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Berta

1151 claims and OGC Pres Op -08-97

Question

I have searched BVA, CAVC, and talked to a few lawyers about this-over the years, and never found anyone who challengd a 1151 decision with this regulation:

So I have done that that.

My husband was 100% P & T SC for PTSD and also 100% P & T for a Section 1151 Stroke that contributed to his death.

I have 4 separate DIC  theories of entitlement - 2 under1151 and 2 under direct SC.....my original 1151 DIC was turned into direct DIC in 2009.

The OGC Pres Op - written after the 351 moratorium I was in, ( 351 became 1151 in 1997) states in part:

 

.”  We stated that “the language and legislative history of [38 U.S.C. § 351] make clear that Congress intended that all veterans’ monetary benefits payable for service-connected disability or death be payable for qualifying disability or death resulting from, among other things, medical examination or treatment in the same manner as though the disability or death had been a result of military service.”  VAOPGCPREC 80-90, at 3 (emphasis in original).”


And:

.  In that opinion, we clarified the statement in VAOPGCPREC 80-90 that “all veterans’ monetary benefits payable for service-connected disability or death” are available for disabilities compensated under 38 U.S.C. § 351.  We explained that the statement “was generally intended to encompass all disability and death compensation and DIC benefits,” but not necessarily all other ancillary benefits available to veterans suffering from service-connected disabilities.  VAOPGCPREC 100-90, at 2-3.  We stated that “section 351 entitlement may also provide entitlement to certain ancillary and special service-connected benefits depending upon congressional intent.”  Id. at 3 (emphasis in original).”

And:
 

HELD:

 

"Disability compensation may be paid, pursuant to 38 U.S.C. § 1151 and 38 C.F.R. § 3.310, for disability which is proximately due to or the result of a disability for which compensation is payable under section 1151.”

https://www.va.gov/ogc/opinions/1997precedentopinions.asp

 

The word "all" is mentioned twice, underlined as emphasis in the opinion, and does not eliminate any affected veteran or their survivor who is eligible for accrued benefits.

My Nehmer decision included an award of CUE for my husband's 1151 IHD and Stroke and appeared to apply this Pres Op to the first 6 months of his 1151 disability- but he had the 1151 stroke 100% P & T for 2 years peioe to his deatgh ( and IHD msdiagnosed, Sced to AO , since 1988)-I filed CUES on all of that.

This opinion has never been withdrawn or altered in any way and was prepared by OGC the same year I settled under FTCA.

Oddly enough it is not in M21-1MR as far as I know under their 1151 info, and might be one of many OGC opinions, that veterans and their survivors never even know about.

I filed multiple CUEs a few months ago- regarding this issue and fully intend to see a positive result. The evidence is from the OGC above, but also involves a 'congressional intent'. VA had a brief statement at their web site for years which seems to have been taken down. It said under their limited 1151 info, that veterans cannot be "deprived"of their 1151 awards but I think many have been "deprived" of the intent of Congress by VA's failure to apply this established VA OGC opinion.

If VA has "combined 1151 issues with SC ratings, that to me is a deprivation of "all".

My CUEs all involve violation of 38 CFR 4.6 and they have ignored probative evidence within OGC Pres Op 08-97, and copies of the opinion were sent with each CUE.

My RO likes to lose , remove from the C file, and/or ignore probative evidence.

 

 

 

 

 

 

 

Edited by Berta

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I smelled this coming for a while.  While I expect VA to fight you tooth and nail, it should be interesting.  It sounds like there is no prohibition from receiving both an 1151 and direct service connection, tho I dont know anyone who gets both.  

You posted:

Quote

My RO likes to lose , remove from the C file, and/or ignore probative evidence.

 

My RO must have gotten its training from your RO, as they have done all this repeatedly over the past 16 years.  As they discovered in the "october 2008 incident", it was not an "incident" but rather widespread occurance in multiple, multiple VARO's.  Its none other than fraud.  

In criminal law, its illegal to "tamper with evidence".  I have no idea how VA has gotten away with this for decades, other than having control of its own kangaroo court police force, the VAOIG.  What is a crime in most places, is a normal occurance at the VA, with Vets paying the price of delayed benefits, including homelessness and even Veteran suicide.  

Edited by broncovet

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Broncovet, if the VAROs ignore our probative evidence ,with a complete violation of 38 CFR 4.6, they might as well "shred " it, if we dont keep sending it to them. (They probably still shred stuff!)

"I smelled this coming for a while.  While I expect VA to fight you tooth and nail, it should be interesting. "

I will LOVE the fight!

It sounds like there is no prohibition from receiving both an 1151 and direct service connection, tho I dont know anyone who gets both."  

I did get both but only for the 6 month 100% 1151 stroke regulations, after that they have to rate the residuals- My husband's residuals were all   100% P & T, under 1151, until he died,  but all the evidence I sent them ( I do think that evidence was shredded now) was ignored and their Director told me the 100% 1151 stroke was Total but "not Permanent". The stroke is listed in the autopsy and death certificate as a contributing factor to death. Death makes any 100% award P & T at death.I asked the director ( she called me twice to get me to believe this BS) what sudden miraulous cure VA had provided to make the stroke not Permanent.

My evidence is from a former VA Secretary, SSDI, Voc Rehab, the AO settlement Fund, and a waiver of student loan signed by a VA doctor, who checked off stroke 100% P & T and a  C & P exam done at the Bath VA, in a crowded hallway- I was present- the Neurologist gave him a few commands, looked over his MRI and stated very loudly "I declare you totally and Permanently Disabled." The other vets looked at him like he won the lottery. We already knew he was P & T. The first page of the exam is all I got from them.The neuro actually notes are 'missing.'

I reported the director to a higher authority.A Buffalo RO vet I heard from recently reported her to the IG and is following up with reporting her to the OAWB.

 

 

 

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I do think its much harder for VA to shred our stuff now, because virtually all of it is electronically recorded.  Hopefully there are checks and balances so they cant just hit the "delete" key with no consequences.  This is a big improvement.  

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If they did delete it electronically, there would be an electronic paper trail, leading back to the computer where the person who deleted it, logged in.  I dont think they want that paper trail!!!!!! With paper shredding, there is no "paper trail", the papers just diappear.  

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I once had the VA deny that I had never been to their hospital.  Afterward I tried to get an appointment and they denied me stating that I had missed three follow-up appointments there.

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