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]

12 hours ago, pwrslm said:

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

Thank you so much for all this great information. I will forward this to the lawyer. 

[page1006]

4 minutes ago, TALON II FE said:

There is a piece here that doesn't make sense to me, and maybe it gives you another angle:  Your husband was reactivated for three weeks and then found, from my interpretation, unfit for duty and, based from that he was awarded 10%?  Doesn't being found unfit already infer a greater disability than 10%?  I am at 70% and I retired out after 20 years (i.e.- I was still functioning at a high level at a 'high-visibility' function.  My point being, there is nothing in the verbiage for a 10% rating which would make them cut him loose after a couple weeks.  Are Buddy Statements from anyone in his unit a possible source of new and material information?

Exactly! He was found unfit for duty and was awarded 10%. I submitted one buddy statement for my claim but it seems as if was never submitted by the AL. In the communication it just mentions my statement and my brother in laws (his brother) statement. I'm not sure if my husband had included other buddy statements so I'm hoping to get the cfile asap. 

[TALON II FE]

If you still have contact with people from his unit, see about maybe getting 'new' statements from anyone willing to write one.  In particular, the circumstances leading to his being 'cut loose', etc.  There may even be some records retained in his unit referring to the issues, though that may not be the case anymore. 

[Berta]

Page,    Dr  Mark Worthen replied to someone here today:

He also might be a good IMO source when you get those records.

His contact info is in the above post. He is a hadit member and a Psychologist..

[page1006]

On May 12, 2016 at 11:48 AM, flores97 said:

page1006, I apologize for the late post, haven't been feeling well, but when you contact the congressmans office tell the agent assigned to help you the situation, and explain that you must have those records and are on a serious time limit to obtain them. Tell them that your appeal is at the BVA right now, and tell them exactly how many days you have left to submit more evidence(look at the last letter you received from the VA, stating you had xx number of days to submit more evidence, and calculate). THAT is why they need to expedite, so that you can submit what could be crucial records as evidence before the BVA makes another decision on your claim, and you don't have much time left to submit that evidence>

They told the congressman's office that they can't expedite it faster than 30 days. Claims may be expedited for terminal illness or homelessness. They originally told me 10 months so 30 days sounds much better I guess. 

[flores97]

page1006, 30 days is great, be sure to go through all of his records carefully. Have you had any success with retaining a lawyer? Also be sure to follow up on your extension request to BVA, their phone number is 1-800-923-8387.