Veterans' Advocate Jim Strickland examines a VA claim decision you just won't believe.

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Veterans' Advocate Jim Strickland provides regular columns for VA Watchdog dot Org.  If you would like to contact Jim about his columns, you can email him here...  The archive of Jim's articles is here...  To find an answer to a specific VA benefits question, use the VA Watchdog search engine... click here...  And, be sure to use Jim's:  A Military Veterans Guide To Disability Compensation and Pension Benefits -- A Compendium of Resources and Knowledge For The Disabled Veteran -- click here...   JIm's series for new vets, "Welcome Home," is also featured on Military.com. And, you can follow Jim on TWITTER here ...

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by Jim Strickland

The widow first contacted me June 9th 2009.

"I am at a total loss as to what to do and am hoping you can give me some guidance." Connie Hasler went on to tell me, "My husband was diagnosed with metastatic melanoma in February (2008) and he subsequently filed a claim for VA disability in May 2008. His attending oncologist determined that his condition arose from exposure to ionizing radiation while my husband served in the US Navy from 1960-1963. In the summer of 1962, my husband was assigned to an oiler (USS Platte ) that was positioned within a 2 mile radius of Christmas Island during the bomb tests and he witnessed the tests during Operation Dominic."

Because his doctor had advised him that his cancer was more likely than not caused by his military service, Mr. Hasler had filed and application to receive service connected disability benefits in May 2008.

The doctor's nexus letter is available here for viewing or download.

The veteran died of his radiation induced cancer February 4th 2009.

The widow contacted me for help to ensure that she would receive her DIC benefits. "His claim has bounced back and forth between the Florida Dept of Veteran Affairs and Jackson, MS and finally landed back in Jackson as that's where radiation claims are adjudicated." Mrs. Hasler wrote.

As I investigated and dug deeper, I saw the first error. Mrs. Hasler was represented by the Florida Department of Veterans Affairs. About a week after her husband's death she had taken a copy of his death certificate to the Veterans Service Officer who had been responsible for helping to file the claim.

According to Mrs. Hasler, "the VSO (or whatever he is down there) is of absolutely NO help -- can't answer questions, seems to skirt issues, truly a disappointment."

It was disappointing to me to realize he had assisted the widow to file DIC papers before the veteran had been adjudicated as having died from a service connected condition. When dealing with the Veterans Benefits Administration, this is the sort of small misstep than can tie a claim up for years.

The damage was done however so it was time to move ahead. I often work with what I inherit from others and there's little reason to dwell on what's been done and plenty of reason to get busy doing what needed to be done.

Prior to October 10th 2008, Mrs. Hasler would have been out of luck. The law back then told VBA that any claim in process at the time the veteran died would die with the veteran. Had that happened there would have been no adjudication of service connection and no DIC benefit for her.

However, on that day in 2008 President Bush signed into law a Senate Bill that had been promulgated by Senator Daniel Akaka. On May 15th, 2008 during the 110th Congress of 2007-2008, Senator Akaka introduced S.3023: The Veterans' Benefits Improvement Act of 2008.

Among other things the Bill proposed to modify US Code, Part IV, Chapter 51, Subchapter III, § 5121. "Payment of certain accrued benefits upon death of a beneficiary".

The new version, SEC. 212. SUBSTITUTION UPON DEATH OF CLAIMANT would read:

(a) In General- Chapter 51 is amended by inserting after section 5121 the following new section:
Sec. 5121A.

Substitution in case of death of claimant

(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.

(b) Clerical Amendment- The table of sections at the beginning of chapter 51 is amended by inserting after the item relating to section 5121 the following new item:

5121A. Substitution in case of death of claimant. (c) Effective Date- 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.

In plain English that means that anyone who would have been in line to receive death benefits had the claim been adjudicated prior to death can now continue the claim, substituting themselves to argue the claim for the veteran. No longer does the claim die with the vet.

VBA recognized this in Fast Letter 09-15. That FL reads:

Overview of Changes made by Public Law 110-389, The Veterans Benefits Improvement Act of 2008

Creation of a new statute, 38 U.S.C. § 5121A, Substitution in case of death of claimant. It provides that if a claimant dies while a claim or appeal for any benefit under a law administered by the Secretary is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) may, not later than one year after the date of death of the claimant (on or after October 10, 2008), request to be substituted as the claimant for the purposes of processing the claim to completion.

The Fast Letter is available here for viewing or download.

In a note in a law journal lawyers are informed that:

"Amendment to 38 U.S.C. § 5121(a) VA law makes clear that a veterans’ pending disability claim terminates upon the veteran’s death. However, a survivor of the veteran (such as a surviving spouse, child, or parent) may file a so-called “accrued benefits” claims. In this action, the survivor continues the veteran’s disability claim under the survivor’s name, typically arguing the same theories and relying upon the same evidence. Until recently, 38 U.S.C. § 5121(a) provided a two-year maximum cap on the amount of accrued benefits which could be recovered. The recent amendment to § 5121(a) removes this two-year limitation. Now, a survivor can receive the full measure of retroactive, unpaid accrued benefits, if he or she prevails in the survivor claim." http://www.veteranslaw.com/law-update.htm

Knowing all this I urged Mrs. Hasler to send a letter to the VBA requesting that she be named to carry on the claim.

On 29 May 2009 Mrs. Hasler sent a certified letter to the Jackson, MS Regional Office that generally stated;

Dear Sir/Madame:

I am Connie Hasler, surviving dependent spouse of deceased veteran Greg Hasler.

By this letter to you I am notifying you that as stated in 38 U.S.C. § 5121A, 'Substitution in case of death of claimant' I am claiming that I am entitled to pursue his existing claim(s).

