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

[Buck52]

page1006

This may help you? or Confuse the heck out of you, I'm sure MsBerta will know.

Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(b)(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(2)(A)

The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B)

For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C)

This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

(4)(A)

The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B)

A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c)

The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d)

The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)(1)

Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.

(2)

In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f)

An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g)

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h)

Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i)

Whenever any disallowed claim is reopened and thereafter allowed on the basis of new and material evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of reopening of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j)

Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.

(k)

The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.

(l)

The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.

[(m)

Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.]

(n)

The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1226, § 3010; Pub. L. 87–674, § 3, Sept. 19, 1962, 76 Stat. 558; Pub. L. 87–825, § 1, Oct. 15, 1962, 76 Stat. 948; Pub. L. 91–376, § 7, Aug. 12, 1970, 84 Stat. 790; Pub. L. 91–584, § 13, Dec. 24, 1970, 84 Stat. 1578; Pub. L. 93–177, § 6(a), Dec. 6, 1973, 87 Stat. 696; Pub. L. 93–527, § 9(b), Dec. 21, 1974, 88 Stat. 1705; Pub. L. 94–71, title I, § 104, Aug. 5, 1975, 89 Stat. 396; Pub. L. 97–66, title II, § 204(b), Oct. 17, 1981, 95 Stat. 1029

[Berta]

From what I can tell here, the retro DIC would go back to May 2010,the month he died in  and when the 21-534 was filed.

[pwrslm]

Found this today;

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465 (1994). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Ruten v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

 

 

 

 

The whole effect of PTSD can be observed by a wife, who is a lay person.  Her statement is a powerful tool, as shown in the BVA rulings, when it is not a complex medical issue.  Behavior can be readily observed in this case, carelessness, thrill seeking, dangerous behavior is something that you can assert as a lay person.  Writing the statement, I would describe his behavior before and after, deliberately drawing out the changes in behavior and how you note them, and why/how you believe it contributed to the accident.  As long as you dont try to inject medical expertise, they can not ignore your statement.  If you son is capable of doing this same thing, and of sufficient age to understand what it means, his statement would be admissible as well.  Friends, family, employers, also can provide lay statements to the effect of behavior that was risky and dangerous.  That sense of excitement, or thrills, can be directly attributed to PTSD by a medical professional.

[page1006]

10 hours ago, pwrslm said:

Found this today;

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465 (1994). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Ruten v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

 

 

 

 

The whole effect of PTSD can be observed by a wife, who is a lay person.  Her statement is a powerful tool, as shown in the BVA rulings, when it is not a complex medical issue.  Behavior can be readily observed in this case, carelessness, thrill seeking, dangerous behavior is something that you can assert as a lay person.  Writing the statement, I would describe his behavior before and after, deliberately drawing out the changes in behavior and how you note them, and why/how you believe it contributed to the accident.  As long as you dont try to inject medical expertise, they can not ignore your statement.  If you son is capable of doing this same thing, and of sufficient age to understand what it means, his statement would be admissible as well.  Friends, family, employers, also can provide lay statements to the effect of behavior that was risky and dangerous.  That sense of excitement, or thrills, can be directly attributed to PTSD by a medical professional.

Thank you for that information! I just contacted his buddy who wrote the only buddy statement I have and he said he will reach out to the other soldiers who were deployed with my husband. Hopefully I can get some statements from them. 

I will also ask his other brother and sister who served around the same time as him and who were both stationed in Germany as well to write a statement as well. 

I wrote a new statement myself as well since I left a lot of information out of the first statement I wrote. I was going through a hard time then so I'm hoping the new information will help the doctor when writing the IMO. Thank you again for pointing that out.

 

[Berta]

Don't forget Page, that autopsy might be the most critical piece of evidence you have and the lawyer and the IMO doctor should have a copy of it ASAP.

My husband's autopsy was 6 pages long , first brief renditions of heart,brain, lungs, kidneys ,liver etc etc but it was the slides and more detailed findings that were more conclusive as evidence.And the full toxicology report.

It took me some time to understand it all but I initially used it to succeed in my wrong death claim against VA (USA)

I had no lawyer or IMO doctor...in those days they were hard to find.

It might reveal nothing to help with your claim, however, but then again...

if no meds were in his system, was he going through a rough withdrawal from any VA meds... if meds were found in his system was the level appropriate? Do the heart and brain slides show significant evidence of anything that could have caused a sudden seizure?

And I think I asked before, did he ever experience (documented) any suicidal ideation?

The buddy and family statements could be very probative on that.

The rating he got had upset him. He knew it was wrong. That factor cannot be overlooked in lay testimony you give to them ..

The only time in my life I ever even thought death would be better than dealing with the VA , was due to an atrocious statement they made in a SOC.

I overcame that statement with evidence (that they had but chose to keep from the C & P doctor...actually it was the autopsy that within my H VAC testimony I had sent to the RO 12 times by then because they kept ignoring it )

but I knew without a doubt that VA had caused this sudden but passing suicidal ideation in me, as a claimant and probably has done that to countless men and women , unlike me, who have full blown PTSD and cannot handle the stress of dealing with them when a decision is wrong.

Serious suicidal ideation could be a very strong factor here and there can be no other etiology for it but for your husband's PTSD.

That however would be something an IMO doctor would need to give a very strong medical rationale on.

But those buddy statements etc can help support that type of finding.

 

 

 

 

 

[page1006]

5 hours ago, Berta said:

Don't forget Page, that autopsy might be the most critical piece of evidence you have and the lawyer and the IMO doctor should have a copy of it ASAP.

My husband's autopsy was 6 pages long , first brief renditions of heart,brain, lungs, kidneys ,liver etc etc but it was the slides and more detailed findings that were more conclusive as evidence.And the full toxicology report.

It took me some time to understand it all but I initially used it to succeed in my wrong death claim against VA (USA)

I had no lawyer or IMO doctor...in those days they were hard to find.

It might reveal nothing to help with your claim, however, but then again...

if no meds were in his system, was he going through a rough withdrawal from any VA meds... if meds were found in his system was the level appropriate? Do the heart and brain slides show significant evidence of anything that could have caused a sudden seizure?

And I think I asked before, did he ever experience (documented) any suicidal ideation?

The buddy and family statements could be very probative on that.

The rating he got had upset him. He knew it was wrong. That factor cannot be overlooked in lay testimony you give to them ..

The only time in my life I ever even thought death would be better than dealing with the VA , was due to an atrocious statement they made in a SOC.

I overcame that statement with evidence (that they had but chose to keep from the C & P doctor...actually it was the autopsy that within my H VAC testimony I had sent to the RO 12 times by then because they kept ignoring it )

but I knew without a doubt that VA had caused this sudden but passing suicidal ideation in me, as a claimant and probably has done that to countless men and women , unlike me, who have full blown PTSD and cannot handle the stress of dealing with them when a decision is wrong.

Serious suicidal ideation could be a very strong factor here and there can be no other etiology for it but for your husband's PTSD.

That however would be something an IMO doctor would need to give a very strong medical rationale on.

But those buddy statements etc can help support that type of finding.

 

 

 

 

 

I just got 6 pages of the autopsy report I believe, but no heart slides or anything. 

The lawyers office were saying that the IMO written by Dr. Gordon was really good and that they don't usually see a doctor write 6 pages. They asked me if I paid her and I said no the American Legion had her write it. 

They said that their fee is higher because they don't take on a lot of workload. The lady from the law firm I talked to said they have a 90% successful rate. 

It sounded like they might not suggest a new IMO but I don't know for sure. I will have to see what they say once they take a look at everything.