Gardberg & Kemmerly, P.C. Attorneys at Law

Dardon v. McDonald

DARDON V. MCDONALD

United States Court of Appeals for Veterans Claims No. 14-1756

Gardberg & Kemmerly, P.C.'s Colin Kemmerly recently achieved success for the widow of a deceased veteran at the United States Court of Appeals for Veterans Claims (CAVC). In the case of Dardon v. McDonald, the issue on appeal was whether the VA committed clear and unmistakable error (CUE) in denying Ms. Dardon's entitlement to Dependency and Indemnity Compensation (DIC) in 1993.

A brief history will shed light on the issues. In 1993, Ms. Dardon filed a claim for DIC benefits after her veteran husband passed away. With her application, Ms. Dardon submitted the Veteran's death certificate. Veteran's death certificate indicated that he was buried in the Houston National Cemetery. The VA then issued a rating decision which denied Ms. Dardon's claim stating that the deceased veteran was not eligible for VA benefits because the character of the veteran's discharge was "dishonorable."

In 2006, Ms. Dardon requested that the VA review her claim for DIC and specifically alleged CUE by the regional office in 1993. In support of her claim, Ms. Dardon alleged that her deceased husband's character of discharge had been upgraded to "Under Honorable Conditions (General)" in 1992, prior to his death.  Ms. Dardon submitted a copy of the DD-214 with her request. Ms. Dardon was granted entitlement to death benefits as of September 2006.

Later, in April 2009, the regional office issued a rating decision addressing Ms. Dardon's CUE claim. The regional office found that the 1993 decision did not contain CUE. Ms. Dardon thereafter appealed the decision to the Board of Veterans Appeals.

The Board's decision continued the denial of Ms. Dardon's CUE claim stating that the only information the regional office had at the time of the veteran's death was his Notice of Separation issued at the time of veteran's release from service, which was a bad conduct discharge, and that the VA neither had nor had Ms. Dardon informed it of veteran's upgraded discharge. The Board noted that the regional office is not the VA facility mandating cemetery services, and that the entity mandating cemetery services is not involved with death benefits for surviving spouses, per se. The Board decided that the record of veteran's upgraded discharge evidenced by the deceased veteran being buried in the Houston National Cemetery could not have reasonably been a part of the record.

The CAVC, however, disagreed. The CAVC noted Ms. Dardon's argument that the VA had constructive possession of the deceased veteran's upgraded discharge because receipt of an honorable discharge is required for a veteran to be eligible for burial in a national cemetery. Although Ms. Dardon did not submit the DD-214 showing the upgraded discharge until 2005, the CAVC relied on the Bell v. Derwinski case to find that the DD-214 was constructively of record because the document was within the control of the Secretary because it was submitted to the VA National Cemetery in order for the veteran to be eligible for burial.

In addition, the CAVC found that the DD-214 would also reasonably be expected to be a part of the record because, as part of her original claim in 1993, Ms. Dardon submitted the death certificate which noted burial at the Houston National Cemetery. Thus, the VA was aware that the National Cemetery Administration was involved in the veteran's burial and could reasonably have been expected to contact the National Cemetery Administration to obtain a copy of the DD-214.

Finally, the CAVC held that the correct facts were not before the adjudicator in 1993 and that the correct facts would have manifestly changed the outcome of the decision at that time. Such a change in outcome was evidence by the fact that in 1993 the regional office notified Ms. Dardon that her claim was being denied because her husband's discharge was under "dishonorable" conditions. In fact, when, in 2005, Ms. Dardon submitted a copy of the DD-214 evidencing the upgraded discharge, the regional office granted her benefits.

For further commentary by Mr. Kemmerly regarding Ms. Dardon's case and other issues important to veterans, listen to The Scuttlebutt Network tomorrow around 8:15PM. If you are a veteran who needs help navigating the VA appeals process, including potential CUE claims, contact Gardberg & Kemmerly, P.C. today at 251-343-1111 for a free case evaluation. Gardberg & Kemmerly, P.C. serves veterans throughout the Gulf Coast area, including, Alabama, Florida, Mississippi, and Louisiana.

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