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Berta
Some Section 1151, 38 USC situations here seem obvious and worthy of filing a valid 1151 claim.
But then again, within the confines of the internet and what we post or read here, we really do not have all of the facts ...facts that might not indicate malpractice occured at all..
For example..there was a lot to the Viegas V Shinseki case:
http://www.plainsite.org/dockets/sk6n3453/court-of-appeals-for-the-federal-circuit/viegas-v-shinseki/
The case had to be appealed to the Federal Circuit and finally Viegas got a positive result.
Other cases do not fall into the actual 1151 criteria at all:
https://www.law.cornell.edu/uscode/text/38/1151
and more info here:
http://www.purpleheart.org/ServiceProgram/Training2013/10-M--1151%20Claims-Maria.pdf
The Viegas Fed Circuit decision is mentioned by the BVA in many 1151 decisions made after the Viegas 2013 decision:
I was going to explain it here in detail but then again, the best advise of all for any 1151 issue, is to get an IMO from an expert in the field of the disability they believe they were malpracticed on, and then if the claim is denied, get a veteran's lawyer.
Someone the other day told me a story that seemed definitely 1151 to them.....even to me, until I asked a few more questions and then it did not sound like malpractice at all.
But I am not a doctor and told this vet to join us here.
https://www.law.cornell.edu/cfr/text/38/3.358
This also contains more 1151 information and the additional disability must be documented and solely due to the malpractice.
You can certainly file ,pursue and win 1151 claims without IMOs.
But those successes are few and far between. Often the main problem with attempting to do that is how you can prove ,as a lay person, that there is no other etiology, but for the VA malpractice, that would be acceptable lay medical evidence to the VA.
The VA will try to find any etiology at all to go against a lay medical opinion.,that could have considerable medical merit.
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Berta
Some Section 1151, 38 USC situations here seem obvious and worthy of filing a valid 1151 claim. But then again, within the confines of the internet and what we post or read here, we really do not ha
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