38 U.S.C. § 108
Seven-year absence presumption of death
1991—Subsec. (a). Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.
Subsec. (b). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator”.
Subsec. (c). Pub. L. 102–83, § 5(c)(1), substituted “1984” for “784”.
Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator”.
1986—Subsec. (b). Pub. L. 99–576 substituted “that individual’s” for “his” in two places.
Notes of Decisions
Cited in 9
cases, 1959–2013 · leading case: Midgett v. United States, 221 Ct. Cl. 171 (Ct. Cl. 1979).
Midgett v. United States, 221 Ct. Cl. 171 (Ct. Cl. 1979). “However, the decision prevents the harsh result that an administrative determination of desertion made in the press of war, itself unsupported by any evidence of desertion or intent to desert, will practically, if not legally, be the final determination of desertion if the party…”
Dedicatoria v. Brown, 8 Vet. App. 441 (Vet. App. 1995). “” 38 U.S.C. § 108 (a). In reconciling this conflict, the Court in Badua held that section 103(c) governed and Philippine law was applicable in that particular case “because the absence of [the appellant’s] second wife was not ‘unexplained’ and there was no diligent search to…”
Burden v. Shinseki, 727 F.3d 1161 (Fed. Cir. 2013). “See 38 U.S.C. § 108 (b) (requiring “evidence satisfactory to the Secretary” to establish that a veteran who has been missing for an extended period has died); id.”
Badua v. Brown, 5 Vet. App. 472 (Vet. App. 1993). “The presumption of death provision set out in 38 U.S.C.A. § 108 (West 1991) provides: If evidence satisfactory to the Secretary is submitted establishing the continued and unexplained absence of any individual from that individual’s home and family for seven or more years, and…”
MacMurray v. United States, 15 Cl. Ct. 323 (Ct. Cl. 1988). “Concurring with the rationale of the Acosta court, we are therefore constrained to hold that a rebuttable presumption of life continues here up to the end of the period of seven years of absence and obtains in the case of missing annuitants under the SBP program.”
Hortentia R. Acosta v. The United States, 320 F.2d 382 (Ct. Cl. 1963). “325 , as amended (now 38 U.S.C. § 108 , formerly 38 U.S.C. § 810 ), that agency may find that death occurred at the end of a seven-year period of continued and unexplained absence.”
Jones v. Brown, 8 Vet. App. 558 (Vet. App. 1996). “See 38 U.S.C. § 108 (a). Additionally, as the Board noted in its decision, other evidence and testimony regarding the validity of her marriage to the veteran was subsequently made part of the record.”
Germana E. Prado Del Castillo v. United States, 272 F.2d 326 (9th Cir. 1959). “The decision in that case is expressly limited, however, to a situation where the statutory presumption of death after seven years of unexplained absence ( 38 U.S.C. § 108 ) is relied upon and has no application where, as here, the date of death is established without reliance…”
Friedman v. United States, 186 F. Supp. 139 (W.D. Ark. 1960). “See 38 U.S.C.A. §§ 108 and 712. Since John K.”
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