More info to 1151 claims

[Berta]

There are over 2,000 1151 claims that were decided by the BVA since beginning of 2020 to present.

Most were denied , some were remanded.

This is one of many BVA decisions that explains 1151.Without a strong IMO/IME, the 1151 claim will fail , in my opinion, 99% of the time.

The one %  would be because a veteran or survivor supported the 1151 claim with medical evidence so probative, the VA had to award.

I know that because I am one of the 1%. My FTCA case was why the 1151 claim succeeded.

A full FTCA peer review was done, supporting all of my charges, because all of my evidence was read by a Cardiologist at VACO.

 

 

 

"Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability were service connected.  A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct, the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable.  See 38 U.S.C. § 1151.

To establish entitlement to benefits under 38 U.S.C. § 1151, the Veteran must show both that he has (or has had) the claimed disability/additional disability and that it was caused by VA hospital care or medical treatment (with the proximate cause of the additional disability involving carelessness, lack of proper skill, error in judgment, or similar instance of fault (on the part of VA), or an event not reasonably foreseeable).  To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment resulted in the Veteran's additional disability.  A mere showing that he received care, treatment, or examination, and that he has /has had an additional disability, does not establish cause. 

The Veteran did not respond to the letter and did not provide any additional information or evidence showing that medication (and specifically, as claimed,  Orlistat), prescribed by VA resulted in the disabilities here at issue (amputation of the right 2nd and 3rd toes, a heart disorder, a stomach disorder, and a disability manifested by constipation).  The etiology of the claimed disabilities is a medical question that is beyond the scope of common knowledge and incapable of resolution by lay observation.  See Jandreau v. Nicholson, 492 F.3d, 1372, 1377.  Here, while the Veteran was advised that loose stools may be a side -effect of his prescribed Orlistat, there is no competent (medical) evidence in the record indicating or suggesting that his claimed toe amputations, heart disability, stomach disability, or disability manifested by amputations were caused by his prescribed Orlistat.  The Veteran is a layperson, and his own opinion is not competent evidence, and has no probative value, in this matter. " 

"Consequently, the Veteran has not (with respect of any of these claims) met a threshold requirement for substantiating a claim under 38 U.S.C. §1151 (competent evidence that the claimed disability resulted from VA treatment).   [While the analysis does not need to proceed further, the Board also notes that there is also no competent evidence that the VA prescription of Orlistat treatment provided involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of by VA (which is another medical question).  The Board acknowledges the evidence submitted include a VA notice of recall of Orlistat due to tapering with packaging.  However, since there is no competent evidence that the Veteran's use of Orlistat caused the claimed disabilities, whether such was an unforeseeable event is a moot question that needs not be addressed.] "

"Considering the foregoing, the Board finds that the preponderance of the evidence is against these claims.  Therefore, the appeals in these matters must be denied."
https://www.va.gov/vetapp21/files5/a21009027.txt

 Some of us here probably get 1151 questions from vets we know.Or from survivors of veterans.

The threshold for 1151 is so high that they should come here , but if they do not want to obtain an IMO/IME, there is nothing much we can do for them.