To my knowledge and belief, I am the person eligible to receive accrued benefits due to the claimant under section 5121(a) of this title.

I request to be substituted as the claimant for the purposes of processing the claim(s) to completion.

I further claim that my husband's unexpected demise was more likely than not caused by his exposure to radiation. His condition arose from exposure to ionizing radiation while serving in the US Navy
from 1960-1963. In the summer of 1962, he was assigned to an oiler that was positioned within a 2 mile radius of Christmas Island during the bomb tests and he witnessed the tests during Operation Dominic.

I enclose for you a copy of a nexus letter from the physician who treated him.

(Signed)

Connie Hasler

Let's take a moment to review. I've given you a lot of data to digest and perhaps we should summarize just what we have here.

*The veteran became ill and died of a condition that his well experienced physician advised was more likely than not caused by his military service during atomic bomb testing.

*Prior to his death, the veteran had filed a timely and complete application for service connected disability benefits.

*In accordance with existing law, the widow filed timely proper notice of her wish to be named as substitute to her veteran in the adjudication of his existing claim.

* Evidence submitted to VBA included a well written nexus letter by an expert medical doctor, all military records to verify the veterans honorable service, all necessary medical records to confirm the nature of his condition and a letter from the Defense Threat Reduction Agency (DTRA) giving the radiation doses the veteran had received. (External gamma dose: 18 rem; External neutron dose: 0.5 rem; Total skin dose to any skin area (beta plus gamma): 550 rem.)

* The VA Fast Letter notifies the Regional offices of the changes to existing law.

So why then did the VBA eventually respond to Mrs. Hasler that;

1. Service connection for cause of death is granted. (The cause of death is recorded as: malignant melanoma. Service connection for the cause of the veterans death is granted since evidence shows it was related to military service.)

2. Basic eligibility to Dependents Educational Assistance is established. (We have determined the veteran's death was due to malignant melanoma based on exposure to ionizing radiation while on active duty.)

3. Service connection for malignant melanoma (for accrued purposes only) is denied. (There is no basis in the available evidence of record to establish service connection for the disability at issue. This condition did not happen in military service, nor was it caused by military service.

I know just how you feel right now. That sense of disbelief is overwhelming, isn't it? You're thinking, "Jim made a mistake, not even the VBA could write a letter that is as contradictory as this one. The worst of the worst examiners couldn't possibly have accidentally sent this out and even if he'd worked hard at it, he couldn't have intended it to say what it says."

The widow Mrs. Hasler has courageously consented to allow the letter to be published in its entirety for you. Although she's aware that this may cause future problems for her, she wants other widows and veterans to know this: The VBA is not going to help you. You are on your own to seek out assistance and if you turn your back on the Department of Veterans Affairs, this is just what to expect.

The decision letter is available for viewing or download ...
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Her husband of 32 years gave his life for his country so that his loving spouse could receive this sort of treatment.

The mind boggles.

If you thought this was the end, well...no. Your Department of Veterans Affairs holds more in store for you.

At about the same time Mrs. Hasler received the denial letter, she received her first DIC checks. Her husband was rated as 100% service connected and died of his SC condition so she is eligible for the DIC benefit.

She also received the death benefit she was eligible for as the widow of a veteran who passed from a service connected condition.

It's apparent that the Jackson, MS Regional Office Ratings Veterans Service Representative (RVSR) who wrote this flawed adjudication is determined to save your government a buck or two by depriving the widow of the retroactive disability compensation benefit which is her due.

Keep in mind that he's on a bonus system with a generous salary, great benefits and awards for meeting production quotas. It doesn't matter that his work arrives as the wrong decision, all that counts is to close the folder and mark it as done.

He (or she) made the decision to ignore the Amendment to 38 U.S.C. § 5121(a). The rater makes no mention whatever of the widow's timely proper letter notifying the Regional Office that "as stated in 38 U.S.C. § 5121A, 'Substitution in case of death of claimant' I am claiming that I am entitled to pursue his existing claim(s)." That she clearly stated, "I request to be substituted as the claimant for the purposes of processing the claim(s) to completion." is also ignored.

The VBA, in my opinion, has done a great disservice to this widow and the memory of her veteran has been dishonored and it has been done with malice aforethought.

I do not believe that this decision came about as an accident.

I believe that this was an intentional act on the part of the VBA and its employee. I believe that there was likely a discussion amongst others and a conscious decision was made to award the smallest benefit possible to the bereaved widow in the hopes that neither herself nor her representatives would know how the law was skirted.

In making this call, the VBA employee furthered his (her) own goal of achieving the all important bonus and did it on the backs of a dead veteran and a grieving woman.

No, unfortunately, I can't prove that...what goes on inside the VBA stays inside the VBA. If the truth is inconvenient, you won't ever know it.

But if we consider that the Fast Letter was ignored, the widow's letter was ignored and much else was ignored so that the rater could draw the stated conclusions, a reasonable person can see that this was intentional.

Yes. Of course we'll appeal. Yes, I predict we'll quickly prevail.

I don't have any choice but to try. I keep seeing Greg Hasler standing on the deck of the Platte and staring in wonder as that mushroom cloud blossomed miles high above him. He trusted his government when they told him it was safe, that no harm would come to him.

Those atomic tests may have been an honest mistake by a government that thought they were doing the right thing. I know better than to put trust in your VBA. And now...so does Mrs. Hasler.



For more about Operation Dominic http://www.archive.org/details/OperationDOMINICNuclearTests1962

For more about the USS Platte
http://www.ussplatte.com/

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TOPICS: veterans, veterans' benefits, VA, Department of Veterans' Affairs, Jim Strickland, Veterans' Advocate,