December 2018, Washington, DC – Bergmann & Moore (B&M) attorneys prevailed on behalf of a disabled Vietnam War Veteran, and then his widow, who sought benefits from the U.S. Department of Veterans Affairs (VA) for more than 12 years.
In May 2006, the Navy Veteran filed his claim with the local VA Regional Office (RO) for disability benefits for his diabetes and prostate cancer due to his exposure to herbicides, such as Agent Orange, on the grounds that he set foot in the country of Vietnam during the war. The Veteran stated he took a helicopter flight from his ship to the war zone in order to provide assistance with casualties.
In February 2009, the RO issued a rating decision and denied his claim on the basis that he did not set foot in Vietnam. The Veteran died in June 2009 from lung cancer with diabetes listed as a contributing factor. The Veteran’s widow petitioned VA in September 2009 to substitute and appeal the Veteran’s recently denied claims, and then she was substituted as the claimant. This allowed the Veteran’s claim to continue for his past accrued disability benefits, and it allowed her claim to move forward for her future survivor benefits.
In March 2010, the RO denied the widow’s claim on the basis that the Veteran did not set foot in Vietnam. The widow disagreed with the RO’s rating decision, so she filed a VA Form 9, called a Substantive Appeal. The RO then forwarded her claim to the Board of Veterans’ Appeals (Board), located in Washington, DC.
In January 2018, the Board denied the widow’s claim. The Board determined there was no evidence that the Veteran’s ship, the aircraft carrier USS Kitty Hawk, served in the inland waterways of Vietnam. The Board discounted the statements of the widow and the Veteran’s daughter that he flew on a helicopter to Vietnam to aid in recovery of wounded and fallen service members.
The widow disagreed with the Board’s decision. In March 2018, the widow contacted B&M and sought representation to the Court of Appeals for Veterans Claims (Court), also located in Washington, DC.
In December 2018, the Veteran’s widow and B&M prevailed at the Court when VA agreed to a Joint Motion for Remand (JMR). In the JMR, VA agreed that the Board made the following mistakes in deciding the widow’s claim:
1. The Board failed to address the Veteran’s statement from May 2006 stating he took a helicopter flight to Vietnam to load dead and wounded soldiers.
2. The Board was incorrect in determining the Veteran’s widow and daughter were not credible to say the Veteran set foot in Vietnam. (The Court found that the Veteran had, in fact, reported his flight to Vietnam in 2006 to VA as part of his original claim.)
As result of the JMR, the Veteran’s appeal was returned by the Court to the Board in order re-decide the claim, this time using the three statements that the Veteran had set foot in Vietnam.
B&M is honored to assist Veterans and family members with VA claim appeals at a VA Regional Office, the Board of Veterans’ Appeals, and the Court of Appeals for Veterans Claims.
If you are not satisfied with VA’s rating decision on your claim, such as a low rating, an incorrect effective date, or a denied benefit, then please contact Bergmann & Moore for a free consultation at 877-838-2889 or info@VetLawyers.com.
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