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BVA Appeal from DRO


byjomat

Question

December 31, 2015...had a DRO for an appeal on a "1151" claim.  The "1151" for malpractice/negligence has been pending since May, 2011!  Obviously, the DRO was denied for the same wrong reasons as before.   My prior VSO had filed a C.U.E. previously...and, that was denied.  Currently, have no representation.  Question?:  Do I give up...and, say the VA has won?  Is this what the VA wants me to do?  Do I have it certified and go to BVA?  Do I opt for representation?  VSO?  VA certified lawyer, etc?  Referrals?  If I opt for representation...may I pick anyone from anywhere in the states?  Also, what's the difference between "1151"and filing a complaint with the OIG?  FYI, currently residing outside of the country, permanently.  Thanks for the input.

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 "Question?:  Do I give up...and, say the VA has won? " 

Not if your evidence meets the 1151 criteria.

"Is this what the VA wants me to do?"  Maybe. VA hates 1151s.

Do you have a strong IMO?IME that follows the IMO criteria here at hadit?

If not, do you have documented evidence that satisfies the 2 key issues of 1151 claims?

If so, you still will need...in most cases...a very strong IMO.

"  Also, what's the difference between "1151"and filing a complaint with the OIG?  FYI, currently residing outside of the country, permanently"

The OIG does not get into claims issues.They would respond to a serious Patient Safety issue.

There is a wealth of info here on 1151 claims in our FTCA and Section 1151 forums..

The two key issues for 1151s are:

Documented medical evidence of VA negligence/malpractice ( as found in your VA medical records)and

Documented medical evidence that their negligence/malpractice caused you to have a documented additional disability ratable at least at 10%.

(also as found in your VA medical records, often listed as NSC on rating sheets)

The additional disability must have no other etiology but for the proven malpractice

(except in a few cases it can have additional etiology such as some of my 1151 claims did but I know of no other cases like that)

 

 

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I beleive it was CC who said, "Never give up".  I would qualify that with Berta's great answer, if you are sure you have the evidence.  

This might be a great time to get an attorney.  An attorney may cost you much less than you think for multiple reasons I have discussed before.  The biggest one is that EAJA will likely cover all/part of the fees.  

The other one is, of course, you dont pay anything until you win.  And, 80% of something is much more than 100% of nothing.  People usualy hire an attorney because they think it will make them money.  That is why I did.  

EVEN if I possessed all the skills of an attorney (I dont), they still have several big advantages over me:

1.  There is a "legal cordinator" at VA, and his job is to get the attorney a copy of your RBA.  This is huge.  

2.  They have access to "lexus Nexus" which is searchable case law, which is better and more up to date than even buying the Veterans Benefit Manual, as the VBM wont include cases within the past year.  Its an amazing tool, where they can quickly find case law that applies.  

3. Even if you have your RBA AND, you paid for a subscription to Lexus Nexus data base, your attorney still has at least 2 more advantages, no matter how knowledgeable you are:

    A.  A great attorney will have credibility with the judges.  They dont mess with Mr. Carpenter, for example.  And, they dont mess with Bart Stichman.  The judges know these guys know what they are doing.   They could "bluff" while you and I would be called on our bluff every time.  

    B.  Experience.  They know people at VA, they know judges, they know people who do IMO/IME's.  It would take us decades to learn all that.  

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That is a good idea Broncovet but

this vet, if he does not have an IMO by now,  needs one.

I have had multiple 1151s and the FTCA wrongful death award

and  never had any attorney.

( my fonts change here sometimes...don't know why)

I had no IMOs specifically for any 1151 or FTCA issues.

My IMOs were for direct SC due to AO DMII.

It was an additional  malpracticed issue, undiagnosed and untreated, but VA regs state you cannot file 1151 on the same death you already won FTCA and 1151 on. I filed as direct SC instead (but it was malpractice)

But that is me....VA forced me into practically becoming a doctor and a lawyer...

We don't know what this 1151 issue is about...

