WeAre#1

Right now you do not meet criteria for IU. You need to get a medical opinion, possibly get an increase for disability or disablities, get a new service connection, and/or ask for extra schedular consideration

I work at a VA Regional Office. I have seen literally dozens of IU cases where VA is proposing to reduce Individual Unemployablity for failure to return VA form 21-4140 http://www.vba.va.gov/pubs/forms/21-4140-1.PDF. This is an old revived tactic of the VA recently taken advantage of after more than 5 years of doing so. Many if these veterans have moved and VA does not have a valid address for them. Therefore, the form never gets returned and hence the proposal to reduce takes place. With this in mind, I fear these veterans will not know to fill out the form until they get finally reduced. Please inform all of your friends. Also, go to your local chapter or post and inform your comrades!

You can have one disablity at 60%, which makes you unemployable. If you can get your doctor to describe how this condition permanently prevents you from obtaining or maintaing substantially gainful employment, the VA can grant Individual Unemployablity (IU) benefits, which pay you at the 100% rate even though you are 60% ot higher. They can make this P&T and you will get CHAMPVA, PX, ID, state benefits ect!!!!!!!!!!! Use VA Form 21-8940.

Also, a tort claim should be considered depending on the circumstances. Remember, the reasonable doubt doctrine cannot be used on 1151 claims...............

Niether you nor myself are medical professionals qualified to come to such a conclusion. If you really wish to win an 1151 case, you really need a doctor to review your progress notes from the VA hospital medical center where the surgery took place (or private if contracted by VA). He/she needs to opine as to whether or not treatment was negligent, careless, the person lacked the proper skill to perform task, there was an error in judgement, or the disability(or degree of disability acquired) was an event not reasonably forseen. Many times people have a difficult time in obtaining a medical opinion from another doctor who will declare negligence, carelessness, ect. This is why they often drag on. Other reasons include failure to comply with medical advice during hospitalization and after surgery, VA personnel are not always up to date on regulations, are rushed to do thier work, and they work on many frivolous claims(or claims without a medical opinion), they have service officers looking over thier shoulder, and this discourages and frustrates them. Many frivoulous claims (or claims without a medical opinion) are caused by a lack of understanding or lack of acceptance of the law. And as always, please remember each case is unique, and often times cannot be compared to another with the same condition, caused by different circumstances. Merry Christmas!

Remember this....there are three basic requirements to establish a disablity is related to military service. First, there must be an in-service disablity or disease (or aggravation of a pre-existing condition, or secondary to a service conneced condition). Second, there must be a current diagnosis of the claimed disablity. Finally, there must be medical evidence (usually a medical opinion from a doctor) the disablity at the very least, "is at least as likley as not" related to military service(or in your case was aggravated by infection while on active duty). With this is mind listen to this little VA history lesson. You see the laws which govern the VA's duty to assist the veteran were not really favorable to veteran's until the enactment if the Veterans Claims Assistance Act of 2000 (VCAA) (also refer to 38 C.F.R. 3.159) The changes VCAA brought forth removed the requirement of a "well grounded" claim. By well ground is basically meant every piece of the above basic requirements were needed for full consideration by the adjudicator. Under current regulation if you had a current diagnosis and an in-service injury or disease, VA is required to seek a medical opinion. Back then the VA would give an exam, but not ask for the opinion. If the doctor inadvertenty made the link or the link was obvious, service connection was granted. If it was not obvious, or the medical opinion was not provided, service connection was denied. It was up to the veteran to appeal this decision and obtain the medical opinion to substantiate his claim with the medical opinion at this point. If no appeal was filed, the decision became final, and then new and material evidence (refer to 38 C.F.R. 3.156)was needed to reopen the claim. When VCAA came it was great. However, the regulations did go back retroactively. Unfortunately, this means the new and material evidence requirements still affect you. Therefore, the only way you will get your earlier effective date is if the evidence of record at the time your decision was rendered in 1961 shows you had all three basic requirements. I do not say this to discourage you. But I think it is only fair you truly understand obstacles you will face. I assist veterans with thier claims on a daily basis, and I can provide you any refrences you may need. Merry Christmas