S.C.A. § 5121A (West 2014).  The Board notes that unlike an accrued benefits claim, the record is not closed on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence.  See VA Fast Letter 10-30 (August 2010).  The VA Fast Letter 10-30, in addition to a proposed new regulation for inclusion in 38 C.F.R. Part 3, 14, and 20 [76 Fed. Reg. 8666  -8674 (February 15, 2011)], provide that if proper notice was sent to the original Appellant, in this case the Veteran, further notice need not be sent to the substituted party.  “

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files1/1604354.txt

 

"The statute concerning accrued benefits claims was amended on October 10, 2008. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008).  The amendment created a new statute, which provides that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion.  See 38 U.S.C.A. § 5121A.  This allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim.  The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008.  See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).

 

As noted above, the Veteran died in May 2009 and the appellant filed a claim for dependency and indemnity compensation, Death Pension, and Accrued Benefits (VA Form 21-534) in June 2009, less than a month after his death.  VA Fast Letter 10-30 states that receipt of VA Form 21-534 will be accepted as both a claim for accrued benefits and a substitution request.  See Fast Letter 10-30 (Aug. 10, 2010). 

 

The United States Court of Appeals for Veterans Claims (Court) held in Reliford v. McDonald, -- Vet. App. --, 2015 WL 1276443 (March 20, 2015), that VA Fast Letter 10-30 (Aug. 10, 2010), recognizes that it is VA's policy to accept a VA Form 21-534 as both a claim for accrued benefits and a substitution request.  The Court also honed in on language in the Fast Letter specifically permitting an accrued benefits claimant to waive the opportunity to substitute/submit additional evidence in support of the claim.  The Court determined that in this case, because the appellant was never notified of her right to "waive the opportunity to substitute," VA failed to comply with its own established procedures. The Court noted that although the "vast majority of accrued-benefits claimants would likely benefit from the Secretary's liberal application of section 5121A to claims for accrued benefits, it is also the accrued-benefits beneficiaries' procedural right under VA procedures to choose the path by which their claims are adjudicated."

 

Because substitute claimants are afforded additional procedural rights, including the submission of new evidence, adjudication of the appellant's claim for accrued benefits would be premature at this juncture.  In this case, that a remand is warranted to allow the AOJ to address the issue of substitution and to give the appellant an opportunity to be substituted in place of the Veteran.  To adjudicate the current appeal before the AOJ issues a decision on substitution would prejudice the appellant.  Accordingly, a remand is warranted. "

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files5/1544220.txt

 

I am sure a lawyer will ask you this same question , at some point..

38 USC 5121A is what the older accrued claims involved.

Most of my personal claims were due to my original accrued claim.

VA denied the first one, then quickly changed their decision.

They had committed a legal error in it but that was resolved with a letter from my dead husband’s shrink and my response to their SOC.

 

[page1006]

I spoke to a RMC’s FOIA Officer today (on the phone) and told me that my reasons for expediting the c-file were not good enough and they had 70,000 other cases to process which can take up to 10 month but he will forward my request to the BVA. What would be a good reason to have them expedite it? If I go there in person what do I say? 

Also, I was able to get a copy of  the medical statement the doctor wrote. The C&P was written by Samantha Apel. She's a psychologist. 

[flores97]

NOT GOOD ENOUGH!? Page1006, did you contact your congressman? I would do so right away! That is deplorable, you are on a time limit and whoever said that should be reprimanded, minimum!! To find your local congressmans office, simply Google find my local congressman's office and a link to input your zip code should pop up

[Berta]

I thought the AL somehow got an independent medical opinion.

Dr. Samantha Apel works for the VA.

You need an IMO that rebutts down her opinion.

I posted the IMO criteria here again under Read First if Getting  an IMO.

[page1006]

2 hours ago, flores97 said:

NOT GOOD ENOUGH!? Page1006, did you contact your congressman? I would do so right away! That is deplorable, you are on a time limit and whoever said that should be reprimanded, minimum!! To find your local congressmans office, simply Google find my local congressman's office and a link to input your zip code should pop up

I think I found it. What should I tell him of why I want the cfile expedited?