DIC for Drug Overdose

[Melissakay85]

Hello, 

My ex-husband and the father of my children recently died from a overdose. He was 50%, but applied for 100% disability 4 months before his death. He went to VA's rehab 1 time and then went to Rehab/PTSD in South Dakota for 12-weeks and again 1 year later. He was signed up for PTSD clinic to start 8 days before his death. This doesn't include the ongoing counseling he was receiving through the VA.  Is it worth filing a DIC claim on their behalf? I am fighting social security and don't know if I want to add fighting the VA if it is a lost cause. 

[broncovet]

Well, here are the rules (that seem to apply to you).  

First you need to file a "substitution of claimant", which would allow you to continue his claim, otherwise his claim dies with him.  

What does his death certificate say?  You said he was 50 percent, but didnt say what for..it sounds like it may have been all or some of it PTSD.  

The DIC rules are as follows:

1.  You are eligible for DIC if hubby dies of a service connected condition.  I really dont know if the PTSD is related to his drug overdose, but its plausable/possible he was "self medicating", and I have no idea what drug he died of an overdose.  

2.  If he has been 100 percent for 10 years or more, then you should get DIC regardless of the cause of death.  

Did you have a copy of his records?  If not, get one.  If a doc opined that he was "self medicating, then you may just have the evidence you need.  

The differnce between 100 percent and 50 percent is "about" 2500 per month, but that would depend on your number of dependents.  So, if you did file a substitution and he was awarded 100 percent, you could get around 10,000 in retro (4 months).  

To make a good informed decision, you would need his medical records and cfile, and "go where the evidence takes you."   There are some instances where the VA made errors on your decisions and its possible that you could get "much more" than 10,000.  

We dont know when he was awarded his 50 percent, and we dont know if that decision was in error or not.  

If it were me, I would file a substitution of claimant FIRST.  https://www.va.gov/vaforms/form_detail.asp?FormNo=21P-0847

I did not see, on the form that there was a time limit for you to do this.  However, VA LOOOOVES to deny claimants who dont timely file documents.  So, just file it now.  

Next, you should obtain his file(s), and probably take them to an Vets law attorney and ask him if there are errors in his decisions that could result in additional benifits to you.  Without a review of his cfile I can not opine if its "worth your time or not".  However, even 10,000 dollars is a lot of money to me, and is worth some effort.  Its my opinion that you could be looking at much more than that, because better than 80 percent of VA claims have one or more errors, so your odds are good of getting much more.  

You can represent yourself, provided that:

1.  You are able/willing to do research and file applicable forms. If you have excellent writing and reading skills, and either are good at searches or willing to learn, that is a big help.  You have half the battle as obviously you have access to a computer and the internet.  

2.  You are patient and persistent enough to hang in there until you succeed.  

[Berta]

I regret this tragedy, and we need more info to help.

Broncovet, the member said she is his Ex wife-so  she is not eligible for DIC but feels the children could be.

Melissakay- do you have reason to believe the VA caused his death, by improper dosage of medication?

I dont know if an ex wife can obtain a veteran's medical records- need to try to find that out-

or do you believe the veteran caused his own death?

I dont know if the children can become the substituted claimants here----

Broncovet noticed what I did as well- was he formally diagnosed by VA for PTSD and is that what the 50% was for?

Was the Rehab for addiction ?

Was he ever hospitalized for suicidial ideation?

Has he since remarried?  And if so did you have a relationship with his wife?

There are 51 decisions at the BVA regarding DIC and overdose and I will read over them to see what they reveal - I only read one so far-

"After reviewing all the evidence and completing the relevant dosage and alcohol consumption calculations, the private physician opined that VA had acted negligently in prescribing the Veteran Methadone. ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death due to VA medical treatment is granted."

https://www.va.gov/vetapp15/files6/1547597.txt

 

 

 

[broncovet]

Im busted, Berta.  I did not see the "ex" part.  My fault.  

