Citation Nr: 0006120 Decision Date: 03/07/00 Archive Date: 09/08/00 Citation Nr: 0006120 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 93-14 343A ) DATE ) RECONSIDERATION ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUE Whether the veteran may be deemed to have been on inactive duty for training at the time of his death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Mark D. Chestnutt, Counsel INTRODUCTION The veteran served on active duty for training from February to June 1977 and from June to July 1978; he also performed periods of inactive duty training between December 1976 to May 1979, the specific dates of which have not been verified. The appellant has been recognized as the veteran's surviving spouse. This matter stems from an April 1993 RO denial of dependency and indemnity compensation based upon the veteran's duty status at the time of his death. In a June 1996 decision, the Board upheld the denial. In December 1999, however, the Board granted reconsideration of that decision thereby placing the case before this expanded panel. This decision replaces the June 1996 Board decision. See 38 U.S.C.A. § 7103 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1000, et seq. (1999). Although another appeal had been certified to the Board based upon whether new and material evidence had been submitted to reopen the claim, since the benefit is granted herein, that issue is moot. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran died on May [redacted], 1979 as the result of injuries received in a motor vehicle accident that occurred around 1:00 or 2:00 a.m. 3. He was proceeding directly to authorized inactive duty training at the time of his death. CONCLUSION OF LAW The veteran is deemed to have been on inactive duty for training at the time of his death. 38 U.S.C.A. §§ 101, 106, 1310, 5107 (West 1991); 38 C.F.R. § 3.6 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant evidence has been properly developed and that there is no further duty to assist in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107. Dependency and indemnity compensation benefits are payable to the surviving spouse, children, or parent of any veteran who dies in the active military, naval, or air service. 38 U.S.C.A. § 1310. The term "active military, naval, or air service" includes active duty, any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. Any individual who is disabled or dies from an injury incurred while proceeding directly to or returning directly from authorized inactive duty training is deemed to have been on inactive duty training at the time such injury was incurred. In determining whether the individual was disabled or died from an injury so incurred, VA shall take into account the hour on which the individual began the travel, the hour on which such individual was scheduled to arrive for duty, the method of travel, the itinerary, the manner in which the travel was performed, and the immediate cause of disability or death. Whenever any claim is filed alleging that the claimant is entitled to benefits by these provisions, the burden of proof shall be on the claimant. 38 U.S.C.A. § 106(d); 38 C.F.R. § 3.6(e); see also 38 C.F.R. § 3.6(d)(4) (inactive duty training generally includes duty performed by a member of the National Guard of any state). A May 1979 accident report by the New Mexico State Police shows that the veteran was involved in a motor vehicle accident on May [redacted], 1979, that occurred at 2:00 am. The report reveals that there were three other individuals in the vehicle at the time of the accident and that the veteran was not the driver. The accident occurred three miles south of Tucumcari, New Mexico. A death certificate shows that the veteran died at 1:00 a.m. on May [redacted], 1979, as the result of internal injuries sustained in the accident. A May 1979 service department Report of Casualty shows that the veteran was assigned to a National Guard unit in Tucumcari, New Mexico, that he died on May [redacted], 1979, and that he was "not in a duty status" at the time of his death. A death report by the New Mexico Medical Investigator shows that the vehicle in which the veteran was riding had been traveling northbound, three miles south of Tucumcari, New Mexico. The vehicle had been moving at a high rate of speed, left the roadway and overturned. The veteran was believed to have been a passenger who had been picked up as a hitchhiker. A May 1979 notification of death from the service department has an attached inactive duty training schedule, showing that the veteran's had been attached to his National Guard through May [redacted], 1979. A May 1979 Unit Record of Reserve Training for the veteran's unit shows that a drill was scheduled for May 5-[redacted], 1979. It appears that the veteran may have been absent, with leave, on leave May 5. His May [redacted] death is therein noted, along with the phrase "no Line of Duty." In her June 1993 notice of disagreement the appellant asserted that the veteran had left their residence in [redacted] [redacted], Texas, on