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M21-1, Part III, Subpart v, Chapter 1, Section H – Finding of the Fact and Date of Death

Overview


In This Section

This section contains the following topics:

1.  Undertaking Development to Establish the Fact and Date of Death


Introduction

This topic contains instructions for undertaking development to establish the fact and date of death, including


Change Date

October 25, 2018

III.v.1.H.1.a.  Circumstances Under Which It Is Necessary to Undertake Development

Undertake development to establish the fact of death, in accordance with 38 CFR 3.211(f), by the best obtainable evidence, when
  • the death of a person cannot be established by any of the types of evidence outlined in 38 CFR 3.211(a) through (e), and
  • the evidence of record indicates death occurred under circumstances that preclude recovery or identification of the body.

III.v.1.H.1.b.  Information to Request When Undertaking Development

When attempting to establish the fact of death, request certified statements containing the information referenced in the right-hand column of the table below from the persons identified in the left-hand column.
From … Request …
the claimant
  • a description of the circumstances under which the missing person was last seen, and
  • known facts concerning the alleged death.
persons that witnessed the incident during which the missing person allegedly died a full description of the incident and (if known) the missing person’s involvement in it.

Note:  Request the information referenced in this cell from persons who have the most authentic information available concerning the alleged death if

  • the testimony of eyewitnesses is not obtainable, and
  • the fact of death is determinable based on circumstantial evidence.
Note:  Official reports of any Federal agencies that conducted related investigations warrant consideration, but their decisions are not binding on VA.
Reference:  For more information on accepting decisions made by other Federal agencies, see

III.v.1.H.1.c.  Considering Evidence Suggesting Voluntary Disappearance

Consider any circumstance that might suggest the disappearance of a missing person was voluntary because of, for example,
  • marital difficulties, or
  • financial difficulties.
The existence of such circumstances does not preclude a finding of the fact of death.
Exception:  If the person whose death is alleged had an adequate opportunity to escape death and had reason to choose to disappear, apply the provisions of M21-1, Part III, Subpart vi, 8.1 and 2 when the Veteran is the missing person.

2.  Undertaking Development When Death Occurred as a Result of a Disaster


Introduction

This topic contains instructions for undertaking development when death occurred as a result of a disaster, including


Change Date

October 25, 2018

III.v.1.H.2.a.  Evidence of Death in a Disaster

When a missing person is alleged to have died in a disaster and the body is not recovered or identified, request evidence that shows, as definitely as possible,
  • the missing person was at the scene of the disaster
  • the missing person was in imminent peril at the time the disaster occurred, and
  • the missing person’s disappearance was attributable to the disaster.

III.v.1.H.2.b.  What to Request When Undertaking Development

When attempting to establish that death occurred during a disaster, request certified statements containing the information referenced in the right-hand column of the table below from the persons identified in the left-hand column.
From …
Request …
the claimant
the reason the claimant believes the missing person was at the scene of the disaster when it occurred.
individuals who saw the missing person at the scene of the disaster
  • shortly before the disaster occurred, or
  • under such circumstances that it appeared unlikely survival was probable.
Examples:
  • a fellow worker who
    • left her place of employment shortly before it caught fire, and
    • saw the missing person at work, or
  • an individual who saw the missing person trapped in a burning building.
information regarding the disaster that would assist VA in establishing as facts the conditions described in M21-1, Part III, Subpart v, 1.H.2.a.
Note:  Request a field examination as part of the development process, if necessary.
Reference:  For more information about field examinations, see M21-1, Part III, Subpart vi, 8.8.

III.v.1.H.2.c.  Disasters That Are Incidental to Employment

If the disaster occurred incidental to employment, obtain a certified statement from the employer that includes the names of persons the employer believes were on duty at the time the disaster occurred.
Rationale:  The certified statement from the employer might prove useful in validating the credibility of other evidence of record that shows or implies the missing person died in the disaster.

III.v.1.H.2.d.  Action to Take if the Evidence of Record Does Not Place the Missing Person at the Scene of the Disaster

If the evidence of record does not place the missing person at the scene of the disaster, obtain certified statements from friends, neighbors, and other persons who observed the individual on the day of the disaster.  The statements should
  • outline the missing person’s activities on that day, and
  • set forth fully the reasons for believing that death may have occurred in the disaster.

III.v.1.H.2.e.  Development Actions When Two or More Veterans Are Involved

If information of record indicates a second Veteran is missing as a result of the same disaster or incident that occurred after separation from service, use the table below to determine the next course of action.
If …
Then …
VA has not yet initiated development for the pending claim
take action to determine
  • whether the second Veteran has a claims folder, and
  • the status of any claim associated with his/her involvement in the same disaster or incident.
  • a claim associated with the second Veteran’s involvement in the same disaster or incident is pending, and
  • VA has not yet initiated development for either claim
initiate joint development for both claims under the provisions of this section.
VA has already decided (favorably or unfavorably) a claim associated with the second Veteran’s involvement in the same disaster or incident
consider evidence/information in the second Veteran’s record in determining the next action to take on the pending claim.
a claim associated with the second Veteran’s involvement in the same disaster or incident has not yet been filed
  • add a permanent note in the Veterans Benefits Management System (VBMS) that
    • explains a claim has been filed based on another Veteran’s involvement in the disaster or incident, and
    • identifies (by name and file number) the Veteran on whose service the pending claim is based, and
  • associate the note to thesecond Veteran.
Reference:  For more information about adding notes in VBMS, see the VBMS Core User Guide.
Reference:  For information on common accidents that occurred during service, see M21-1, Part III, Subpart vi, 8.7.

III.v.1.H.2.f.  Preparing Signed Copies of the Finding for Each Related Claims Folder

After making a formal determination in a case in which two or more Veterans are missing as a result of the same disaster that occurred after separation from service, prepare signed copies of the determination for each related claims folder, including
  • those in which a claim was denied for failure to furnish evidence or some other reason, and
  • cases in which no claim was filed.

III.v.1.H.2.g.  General Facts Cited in a Finding of Death

Subject to the provisions of 38 CFR 3.105(a) and (b), general facts cited in a finding of death that VA made for another Veteran who was involved in the same disaster are conclusive in establishing the circumstances of the disaster.
Note:  The general facts cited for one Veteran do not negate specific facts relating to the death or date of death of any other Veteran involved in the disaster.

3.  Preparation and Approval of a Finding of the Fact and Date of Death


Introduction

This topic contains information on the preparation and approval of a finding of the fact and date of death, including

Change Date

October 25, 2018

III.v.1.H.3.a.  Preparing a Finding of the Fact of Death

Prepare a formal finding of the fact of death for the signature of the Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM) in the format shown in M21-1, Part III, Subpart v, 1.A.3.
Note:  VSCMs and PMCMs may delegate authority to sign the finding to a supervisor not lower than a coach.

III.v.1.H.3.b.  Determining the Date of Death

Circumstances surrounding an individual’s death dictate the date of death, which may be
  • the date the individual was last seen alive
  • the date the individual’s body was found, or
  • any time between those dates.
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