Section 1151 Question

[Berta]

A member from the old hadit board many years ago contacted me regarding a 1151 claim her husband just won at the BVA which the RO will have to rate.

It was good news but here is the question for anyone here with 1151 comp experience.

If a vet has 100% SC and then the 1151 is rated at 60% or more- that would warrant SMC under 1151 and retro from date of 1151 claim.

What if the vet is rated at 100% SC and only 30% for the additional disability under 1151?

Since 1151s are rated "as if" service connected -I see no retro on an award like the 30% in above scenario.

The VA has failed to properly rate my husbands 1151 disabilities since they awarded my 1151 DIC claim in 1998.

Even with my DMII AO award of last year making the disabilities all directly SCed, they still failed to rate them and consider SMC again.

I assume my pending claims will definitely rectify those errors but

I have no idea what happens when 1151s are less than SMC requirements and the vet already has a separate 100% rating.

So does anyone know if there would be any retro compensate under 1151 at all if a vet is 100 % SC and the separate 1151 is rated at only 10 or even 30?

Edited November 29, 2011 by Berta

[Capt.]

Hello Berta,, I hope your Thanksgiving was a great one. You deserve it there girl. You are the FTCA/1151 claim expert and though I have both filed, my FTCA is not looking good for several reasons. My 1151 however is separate as you know and is still being processed from its filing about a year ago.

It is my understanding that the Section 1151 is a claim just as any other claim and is afforded the same procedures as any other claim to the Regional Office. Therefore I believe that percentages could , if high enough could possibly trigger an SMC award if added to the 100 percent disability your veteran has currently and the 1151 could reach the 60 percent or more. I also see no reason that retro early effective dates would not apply since every claim must have an earlist effective date. I also believe that an appeal for a higher rating could happen as well if as you pointed out in your question was say 30% for the 1151 award. I was under the impression that Section 1151s could also include A/A or Housebound awards if warranted and adjudicated. Of course what it looks like is Section 1151 would be better if it was rated at 100 percent and then could automatically qualify for any SMC award if diagnosed and adjudicated properly. I am still in the limbo game with them so everything I am dealing with is so slow moving that I am not sure what to look forward to myself. I do plan on letting my lawyer pick up the Section 1151 ONCE I get a formal initial decision on the Section 1151 from the VARO.

For some reason I thought Section 1151s were 100 percent ratings to begin with so your question kinda thru me backwards in my thinking. If I am correct as I read this thread then there might not be any such animal as a 30, 40, 50 percent rating on Section 1151s. I am just not sure about it and I am still trying to learn thru this new phase of VA law. Unfortunately you are really the only one with experience in this arena that has posted enough on it in the past. As a matter of fact it was because of you and your knowledge that I went after the FTCA and Section 1151 because of so many similarities from your husband Rod and mines events.

Berta , I don't know if this helps but at least it needs to be kicked around so as to open options for all Vets as their are so many IHD vets that are dealing with what you and I have experienced. The problem is so many Veterans/Widows/Families don't even know about the Section 1151 because it is not discussed or mentioned by most of the Veterans Service Organizations. This is why Hadit is so vital to make sure our Vets and Families are made aware.

As always ,,,,,,,though I am having a hard time saying it to myself................................NEVER GIVE UP. God Bless, C.C.

[carlie]

So does anyone know if there would be any retro compensate under 1151 at all if a vet is 100 % SC and the separate 1151 is rated at only 10 or even 30?

Berta,

My educated guess on the above is that there would be no additional benefit.

[Berta]

Carlie- thanks-I am positive you are absolutely correct.I have never seen anything to suggest otherwise.

I believe the vet whose wife emailed me has 100% already for AO cancer and the 1151 disability (if at a 60 % level or higher) will warrant SMC.They had problems getting on hadit in the past but I suggested they try again because the SMC rating he gets from the RO might be wrong.The BVA granted and they sent it back to the RO for a rating.

Capt Contaminate wrote:

"For some reason I thought Section 1151s were 100 percent ratings to begin with"

No- it all depends on how the 1151 disability is rated.I have seen 1151s from 10% to 100% with very high levels of SMC.

Once the VA grants a Section 1151 award, they apply the same Schedule of Ratings to the 1151 disability as they do to any SC disability..

"I went after the FTCA and Section 1151 because of so many similarities from your husband Rod and mines events."

That is interesting, I saw no similarities at all.

[Capt.]

Hello Berta,

I should have been more specific on Rod and mines similarity with IHD. I meant the failure to diagnos with failure to treat which I believe was discussed in another thread recently showing how the VA just basicly treats IHD with all veterans due to lack or shortage of Cardiologist and there lack of decision on recognizing it initially after diagnosis.

At this point I am only in the waiting part of the Section 1151 so I am sure it is going to be a long battle and have not received the decision on it. So I will not be able to move forward until that happens.