Friday, May 5, 1979, at approximately 5:15 p.m., to go to Tucumcari, New Mexico, to attend his training. She stated that his car broke down en route, and consequently he hitched a ride with someone else. The motor vehicle accident occurred while he was a passenger in the car of the person who had provided him a ride. She stated that it was not known at what time he got a ride or how long he had been traveling with the other person. She stated that he was required to report for training at 7:00 a.m. on May [redacted], 1979. In a July 1993 statement she stated that it was 127 miles from Hale Center, Texas, to Tucumcari, New Mexico, and that the drive normally took about 2.5 hours. Two March 1993 statements, by individuals affiliated with the New Mexico National Guard, indicate that the veteran had been on his way to attend a scheduled drill of his National Guard unit at the time the accident occurred. A June 1993 statement from the veteran's unit administrator indicates that the veteran had been en route from his home in Texas to the scheduled drill at Tucumcari, New Mexico, and that the accident occurred on saturday morning prior to the start of the drill. He stated that he did not remember the specific dates involved, but that the appellant had provided him with the date May [redacted], 1979. A July 1993 statement from the veteran's unit commander reveals that the veteran had been en route to authorized training at the time the accident occurred. The veteran reportedly had car trouble while driving to Tucumcari, and hitched a ride in order to be at first formation at 7:30 a.m. on Saturday, May [redacted], 1979. The evidence of record includes a calendar that shows May [redacted], 1979, was a Sunday. A June 1994 statement from the clerk of the veteran's unit indicates that the unit had scheduled drills on Saturday, May 5, and Sunday, May [redacted], 1979. The veteran reportedly attended the drill on May 5, and left to go home. The veteran was reportedly returning to Tucumcari for the second day of the drill when the accident occurred. In a June 1994 affidavit the unit administrator noted that the unit had had a drill scheduled for May 5-[redacted], 1979. He stated that the veteran attended the Saturday portion of the drill, and the unit was released at about 1700 hours on May 5. The drill was to start again at 7:30 a.m. on Sunday. He stated that the veteran had gone home after the drill on Saturday, and was returning for the Sunday drill when the accident occurred. In a June 1994 affidavit the unit commander stated that as the result of his command investigation of the veteran's death, it was determined that the veteran had had car trouble en route from home to his duty station in Tucumcari, New Mexico. The veteran's car had reportedly been left in the vicinity of Hereford, Texas. The veteran had reported for duty on Saturday and made arrangements during the duty day with family members to retrieve his car following the drill on Saturday, so that the car could be repaired prior to the dismissal on Sunday. The veteran was said to have retrieved his car after the Saturday drill, but had additional problems requiring him essentially to abandon the vehicle and hitch a ride back to Tucumcari. In a March 1997 letter, the unit commander described his interaction with the veteran on Saturday, May 5, 1979. The commander indicated that he had given the veteran permission to leave duty early that day to retrieve the car, with the understanding that the veteran was to return to duty, on time, Sunday. The service department has determined that the deceased was not in a duty status at the time of the accident. See Duro v. Derwinski, 2 Vet. App. 530 (1992) (VA is bound by the service department's certification of service). Therefore, entitlement to dependency and indemnity compensation benefits necessarily turns on whether the deceased was in qualifying travel status at the time of his death. It is VA's responsibility to determine if the deceased died while en route directly to or from authorized duty. 38 C.F.R. § 3.6(e)(2). There is no question that the deceased died on Sunday, May [redacted], 1979, as the result of injuries received in a motor vehicle accident that occurred at 1:00 or 2:00 a.m. on that day, and that he was a passenger in the vehicle in which he was riding. The appellant stated that the veteran left their home at 5:15 p.m. on "Friday," May 5, to attend the scheduled drill on the next day, and that he was killed that night. The Board finds this statement, along with the other 1993 statements that may support this description of events, to be inaccurate. May 5, 1979, was a Saturday, not a Friday, and a number of other individuals have provided evidence that the veteran had attended the drill in Tucumcari on Saturday. The veteran could not have left home at 5:15 p.m. on Saturday either because he was at the drill until 1700 hours (5:00 p.m.) on Saturday, and the appellant has indicated that it is a 2.5 hour drive from [redacted], Texas, to Tucumcari, New Mexico. The Board finds that