A strong IMO can resolve the claim. And if it is something that the vet believes will garner quite a bit of cash, then a lawyer, with that strong supporting  IMO, will definitely help them.

Any lawyer handling 1151 will need an IMO/IME done  anyhow.

That would be needed  not only to prove malpractice but for the rating purposes of the additional disability the VA medical screw ups caused.

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What to do, What to do?

So far, what you've tried to do certainly hasn't worked, right. Going it alone or using another VSO, is kinda like repeating your previous attempts and "HOPING" (not a good word for claims), for a different outcome. What's the chance of that? Slim & None.

I have no idea of how strong your case or Medical Evidence is and maybe you don't either. Was your DRO a Review or Hearing? Posting a Redacted copy of your SSOC would provide a clearer picture.

At this point, you should give consideration to contacting a VET Lawyer. It's time for 2 or 3 FREE Consults from Appeals PROs. Looks like you have a possible RETRO Award back to 05/11, BVA Hearings can take 2+ years, so the 20% of Retro Legal fee, will be substantial.

If all 3 firms (include Chris Attig's Firm), jump all over the claim, you might have a good chance at the BVA. If they all beg off, you need to reevaluate your claim.

Back in 01/14, I contacted 3 VA Lawyers regarding a DRO Hearing, requested in 2010. The 2 Online/Telephone Legal Firms wanted me to sign a POA that day and cancel my DRO Hearing request, opting for the BVA. 3rd Lawyer was local and I did the face to face consult. She said I had a good case and could probably handle it myself at the DRO, or she would Rep me for the 20% of Retro.

Semper Fi

 

 

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What does this mean...?  "Do you have a strong "IMO"?  "IME" that follows the "IMO" criteria here at hadit?"

What are the two (2)...satisfies the "2 key issues" of 1151 claims...

..."listed as "NSC" on rating sheets"?

...no other "etiology"?

...copy of your "RBA".?

... My IMOs were for direct SC due to "AO DMII".?

...Posting a "Redacted" copy of your SSOC...?

Can anyone recommend a good attorney for an "1151" Appeal?  Thank you.

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We have a topic here under a search called Read first before getting an IMO/IME

IMO/IME Independent medical opinion and/or Exam--done by a non VA doctor with expertise in the filed of the disability

The two key issues for 1151s are:

Documented medical evidence of VA negligence/malpractice ( as found in your VA medical records)and

Documented medical evidence that their negligence/malpractice caused you to have a documented additional disability ratable at least at 10%.

(also as found in your VA medical records, often listed as NSC on rating sheets)

"No other etiology" means a real doctor in an IMO/IME can state, after looking through your medical records-if they find an additional disability due to malpractice- that 'there is no other etiology (or cause or reason) for the additional disability but for the VA negligence/malpractice.

meaning the VA might have given the disability a NSC rating and diagnostic code which could ultimate become "as if SC" under 1151.

Personal example-my husband had some NSC disabilities, that after he died, I proved were 1151 disabilities well over 100%.

 "My IMOs were for direct SC due to "AO DMII".?

The only claim I had IMos for was a malpracticed diabetes mellitus claim.

No diagnosis and no treatment from the VA, with evidence in my husband's records that he not only had DMII, but also that it contributed to his death. Since DMII is an Agent Orange presumptive and since they had already made a 1151 award for wrongful death, I could not claim under 1151 for the same death but instead claimed for direct SC death.

 

 My IMOs were for direct SC due to "AO DMII".?

."..Posting a "Redacted" copy of your SSOC...?"

Can you scan and attach here a copy of the last Statement of the Case you got (SOC)or SSOC (Supplemental Statement of the case) and the evidence list.Cover C file # name, address prior to scanning it.

"Can anyone recommend a good attorney for an "1151" Appeal?"

We need more info. There are many attorneys who could handle an appeal ,some are members here, but...have you obtained an IMO/IME by now and does it support the 1151 claim?

With more info we can help more.

VA aggressively fights FTCA and 1151 issues.These cases rest solely on medical evidence.

 

 

 

The additional disability must have no other etiology but for the proven malpractice

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