Questions on DIC

[namvet6567]

Trying to help a spouse who was separated from her 100% P&T husband, for 10.5yrs, at time of his death.  Never divorced as reconciliation was a consideration.  They paid her his final check but then denied her DIC.  He died in early 2020 at a VA contracted nursing home in FL.  VA never notified her of his death.  Also tried to look up m21-1 but found the VA may have discontinued it??????  Thx

[namvet6567]

Berta, should she include the statement in M21-1(about I believe 'VA having to believe the spouses statement as being truthful in the absent in contrary evidence'??  And/or the "buddy statement" not in-fact being a buddy statement but being a sworn affidavit/her statement instead of the "Statement in Support of Claim" form??

 

 

[Berta]

She could add to the CUE claim, that her Statement inSupport of claim, noted as a "Buddy statement" on the evidenc list, was also probative evidence that the VA did not consider, another  violation of 38 CFR 4.6. You can use the M21-1MR print out as well.

https://www.va.gov/vetapp18/files11/18152030.txt

This above is a widow's claim, after she and the veteran had been separated, that succeeded in attaining her DIC.

I am widowed of a 100% P & T SC PTSD veteran and unfortunately I know how abusive and violent ,in many marriages, some PTSD veterans become. They vistimize their spouse and although my husband had years of PTSD therapy at the VA, he would never tell them (VA) of his erratic and violent outbursts. When I was called into the therapy sessions,by his VA shrink,  I had already been warned of what I could not say.Of course that didnt help him but the 21 Day inhouse program did-

he came home from it with a completely different attitude, had been given intensive anger management therapy, and only had one angry outburst the morning of his death, a few weeks later.

She will need to prove that her husband's PTSD had caused the separation.

Were the police ever called, did anyone ever notice she had black and blue marks , did she tell anyone at all what she was dealing with?

My husband didnt drink but maybe alcohol use was a factor in this vet with PTSD, .... did you observe anything that indicated the relationsgip was abusive?

Did any children ,if they had children, witness any abuse?

Does ahe have any hard copy evidence of any threatening emails or letters  or texts  he might have sent to her after they separated ?

When I requested a reconsideration of my husband;s SSA award for a 1151 stroke-the SSDI tried to talk him out of that- but I knew they had broken their own regulations by not considering his PTSD at all on his SSDI application. The SSDI did however award him solely for PTSD with an EED that superceded the stroke award.

In doing that, the SSA ,with his permission, allowed me to look over an enourmous stack of his medical records from 3 VAs at that point.

I happened to read a long statement from his ex wife, and she had divorced him due to his chronic abuse of her. The VA also had police records but she had dropped the charges against him.

My long point here is that she will need to prove that the cause of the separation was his PTSD.

The Vietnam War caused good men to become damaged to the point that they felt the only control they had in their lives was to control their families with abuse.

I dont blame them for this tragic condition, I blame the War and the fact that  alot of them had no where to go when they came back to the "world", for help- PTSD was technically "invented" by VA  in 1983" but has been  part of every war since time began.

 

 

 

 

 

 

Edited September 14, 2021 by Berta
added more.

[namvet6567]

Thanks to everyone, Berta, Todd, John.  Everything here should help.  Just need to find the statement where the VA is basically required to accept her version, unless they have other evidence.  I'm sure I've read it here, in M21-1 but sometimes have trouble finding stuff.  This getting old stuff isn't good for the elderly(jmo). lol

[namvet6567]

Anyone know if SSD has a rule like CUE???  I lost 3yrs of SSD in my claim because the lawyer I hired used a new law school graduate to do the claim.  I eventually won but it took 10yrs and the judge only awarded 7yrs on appeal or reconsideration, even tho, I won my VA claim after that. Thx

[toddt]

The VA is not required to accept "buddy statements".  In the decision letter you posted under "Evidence We Received" they listed: "Buddy statement, received June 17, 2021" which tells me that they have already accepted it.  

I have used "Buddy statements" from my wife on several occasions and I believe that they helped me immensely.  It just seems to me that her case should be cut-and-dried, but knowing the VA . . . who knows what the outcome will be.

Agree with you on the getting old isn't for the elderly.  

[Berta]

They might have "accepted" the Buddy Statement but I do not believe they will consider it until they get a cause of death and more information from the widow.

This BVA decision invovles a widow of a veteran who never filed for PTSD.He had no SCs at all.

A very unusual case:

https://www.va.gov/vetapp19/files10/19181645.txt

His treatment records and PTSD diagnosis were from a private doctor.

The spouse submitted two buddy statements m as well as the evidence revealed a police report of the assault inservice that the veteran had gotten PTSD from.

