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Court Wins

CCK Wins Cause of Death Appeal for Spouse of Vietnam Veteran

Robert Chisholm

March 9, 2022

Updated: June 20, 2024

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Case Summary

The Veteran served as an infantryman in the United States Army during the Vietnam War Era.  He filed his first claim upon discharge for a knee condition.  In 1971, the Department of Veterans Affairs (VA) granted service connection for a left knee condition.

In 2006, the Veteran filed a claim for an increased rating for the left knee condition.  VA then increased the rating to 20 percent.  He also filed for a right knee condition, which VA assigned a 10 percent rating in 2007.  Later that year, the Veteran filed for service connection for a hip condition, which VA denied.

In 2011, VA granted the Veteran a 50 percent rating for post-traumatic stress disorder (PTSD).  Following that, the Veteran filed a claim for service connection for pancreatic cancer in 2015.  VA denied this claim.

The Veteran filed a Notice of Disagreement in 2016.  Unfortunately, he passed away just one month later.

Surviving Spouse Substituted into Veteran’s Claim

By the end of 2016, the Veteran’s spouse applied for Dependency and Indemnity Compensation (DIC) benefits and to be substituted into the Veteran’s open claim for pancreatic cancer.

VA denied the spouse service connection for cause of death, DIC benefits, and accrued benefits.  After another VA denial in 2018, the spouse filed a VA9 appeal, bringing the case before the Board of Veterans’ Appeals (BVA).  In July 2019, the BVA also denied the claim.

CCK Helps Spouse Secure Service Connection for Cause of Death and DIC Benefits

In April 2020, CCK joined the spouse’s case.  During an appeal to the Court of Appeals for Veterans Claims (CAVC), the Court remanded the case, acknowledging that legal errors had been made previously when the claim was adjudicated.  This meant that the BVA would need to readjudicate the claim.

CCK noted that the Veteran’s pancreatic cancer developed because of his “conceded exposure to herbicides during his service in Vietnam.”  CCK also argued that the Board previously made a mistake when adjudicating the claim because it had relied too heavily on a VA examination from November 2016, in which the examiner “failed to provide a sufficient rationale for their conclusion that the Veteran’s pancreatic cancer was not service-connected.”

Additionally, CCK referenced precedent case law in which the Board placed too much weight on examinations with inadequate rationale specific to the veteran’s condition and circumstances.  Based on this, the November 2016 examiner solely relied on the National Institute of Health’s failure to list Agent Orange as a cause for pancreatic cancer to determine that the Veteran’s pancreatic cancer was not caused by service.

The examiner also dismissed a private physician’s report stating that the Veteran’s pancreatic cancer was likely caused by Agent Orange exposure.  In their dismissal of this report, the examiner from that C&P exam only stated that “more study is required.” In doing so, they did not provide enough adequate reasoning for why the private physician’s report was not sufficient evidence.

After reviewing CCK’s arguments, the Board of Veterans’ Appeals granted service connection for pancreatic cancer, service connection for the Veteran’s cause of death, and DIC benefits to the surviving spouse.  In a subsequent Rating Decision, VA assigned a 100 percent rating for pancreatic cancer, effective November 2015, with Special Monthly Compensation (SMC) benefits.

About the Author

Bio photo of Robert Chisholm

Robert is a Founding Partner of CCK Law. His law practice focuses on representing disabled veterans in the United States Court of Appeals for Veterans Claims and before the Department of Veterans Affairs. As a veterans lawyer Robert has been representing disabled veterans since 1990. During his extensive career, Robert has successfully represented veterans before the Board of Veterans Appeals, Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Federal Circuit.

See more about Robert