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Carlie-when Did You File Your Sec 1151 Claim


Berta

Question

This is from attorney Richard Cohen at Ray Davis site (http://www.veteransresources.net/)

" ALERT FOR VETERANS WHO HAVE BEEN INJURED AT A VA MEDICAL CENTER

If you were injured while waiting for treatment at a VA Hospital before October 1, 1997, and if you file a claim, before October 1, 1997, under 38 USC 1151, for VA benefits to compensate you for your injury you should read what follows very carefully.

Most claims by veterans who were hurt, while waiting for treatment and who filed a claim before October 1, 1997, had their claim denied by the VA because the VA determined that the injury was unrelated to the treatment.

For some veterans the law has now changed in their favor because of the case of Jackson v. Nicholson, decided December 30, 2005 by the US Court of Appeals for the Federal Circuit..

Jackson who was verbally and physically assaulted by a patient while waiting for therapy had her claim rejected based on the determination by the VA and the Veterans Court that the assault was an "intervening cause" and was not the result of VA actions relying on Sweitzer v. Brown, 5 Vet App 503,506 (1996).

Sweitzer had been injured by a patient in a wheel chair while reading an ad on a bulletin board after checking in at a VA Hospital. In his case the VA’s denial of the claim was upheld by the Court because the injury did not result from having "submitted to an exam".

In deciding that the VA was wrong in rejecting Jackson’s claim, the Federal Circuit said that the word "hospitalization" which is in the statute refers to one who is in the hospital and does not require that the injuries be caused by the actions of the VA.

What this means for veterans, is that a veteran who filed a claim ,before October 1, 1997, for benefits resulting from an injury in the hospital, and who was denied, can reopen their claim because of clear and unmistakable error committed by the VA in denying the claim."

He is saying to file a CUE if the claim was filed before Oct 1, 1997- but- would the Fed Circuit court's definition of "hospitalization" now apply to a re-open of your Section 1151 claim if not a CUE claim?

Cohen has an email addy and phone number at Ray's site-

This is certainly a broader definition of the Sec 1151 regs, as to "one who is in the hospital". I dont have the actual circuit court case.

Although Sweitzer had checked into the hospital-

I wonder if this new definition covers any vet who is in a VA hospital for any reason and receives injury from a VA employee.

I will email Mr. Cohen and see what he says.

Edited by Berta (see edit history)
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Berta,

On 12-13-01, VA received my original claim for PTSD as an 1151, due to sexual assault at VA -

from a VA doctor.

VARO denied the claim and referred me to General Council Opinion dated 2-16-99.

http://www1.va.gov/ogc/docs/prc1-99.doc

Thanks for your time, hope your staying warm

carlie

Edited by carlie (see edit history)
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