the July 1994 statement from the deceased veteran's unit commander provides the most plausible explanation regarding his death. It is more probative than much of the other evidence submitted since it is based on an investigation undertaken by the unit commander and did not rely on memories of an event that happened many years earlier. While there is some evidence in the unit's records that the veteran was absent on May 5, the Board finds that the several individuals, including the unit commander, who essentially claim to have been aware of his being on duty that Saturday, to be more credible. Moreover, the veteran apparently had permission to leave early on Saturday to retrieve his car, which might explain the entry--of his being absent--in the records. The unit commander clarified, however, in his March 1997 statement, that the veteran was to return to duty, on time, the next day. Other records support the fact that the veteran's unit had a scheduled drill for that Sunday. Under the scenario that the Board finds most likely, the veteran thus attempted to retrieve his car some time during the evening of Saturday May 5 or early Sunday morning, May [redacted], 1979. Due to unforeseen difficulties, he was forced to return to Tucumcari for Sunday's training by hitchhiking. As the appellant has noted, this was apparently the most direct route he had available to return. It is worth noting that even if the veteran had not been on duty Saturday, he was still proceeding as directly as he could to his drill scheduled for Sunday May [redacted], 1979. The commander's findings, as reflected in his 1994 statement, are further supported by the findings of New Mexico authorities. Specifically, the veteran was traveling northbound, just three miles south of Tucumcari. That is, at the time of death, the veteran was apparently heading directly towards his National Guard unit's encampment just hours before he was required to be there. Regarding the factors that are to be considered in determining whether the veteran was traveling directly to the drill, the Board cannot determine exactly when the veteran began his return trip to Tucumcari. Given his apparent difficulty in retrieving his car, however, a protracted time period might not be unexpected. Likewise, it would not be unexpected that-- perhaps being stranded on the road--that he would try to hitch a ride which could have caused him to arrive a few hours early in Tucumcari. The key fact in this case, however, is that the veteran was killed on his return trip to his National Guard unit, not on his outgoing trip Saturday evening to retrieve his car. Thus, he was proceeding directly to authorized inactive duty training, and is deemed to have been on inactive duty training at the time the fatal injury was incurred. As required by law, the appellant has met her burden of proof: the preponderance of the evidence favors granting the appeal. 38 U.S.C.A. § 106; 38 C.F.R. § 3.6; cf. 38 U.S.C.A. § 5107. ORDER The veteran is deemed to have been on inactive duty for training at the time of his death; the appeal is granted. ______________________________ ______________________________ J.F. GOUGH GARY L. GICK Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals WAYNE M. BRAEUER Member, Board of Veterans' Appeals Citation NR: 9616557 Decision Date: 06/11/96 Archive Date: 06/24/96 DOCKET NO. 94-31 330 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUE Whether the deceased is deemed to have been in inactive duty training at the time of his death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The deceased had active duty for training from February 1977 to June 1977 and from June 1978 to July 1978 and inactive duty training from December 1976 to May 1979, the specific dates of which have not been verified. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an April 1993 determination by the RO that the appellant was not entitled to dependency and indemnity compensation benefits because the deceased was not in a duty status at the time of his death. The appellant filed a notice of disagreement pertaining to this issue and a statement of the case was issued on May 19, 1994. The appellant’s substantive appeal was filed July 25, 1994. In April 1995 the appellant was notified that her substantive appeal was not timely filed, although the RO appears to have disregarded this determination and certified the appeal on the issue as shown. The Board finds that the substantive appeal was timely filed and will proceed with a determination on the merits of the case. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that her husband’s death did occur while he was in duty status because he had attended inactive duty training on the day prior to his death and he was en route to inactive duty training at the time of the vehicle accident in which he was killed. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against a finding that the death of the deceased occurred while he was on active duty, or active or inactive duty for training. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant’s appeal has been obtained by the RO. 2. The deceased died on May 6, 1979, as the result of injuries received in a motor vehicle accident that occurred at 2:00 military time on the same day. 3. The deceased was not on active duty, active duty for training, or in inactive duty training status, nor was he proceeding directly to or returning directly from training, at the time of his death. CONCLUSION OF LAW The death of the deceased did not occur in service. 38 U.S.C.A. §§ 101(24), 106(d), 1310, 5107 (West 1991 and Supp. 1995); 38 C.F.R. § 3.6 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) because the evidence shows that it is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Consequently, the VA has a duty to assist the appellant in the development of the evidence. 38 U.S.C.A. § 5107(a). There is no indication in the file that there is any outstanding evidence that is relevant to the issue on appeal. The Board concludes, therefore, that the VA has met its duty to assist the appellant in developing the facts of her case. Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse, children, or parent of any veteran who dies in the active military, naval, or air service. 38 U.S.C.A. § 1310. The term “active military, naval, or air service” includes active duty, any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. Any individual who is disabled or dies from an injury incurred while proceeding directly to or returning directly from authorized inactive duty training is deemed to have been on inactive duty training at the time such injury was incurred. In determining whether the individual was disabled or died from an injury so incurred, VA shall take into account the hour on which the individual began the travel; the hour on which such individual was scheduled to arrive for duty; the method of travel; the itinerary; the manner in which the travel was performed; and the immediate cause of disability or death. Whenever any claim is filed alleging that the claimant is entitled to benefits by these provisions, the burden of proof shall be on the claimant. 38 U.S.C.A. § 101(6)(d); 38 C.F.R. § 3.6(e). A May 1979 accident report by the New Mexico State Police shows that the deceased was involved in a motor vehicle accident on May 6, 1979, that occurred at 2:00 military time. There were three other individuals in the vehicle at the time of the accident and the deceased was not the driver. The accident occurred three miles south of Tucumcari, New Mexico. A death certificate shows that the deceased died at 1:00 a.m. on May 6, 1979, as the result of internal injuries sustained in the accident. The service department Report of Casualty shows that the deceased was assigned to a National Guard unit in Tucumcari, New Mexico, that he died on May 6, 1979, and that he was not in a duty status at the time of his death. A death report by the New Mexico Medical Investigator shows that the vehicle in which the deceased was riding was traveling at a high rate of speed, left the roadway, and overturned. The deceased was believed to have been a passenger who had been picked up as a hitchhiker. The Unit Record of Reserve Training for the unit of the deceased for May 1979 shows that a drill was scheduled for May 5-6, 1979, that the deceased was absent on leave May 5, that he died in a vehicle accident on May 6, and that his death was not in the line of duty. In a June 1993 statement the appellant asserted that the deceased had left their residence in Hale Center, Texas, on Friday, May 5, 1979, at 5:15 p.m., to go to Tucumcari, New Mexico, to attend the scheduled drill. She stated that his car broke down enroute, at which time he hitched a ride with someone else and the motor vehicle accident occurred while he was a passenger. She stated that it was not known at what time he got a ride or how long he had been traveling with the other person. She stated that he was required to report for training at 7:00 a.m. on May 6, 1979. In a July 1993 statement she stated that it was 127 miles from Hale Center, Texas, to Tucumcari, New Mexico, and that the drive normally took 2.5 hours. The appellant submitted affidavits from two individuals in which the affiants stated that the deceased was on his way to a scheduled drill of his National Guard unit at the time the accident occurred. A June 1993 affidavit from the deceased’s unit administrator indicates that the deceased was enroute from his home in Hale Center, Texas, to the scheduled drill at Tucumcari, New Mexico, and that the accident occurred on Saturday morning prior to the start of the drill. He stated that he did not remember the specific dates involved, but that he remembered the details, and that the appellant had provided him with the date of May 6, 1979. A July 1993 statement from the unit commander of the deceased’s unit shows that the deceased was enroute to authorized training from his home of record in Hale Center, Texas, at the time the accident occurred. He stated that the deceased had car trouble while driving to Tucumcari, and that he then