In part:

During his lifetime, the Veteran was not service-connected for any disabilities.  The appellant asserts that the Veteran suffered from PTSD due to an in-service stressor or stressors, and that his PTSD was a contributory cause of his death in October 2012.  

The Veteran’s death certificate listed an immediate cause of death of left brain hematoma and metastatic prostate cancer.  PTSD was indeed listed as a contributing cause of death.  

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f).

In this case, PTSD is listed as a cause of the Veteran’s death on his death certificate; therefore, it was clearly an existing disability at the time of his death.  The Veteran’s private treatment notes from his physician, Dr. F.J.P. also confirm a PTSD diagnosis.   

With respect to an in-service stressor, the appellant has identified several stressful experiences she recalls the Veteran discussing before he passed away.  In pertinent part, she indicated that the Veteran was assaulted and robbed on the street while on active duty in Olathe, Kansas in November 1961.  More specifically, the appellant testified that while the Veteran was in air traffic control school in Olathe, Kansas, pursuant to his assignment and military occupational specialty, the Veteran was battered on his way home from his bus stop and was hospitalized. See Hearing Tr. (Aug. 2019) at 10-13.  The Veteran’s military personnel records confirm the Veteran’s assignment in Olathe, Kansas during the period in question.  The Board is also in receipt of a November 1961 police report that confirms that the Veteran was indeed assaulted as she so described.  Furthermore, the record is supplemented by lay statements from the Veteran’s friends and colleagues, each indicating that the Veteran was fearful for his life after the November 1961 incident and was continuously affected by that incident throughout the rest of his life. See, e.g.: Buddy Statement from T.H. (April 2016); Buddy Statement from M.M. (May 2016).  There is no contrary evidence of record, and the Board finds there is credible supporting evidence that the this claimed in-service stressor occurred.

Having established a present disability and an in-service stressor, the Board now focuses its attention on the final element: whether a nexus or relationship exists associating the in-service November 1961 assault with the PTSD from which the Veteran suffered until the end of his life.  The Board is in receipt of an April 2016 nexus opinion from the Veteran’s psychologist, Dr. F.J.P., as well as contemporaneous notes throughout the course of treatment.  Dr. F.J.P. is a psychologist who treated the Veteran on a bi-monthly basis from 2004 until the Veteran’s death.  His positive nexus opinion confirms that the Veteran discussed the November 1961 incident with Dr. F.J.P., and that in the psychologist’s opinion, “He appeared to be reliving the experience in my office.  This topic came up a number of times while I was treating him. … Furthermore, [the Veteran] exhibited and I observed while treating him, when discussing these life and death situations: mood swings, anxieties, concentration problems, difficulty with his sleep routine, flashbacks of reliving these experiences, and anger problems.”  Ultimately, “[the Veteran]’s life and death episodes during the military, his post-traumatic stress disorder and his serious health issues all contributed to his death.”  As the Veteran’s long-time psychologist, Dr. F.J.P. is competent to state whether the Veteran exhibited PTSD by virtue of his military experiences, his findings are credible, and his opinion is afforded significant weight.  There are no other medical opinions of record, whether positive or negative.

In sum, the evidence of record demonstrates that the Veteran was the victim of an assault in a robbery in November 1961 in Olathe, Kansas while the Veteran was on active duty in the United States Navy, and Dr. F.J.P.’s opinion establishes a nexus between this event and the Veteran’s ultimately fatal PTSD.  As such, the Board concludes that the criteria for entitlement to service connection for the cause of the Veteran’s death have been met, and to this extent, the appellant’s claim is granted. 38 U.S.C. §§ 1110, 1112, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312.

Obviously mthis evidence was in the RO's possession when the widow filed for DIC, and the VA might have listed it as evidence, but they never 'conidered it' and the first time it was properly considered was by the BVA.

The BVA can read.

The widow is not eligible for accrued benefits,and I dont know if the award would give her CHAMPVA or Chapter 35 benefits, and I hope it did,  BUT, if the RO been willing or able to read the evidence properly, and consider it all,  she could have been awarded DIC long ago at the RO level.

When the Coroner asked me of my husband's disabilitites I told him of his PTSD but here in NY they never list PTSD on a death certificate- although he said he was well aware of how serious PTSD can be.

In this case above BVA link -the veteran's PTSD was listed on the Death Certificate as a contributing cause of death.

This case could have been awarded at the RO level and is one more example of how deficient the raters can be.

 

 

 

 

 

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board    Michael B. Engle, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. "
 

Edited September 15, 2021 by Berta
added more.