CAVC–BENNETT v. SHINSEKI– 1154(b) AND WHEN DID THEY KNOW IT?


These pro se attacks on the gates of Rome by insignificant widows are always awe-inspiring. I have written no end of these cases and all have had positive outcomes insofar as the pro se litigants caught the VA doing something underhanded. If 75 year old widow women can do it, it ought to be a snap for us younger whippersnappers.

Hope Bennett, the mendicant here, hopes to overthrow this nonsense decision and get it reversed. The Court, under the beneficent tutelage of our newest Meg Bartley, remands because it is the only thing permissible. Otherwise, had the option been there, I’m virtually positive she would have. Hope makes a good case for most of this and I wish to point out two important things Vets should observe as a learning moment. By proving Mr. Bennett was one of those who fall from the sky (173rd Airborne) and busy sightseeing at Dak To that week, he is entitled to two wondrous things. He gets the presumption called “combat” and thus every word he uttered in life about this takes on the cachet of truth. Most importantly, for Mrs. Bennett’s pocketbook, it also grants him access to VA’s FAST letter 04-13  . This is vitally important as there is a paragraph that says:

Occupational exposure to HCV may occur in the health care setting through accidental needle sticks. A veteran may have been exposed to HCV during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran.

In the instant case, the Board found that various documents submitted after Mr. Bennett’s death established that he engaged in combat while in Vietnam. R. at 11 (“Of note, the Internet articles [regarding the 173rd Airborne Brigade’s involvement in the Battle of Dak To] and the Combat Operations After Action Report show that the Veteran’s unit participated in combat.”).  However, contrary to the Secretary’s concession, the Board did not determine whether the Combat Operations After Action Report was constructively part of the record at the time of Mr. Bennett’s death or that he had attained status as a combat veteran for the purposes of Mrs. Bennett’s accrued benefits claims. Compare R. at 10 (finding only that the veteran’s service personnel records “are deemed to have been constructively in VA’s possession a the time of his death”,  (stating that “even if the December 1967 Combat Operations After Action Report (showing that the Veteran’s brigade was likely involved in combat) is considered to have been constructively of record prior to the Veteran’s death,” it would not constitute the necessary evidence of nexus between his claimed conditions and service). The Board, as factfinder, was required to make those determinations before addressing the merits of the claims. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005).  The Board’s failure to do so prejudiced Mrs. Bennett because, if the Board had found that the Combat Operations After Action Report was constructively of record at the time of her husband’s death, then Mr. Bennett’s status as a combat veteran would have been established and he would have been entitled to consideration of VA Fast Letter 04-13. Bennett v. Shinseki 2013

Please keep this in mind when filing. Your status as a combat Veteran weighs quite heavily on your claim. Obviously, other risks do so too, but this is an important one frequently overlooked by those who defend themselves. That Mrs. Bennett ran across it is very fortuitous but somehow I believe she doesn’t depend much on luck. To view this decision, go here and  find decision # 12-1284. When it comes up click on the blue download in the upper left to view it normally.

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VA claims blogger
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2 Responses to CAVC–BENNETT v. SHINSEKI– 1154(b) AND WHEN DID THEY KNOW IT?

  1. Kiedove says:

    This was a very good case to post. It shows how sloppy and cruel the VA is in their rush to deny.
    Back in 1991, Mr. Bennett must of thought that AO caused his infection. Well, he’s not a doctor, so the VA should have ignored his uninformed concept and proceeded to evaluate his claim based on their understanding of the the newly discovered virus. Instead, they threw him under the bus for not knowing the science.

    –Getting a hold of combat reports for CAG patrols is proving to be difficult for us but my DH’s hands did get bloody applying first aid.

    –And that 9 year old fast letter is outdated. For example, they play down HCV sexual transmission by focusing only on low transmission rates among monogamous couples. Ignored are examples of rough sex (minute vaginal or anal tears), unsafe sex (i.e. sex workers), and sexual assault.
    –It’s not clear to me if this is being remanded to the Miami RO. Whoever they are, they stink.
    Mr. Bennett, we’re so sorry you and your family has been so mistreated for so long.

  2. Randy says:

    Wishing her all the best and hope that she is victorious.

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