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Court Wins

CCK Successfully Argues for Service Connection for Cause of Death

March 15, 2021
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Summary of the Case

The Veteran served honorably in the Army from January 1975 until December 1986.  One night in October 1976, while serving in Korea, the Veteran was attacked and beaten.  During the attack he suffered a head injury and laceration to his ear and was hospitalized for two days.  After this, he served in the Army for 10 more years.  Upon separation, he worked as a civilian with the Department of the Army until May 2003, when he resigned for personal reasons.  Sadly, on July 24, 2004, the Veteran died by suicide.

The Veteran’s surviving spouse filed a claim seeking service connection for the cause of her husband’s death in February 2013.  During a May 2017 hearing at the Board, she testified that the Veteran was never the same after suffering the attack in Korea.  She reported that he became very depressed, began binge drinking alcohol, acted recklessly, was less attentive to his children, and attempted suicide several times.  The Veteran’s wife also added that her husband felt incredibly ashamed of the attack, refusing to talk about it or address the psychological issues it had caused him to develop.

Board Discredits Lay Statement and Denies Service Connection

In September 2019, the Board denied service connection for the cause of the Veteran’s death.  It found that the evidence did not support a finding that the Veteran was suffering from a service-connected psychiatric disability, or any other disability, that led to his death.

In making this decision, the Board compared the spouse’s August 2016 Notice of Disagreement and her testimony from the hearing with the veteran’s service treatment and personnel records.  It found that the Veteran’s records contained no mention of his reported multiple suicide attempts, thereby using an absence of evidence as negative evidence.  Furthermore, the Board deemed the spouse’s lay statements to be “inaccurate recollections of past events.”

Court Sides with Veteran’s Spouse, Notes Multiple Board Errors

The Veteran’s spouse, with the help of CCK, appealed the Board’s denial of service connection for cause of death to the Court of Appeals for Veterans Claims (CAVC).  CCK argued that the Board misinterpreted the spouse’s lay statements describing her husband’s in-service psychiatric symptoms and committed prejudicial error by rejecting these statements.  In addition, the Board failed to establish a foundation for its reliance on the absence of evidence as substantive negative evidence.

The Court agreed with CCK that the Board failed to support its credibility determination, finding that the Board misconstrued the spouse’s testimony.  The Court examined each of the illogical or erroneous rationales the Board used to issue a denial, explaining why the Board was wrong and how the evidence of record served to corroborate the spouse’s lay statements.  In the end, the Court vacated the September 2019 denial and remanded the matter for further consideration based upon this opinion.

If you or someone you know is experiencing a time of crisis, VA’s Veterans Crisis Line can be reached at 1-800-273-8255 and Press 1.