hitched a ride in order to be at first formation at 7:30 a.m. on Saturday, May 6, 1979. The evidence of record includes a calender that shows May 6, 1979, occurred on a Sunday. A June 1994 affidavit from a fellow National Guard member shows that the deceased’s unit had a scheduled drill on Saturday, May 5, and Sunday, May 6, 1979. He stated that the deceased attended the drill on May 5, then went home, and was on his way back to Tucumcari for the second day of the drill when the accident occurred. In a June 1994 affidavit the unit administrator stated that the unit had a drill scheduled for May 5-6, 1979. He stated that the deceased attended the Saturday portion of the drill, and they were released at about 1700 hours on May 5. The drill was to start again at 7:30 a.m. on Sunday. He stated that the deceased went to his home in Texas after the drill on Saturday, and that he was returning for the Sunday drill when the accident occurred. In a July 1994 affidavit the unit commander stated that as the result of his command investigation of the deceased’s death, it was determined that the deceased had car trouble enroute from his home of record in Plainview, Texas, to his duty station in Tucumcari, New Mexico. He stated that the car was left in the vicinity of Hereford, Texas, and the deceased reported for duty and completed duty on Saturday as required. He further stated that the deceased made arrangements to retrieve his car from Hereford, Texas, following the drill on Saturday, so that the car could be repaired prior to the dismissal on Sunday. He stated that the deceased retrieved the car from Hereford, but had additional problems and had to abandon the vehicle and hitch a ride back to Tucumcari, at which time the accident occurred. The service department has determined that the deceased was not in a duty status at the time of the accident. See Duro v. Derwinski, 2 Vet.App. 530 (1992) (VA is bound by the service department’s certification of service). Therefore, entitlement to DIC benefits is dependent on whether the deceased was in qualifying travel status at the time of his death. It is VA’ responsibility to determine if the deceased died while enroute directly to or from authorized duty. 38 C.F.R. § 3.6(e)(2). There is no question that the deceased died on 6, 1979, as the result of injuries received in a motor vehicle accident that occurred at 1:00 or 2:00 a.m. on that day, and that he was a passenger in the vehicle in which he was riding. The appellant stated that the servicemember left their home at 5:15 on Friday, May 5, to attend the scheduled drill on the next day, and that he was killed that night. The Board finds that this statement, the June 1993 affidavit from the deceased‘s unit administrator, and the July 1993 statement from the unit commander supporting this contention are not credible. May 5 was a Saturday, not a Friday, and a number of other individuals have provided evidence that the deceased attended the drill in Tucumcari on Saturday. He could not have left their home at 5:15 on Saturday because he was at the drill until 1700 hours on Saturday, and the appellant has indicated that it is a 2.5 hour drive from Hale Center to Tucumcari. The statements provided in the June 1993 affidavit from the deceased’s unit administrator and the July 1993 statement from the unit commander were contradicted by their June 1994 and July 1994, respectively, affidavits. The Board finds that the July 1994 affidavit from the deceased’s unit commander provides the most plausible explanation and the most probative evidence regarding his death. This evidence is supported by the June 1994 affidavits from a fellow National Guard member and the unit administrator indicating that the deceased attended the drill on Saturday, then left the base and was returning when the accident occurred. The evidence is most probative because it was based on an investigation undertaken by the unit commander and does not rely on memories of an event that happened many years before. The unit commander has indicated that the deceased attended the drill on Saturday, then returned to Hereford, Texas, to retrieve his abandoned vehicle and was killed on returning to Tucumcari. The law requires that the injury be incurred while proceeding directly to or returning directly from authorized inactive duty training. By returning to Hereford to retrieve his vehicle, the deceased was not going directly to or returning directly from the scheduled drill. He was not traveling for the purpose of returning to his residence and his destination was Hereford, Texas, where his car was located, not his home in Hale Center, Texas. By considering the purpose of the travel and his destination, the Board has determined that the evidence submitted by the appellant does not show that the deceased was traveling directly to or returning directly from the inactive duty training when the accident that caused his death occurred. ORDER The claim that the deceased died while in inactive duty training is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -