1151 claim or service connected in need of help

[veteran]

       am trying to prepare a 1151 claim for my father in 2011 he underwent a C3 to C5 laminectomy with C3 to C6 fusion for cervical stenosis starting in 2013 we notice he was slightly forwardly bent over, and difficulty walking as well as difficulty standing up right. 2015 he was diagnosis with KYPHOSIS and walks with the aid of a rolling walker  limited mobility he sign an informed consent. and the VA is not at fault. and the conditions stated are mention in the consent form, today he is severely   forwardly bent over, difficulty standing up right, with limited mobility walking with aid of a rolling walker. how can I argue a winning chance . 

       the service connected option was my father was a telephone installer / repairer in the army 1952 to 1954 he had fell twice on his back from climbing poles. from a height lesser then 6 feet in the military. however his records whwre burn in the 1973 fire. and his dd 214 has him listed as a heavy truck driver which route should I take  

[Former Member]

Section 1151 claims only involve proven negligence or malpractice by a VA health care provider, enough negligence or malpractice to cause additional disability rated at least at 10%.

   "the service connected option was my father was a telephone installer / repairer in the army 1952 to 1954 he had fell twice on his back from climbing poles. from a height lesser then 6 feet in the military. however his records whwre burn in the 1973 fire. and his dd 214 has him listed as a heavy truck driver which route should I take "

I feel you could certainly help him file a SC claim as I assume he has no service connected disability now-

The VA will often say the veteran's records were lost in the St Louis fire- but sometimes that is not true.

He can request his inservice medical records and personnel records at  :

https://www.archives.gov/

The site will have a blank SF 180 he can fill out. and, unless this has changed, he also will need to print off a bar coded thing, sign it, copy it for his records, and mail it to the address the form directs him too.

It is always possible that the VA 'burned in St Louis fire" stuff is BS.

He will need proof of an inservice nexus, such as the pole accidents to prove that he was injured in service this way and then he will need to prove that his current KYPHOSIS is directly due to a SC disability.

This will not be easy because kyphosis can have many causes.

https://www.va.gov/vetapp13/files3/1321099.txt

This shows how the VA can deny these claims.

Here is a successful claim.

"Subsequently, in November 2014, a Decision Review Officer (DRO) granted service connection for Scheuermann's kyphosis of dorsolumbar spine, effective April 29, 2014. The Veteran appealed for an earlier effective date. It appears the DRO set the effective date based on receipt of the evidence found sufficient to reopen the claim. Presumably this was considered the date entitlement arose under the regulation. However, regardless of when that evidence was received, it is considered submitted in conjunction with the reopened claim of February 4, 2011. 38 C.F.R. § 3.156(a). As the low back disability has been extant for many years, it is the receipt of the reopened claim which is the later here, and therefore an earlier effective date of service connection of February 4, 2011, is warranted. As is noted above, the Veteran has filed a claim for CUE in the earliest 1988 and 1990 denials of service connection for his low back disability. Those claims are referred to the RO, and are not intertwined with the Board’s determination here. Bilateral Hearing Loss Disability, and Tinnitus "

https://www.va.gov/vetapp18/files12/18157484.txt

But the best thing you can do is to have him get his inservice records and if they cannot be found and they were in the Fire, the VA has an enhanced duty to assist him. Still kyphosis can have many causes- spinal injuries being one of them and I feel he is going to need an IMO/IME at some point.

You might have to prove the stenosis was due to the falls, which in turn caused the kyphosis.

Did the VA do the surgery?

 

Edited April 14, 2019 by Berta (see edit history)

[Buck52]

Ms berta

even though ''he sign an informed consent.''

would this hinder the claim in anyway???

[Buck52]

I've notice this lately  they always ask  veterans to sign a informed consent.' 

for any surgical procedure   even ingrown toenails or tooth extraction.

[Former Member]

It all depends on the facts of the claim.

"ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for damage to the colon (to include perforation of the bowel, the need for surgical resection of the large intestine / hemicolectomy, and associated deconditioning / weight loss) is granted. Entitlement to compensation under 38 U.S.C.A. § 1151 for respiratory disability (recurrent pneumonia/empyema, the need for ventilator tracheostomy, and severe respiratory compromise with neuromuscular debilitation) is granted."

The veterans was inadequately informed of the consent and the results of the procedure were not reasonably foreseeable.

“As the Board concludes that the Veteran has shown that the procedure was furnished without the adequate informed consent contemplated by 38 C.F.R. § 3.361(d)(1)(ii) and 38 C.F.R. § 17.32(c), the Board must accordingly conclude that the fourth element of a successful § 1151 claim, i.e., whether the treatment provided by VA involved fault by VA or an event not reasonably foreseeable, is reasonably established in this case on the basis of the lack of adequate informed consent. See 38 C.F.R. § 3.361(d)(1)(ii).”

https://www.va.gov/vetapp16/files4/1626596.txt

I imagine all vets would consent to any VA or private doctor's procedure or surgery-but none of them would expect results that are definitely malpractice.

In the member's case here, this will be a difficult claim to prove service connection for- and only his stack of VA medical records would reveal if malpractice did occur.

This case is one of many- veteran do consent to procedures and surgeries and yet the VA can still be held liable for Negligence/malpractice:

https://www.usatoday.com/story/news/2017/10/11/va-conceals-shoddy-care-and-health-workers-mistakes/739852001/