1151

[Defiance]

Looking for recommendations or guidance on who is the most effective for nexus letters in an 1151 thats at the BVA. Ive been battling for 9 years and cant seem to get anyone on board due to the cases complexity. Im actually in contact with Dr. Bash. Still trying for Dr. Anaise whos not responding. Any input or success stories would be greatly appreciated I feel I have hit a road block. Dr . Bash is very expensive and I spoke to the chisholm law firm they want a third upon winning. All information is welcome.

thanks in advance

[GBArmy]

Defiance You, my friend, are between a rock and a hard place. As you state, you have been working this for 9 years. An 1151 is a difficult thing to win. You have been turned down by one of the most prominate lawyers we know, Dr. Anise. CC&K want a third of the results, and Dr. Bash is expensive. You feel you have to get high powered help, but it will cost you dearly. Step back and look at the facts, man. The reason you need help is because it has been too hard to do yourself. But you don't want to pay for expertise to win. These lawyers and doctors have to be paid for what they have learned over many years of experience dealing with the VA. They have bills to pay too. If you don't want to pay to increase your chances, that's fine. There may be help here on Hadit to be successful, but that said, I don't believe any of us are lawyers. You can keep on fighting the fight and not getting what you deserve for many more years, or you can get some but not all of the pie by paying for the help you need. Some of these firms may be willing to work out a payment schedule that you can afford, but you may have to negotiate the terms. We could offer several other competent firms to consider, but frankly, if you go that route, IMHO you have to be willing to "pay the man."

[Lemuel]

10 hours ago, GBArmy said:

Defiance You, my friend, are between a rock and a hard place. As you state, you have been working this for 9 years. An 1151 is a difficult thing to win. You have been turned down by one of the most prominate lawyers we know, Dr. Anise. CC&K want a third of the results, and Dr. Bash is expensive. You feel you have to get high powered help, but it will cost you dearly. Step back and look at the facts, man. The reason you need help is because it has been too hard to do yourself. But you don't want to pay for expertise to win. These lawyers and doctors have to be paid for what they have learned over many years of experience dealing with the VA. They have bills to pay too. If you don't want to pay to increase your chances, that's fine. There may be help here on Hadit to be successful, but that said, I don't believe any of us are lawyers. You can keep on fighting the fight and not getting what you deserve for many more years, or you can get some but not all of the pie by paying for the help you need. Some of these firms may be willing to work out a payment schedule that you can afford, but you may have to negotiate the terms. We could offer several other competent firms to consider, but frankly, if you go that route, IMHO you have to be willing to "pay the man."

Looking for an 1151 attorney myself.

Mistreated for the seizures diagnosed and a sensitivity to amitriptyline with contra-indicated Tegretol per page 983 1990 Edition of PDR in 1990.  Also is the failure to follow 38 CFR 4.42 in examining a basis for a 1151 claim based upon denied compensation. Failed to get treatment of temporal lobe epilepsy as a result until 2015 when a TBI examination should have been conducted in 1970 or by the Navy or in 1974-76 by the VA following a claim for residuals of a head injury.  Is there an SOL?  Filed a claim but the recent decision ignored the claim.  Have not received a response from CC&K.  Problem may be I am already TDIU back to September 16, 1985.  What are the limitations of remedy on a 1151 claim.  I lost 35 years of employment as an accountant because a 1986 Neurologists recommendation for treatment with Dilantin was not followed.  Currently have 40% TBI, 30% organic personality disorder, 20% hearing loss and 10% tinnitus for the TDIU basis.  Evidence of complex partial seizures in the October 1969 Nursing Notes for the hospitalization of the head injury.

[Berta]

I had a successful 1151 case. 

But I had filed FTCA as well as 1151.

The RO denied the 1151 even after I set them the FTCA settlement papers. I called the OGC and they ordered the VA to award the 1151. They did.

I could not find any lawyer to help me on the FTCA, and could not find any IMO doctor-this was in 1995 when the internet was limited.

The prime reason I succeeded on FTCA is that the General Counsel lawyers love evidence and they will read it all.I am not saying it was a piece of cake, but I am not intimidated by lawyers and knew I had a strong case with exemplary evidence. And that was a lot or work-I even studied cardiology, and neurology to support my lay medical opinion, of how the VA caused my husband's death.

However I re opened my claim for a direct SC death.The VARO completely ignored my IMos ( 2 from Dr Bash) andI was in a military school and had no time to fight them at the RO level.

I knew the BVA would award my claim. and they did.

