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

[TexasMarine]

Page,

Berta very definitely knows her way around the VA Claims process.  I respect her as most (if not all) folks here do.

When Berta says "get a lawyer", you next reply should be "got him".  Now this is a weekend, so getting ahold of Mr. Walsh may not be possible, but leaving a message with him is most appropriate.  I'm sure if you explain that "time is of the essence", he will contact you very shortly (maybe Monday).

I hope you're not too late.

Good luck with the VA.  It can be a real pain, but worth the effort for those who gave all.

God Speed.

TexasMarine

 

[Berta]

Thank you Texas Marine.

Everyone here with a spouse should be up on the DIC regulations.

The BVA case I mentioned shows how Allen V Principi should be applied.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files1/1203837.txt

DIC granted....but the reason is explained in the decision.

But it might not apply here at all in this widow's case, as the toxicology revealed no alcohol or drugs...but did that mean no street drugs, or no VA prescribed Meds?

My husband's Toxicology certainly didn't reveal any alcohol or 'drugs', it revealed however the last 'meds' he took, prescribed by the VA.

Those meds contributed to his death but was a small part of my FTCA/1151 award.

If this claim is on BVA remand, there is a chance that the VCAA (5103) waiver was prepared wrong and that would set up perhaps additional time, and even if the CAVC picked up a VCAA error, or any other error ,  it could open the door ,if remanded by the CAVC.

Then at that point the widow could consider obtaining an IMO.

This will be a difficult case. It already is. But Nothing is Impossible.

I almost lost a claim because my VCAA letter did not comply with what they were supposed to send widows/widowers.

I asked the BVA to remand on that basis and they agreed but they also remanded on another basis.

Vets, your spouse might well get an erroneous 5103 VCAA letter, if you die and the spouse claims DIC.

VA knows we survivors are heartbroken and overwhelmed so they are counting on us to not even realize the VCAA letter is wrong...and if it is....it will add years to a proper resolve.

 

.

 

 

 

 

[page1006]

6 hours ago, Berta said:

I just found a DIC award under Allen V Principi, but different than your case, although it involved a MVA....

What meds was your husband taking prior to the accident ?

What meds came from the VA

and which ones were prescribed by a private doc?

"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."

Was that statement determined by a complete toxicology report at time of autopsy?

 

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. 

[page1006]

5 hours ago, Berta said:

Yes, contact Bob Walsh.

I think this might be a remanded case...not sure, but I just searched BVA web site for quite some time and could not find it.

I hope you have a transcript of the AL-judge hearing.

There is a lot missing here... after the hearing did the BVA deny again? Or after a remand did the RO deny again.....???

As great as the internet is, and how good our site here is , it still limits how much info we can assess that some of these claims involve.

A Lawyer on your POA will have access to everything.

 

 

 

Hello Berta,

I contacted Mr. Walsh. Thank you so much for his contact and all the other information. I will submit more proof hoping to get more information from you since I am a little lost and don't have any knowledge when it comes to the VA. 

[Berta]

Great!

Others here can help you too, as I might be away from hadit for a week or two....beginning Monday.

Bob will let you know what he needs.

 

[page1006]

7 hours ago, Berta said:

" 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."

I know how devastating it is to lose a husband. My husband had 2 claims in process when he died.

Did you ,within that first year after he died, substitute yourself as the claimant?

Can you scan and attach the last denial here that I assume is what the BVA hearing was for?

We  need to read their Reasons and Bases for the denial and the Evidence list.

If you had acquired a lawyer , they would have tried to see if Allen V Principi would have had bearing on this case. Did the AL do that?

I am assuming the case is at the BVA. If they deny, you can pursue the claim further at the CAVC but you will need a lawyer for that.

Unfortunately the CAVC will not consider any new evidence.

Do you have a complete copy of his medical records and SMRs? And his Military Personnel file?

Was an autopsy done?  If so do you have a copy of it?

You have very little time to have any chance at all to turn this around.

I suggest you start contacting lawyers immediately.

We have a list of lawyers here somewhere. I will give you contact info for a great veterans' lawyer,. Robert Walsh...