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]

On 5/19/2016 at 9:37 AM, Berta said:

VA always considers wartime pension on DIC claims.

I am concerned about the denial of the Accrued Benefits.

Can you scan and attach their Reasons and Bases part (and Evidence list) here when you have time?

I hope that denial was formally appealed and still in pending , because an the accrued award could provide additional evidence that the PTSD rating was too low.

My point is this...accrued benefit claims can have Significant impact on DIC.am

I had raised my husband's PTSD as one issue causing death.

He had filed for both a higher PTSD rating ( he was 30% SC ) as well as stated he felt his PTSD and been mapracticed on, as part of his 1151. Actually that was his prime concern ,but he added other potential 1151 issues that could cause his death.

I won the accrued claim and they rated him posthumously at 100%  SC P & T for PTSD   ...thus a greater  possibility that a100%  award could have been  a contributing factor  to his death.

One does not jump from 30 to 100 overnight and the evidence revealed he had not had the proper PTSD therapy, nor any PTSD meds for almost 6 years.

But I won DIC under other theories and did not pursue the 1151 part of the claim for PTSD.

If the accrued claim is still pending, you will have a chance hopefully when you get his medical records, to get that possibly resolved with a strong IMO.

Then that would lend more credibility to the fact that the veteran's PTSD was far more than 10 % and thus this disability could have contributed to the accident that caused his death.

 

If you have not appealed the accrued denial, and if it is not still  in appeals , disregard posting the denial.

I don't know if an accrued claim can be re-opened.

 

 

 

 

I'm hoping the lawyer will be able to help me with that. 

Does a widow's social security benefits stop when she receives Dependency and Indemnity Compensation?

Edited May 21, 2016 by page1006

[pwrslm]

Sounds like your luck is starting to show up Page....be the pit bull and dont give up.

Edited May 21, 2016 by pwrslm

[page1006]

 

On 5/13/2016 at 9:55 AM, Berta said:

I agree....a lot we have suggested to do should have been done within 5-6 years ago when the claim was  awarded.....to the husband....

As I comprehend the substitution regulations, this widow had every right to appeal that award letter.

He got the award and died 3 days later....the widow could have become the claimant.

The worse case scenario is that the RO will deny again the DIC claim  or the BVA will and then a NOA can be filed with the USCAVC,

but no new evidence can be submitted to the court ...unless a skillful vet lawyer (and many have done this) holding the widow's POA can get a Remand from the CAVC, and that would open the door for more evidence....but what evidence will there be??????

Maybe in the years that scenario could take, more evidence would come to light.......???

I see the best chance of any monetary award coming from the accrued claim...but still have no idea what the status of that is...and by now the VA probably denied it too......because accrued claims need lots of evidence as well as DIC claims....and I don't know if the accrued denial was properly appealed.

I received several records in the mail on Friday that were not considered. I got the original police report with the witness' statements. I also received the autopsy report and some medical records from the VA medical center my husband was seen once before he passed away. Now I am waiting to get the cfile and I'm hoping to hear from the lawyer in my area who told me I had a good case. I hope they can represent me because as Buck suggested I did do some research and it looks like he won several DIC claims for widows. 

[Buck52]

page

 Here is some Regs about ''Substitution'' 

You may have Already read up on these  but in case you didn't/I found this very interesting in yor case.

(a)Substitution.—

(1)

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 section 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.

(2)

Any person seeking to be substituted for the claimant shall present evidence of the right to claim such status within such time as prescribed by the Secretary in regulations.

(3)

Substitution under this subsection shall be in accordance with such regulations as the Secretary may prescribe.

(b)Limitation.—

Those who are eligible to make a claim under this section shall be determined in accordance with section 5121 of this title.

(Added Pub. L. 110–389, title II, § 212(a), Oct. 10, 2008, 122 Stat. 4151.)

Effective Date

Pub. L. 110–389, title II, § 212(c), Oct. 10, 2008, 122 Stat. 4151, provided that:

“Section 5121A of title 38, United States Code, as added by subsection (a), shall apply with respect to the claim of any claimant who dies on or after the date of the enactment of this Act [Oct. 10, 2008].”

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

 

[Berta]

Buck, I posted these regs here on page 2 of the thread.

I do not think they apply in this situation anymore.

They involved accrued benefits.

The VA denied the accrued benefit claim because they said they didn't owe the veteran any money.

I feel the claimant had every right to appeal that statement and the  award letter for the 10% but

I have no idea if that denial was appealed. As the substituted claimant, she had appellate rights.

However I am glad you posted these regulations again because many of you have spouses who will need to understand them if any of you expire.

Survivors have rights but must be aware of them and the time limits and evidence most of them involve.

 

[Buck52]

Also page1006

I forgot to mention  if you see this in time?

I think Hadit elder member and moderator Jbasser is getting a hadit blog talk radio show worked up some times this week and his guest  he is going to try to get on  is Dr Bash and John Dorle.

& Ms Tbird & Ms Berta might be on as well as Hadit elder Asknod   aka Alex,  Be a great time  for you to call in and talk with them.

 The call in No. is  347-237-4819 then hit 1...call in live on the date &time  when we find out!

It maybe in am on Wed or 7:00PM Eastern   if you get busy signal just keep trying  Jerrel Cook will probably Answer.

Everyone is very Nice &

These are top knoch People about anything VA Related.

J Basser will let us know  so check hadit today and tomorrow for more information.

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

Edited May 23, 2016 by Buck52