I had again provided the VA and Dr Bash, and another Doctor, the evidence I had, that my husband had DMII from AO, that he was an incountry Vietnam vet, which they knew, and that he had undiagnosed and untreated DMII that the VA had failed to acknowledge and that the DMII was contributing  a factor in his death.I added Endocrinology to my study list for that claim.

My point is- Evidence is everything-but the VA needs a lay medical assessment from a claimant bolsterd by a strong IMO/IME in most ( but not all) of these types of claims (1151 and FTCA).

The DMII AO claim I filed was actually additional blatant malpractice, yet I could not file twice under 1151 for the same death, so filed under direct SC and that became the most important claim I had.

(My daughter was still in the Military when she insisted I file this claim.Not being a doctor myself, I had never consider the potential aspect of malpracticed DMII. Months passed when she kept bugging me to review Dad's VA med recs. I finally did- and everything changed.

No diagnosis or treatment for DMII but the recs and autopsy revealed more than I thought...when I reviewed them in a far different way, then in 1995.)

I agree with GBArmy- because I did succeed myself on FTCA/1151 but I sure was willing to pay thousands at that point, for the IMOs I needed, because it was far less stress for me- my instructors were primarily USMC Officers and they were tough on me because they never had a civilian at AMU before. The direct SC death award from the BVA generated ( with a small battle) quite a bit of retro Chapter 35 money because at some point my limiting DEA date ran out from a past VA award, and I had to pay thousands to finish my degree from my own pocket-but the DMII AO award gave me a new DEA date.

Nothing is impossible. It just takes a lot of work.

 

 

[Berta]

forgot to add ---You stated-

" I've been battling for 9 years and cant seem to get anyone on board due to the cases complexity."

Many 1151 claims we see here are complex,but they can be simplified this way:

1.With documented medical proof in the VA medical records of malpractice ( and whatever you have should be enough to garner the attention of a lawyer) ****

 

*** (that means every single medical entry must be gone over and use a good reference for the Abbreviations, etc.because they could reveal a lot, and also the medication profile must be gone over as well, I proved a VA med also contributed my husband;s death , also there was a crossed out entry that I had overlooked as being meaningful to my DMII case...

I finally deciphered what was crossed out, contacted the VA Neuro doctor who made the entry ( he had gone into private practice) and he gave me a very brief IMO in email that Dr Bash incorporated into his IMOs. The BVA gave this brief IMO - 2 or3 sentences as much weight as everything else I had)

2. And documented medical proof that you have an additional , ratable disability that is solely due to the VA's proven negligence or malpractice.

These two points were my sole focus for my pro se  FTCA claim.And became the most important points for my DMII AO claim,which I had IMOs for.

I even proved evidence of a cover up by an additional NY VAMC, where my husband was sent, when they realized the Bath NY VAMC had malpracticed. Their cover up attempt filed big time and was part of my evidence for the DMII AO death claim.

I never had a lawyer for my VA claims, but I know many of them have people who screen emails to them-so maybe best to call them in person- and in any event make sure they know of some concrete malpractice evidence you have, to get their attention. I dont know how the local VAMC PTs found out about my FTCA award- buy many vet pts there started to call me, or catch me at the VA Chapel to tell me they had been malpracticed on. Most of them however never pursued a FTCA/1151 claim at all. It takes a lot of time and work. I only know of 4 other successful 1151 and or FTCA cases against this VAMC and I helped a vet win one of them.They also killed him, too.

We really dont have much info on your issues-has the BVA remanded your claim?

Can you scan and attach here the RO denial of that claim, to include the evidence list?

Cover your C file #,name, address prior to scanning it.

Edited November 13, 2020 by Berta

[Lemuel]

2 hours ago, Berta said:

I had a successful 1151 case. 

But I had filed FTCA as well as 1151.

The RO denied the 1151 even after I set them the FTCA settlement papers. I called the OGC and they ordered the VA to award the 1151. They did.

I could not find any lawyer to help me on the FTCA, and could not find any IMO doctor-this was in 1995 when the internet was limited.

The prime reason I succeeded on FTCA is that the General Counsel lawyers love evidence and they will read it all.I am not saying it was a piece of cake, but I am not intimidated by lawyers and knew I had a strong case with exemplary evidence. And that was a lot or work-I even studied cardiology, and neurology to support my lay medical opinion, of how the VA caused my husband's death.

However I re opened my claim for a direct SC death.The VARO completely ignored my IMos ( 2 from Dr Bash) andI was in a military school and had no time to fight them at the RO level.

