tdiu 1151, When No Offset Regs

[Berta]

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCYQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch03%2Fpt04_sp02_ch03_secD.doc&ei=pfpoU9SCF4SPyATMzIKoBw&usg=AFQjCNF9K_I2UBBOXGTq0vWy6O0-OioFmw&bvm=bv.66111022,d.aWw

Under # 13

"Change Date March 20, 2011

a. Principles for Determining the Offset Amount Under 38 U.S.C. 1151 The amount of offset must not deprive a Veteran of any part of the compensation payable to him/her if a claim under 38 U.S.C. 1151 had not been filed.

Do not offset any amount if the disability compensable under 38 U.S.C. 1151 does not increase the total amount of compensation.

The offset provisions are applicable if compensation for a particular disability is payable solely under 38 U.S.C. 1151. If compensation is otherwise payable for that particular disability, regardless of previous evaluation, then no offset is required.

Reference: For an example of a situation in which an offset is not required, see M21-1MR, Part IV, Subpart ii, 3.D.13.g. "

This reg explains what a new member might need to know......

if you get 100% or TDIU and then have a separate Section 1151 issue,

in most cases there is NO offset to your SC comp of the 1151 payment.

I think I explained here last year of how and why the VA, after a 100% SC award had already been established, and paid as an accrued award to me , had to also award my deceased husband's additional 100% 1151 award ( as an accrued award) in 2012

as a separate payment to me with no offset to the past accrued awards ,or to the Nehmer IHD award.

These are complex legal 38 USC 1151 nuances that most vet reps probably dont have a clue on.

And VA sure doesn't want 1151 claimants to know of this reg either.

Edited May 6, 2014 by Berta

[Berta]

Geeeez!!!!!!!!!!!!!!! he sounds like the state  vet rep idiots I had, 

These vet reps almost always get the same basic training I got, from NVLSP.

They (VSOs ) are usually deficient with survivor claims, but then again they dont get many DIC claims.

This ticks me off to no end- all he had to do is Google 1151 hadit.com.

We have lots of info here in our 1151 forum.

A successful 1151 claim requires

1.documented proof of negligence/malpractice, that could be from wrong med, or contraindicated meds,wrong diagnosis, No diagnosis, etc etc, and this almost 99% of the time requires a thorough review of your medical records by a real doctor, a non VA  IMO/IME doctor who has expertise in the area of the disability and can rule out any other etiology, but for VA's negligence, to establish the claim as valid.

But there also must be  ratable documented  residuals of the medical error (s) that the medical evidence proves, was directly caused by the VA's Negligence/malpractice. That would be a part of the IMO/IME that needs to be covered and it would help with the 1151 rating.

I will check to see if I included something in the IMO info here for 1151 claims-

It is  VERY important- every veteran considering 1151 or FTCA has to make sure their doctor(s) and any health care professional that might have caused the 1151 issue- is, in fact, a VA employee and not a contracted employee.

I have a Bill I hope Congressman Roe will sponsor-he has all my stuff on this- because part of it includes 2 amendments ,of 4, I have written, that will insure every person who works at a VA , is a medical professional, and 

needs to be covered under the NPDB part of the VHA Handbook...thus

“ To amend 45 CFR,Part 60, Subpart B and 38 CFR Part 46 to include all VA health care practitioners,and all contracted providers in the VA health care system, who are not VA employees, but are hired by a contract with QTC, VES, LHI, or any other non VA medical contracting firm to diagnose and treat veterans in the VA health care system.”

This grew out of my OAWB complaint but also due to the Tally case, which is available here under a search.

I do not think the Tally bill will get anywhere. I corrected S 221- I expect that bill to get somewhere.

As I mentioned here some months ago,the VA is trying to take away our 1151 and FTCA rights, by hirring contractors who do not fall under those regulations, and the veteran or survivor would have to file directly in a Federal Court.

My FTCA/1151 cases cost me probably less than 150 bucks , maybe much less, and the cost was only due to phone calls to the RC and OGC and copy fees,I did not have a printer at that time., and gas $$$ running to law libraries, etc.I think maybe there would be an upfront cost to a malprctice lawyer to file in a district court but I really don't know. 

I talked to Tally's lawyer via email and what he told me was an outrage-absolute VA BS- the OGC said it took them 8 months to findout the doctor he had was a federal contractor. FTCA and 1151 denied.He lost his SOL and coud not even file in Federal court.

I told his lawyer it probably took the OGC an hour-if that- to find out the VA "doctor" never worked for VA.

Here is where a vet can get info on their doctor:

"Our Providers

The "Our Providers" online directory lists the primary licensed independent practice providers who may be a lead, ongoing member of your treatment team at the respective VA medical center. Providers in the following occupations are listed on this website: physicians, dentists, nurse practitioners, clinical nurse specialists, physician assistants, chiropractors, certified registered nurse anesthetists, optometrists, podiatrists, and psychologists."

https://www.va.gov/health/OurDoctors.asp

Tally's doctor wore a lanyard, a white coat, and had an office with her name on the door at the VAMC.Anyone would think she was a VA doctor but she wasn't. She was  a "Provider".

At least the doctors who killed my husband all worked for the VA. That was long ago and a friend I have from Bath VAMC said the place is now filled with "Providers." I am sure many of them are great medical people but they can come and go as "contractors" and one of the firms that contracts them  touts "low liability risk".

 

 

 

 

Edited May 3, 2019 by Berta
added more