[Berta]

"

"Generally speaking, a surviving spouse who was married to the veteran at least a year before the veteran’s death can apply for dependency and indemnity compensation benefits.  In limited situations, a spouse may be eligible even if the marriage was for less than a year.  Sometimes, even a former spouse can be eligible."

https://veterans.perkinslawtalk.com/post/dependency-and-indemnity-compensation-dic-benefits/

And children can be awarded DIC- I have not found yet how they can do that- I would think you, as their mother ,could file a claim on their behalf and also they should be able to be substituted as the claimant, unless you could be ,regarding any potential retro money from the pending claim.

But we need more info.

One of my very good friends died of a self inflicted gunshot wound.

He had prepared to have this death days before he actually did it, per the sheriff who found him, who I also knew well.

The widow asked me to help her get DIC but she was unaware of any MH issues he might have had, due to Vietnam.

She never filed for DIC nor made any attempt to see if he had been treated for PTSD by VA or a private psychologist or if he had a claim pending at his death.- and then I found that they had never been married. NY is not a common Law state. She was not eligible for DIC at all.

I did as much research as I could but I knew what the VA would say- even if they had been legally married-they would consider this type of suicide as "willful misconduct".

I know this  is a different death than what your husband died from but you would have to prove that a service connected disability caused the veteran to overdose, by medical evidence, or need a medical finding of VA negligence regarding his VA medication situation.

This  widow's DIC case was successful- her husband had died of an overdose-

 

 Based on this evidence, the Board 
finds that the veteran's death was due to a disability of 
service origin, and more specifically, due to a substance 
abuse disorder which was causally and etiologically related 
to a service-connected PTSD.  See 38 C.F.R. § 3.310(a); 
Barella v. West, 11 Vet. App. 280 (1998); VAOPGCPREC 7-99 
(June 9, 1999).  Accordingly, the requirements for DIC 
benefits under 38 U.S.C.A. § 1310 have been met.  

https://www.va.gov/vetapp01/files01/0103062.txt

In this case the evidence available within the link, supported a finding that the veteran's SC PTSD cause the drug abuse, that caused his death.

The OGC Opinion # 07-99 is available here-

https://www.va.gov/ogc/opinions/1999precedentopinions.asp

Just click on the date and the opinion will open in Word.

We can help more if we know more.

 

 

 

[Melissakay85]

Soooo I forgot I asked this. We divorced 1 year before his death due to his drug addiction and I know I don't qualify, but it would be nice if our kids did. My ex was 50% due to PTSD and he attended both rehab and PTSD clinic through the VA. In fact, one of his stays they did both addiction and PTSD clinic that ran for 12 weeks. I do not know what they discussed in therapy, but I do know he claims that his PTSD was causing the drug addiction.  

Here are the answers to the following questions:

.  You are eligible for DIC if hubby dies of a service connected condition.  I really dont know if the PTSD is related to his drug overdose, but its plausable/possible he was "self medicating", and I have no idea what drug he died of an overdose.-- He overdosed from herion and meth and that is what it states on his death certificate. 

2.  If he has been 100 percent for 10 years or more, then you should get DIC regardless of the cause of death.  No.

Was he ever hospitalized for suicidial ideation?-- Yes, and I requested that the VA order those records. He was in jail and they transported him to a VA clinic in Colorado Spring.s 

Has he since remarried?  And if so did you have a relationship with his wife?-- not remarried, no other children. 

[Berta]

Have you filed an accrued claim and DIC claim on behalf of his children?

Have you checked on any status or received any confirmation that they received this claim:

." He was 50%, but applied for 100% disability 4 months before his death. "

If the DIC would possibly be granted and payable to the children, and/or if the accrued claims is also granted, those claims Must be filed within one yer of his death for the best poosible effctive date for the retro amount of compensation.

You will need to get an IMO doctor-( Psychologist/ psychiatrist- he/she will need all of your husband's medical records, and you will be asking this doctor if his suicide was due to  insanity, or due to over prescribed meds from the VA, or willful misconduct.

Willful misconduct would be the worse case scenarion because the VA has awarded for suicide due to insanity at time of the suicide. My neighbor gets  DIC on that basis.

Also they can award DIC under Section 1151, due to any overdose that was due to prescribed medications and

not the fault of the veteran.

But IMOs cost money. Do you have all of his VA and private medical records?