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theo

Is it something I'm missing regrding 1151 claim

Question

I had a kidney cancer partial nephrectomy in 1994. The surgery left a incisional hernia that causes a lot of abdominal pain, and I''ve been taking narcotics pain meds since the surgery.

I've been denied a number of times for a 1151 claim for this.

I'm service connected for TB, asthma, copd, severe rhinitis considered unemployable in 2008.

My questions is what am I missing regarding fault of the VA of this issue?  I did not sign up for the pain post surgery complications for all these years.  Is there a certain language that addresses the law that governs 1151.

My appeal after 81/2 years is back at the Appeals Board.  We will see what happens this time when I get a statement of case.

Special note:  thanks to Berta for her service!!!!

Theo

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Thank you too Theo----

It is true that the type of abdominal surgery you had could cause a hernia.

But any ratable residual disabilities directly due to the hernia, can be rated under 1151 or, if the surgery was due to a service  condition, the residuals can be rated as secondary.

I assume you documented residuals- Did this surgery involve a mesh ?(I think it had to)

If it eroded it could be this type of residual problem:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3959323/

Have you ever contacted any of these lawyers specializing in mesh problems?

https://www.google.com/search?q=problems+with+abdominal+hernia+mesh&rlz=1C1CHBF_enUS695US695&oq=Mesh+problems+with+abdominal+surgery&aqs=chrome.2.69i57j0l2.13711j0j8&sourceid=chrome&ie=UTF-8#q=lawsuits+with+abdominal+hernia+mesh

Here are some BVA awards under 1151: 

(the hernia is a potential expected outcome. If the mesh implant has failed ,that is a Section 1151 basis)

https://www.va.gov/vetapp14/Files3/1420000.txt

This vet died and the widow is the claimant. It is different from your claim but it shows how the VA determines these cases.

VA had a strong opinion against the claim, but so did the widow so she won under Relative Equipoise.

The VA does not pay much for hernia / residuals of hernia....

and only your medical records will reveal (might reveal) what type of mesh they used. Some meshes were recalled because they were so bad.

I thought you had mentioned in a past post that your were exposed to AO in Vietnam and were claiming DMII and possibly one other AO disability.....???

I also thought maybe you were awarded by the VA for TDIU?

If so , an AO claim could put you into the SMC S criteria.....

Could you clarify ? I did find my posts as the the vet I tried to help with a severe infection due to abdominal surgery.He died after the claim went to the BVA. That was long ago and now I think the mesh they used was faulty.The news on faulty meshes came out years after he died.

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I think you should focus on the diabetes claim.

With TDIU now, you would need to have a separate SC rating of 60% or more to attain any additional comp- such as SMC. Or if you feel the pain might be stemming from a surgical unanticipated event ( like the sponges the VA left in a vet recently) you would need a strong independent medical opinion to support that, and it would have to have caused a ratable condition ( ratable at least at 10%). 

For 1151s, not only does the negligence have to have caused a ratable condition, it also has to be proven.

As I well know, negligence and malpractice are documented events in VA medical records but only someone with a medical background can determine that, with a full readings of the med recs, charts, blood chem reports, acronyms, etc etc etc....and even with proof, the VA will still deny if they can.

The VA forced  me ,after my husband died with his 1151 claim pending, to get a medical background.I could not find any IMO doc or even a FTCA lawyer to help me....they all said I could never succeed. Piss on them.

So I did it all myself. and won FTCA/1151.  Nothing is impossible but I assure you doing that takes a LOT of work and time. There is considerable info in our FTCA 1151 forums on negligence.

VA saves lives every day. But they also have had some horrific malpractice cases. And they will fight these cases aggressively.

I dont see the potential for a ratable award. The types of  mesh caused many problems and lawsuits.

Edited by Berta

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Hi Berta,

My claim has been in the pipeline since 2000, denied I believe three time so far. 

I've had outside of the system legal counsel up until I went back to the DAV just recently. 

Yes awarded TDIU in 2008 for TB / Asthma, and COPD, Allergic Rhinitis combined 70%.

Regarding the TB..  in 1969,  22 pills a day, shot of strepto everyday for 60 days in Valley Forge PA. Cavity right upper lobe.

Just like in 1969 with the night sweats, I've been activity for over 6 month doing the night sweats, and the VA is activity looking for TB that has setup shop somewhere in the body.  Not sure what the issue is.  Diabetes could be it as well. I'm now apart of the 70's generation, and always in the back of my head know the VA could pull the plug on my compensation.  Never take anything for granted.

Regarding AO in VN, we went there when it was without question were not suppose to be there. No records or photos as those were not allowed then.  So this is not productive.

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Another note regarding TB.

They have not yet determined whether the TB is back, however I'm seeing a TB specialist have had a round of CT Scans to possibly locate it.
 I've tested positive on the antigen blood test.  I will always test positive for TB, and the presence of TB will be in my system always.

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