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]

28 minutes ago, Berta said:

Flores is right....I forgot that the Congressperson might be able to get those records faster, to you. Sorry...

And although that inquiry might hold up the claim, that would be good.....

As I understand the BVA, when they remand, the claimant has opportunity to submit more evidence up until they make a decision...that is the problem.

I got on this as soon as I found out where a posthumous C & P was done, for my remanded claim, and I immediately got ahold of a forensic cardiologist, paid 1400 I think it wasm  for his IMO, and then I immediately contacted the BVA and rebutted with medical evidence, the C & P opiner's opinion. Also he was not a cardio doc, and therefore unqualified to make any opinion beyond speculation. BVA agreed.

I was playing Beat the clock because I could not determine how fast that C & P would get to the BVA, and then have them make a decision that was unfavorable....even though I had other IMOs.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp07/Files3/0725677.txt

I have been trying to find a case whereby PTSD was found as contributing to death of a veteran who was killed in a MVA.

This case was a vet killed by a motor cycle. DIC was Granted.!!!

I wonder if the Congressional inquiry can provide all of the VA medical records as well....dont know..

 

 

Thank you so much for locating the case for me, Berta! I really can't afford paying $1400 right now. I am trying to get all the medical records I can and then I will contact  Brett Valette? I also work for the FDA so I was going to ask some of the doctors there maybe they can suggest a doctor who would write that statement for me. It sounds like we were in the same boat...I also feel like I am playing beat the clock right now!

[Berta]

That was a forensic cardio doctor...and the price was cheap because I had sent them significant evidence.

They refunded most of the fee when I suddenly found a BVA decision in my mailbox. I had won and called them to tell the forensic firm that sent my stuff to the forensic doc that I did not need the IMO anymore. My other IMOs cost $4,000.and one freebee.

Did you pay for Dr. Ann Marie Gordon's opinion?

 

[Berta]

If Dr Ann Marie Gordon's address is:

106 Irving St NW Ste 3400Washington, DC 20010,

she is an internist ,and has no qualifications  or expertise at all regarding  PTSD..

The IMO should be prepared by a qualified doctor (psychologist or psychiatrist), and Dr. Valette I am sure could try to help, when all of the available records are at hand.

[page1006]

4 hours ago, Berta said:

That was a forensic cardio doctor...and the price was cheap because I had sent them significant evidence.

They refunded most of the fee when I suddenly found a BVA decision in my mailbox. I had won and called them to tell the forensic firm that sent my stuff to the forensic doc that I did not need the IMO anymore. My other IMOs cost $4,000.and one freebee.

Did you pay for Dr. Ann Marie Gordon's opinion?

 

No, I didn't pay for her. The American Legion found her. I don't even have a copy of her statement. I'm trying to get a copy of it.

[page1006]

One of the lawyers I contacted in my area contacted me after reviewing all of the paperwork I emailed and suggested I send a fax to the BVA and request an extension of another 90 days. Last time I called the BVA told me that they are processing claims from April of 2011 and mine was from August 2012 but I will send the request just in case. 

Edited May 14, 2016 by page1006

[pwrslm]

Absence of evidence is not proof of an exclusion.

The statement by the VA appears to claim that the absence of proof of drug or alcohol use excludes PTSD as a cause.  This is a medical conclusion and the VA cannot do that.  Gordon stated that underlying conditions, high risk behavior and high risk of suicide associated w/ (PTSD) was as likely as not that (PTSD) and substance abuse contributed.

 

They did not rule out anything, they only made a claim which must be based as a medical decision, because they ignore the Dr's statement that PTSD was also a contributing factor via "(high risk behavior) and (associated high risk of suicide) (associated with his mental conditions)", not just drugs and alcohol.  The Dr gave the opinion that (these conditions) caused (this accident).  This is a clinical rationale, however limited, and appears to have been ignored.  To detail it, the statement that these MH conditions are "acknowledged in current medical journals and existing literature" to compel dangerous, thrill seeking behavior and suicidal behavior, which would lead to the statement that the MH condition "as likely as not" was a contributing factor.  The Dr did not claim that alcohol or drugs were the cause, but that the condition was a contributing factor, not the sole factor.   In appeal, detailing the medical journals and other literature is wide open door that you can shovel a ton of medical validation into, if the VA is dumb enough to step into that trap.

Ask the Dr for the clinical rationale in an addendum to her IMO, giving a detailed description of why the PTSD contributed to the your husband's death, as well as, detail the specific history which linked the condition to active duty (dates and locations).   With those 2, it should get approved. Beyond that, they must have reasons and basis for all of their statements, the VA cannot create medical opinions out of thin air, this leaves that door open for remand, either way.   They must have a medical professional say that Gordon's IMO is of limited value, and why,  the Rating Authority can not do that, but they did....

 

The Court has stated that "when a nexus between a current disability and an in-service event is 'indicated,' there must be a medical opinion that provides some nonspeculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus."  McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (emphasis added).  The Court has also noted that medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus; a VA medical examination must be undertaken to resolve the nexus issue.  Id. (citing Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (Mayer, C.J., and Newman, J., dissenting) ("The absence of actual evidence is not substantive 'negative evidence'")).  Jones v. Shinseki, 23 Vet. App. 382, 387-88 (2010). (from Vetsfirst.org)

 

In Veterans law, there is this phrase used at the Court of Appeals for Veterans Claims to help the Court evaluate when a BVA decision should be vacated: if the BVA decision doesn’t provide “adequate reasons and bases” for its conclusion, remand or reversal is an appropriate outcome (http://www.veteranslawblog.org/va-remand/).

When considering medical opinions, (http://www.veteranslawblog.org/va-medical-opinion-letter/) particularly, the BVA must account for, and explain, all medical evidence that contradicts the BVA’s findings on medical issues;(http://www.veteranslawblog.org)

 

76% of all BVA decisions have legal errors. Seek out and hire an experienced VA Benefits Lawyer

Edited May 14, 2016 by pwrslm