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Court Wins

CCK Helps Surviving Spouse of Vietnam Veteran Win Accrued Benefits

February 10, 2022
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Case Summary

The Veteran served in the United States Army from April 1964 to April 1966, for which he earned the Vietnam Service Medal and the Good Conduct Medal.

In April 2005, he submitted his first disability benefits claim for post-traumatic stress disorder (PTSD).  The Department of Veterans Affairs (VA) issued a rating decision in August denying the Veteran service connection for PTSD.  One year later, in August 2006, he filed another claim for PTSD.  After receiving another VA denial of benefits, the Veteran filed a Notice of Disagreement (NOD) in March 2008.

The Veteran passed away in January 2011.  His surviving spouse was substituted in as the appellant to continue processing the claim.  Following a Board of Veterans’ Appeals decision in October 2013, VA granted service connection for PTSD at a 50 percent rating for accrued benefits only, effective from August 2006.  The spouse filed an appeal, requesting an increased rating for the Veteran’s PTSD.

Board Grants Increased Rating and TDIU for Accrued Benefits

In August 2018, the Board reviewed the spouse’s appeal for an increased PTSD rating.  The appeal included a May 2017 private psychologist’s report that Chisholm Chisholm & Kilpatrick helped the spouse to obtain.

This report noted that the Veteran had difficulty maintaining work and had irritable, suspicious, vigilant, and withdrawn behavior.  As a family member stated, these symptoms had only started after the Veteran returned from service.  The private psychologist expressed that the Veteran’s impairment was “at least as likely as not” greater than the current rating of 50 percent from April 2005 through January 2011.  This same psychologist also stated that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected PTSD.  This had been the case since at least 2006, when his earnings dropped below the federal poverty threshold.

Based on this and other evidence presented by CCK, the Board determined that the Veteran’s PTSD better met the criteria for a 70 percent disability rating.  The Board also granted entitlement to total disability based on individual unemployability (TDIU), which increased the spouse’s accrued benefits to the full benefit amount (i.e., a 100 percent rating), effective from April 2005 until his passing in January 2011.

CCK Argues Service Connection for Veteran’s Cause of Death

In May 2011, the spouse also filed for Dependency and Indemnity Compensation (DIC), which is granted to eligible survivors of veterans whose death resulted from a service-connected condition.  Unfortunately, in April 2012, VA denied service connection for cause of death and thus entitlement to DIC benefits.  The spouse appealed the decision to the Board of Veterans’ Appeals in May 2012.

The appeal was reviewed by the Board on September 13, 2021.  Although the Veteran’s death certificate did not list a cause of death, a December 2020 private medical opinion acquired by CCK indicated that the Veteran’s passed away due to squamous cell carcinoma of the left base of the tongue.  VA treatment records also reflected a terminal diagnosis of recurrent head and neck cancer.  CCK contended that the Veteran’s cancer was related to his military service, specifically to herbicide exposure in Vietnam.

Although squamous cell carcinoma of the left base of the tongue is not a presumptive Agent Orange condition, in the December 2020 report, the private physician stated that the Veteran’s cancer was at least as likely as not caused by exposure to herbicide agents, such as Agent Orange.  Based on this positive nexus opinion, the Board granted service connection for the Veteran’s cause of death.  In October 2021, VA granted the surviving spouse DIC benefits effective from February 1, 2011.