1151?

[foreveryoung]

If you receive comp for a service connected disability, can you still file an 1151? Is there a time limit? How does this differ from a Tort claim?

Thanks

[Guest DON20906]

Huh? I'm not sure I'm following you. If you are already SC for a condition on a direct basis, why would you want to refile for it under 1511? 1151 is a second-class "as-if" service-connection because certain ancillary benefits don't attach, like veterans preference, Service Disabled Veterans’ Insurance and burial benefits.

Thats what I thought should happen on a 1151. I dug out the 1151 I filed in 2002 and the VA told me, since I was granted SC for this disability they can not grant an 1151 for the same issue. Is this correct or should I refile?

[Berta]

If they made a direct SC disability worse, by negligence, they have to rate the additional disability they caused under Sec 1151. Sometimes it is a good idea to claim the additional disability as secondary and also claim it under Sec. 1151.

This way if negligence cannot be proven, possibly secondary SC can.

A WWII vet just left my house-I want him to file a Sec 1151 claim.

He is American Indian and the VA is not supposed to give Indians most statin drugs.

They gave him statins for diabetes (NSC) and he developed a terrible limp and now needs a cane. To make this worse they wanted him to get Hip surgery-saying that this would correct the limp. He didnt go for that idea and went to private doctor-doesn't need hip surgery and the statins were withdrawn-the private doc said the same thing- due to his racial background VA should not have prescribed- but he still has a hard time getting around even with a cane.The VA is supposed to ask ones racial heritage before giving statins out.

If this vet was Sced for something, the Sec 1151 would be an additional award-possibly combined with his SC.

Since he is NSC- it would be compensated "as if" SC.

He is reluctant to deal with them now even for a 1151 claim. Odd but I had just read a case at the BVA and in the narrative it mentioned the veteran was American Indian and statins had been withdrawn. Now I cant find the case.

I know a vet who knows a vet who gets 100% for PTSD and then an additional Sec 1151 award for 30%.

When I talked to Ron Abrams (NVLSP) about my claim , I asked why there is no cited example in the VBM of this type of claims and he said because these things are usually resolved at VARO levels-not much paper trail vets can get on them.

It can work vice versa-

I get Section 1151 DIC death award. My present claim is for direct SC death.(AO Nehmer)

These are two distinctly different claims and have to be treated as such.

It does appear that they can combine 1151 and direct SC ratings.

[Guest DON20906]

I think I understand...it's a claim for aggravation of a NSC condition by VA medical tx? Then it's a straight 1151 claim. It can't be secondary if it's NSC; there's no SC condition for it to be secondary to.

I think you are confusing a number of things here; secondary SC, FTCA and tortious liability. In theory, no negligence needs to be shown in 1151 claims, only that there was additional disability incurred. That means that the veteran only needs to show that the statins VA gave him for his NSC DM resulted in his musculoskeletal condition and not that there was any malpractice or medical error on VA's part.

The "in theory part"...if you start slinging blame around in an 1151 claim, you may just put VA on the defensive and make your veteran's case harder than it needs to be. I'd approach it neutrally without assigning who ignored what directive, etc. Just present the medical evidence.

If you insist on outing bad medicine in VA, then file a FTCA claim.

Curious...

Are you an authorized VA claims agent, Berta?

If they made a direct SC disability worse, by negligence, they have to rate the additional disability they caused under Sec 1151. Sometimes it is a good idea to claim the additional disability as secondary and also claim it under Sec. 1151.

This way if negligence cannot be proven, possibly secondary SC can.

A WWII vet just left my house-I want him to file a Sec 1151 claim.

He is American Indian and the VA is not supposed to give Indians most statin drugs.

They gave him statins for diabetes (NSC) and he developed a terrible limp and now needs a cane. To make this worse they wanted him to get Hip surgery-saying that this would correct the limp. He didnt go for that idea and went to private doctor-doesn't need hip surgery and the statins were withdrawn-the private doc said the same thing- due to his racial background VA should not have prescribed- but he still has a hard time getting around even with a cane.The VA is supposed to ask ones racial heritage before giving statins out.

If this vet was Sced for something, the Sec 1151 would be an additional award-possibly combined with his SC.

Since he is NSC- it would be compensated "as if" SC.

He is reluctant to deal with them now even for a 1151 claim. Odd but I had just read a case at the BVA and in the narrative it mentioned the veteran was American Indian and statins had been withdrawn. Now I cant find the case.

I know a vet who knows a vet who gets 100% for PTSD and then an additional Sec 1151 award for 30%.

When I talked to Ron Abrams (NVLSP) about my claim , I asked why there is no cited example in the VBM of this type of claims and he said because these things are usually resolved at VARO levels-not much paper trail vets can get on them.

It can work vice versa-

I get Section 1151 DIC death award. My present claim is for direct SC death.(AO Nehmer)

These are two distinctly different claims and have to be treated as such.

It does appear that they can combine 1151 and direct SC ratings.

[Berta]

I thought the 1151, since the VA is aware of the statin criteria ,(and the standard medical community is too) would have more punch to it-

No-I am not an authorized VA claims person- but I help my local vet rep-I would write up the basic claim

but I gave him my local vet reps card - he could get the 21-526 there- my ink is low-

When I won my FTCA settlement, (wrongful death) I sent the VARO a copy of it , yet the VARO still denied my Section 1151 claim.

After the OGC in Wash called them , they awarded.

I had to prove, with medical evidence, that the VA caused my husband's additional disabilties and caused his death to win award under Section 1151.

The criteria for 38 USC 1151- on page 354 of the VBM 2005 edition states

that the injury,or death be proximately caused by "carelessness, negligence, lack of proper skill, or error in judgement or similiar instance of fault" or by any event not reasonably foreseeable.

Has this changed?

[Berta]

I thought the 1151, since the VA is aware of the statin criteria ,(and the standard medical community is too) would have more punch to it-

No-I am not an authorized VA claims person- but I help my local vet rep-I would write up the basic claim

but I gave him my local vet reps card - he could get the 21-526 there- my ink is low-

When I won my FTCA settlement, (wrongful death) I sent the VARO a copy of it , yet the VARO still denied my Section 1151 claim.

After the OGC in Wash called them , they awarded.

I had to prove, with medical evidence, that the VA caused my husband's additional disabilties and caused his death to win award under Section 1151.

The criteria for 38 USC 1151- on page 354 of the VBM 2005 edition states

that the injury,or death be proximately caused by "carelessness, negligence, lack of proper skill, or error in judgement or similiar instance of fault" or by any event not reasonably foreseeable.

Has this changed?

Counsel's VACO medical review declared that the veteran's care was indefensible and substandard.

I proved malpractice, as well as all of above except any event not reasoably foreseeable.That did not apply to my case.

[foreveryoung]

So, was the VA correct in their decision on turning down my 1151?

If they made a direct SC disability worse, by negligence, they have to rate the additional disability they caused under Sec 1151. Sometimes it is a good idea to claim the additional disability as secondary and also claim it under Sec. 1151.