On October 20, 2014, the Court of Appeals for Veterans Claims (CAVC) issued a single-judge unpublished memorandum opinion in Heredia v. McDonald. The opinion is not precedential and presents no point of law that is unresolved, however, it will hopefully give insight in the future for filing a VA survivor benefits claim. In essence, the surviving spouse, Mrs. Natalia Heredia, of Marine Corporal (deceased) Joseph J. Heredia was appealing the decision regarding the effective date of award for dependency and indemnity (DIC) compensation. Judge Hagel, a decorated Vietnam veteran, denied an earlier effective date of award. I don’t want to comment on Judge Hagel’s thought-process, however, sometimes judges need to make difficult decisions between what is legally correct and what is correct from a lay perspective.
Marine Corporal Joseph Heredia was killed in action on November 10, 2004 in the Al Anbar Province, Iraq. News reports from the LA Times (http://articles.latimes.com/2004/dec/26/local/me-heredia26) and Fallen Heroes Memorial (http://www.fallenheroesmemorial.com/oif/profiles/herediajosephj.html) document the respect and honor by which Cpl. Heredia served. Mrs. Heredia asserted that the Marine Corps casualty assistance officer did not inform her of VA survivor benefits at the time of death and she did not become aware of DIC benefits until September 2008 upon visiting a local VA Regional Office. The Regional Office granted DIC benefits the same month as application.
In general, the effective date of award for DIC compensation is the date of receipt of claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claimant files within one year of date of death of the veteran after separation (Section 3.400(c)(2)) or within one year of date of death in service (Section 3.400(c)(1)) then the effective date of award would be the “first day of the month in which the death occurred.”
Judge Hagel found that at no point, prior to September 2008, does the record “reflect that any document was ever sent to or actually received by VA prior to Mrs. Heredia’s application for dependency and indemnity compensation such that VA was aware she was an eligible dependent.” Judge Hagel therefore held that “the [Board of Veterans' Appeals] denial of an earlier effective date for [DIC] is not clearly erroneous….”
Judge Hagel then commented: “[T]he Court would be remiss if it did not note that Mrs. Heredia’s circumstances, on their face, are unconscionable. Assuming the accuracy of Mrs. Heredia’s testimony-that she was not informed of her ability to obtain dependency and indemnity compensation benefits until approximately four years after her husband was killed in action-the Court is troubled that in instances when a servicemember’s death occurs in service, there appears to be no efficient and reliable mechanism in place to advicse that servicemember’s family of the benefits available to them at the earliest possible moment.”
If it is any solace to Mrs. Heredia, the adjudication of her DIC claim may — and hopefully will — provide the impetus for the VA and DoD to have a better transition point for family members of servicemembers killed in service.