A recent precedential decision of the CAVC (Court of Appeals for Veterans Claims) yields many positive results for Veterans. I won’t discuss all of them in detail here, but will point out the major points, and add some “take-away” points of my own.
The case I’m referring to is “El-Amin v. Shinseki, Cause No. 10-3031 (Decided January 15, 2013)”
The facts of the case are fairly generic – meaning its a situation that in my experience, arises frequently.
A Vietnam Veteran, who had non-service-connected alcoholism, died of Cirrhosis. During his lifetime, the Veterans received service-connected disability for his PTSD (Post-Traumatic Stress Disorder), and eventually died of cirrhosis.
His surviving spouse was denied DIC (Dependency and Indemnity Compensation) because the VA C&P Examiner concluded that the Veteran’s PTSD did not contribute to his death from cirrhosis.
The surviving spouse sought DIC (Dependency and Indemnity Compensation) and Accrued Benefits on the theory that the Veteran’s service-connected PTSD aggravated (as opposed to caused) his non-service connected alcoholism.
The CAVC (Court of Appeals for Veterans Claims) found, on reconsideration, that the Board of Veterans Appeals (BVA) erred in denying the claim based on the C&P Examiner’s opinion which, the Court affirmed, failed to consider the Surviving Spouses “aggravation theory”.
The case has a complicated procedural history that I am not going to address, so that I can stay focused on the key “take-away” points:
1) Surviving Spouses of Veterans (particularly Vietnam Veterans, as these fine men and women are increasingly passing away due to what happened to them in the Vietnam War) should take note of this decision. This decision essentially helps support my position – that good advocacy by a knowledgeable and persuasive practitioner can help secure benefits for Surviving Spouses that the VA has denied – often for decades.
Takeaway Point: If you are the surviving spouse of a Veteran who died, and you truly believe that his or her death is the result of a service-connected injury, don’t just accept the VA Regional Office or Board of Veterans Appeals (BVA) denial. My Firm handles quite a few DIC (Dependency and Indemnity Compensation) and Accrued Benefits appeals on behalf of the surviving spouses of Veterans of all major wars back to World War II, and I haven’t found one where there is not a logical or legal error or misstep; although not all of these errors require reversal of a prior bad decision by the Board or Court, and they don’t always yield past-due benefits, it is worth having a Veteran’s disability attorney with experience in survivor benefit claims and appeals look at the case.
2) The Board of Veterans Appeals (BVA) often gives Surviving Spouses a “bum rap”. In this case, the Board of Veterans Appeals (BVA) failed to truly consider the Survivor’s key contention – that her late husband’s service connected PTSD made his non-service-connected alcoholism worse (for those of us that know and/or live with combat veterans from past wars, this is a “no-brainer”). In a foundational case at the CAVC (Court of Appeals for Veterans Claims), it is well accepted that this is also a viable theory of a case for Survivor Benefits. “When aggravation of a veteran’s non-service-connected condition” is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only to that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995).
Takeaway Point: If the following facts arise in your DIC (Dependency and Indemnity Compensation) or Accrued Benefits claim, please consider contacting an attorney with experience handling Veterans’ survivor benefits claims and appeals:
– Your spouse died from a disease that you believe is related to his military service
– Your spouse died from a disease that was not related to his service, but was worsened or aggravated by his service-connected condition
– Your spouse died from a non-service connected condition that, working together with the symptoms of a service-connected condition, brought about the Veteran’s death.
3) The Board of Veterans Appeals (BVA) frequently errs in relying on C&P Exams that are sub-standard; in this case, the CAVC (Court of Appeals for Veterans Claims) made the point that it wasn’t really the examiners fault, as the VA Regional Office itself did not properly phrase the request for opinion.
Takeaway point: Have an experienced Veteran’s disability attorney look over any BVA (Board of Veterans’ Appeals) decision that relies on a single VA Medical Examiner’s opinion. Chances are greater than not that are multiple appealable errors in that opinion, the request for opinion, and/or in the Board of Veterans Appeals (BVA) interpretation of the medical facts and conclusion in that opinion.
