1151 Status Now They Have Me Confused

[LeroyJohnson]

I emailed the VA as to the status of my cases as I was told on the phone that it was categorized as an increase for the 1151 and that I would be hearing from them within 60 days . thought I might bet a better response from a email ,this is what they said..,my claims file is with the Pre-Determination team .My cases that are under appeal will be addressed AFTER my current 1151 claim and my claim for IU are completed. Went on to say that a VCAA letter will be sent for IU and once they receive that and any other information I wish to summit for IU that my claims file will then be sent to the rating team to address the issues of 1151 and IU following the completion of those claims my file will then be directed to the appeals team for action on my appeals.

Now I am wondering why they will not address what is on appeal until after my 1151 claim is resolved and why they are going to address the issue of IU with the 1151 as I am not claiming the IU issue with or because of the 1151 claim . IU was claimed because of another issue that is under appeal.

My question is IF the say I am IU because of the 1151 and grant it because of that then would that make it a mute issue for what I claimed it for in the first place? If so then as a 1151 claim is an "as if" SC then I would not be able to get benefits for my family .the 1151 will be PT if granted since the blindness is not reversible. If IU is granted based on what I claimed if for and the 1151 then it would be possible for my family to receive benefits. am I making any since here or am I just reading to much into this.

Leroy

[Guest Berta]

Leroy- I know EXactly what you mean- they pulled that on a friend of mine-

gave him 100% under 1151 but then did not consider his direct SC claims and his dependents do not get CHAMPVA or Chap 35 bennies-

but he fulfills a 100% direct SC 100% criteria too-his appeal time on the direct SC is over-

after trying to explain this to him 3 or 4 times before the appeal date ran out-(he kept saying he didnt get it and didnt want to ask his SO about it )-so I just gave up---

You got it right and this is what they seem to be trying to pull on me too regarding 2 of my claims-with an 1151 issue-

"Now I am wondering why they will not address what is on appeal until after my 1151 claim is resolved and why they are going to address the issue of IU with the 1151 as I am not claiming the IU issue with or because of the 1151 claim . IU was claimed because of another issue that is under appeal. "

But what could be in the works- is this-they might be acting to your benefit-

They would want to resolve both the 1151 and the IU issue because it could set up Special Monthly Compensation-that might be what they intend to do--

Or they want to make a direct SC decision that attempts to render the 1151 moot- as you said-(that sure won't be fair)

regardless -they still have to resolve the 1151 issue separately from the direct SC.

I wrote directly to the VARO director 2 weeks ago to clarify my issues-then they had a conference with my vet rep and then I got a response that was wrong about many of the issues and I corrected it-maybe this is what you need to do.

I call them idiots a lot but some of them do know how to circumvent proper awards-1151 and direct SC are distinctly separate issues.

[LeroyJohnson]

thanks Berta, I just have a feeling that a fast one is being pulled because adding IU to the 1151 would save them a bundle and prevent me from getting 100% on a direct SC issue. I expect to get at least a N award for the 1151 since if I read correctly they base the rating on your good eye and my good eye (although I can see with it) is considered blind because of tunnel vision so according to their criteria I am blind in both eyes. Plus developed glaucoma in the eye they messed up.

If they try to connect the IU to the 1151 is there a way to fight it or make them reconsider it as all evidence to conceder IU is based on PTSD

[Guest Berta]

"If they try to connect the IU to the 1151 is there a way to fight it or make them reconsider it as all evidence to conceder IU is based on PTSD"

YES! The PTSD is direct SC, the 1151 is a different disability----

You could certainly NOD and appeal anything like that-

But it depends on how they do it-

If the PTSD evidence warrants 100% that is one thing-

But let's say they give you 100% IU for the 1151 and then 50 % for the PTSD- you can still fight the 50% award for the higher IU PTSD rating-

It is hard to say what they are thinking here but you are anticipating how this could go and that is what we all have to do----try to think like they think- to be prepared for whatever they come up with.

