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1151 O-Mission And Co-Mission


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Mike this is why I highly recommend anyone who believes they have a basis for a 1151 claim or FTCA case, needs to obtain an IMO that supports the malpractice.

My husband's1151 claim was pre Garnder V Derwinski , then after he died I ended up as the claimant, in a Gardner moratorium.

I didnt care about the outcome of the Gardner decision because I had proven my case to myself (wrongful death) and only had to prove it to the General Counsel.

My FTCA SF95 stated basically my 1151 issue:

'The VA failed to take the same steps that the 'standard amd usual' medical community would take ( meaning the non VA medical community)

and by their omissions of appropriate actions, the VA therefore caused my husband's death.'

When the Gardner Moratorium was lifted By then I had won the FTCA case and the RO denied my 1151 DIC at first (by ignoring my FTCA settlement info) and then they awarded one or two months later. No NOD needed (I got the General Counsel to call them up )

When a claimant gets a strong IMO that supports malpractice ,they should have no problems at all getting a lawyer,if they file FTCA, and might have no problems, with the strong IMO at the regional level under 1151.One of the fastest 1151 awards I ever saw was due to a claim I wrote for a friend of mine.

I had not even seen his med recs when I wrote the claim, but one does not go to a VAMC for hemmoroids that one VAMC had treated for years but got gotten worse, and come out from this different VAMC with a colostomy bag because he really had cancer, not hemmoriods at all. 100 % P & T under 1151.

My CUE claim, resolved by Nehmer involved an 1151 award, on a 1992 stroke my husband had.

I had filed the CUE after this OGC Opinion came out ( in the pdf you posted) and that OGC opinion did not matter.

If VA causes a vet to incur any ratable disability or death itself due to omission, or commission, or any other VA medical quackery, by taking (commissioning)or not taking (Omissions) medical steps that any 'real doctor' in the standard and usual medical community (Non VA) would do ,the result is still the same. It is malpractice.

I do not advise anyone filing these types of claims without a strong IMO.

I didnt have an IMO doctor for the above issues.( FTCA , Sec 1151 DIC )..meaning I had to study cardio and neuro stuff and read the medical records probably dozens of times.It was a LOT of work. But malpractice has a paper trail. Once you establish the trail, you find the evidence.

That is why I got 3 IMOs when I filed for an additional malpracticed condition, my AO DMII death claim. In that claim, it took me a long time to properly word it because I could not raise the 1151 issue at all.

I had already won DIC under 1151.I could not file for the same thing twice,

so this claim was for DIC under direct SC death due to AO.

The award meant more to me than even the FTCA case.

DMII never appeared once as a diagnosis in my husband's medical records.

I prepared extensive evidence to prove he had it, VA malpracticed on it by failure to diagnose and treat, and Dr Bash agreed with my lay medical opinion in a heartbeat, after reviewing the medical records and legal documents I had, and prepared an excellent IMO.

I was awarded for a direct service connected death due to DMII from AO.

My husband finally had Peace with Honor.

Edited by Berta
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