Section H. Finding of Fact and Date of Death (U.S. Department of Veterans Affairs)

M21-1MR, Part III, Subpart v, Chapter 1, Section H

Section H. Finding of Fact and Date of Death Overview

In this Section This section contains the following topics:

Topic Topic Name See Page 31 Developing for Fact and Date of Death 1-H-2 32 Developing for Deaths in a Disaster 1-H-4 33 Accountable Absence 1-H-7 34 Preparation and Approval of Findings of Fact and 1-H-8 Date of Death

1-H-1 M21-1MR, Part III, Subpart v, Chapter 1, Section H

31. Developing for Fact and Date of Death

Introduction This topic contains information on evidence requirements for finding of fact and date of death, including

 when to develop for fact and date of death evidence, and  developing for evidence.

Change Date November 14, 2011 a. When to Develop the fact of death in accordance with 38 CFR 3.211(f) by the best Deve obtainable evidence, when lop for  the death of the person involved cannot be established by any of the Fact evidence as outlined in 38 CFR 3.211(a) through (e), and and Date  it is indicated that the death occurred under circumstances that preclude of recovery or identification of the body. Deat h Evid ence

Continued on next page

31. Developing for Fact and Date of Death, Continued

b. Developing Develop for certified statements from: for Evid  the claimant, setting forth the circumstances under which the missing person ence was last seen and the known facts concerning the alleged death, and  persons who witnessed the incident in which the missing person is alleged to have died, setting forth the full circumstances, or  persons who have the most authentic information available concerning the alleged death, if the testimony of eyewitnesses is not obtainable, and fact of death is determinable on circumstantial evidence.

Reference: Official reports of any Government agencies that conducted investigations will be persuasive but not controlling. For more information of accepting official reports, see  38 CFR 3.11(g), and  38 CFR 3.12(c).

32. Developing for Deaths in a Disaster

Introduction This topic contains information on deaths in a disaster, including

 evidence of death in a disaster  developing for evidence of death in a disaster  a disaster incidental to employment  evidence does not show the missing person at the place of disaster  developing for evidence when two or more Veterans are involved  preparing signed copies of the finding for each related claims folder, and  general facts cited in a finding of death.

Change Date November 14, 2011 a. Evidence of When a missing person is alleged to have died in a disaster and the body is Deat not recovered or identified, request evidence to show the following h in information as definitely as possible: a Disas  the missing person was at the scene of the disaster ter  the missing person was in imminent peril at the time the disaster occurred, and  the disappearance was attributable to the disaster. b. Developing Develop for the following evidence, requesting a field examination, if for necessary: Evid ence  the claimant’s certified statement giving the reason for believing that the of missing person was at the scene of the disaster when it occurred, and Deat h in  certified statements of individuals who saw the missing person at the scene a of the disaster shortly before the disaster occurred or under such Disas circumstances that it appeared unlikely that survival was probable. ter Example: An example of relevant evidence includes the certified statement of  a fellow worker who left the place of employment shortly before the building caught fire and who saw the missing person at work, or  an individual who saw the missing person trapped in the burning building.

32. Developing for Deaths in a Disaster, Continued

c. A Disaster If the disaster occurred incidental to employment, obtain the certified Incid statement of the employer giving the names of persons who were believed to ental be on duty at the time it occurred. to Emp Rationale: Obtain a certified statement of the employer in order to support loym other evidence tending to show that death occurred in the disaster. ent d. Evidence If the missing person is not shown to have been at the place the disaster Does occurred, obtain certified statements from friends, neighbors, and other Not persons who may have observed the individual. The statements should Sho w  outline the activities on that day, and the Missi  set forth fully the reasons for believing that death may have occurred in the ng disaster. Pers on at the Place of Disas ter e. Developing If a claim is filed and information of record indicates that another Veteran is for missing as the result of a disaster or incident occurring after separation from Evid service, initiate action to determine ence Whe  the existence and location of the claims folder for the other Veteran, and n Two  the status of any claim. or Mor Reference: For information on common accidents occurring in service, see e M21-1MR, Part III, Subpart vi, 8.7. Vete rans Use the table to determine the next course of action. Are Invol ved

If … Then …

 a claim was filed and information initiate action to determine of record indicates that another Veteran is involved, and  the existence and location of a  no development was initiated claims folder for the other Veteran, and  the status of any claim. a claim was filed in the other case, initiate joint development for both which is located at the same regional claims under the provisions of M21- office (RO) 1MR, Part III, Subpart v, 1.H.

32. Developing for Deaths in a Disaster, Continued

e. Developing for Evidence When Two or More Veterans Are Involved (continued)

If … Then …  a claim has been filed in another  send the claims folder to that office, case, and  the other folder is located in  give the office temporary another office, and jurisdiction over both claims for  no development was initiated simultaneous development and authorization.  a claim has been filed in the other  obtain the folder on temporary case, and transfer  a favorable or unfavorable  review the pending case, and determination has been made  take action as necessary. no claim has been filed in the other  flash that case to show a claim has case been filed in the pending case. f. Preparing After making a formal determination in a case in which two or more Veterans Sign are missing as the result of a disaster occurring after separation from service, ed prepare signed copies of the finding for each related claims folder, including Copi es of  those in which a claim was denied for failure to furnish evidence or other the Findi reason, and ng  cases in which no claim was filed. for Each Relat ed Clai ms Fold er g. General Subject to the provisions of 38 CFR 3.105(a) and 38 CFR 3.105(b), the Facts general facts cited in a finding of death made for another Veteran in the same Cite disaster are conclusive in establishing the circumstances of the disaster. d in a Note: The general facts cited for one Veteran do not negate specific facts Findi relative to the death or date of death of any other Veteran in the disaster. ng of Deat h

33. Accountable Absence

Introduction This topic contains information on accountable absence, including

 preparing a finding of fact of death, and  considering evidence suggesting voluntary disappearance.

Change Date November 14, 2011 a. Preparing a Prepare a finding of fact of death on the weight of evidence. Findi ng of Fact of Deat h b. Considering Consider any circumstance that might suggest the disappearance was Evid voluntary, for example ence Sugg  marital difficulties, or estin g  financial difficulties. Volu ntar The existence of such circumstances does not prevent a finding of fact of y death. Disa ppea Exception: If the person whose death is alleged had an adequate opportunity ranc to escape death and had reason to choose to disappear, apply the provisions of e M21-1MR, Part III, Subpart v, 1.G.28.c when the Veteran is the missing person.

34. Preparation and Approval of Findings of Fact and Date of Death

Introduction This topic contains information on the preparation and approval of findings of fact and date of death, including

 responsibility to authorize findings  preparation of supporting documents, and  determining the date of death.

Change Date March 7, 2006 a. The Veterans Service Center Manager (VSCM) has authority to approve Resp findings of fact of death. This authority can be delegated to supervisors not onsib lower than a coach. ility to Auth orize Findi ngs b. Preparation Prepare a formal finding of fact of death for the signature of the approving of authority in the format shown in M21-1MR, Part III, Subpart v, 1.A.2. Supp ortin g Docu ment s c. Determining As required by the circumstances, the date of death can be established as the Date  the date the deceased was last seen alive of  the date the body was found, or Deat h  any time between those dates.

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