As Carlie pointed out and I think thats correct also about the 100 percent SC rating with the 10 or even 30 percent , it is not enough to reach the plateau of SMC 160 total to trigger the SMC. Since it is a claim as defined by the CFRs same as other claims filed to the Regional Office. At least that is according to the way I see the 38 CFRs. I think alot of Veterans believe the Section 1151 is a quick decision , quick resolve, but anyway you slice it you are dealing with the same Regional Offices and process of claims procedures , so I am preparing for another long drawn out tortoise answer from them in all parts of that process. NEVER GIVE UP. God Bless, C.C.

[Berta]

I thought maybe a good idea to support what I said here as to 1151 ratings.

This veteran was granted 10% under Section 1151 for Hepatitis C:

“An award of compensation for hepatitis C was granted in the March

2008 rating decision on appeal pursuant to 38 U.S.C.A. § 1151

with an initial 10 percent rating assigned, effective January 30,

2004. The Veteran contends that his hepatitis C warrants an

increased initial rating as he experiences symptoms and side-

effects of greater severity than those considered by the

currently assigned disability evaluation.”

His claim for a higher rating on that issue was denied.

http://www.va.gov/vetapp10/files3/1026179.txt

This veteran receives 30% for a right toe amputation and appealed for higher rating:

http://www.va.gov/vetapp07/Files1/0702162.txt

Unfortunately the VARO violated his VCAA rights and also failed to send him a SOC.

http://www.va.gov/vetapp07/Files3/0725544.txt

This veteran claimed higher rating than 30% for a Section 1151 spinal cord injury and was denied.

I didnt find any 100% awards under 1151.I am sure they are there.

My original Section 1151 DIC award came from the RO level and is not at the BVA.

My 2010 BVA decision involves additional malpractice but the award was for direct SC death so it wouldn't help to post the link here.

A good friend of mine whose claim I wrote for him went from 40 % SC GSW to 100% P & T and SMC under Section 1151 and was a RO decision so his is not at the BVA.

These claims are rated under the same Schedule of Disability ratings as other claims.

Then again I believe the VA lowballs 1151 issues as much as they can.

Yes- a failure to diagnose and treat can be a basis for a Sec 1151.I proved the VA failed to diagnose and treat my husband's IHD and his multiple TIAs and major CVA in my 1151 DIC claim.I also proved a serious VA medication error that contributed to his demise.

The VA itself stated another medication error had occurred as well,that I was not aware of.

The VA concurred saying that "multiple deviations in a usual standard of care occurred and all of these deviations hastened the veteran's death."

In 2003 I re opened for another deviation I found and the BVA concurred and because this was malpracticed DMII from AO -the award was not 1151 but award for DIC under direct SC with all appropriate ancillary benefits.

Failure to diagnose and treat- as VA stated as "deviations from proper medical care", with a resulting disability directly due to this negligence was the basis of my original Sec 1151 claim.

These claims need medical proof of malpractice/negligence and proof of a ratable disability that resulted solely from the VA's deviations in care.

Other deviations of care could be improper or inadequate meds, treatments that are not consistent with the diagnosis, or obvious major medical errors.

A vet locally went into the BATH VA ER years ago with a severe earache.Before he knew it, a nurse asked him to lay back and open his eyes.He thought that was odd about the eyes but after all she was a nurse and then they could hear him scream all the way into the lobby when she put peroxide into his eye instead of his ear.The scuttlebutt was that he said he was going to sue "those MFers" -before he even left the ER.

If he had a ratable residual from this medical error ,he had a good case.

A woman I now worked for the VA, slipped on a piece of pie in the VAMC hallway and went to their ER.

They told her to soak her foot in ice water and take aspirins.

2 weeks later she still had terrible pain and had to take time off from her VA job.The VA doc told her just to take more aspirins.

The pain then got so bad in her foot and leg she could hardly walk.So she saw a real doctor and then got a lawyer and sued under FTCA for malpractice and she won.

VA negligence comes in many forms.

Edited November 29, 2011 by Berta

[Capt.]

Thanks Berta,

When I said I thought for some reason Section 1151 was for 100 percent total , that was what I thought that it was for the malpractice , injury in VA care before I read the regs on it. I have not gone anywhere with mine and probably will wait until I reach a decision after the other claims issues so as not to move the file in RO and have to start over.

You said that you believe the VA lowballs the Section 1151 and I also believe that but its seems that the ROs want to lowball all claims. It may be more of an issue with Section 1151 because of the blame put on the VA and not so much as a branch of DOD per say. This blame directly involves them and the VAs budget comes proprietory from the DOD big budget. VA has to take a piece of it and the Secretary and RO Service managers don't like giving the money out on something like Section 1151s. Kinda of gives them a blackeye and in their own arena. More embarrasing and harder to take among the upper management it may well be.

Anyway Berta thanks for your input and it helps me to try and deal with my now prosecutable FTCA and the Section 1151 claim. I have some areas of concern on both that deal with not pursuing my complaints hard enough and long enough because of the chest pains starting in 2001 and continuing . I would offer this to any Veteran with chest , neck or arm pain associated with IHD or CAD/Atherosclerosis. Continue to Pursue the complaints regardless if VA does not want to test or deal with it. Don't try and just tough it out and man up like I did for several years. It hurt me in the records dept and almost killed me in the long run. NEVER GIVE UP. God Bless, C.C.