100% T&p + 1151?

[Cruinthe]

So 1151 claims are paid as if they were a C&P claim, but what if the person filing is already 100%?

I suspect the claim is filed, and if valid is granted, but no payment is made as the veteran is already "maxed out".

Or, and I wrong and the 1151 is paid as a monthly disability on top of and separate from the existing 100% C&P payments?

Any input would be appreciated!

[Berta]

Possibly the 1151 award would make a 100% SC vet eligible for 1151 SMC.

That is why in some cases the vet should file for both FTCA and Section 1151.

It all depends on the circumnstances of each case and what SC the veteran already has.

When my husband died I reopened his 1151 claim at the rating board that same morning.

Also his claim for higher SC on his PTSD was in the rating board.

To make this short - VA awarded 100% SC P & T to 3 years prior to his death. Had he lived to see his 100% -the 1151 award would have set him up at that point for SMC.

Had he himself filed SF 95 FTCA case and won- he would have had the settlement from that but an offset of all of it to his 1151 award.

I filed FTCA after he died agreeing with General COunsel on a specific DIC offset figure -not the whole thing-because I knew FTCA case law and my case fell into a unique scenario.I was satisfied with the settlement and the DIC award.

VA began about ten years after his death-sending me DIC checks after the entire offset had been re couped.

Here is what 1151ers and their potential survivors have to think about.These vet reps do not handle FTCA so they dont know how FTCA can impact on 1151 and SC:

Did the VA malpractice on a potential SC condition?

In 2003 I re opened my claim on that basis.Up to that point my husband's 1151 disabilities were considered NSC as if service connected under 38 USC 1151.

In 2009 the BVA granted a direct SC death.The malpracticed conditions were, I had proven, from malpractice on a condition that was directly due to his exposure to AO.

The VA had to refund my entire offset amount.They fought me for almost a year after the BVA award until this past Feb or March on that refund.The Lawyers in OGC still remembered me from the older settlement so I knew how to deal with them.BUT they gave me a lot of bull crap for months on this.Of course-It all boiled down to cash.

This was not double dipping- I won FTCA wrongful death settlement and 1151 claim.I then won direct SC death award due to AO.Two separate compensable issues.

The VA cannot offset a direct SC award with any proceeds from a FTCA settlement.

Anyone with FTCA and/or 1151 potential (they are not mutually exclusive situations)should get an IMO to support the malpractice and then get a lawyer.

They can do this without those things as I did but the research and medical and legal stuff you have to study takes a lot of time.

Also you need to have the confidence and case law knowledge to fight with and negotiate with the General Counsel attorneys.

They are tough but they speak the language of 38 CFR and USC and in that respect they are superb.

Not all that looks like negligence is in fact negligence or malpractice. However if VA did commit malpractice the proof of that and any attempts they made to cover it up will be found in the medical records.Hidden well but it will be there if you understand every single entry, abbrev and notations and the blood chem and other clinical reports.

Edited August 11, 2010 by Berta

[Cruinthe]

Thanks Berta. I have a VA C&P nurse practitioner admitting to me on tape that I was in danger of developing diabetes. I spent the next 9+ months trying to get an endocrinologist consult. I just saw her last week and sure enough, she gave me a verbal diagnosis of diabetes and she scheduled me to see a foot doctor. My PCP also wants me to see the vascular surgeon this coming Friday.

I spoke with my IMO doctor, he asked me my symptoms, then flat out told me "you have diabetes, no question about it". I have taken the VA diabetes training class, at my own request, and they verified my blood glucose at 124...a mere ONE point away from a full diagnosis of diabetes.

I think the VA has painted themselves into a corner here, and thats not even considering the fact that I asked for a gastro consult and colonoscopy last year and JUST got it done a few weeks ago, and it showed that I have diverticulosis and a hernia. I wonder what the foot doctor and vascular guy will say when I see them? My feet hurt and burn 24/7 now and I am losing control of my feet and hands.

I should get my DRO decision back in 6 weeks or so, then I pay for the IMO and initiate the FTCA. Time will tell!

[Berta]

The original C & P VA endocrinologist who opined on my AO DMII claim didnt have a clue.Buffalo NY

I knocked down her opinion and then got a real doctor to knock it down too.It amazed me how she refused to opine on the medical facts that were in the clinical record.

The best way to determine diabetes is via a HBIAC test.

If VA DID fail to diagnose you and treat Diabetes and then you had additional disabilities as result of their failure to diagnose and treat-that is malpractice.

I think they fail to diagnose diabetes more often then we think.

If they never did an HBIAC on you as was the case with my husband-I had to prove his resulting disabilities and death were caused by the untreated DMII. This was for my 2003 claim.I could not sue them again due to another malpracticed event which was the true etiology of his death but never claimed in the FTCA case.

If you have had diabetes and they failed to treat it, there should be other indicators and red flags within your clinical med recs.

I amazes me too that often only when a vet presents with a CAD, then they try to see of the vet has diabetes.They should send every single vet a Glucose monitor and let the vet take daily periodic readings and then the vet can diagnose themselves and demand proper treatment.

The diabetes training letter which should be here under a search became my template- I checked off all of the complications in the training letter that my husband had documented in his clinical record and I got 2 IMO that concured their only etiology was DMII.