I knew the BVA would award my claim. and they did.

I had again provided the VA and Dr Bash, and another Doctor, the evidence I had, that my husband had DMII from AO, that he was an incountry Vietnam vet, which they knew, and that he had undiagnosed and untreated DMII that the VA had failed to acknowledge and that the DMII was contributing  a factor in his death.I added Endocrinology to my study list for that claim.

My point is- Evidence is everything-but the VA needs a lay medical assessment from a claimant bolsterd by a strong IMO/IME in most ( but not all) of these types of claims (1151 and FTCA).

The DMII AO claim I filed was actually additional blatant malpractice, yet I could not file twice under 1151 for the same death, so filed under direct SC and that became the most important claim I had.

(My daughter was still in the Military when she insisted I file this claim.Not being a doctor myself, I had never consider the potential aspect of malpracticed DMII. Months passed when she kept bugging me to review Dad's VA med recs. I finally did- and everything changed.

No diagnosis or treatment for DMII but the recs and autopsy revealed more than I thought...when I reviewed them in a far different way, then in 1995.)

I agree with GBArmy- because I did succeed myself on FTCA/1151 but I sure was willing to pay thousands at that point, for the IMOs I needed, because it was far less stress for me- my instructors were primarily USMC Officers and they were tough on me because they never had a civilian at AMU before. The direct SC death award from the BVA generated ( with a small battle) quite a bit of retro Chapter 35 money because at some point my limiting DEA date ran out from a past VA award, and I had to pay thousands to finish my degree from my own pocket-but the DMII AO award gave me a new DEA date.

Nothing is impossible. It just takes a lot of work.

 

 

Berta, thanks for your response.  It was a good read.

As I understand, you filed as a spouse of a deceased veteran under the FTCA.  I saw a case where a spouse of a veteran received $3 million for the failure of the VA to treat her veteran spouse for PTSD while he was alive and living with her.  But our statute of limitations is out under the FTCA.

My problem is the "Feres Doctrine".  My spouse could file for affects on her life but I cannot file for affects on my life under the FTCA.  My case died in the 10th Circuit.  SCOTUS would not take a challenge to modification of the Feres Doctrine under the Constitution's Amendments that I listed believing they modified the Article of the Constitution that the Feres Doctrine rests upon.  My contention is the FTCA applies to veterans not actively engaged in war with remedies under 38 CFR 3.154 allowing an avenue of discovery that is denied to veterans otherwise.  The VA can and did stonewall me denying me evidence to this date.

So my only way is a 38 CFR 3.154 (1151) claim.  I am hopeful CC&K will take my case.  The intake phone call of 3 hours gives me hope.  My BVA 05/11/2017 Decision Remanded requiring the evidence probative of my disabilities in the Possession of the VA be added to the C&P or an explanation of the reason that it cannot be added be given.  The Remand is going back to the BVA without a mention of that requirement to be done by the DRO before examinations are conducted and the examiners are to have access to it.  Will have to see what facts the BVA Judge will infer from the blocking of supplying the evidence or an explanation of why the evidence disappeared and was not replaced in the file from the old hard copy medical file.  Some evidence requested was the actual radiographic films and EEG tracings on which incomplete reports were written.  And 38 CFR 4.42 non-compliant examinations.  (reason for the remands in the first place)

I will post when I get a BVA Decision or the response from CC&K.

[Berta]

-Good Lemeul-my reply was shaped for our new member Defiance , above, but still it pays to go over

the requirements for 1151 and FTCA.

The local VAMC vet I mentioned above who I helped get 1151 comp did not understand at all why I was typing a claim for him while he was visiting me.

He had said something a VA doctor had said to him just as he was leaving ---but I suddenly called him back into my house and prepared the 1151. I never even looked at his VA medical records, and with a very few months he was awarded 100 P & T under 1151.

I wrote the claim as if I was him and stated 'my recent VA medical records from Buffalo VAMC will reveal the evidence of my charges under Section 1151, 38 USC.'and expanded on that  and the surgery for a colostomy bag, he never needed before he went to Buffalo.

They had misdiagnosed stage 4 colon cancer as hemorrhoids' for Years---- here at the Bath VAMC.

I advised him he was still in the FTCA SOL but he said he would spend a large settlement, if he ever got one under FTCA , all of it at Graceland-(he is an Elvis buff )and he was more satisfied with the 1151 at 100% because he was only getting 40% SC for a GSW to his leg.

 

Edited November 13, 2020 by Berta
added more