Client Win: CAVC No. 20-5053, Armstead v. McDonough (BVA must provide fair process in Dependency Indemnity Compensation appeal))
This case involves a survivor's claim for entitlement to Dependency and Indemnity Compensation (DIC). The appellant's late-husband served in the US Air Force from 1964 - 1984, and passed away from a rare form of non-Hodgkins lymphoma.
His wife, the appellant, sought service connection of the cause of death based on the veteran's alleged exposure to Agent Orange while serving in Guam and/or at a Royal Thai Air Force Base (RTAFB) in Thailand during the Vietnam war.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA must provide fair process in Dependency Indemnity Compensation appeal)
While on remand from the BVA, the VA issued a Supplemental Statement of Case (SSOC) continuing its denial of DIC to the late-veteran's spouse.
She asked the BVA to keep the record open for 90-days for her to submit additional evidence in support of her appeal. There was no dispute that the VA received the request on April 9, 2019. On April 10, 2019, the BVA denied the DIC appeal without discussing the request to keep the record open.
RESOLUTION AT THE CAVC.
The Court found that principles of fair process prohibit the BVA from issuing an adverse decision until it either receives evidence or argument or until the time requested by an appellant or the time provided by the Board of Veterans Appeals to submit additional evidence or argument has passed. Bryant v. Wilkie, 33 Vet. App. 43 (2020).
The VA's Office of General Counsel agreed that the BVA erred and should have addressed whether the request to keep the record open was received prior to the BVA decision and, if so, provide fair process to the appellant
If you have a DIC or accrued benefits claim pending before the VA or BVA, or if the BVA has ignored your request to keep the record open in any kind of veteran or survivor benefits appeal, and would like help appealing to the CAVC, click here to have Attig | Curran | Steel take a look at your case.
OGC Attorney: Katelyn Lancto (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: B.T. Knope (link to judge's bio on LinkedIn)
Attorney for the Board of Veterans Appeals: M. Pryce (attorney bio not available)
Vets’ Rep at BVA: Stacey Clark, Attorney (Morgan & Morgan) (attorney bio on firm's website)
Date of BVA Decision: April 10, 2019
Date of CAVC Joint Motion to Remand: February 3, 2021