Unfortunately there is not much in published VA claims to understand how they handle these situations-

NVLSP told me many of these claims are usually resolved at VARO levels and this way we have no hard copy past BVA decisions to study as to any insight as to claims involving direct SC plus 1151 SC are really handled.

Also they can "combine" 1151s and direct SC in some cases but I cannot imagine how they do that-

Only 1151 claimants -like me and a few others -resolved at the VARO level-and via FTCA awards- by telling our stories can

really provide some insight into 1151 claims.

There are NO published stats on VA FTCA awards- they sure don't want that public-

and they sure dont want anyone to reveal the actual settlement amounts-

I bet it is quite astonishing.

But this probably prevents many vets from filing valid FTCA claims.

SOs and vet reps cannot help with FTCA claims at all.It is against their job description.

Edited February 23, 2006 by Berta

[LeroyJohnson]

OK, I am already SC for PTSD at 50% and I have appealed that rating. I did not ask for an increase but appealed the rating from the beginning as I felt it was to low given what the C&P doctor wrote among other things that I have a gaf of 38 and prognosis for recovery was poor.

Is it possible since these claims are two different types of claims that the claim of IU could be awarded in both categories. Is that what you meant when you said

" But let's say they give you 100% IU for the 1151 and then 50 % for the PTSD- you can still fight the 50% award for the higher IU PTSD rating-"

I am also wondering how or really if they will connect the glaucoma as it is in the eye they messed up and according to the eye doctor it is likely that all the trauma the eye went thru with what they did to it could have caused the glaucoma.would that be connected as SC or 1151 ?

[Guest Morgan]

Leroy,

These are questions my husband and I have kicked around for a year now. I have searched high and low for an answer, to no avail. If not for Berta, I would have zilch to go on.

Is your eye condition SC already? If so, another issue for you to think about, if you are planning a federal lawsuit, is the offset of any court award you may receive. My husband decided that it would be better to file the claim for increase based solely on the current conditions so that the issue wouldn't get muddied up in the "as if" allowance. Like you, we questioned whether filing the 1151 would mean whatever increased disability would be considered SC or "as if." The point being if you win under FTCA, the award is offset against the veteran's monthly compensation if it is being paid "as if," whereas if it is being paid as SC, there is no offset. Still we've wondered if a veteran is 20% SC before the malpractice and 100% afterward, is the 80% increase considered SC since it is already SCed? Or is the 80% considered "as if" and offset by a tort win? I really don't know how they decide that, but we can almost be sure they will stick to the injured veteran if they can.

We decided not to file the 1151 on the worsened SC conditions, for which he was awarded the first 100% rating in five weeks. I might have been five years otherwise! But we will file an 1151 on a new condition the VA failed to treat after ordering diagnostic tests and ignoring the results that advised treatment. They recently denied secondary service connection due to aggravation.

I'm inclined to say you should withdraw the 1151, and claim the 100% SC if the eye condition is already rated as SC, even if at 0%. I think they are setting you up to cheat you out of benefits you so rightfully deserve. JMHO.

By the way, I am so sorry you have lost your sight. That is a horrible price to pay for trusting the VA to provide appropriate medical care.

[LeroyJohnson]

Morgan, no I am not Sc for the eye and 1151 is the only way I can go with this claim as to much time has past. They removed a cataract from my eye caused a retinal detachment and never tried to fix it is why I went blind in the eye. what I think they are going to try is put IU under the 1151 that way I cant get benefits for my family. Since I am considered blind in what would be my good eye I expect the award to be at least a N award with out IU and I don't see how adding it to the 1151 will do any thing but stop benefits for my family.But because I believe I will get a N award I will not drop the 1151 as I already know I have the records to prove their mistake they admitted to implanting the wrong lens in my eye then and did several laser surgeries to try to make my eye conform to the lens.

what I am wondering is since 1151 and SC are two separate issues can a person file IU twice once for a 1151 and once for SC.?