In these cases, I encourage you to contact a Veterans Benefits Attorney to discuss your situation.
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The Attig Law Firm represents US Veterans in their disability benefits claims to the VA. The Attig Law Firm represents Veterans nationwide before the Board of Veterans Appeals (BVA), or the Court of Appeals for Veterans Claims (CAVC).
For claims at the VA Regional Office level, the Attig Law Firm focuses its efforts on Veterans (and the Surviving Spouses of Veterans) in Texas, Arkansas, Colorado, Pennsylvania, North Carolina, and South Carolina.
If you are a Veteran (or a surviving spouse of a Veteran) and have a claim before the Board of Veterans Appeals (BVA), or the Court of Appeals for Veterans Claims (CAVC), it is very important that you consider hiring an attorney with experience handling such claims. Even if you don’t hire the Attig Law Firm – find a reputable and competent attorney to help you with your Court of Appeals for Veterans Claims (CAVC) Appeal.
No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, there may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.
It is very important that the Attig Law Firm notes that each and every Veteran’s claim is different. Just because the Attig Law Firm was able to secure substantial past-due benefits for one Veteran or Veteran’s spouse does not mean or imply that we will be able to do so for you. In some cases, the Attig Law Firm may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.
It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.
I am meeting with a VA TX Commissions benefits rep for surviving spouse in the morning in Temple. My husband was a Vietnam Veteran 1967-1968. He was diagnosed with service connected PTSD and was awarded 100% disability with compensation in 2010 On August 22nd 2014 he was found dead of an apparent Myocardial Infarction (Sudden Death Syndrome)I have not been denied at present, but was told by VA that because his death was not service connected,I may not be eligible for benefits. My husband did have heart issues other than CAD, Ischemic heart disease,along with HTN, and Hyperlipidemia for which the VA was prescribing medications for. If I am denied benefits, I would certainly be interested in seeking help,because I feel that the stress, anxiety,and depression that he battled on a daily basis for many years associated with PTSD could have certainly been a factor in his most unexpected death.
I am sorry to hear of your husband’s passing. My condolences to you and your family.
As a vietnam veteran, if his heart condition played a role in bringing about his death, you should be eligible for DIC benefits, as IHD/CAD should be presumed service-connected for Boots on the Ground RVN Vietnam Veterans. Also, you may want to consider applying for Accrued Benefits…pursuant to Nehmer and other laws, the VA should have automatically reopened his claim while he was living to see if any diagnosed heart condition (IHD/CAD) were related to his BOTG service in the RVN.
I can’t/won’t give legal advice on this forum, but I strongly encourage you – based on the facts you have shared here – not to accept any position from TVC or the VA that says you are not eligible for survivor benefits. And, if you’d like, use the links on this page to request a consultation and we’ll do a thorough review of your late husband’s C-File.
Chris
Please explain this statement under eligibility:
the veteran was getting VA didability for a total disability continuously since released from active or FOR AT LEAST 5 YEARS. My husband was 60% disable when he was released in 1980 and became 70% and 80% over the years, In 2006 he became 100% but got back time for one year of the 100%. He passed away On april 29 2013. we were married 32 years. applied for Dic but was denied.
Vera,
If a Veterans’ service-connected conditions were contributory factors in causing his death, the surviving is likely eligible for DIC (this is a general statement). Likewise, if a Vetean is rated as 100% disabled for the 5 year period immediately preceding his/her death, the surviving spouse is, in theory, eligible for DIC.
A lot of times, this is a 2-part appeal: the spouse appeals the denial of DIC on the grounds that the s/c condition played a contributory role in the Veteran’s death AND argues an Accrued Benefits appeal (arguing that the Veteran was due and owing compensation at the total disability rate). Accrued Benefits cases are tough, and the VA doesn’t handle them all that well.
This was GENERAL information not advice in your claim (I don’t give advice on a blog). I strongly encourage you to reach out to an accredited Veterans Benefits attorney with experience handling DIC and Accrued Benefits claims – if you don’t contact my Firm, there are a lot of GREAT accredited attorneys out there: check out the National Organization of Veterans Advocates (NOVA) at http://www.vetadvocates.org
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