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1151 Medical Malpractice SOL?

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Lemuel

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  • HadIt.com Elder

Is there a Statute of limitations (SOL) on an 1151 claim?  If so, when does it start.  When the injury becomes known or when the evidence becomes known to the victim?

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According to Glover Luck (law firm which represent Veterans, which included me, at least once) says there is no statue of limitations on 1151.  

For more, see here:

https://gloverluck.com/federal-tort-claims.html#:~:text=There is no statute of,without new and material evidence.

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  • HadIt.com Elder

Thanks, then there is no reason since a 1151 claim is part of the BVA legacy appeal that has been remanded no reason for CCK to abandon it because it will help SC partial and complex partial seizures and provide more evidence to get SMC.

Next question.  Is epilepsy considered separate or part of TBI.  All TBI victims do not end up with epilepsy but many do.  And so do cerebral malaria victims.  Not me but, I am sure CCK has veterans that have had cerebral malaria and have developed epilepsy, often more than a year out from the service.  Means developing it as a new PACACT claim for residuals of p. falciparum malaria infection.  As I used to tell PTSD group victims of FUO (fever of undetermined origin) that if they were not treated for p. falciparum malaria infection, they were a ghost.

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Lemeul posted:

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Thanks, then there is no reason since a 1151 claim is part of the BVA legacy appeal that has been remanded no reason for CCK to abandon it because it will help SC partial and complex partial seizures and provide more evidence to get SMC.

IDK why/if CCK abandoned it.  I do know this.  Mostly, attorney's dont like the "scattergun" (aka shotgun with many many small pellets) method.  It is sometimes called the "spagetti" method, where you throw the spagetting against the wall and see what sticks.  I also know that many/most Vets dont like portions of their claims "abandoned".  I had some of mine abandoned by law firms, too.  If I thought they could/should have abandonded them, then I could/would have done that before I hired the law firm.  But I thought those claims were valid, filed them and likewise did not like them being abandoned.  Still, I fully admit that I did not have the expertise of a law firm, and, that I need to either trust my law firms judgement or get a new lawyer.  

Remember, "if your lawyer does everything the way YOU think it should be done", then maybe you did not need a lawyer, you could have just done it all yourself.  I respect that the law firm has better and knows better than I do, and trust them to do what is best for me, until I have been proven the law firm is NOT acting in my best interests.  Then I would fire them.  However, I have never fired a law firm.  I "accept" they know more than I do and trust their judgement.  This attitude, tho it requires "biting my tongue" sometimes, has never failed me.  

Irritating the lawyer, and expecting him to do everything "my way or the hiway", however, can be disastrous.  

Significantly, the law firms goal is to win maximum retro allowed for us.  HOW they do that is up to them.  I do know the more I get paid, the more they get paid, so they do have a dog in the fight, and would not abandon a claim they thought was worth fighting for. 

I also know that most law firms are not "teaching law firms".  Their job is NOT to educate us, and explain every piece of paper they write to us.  We can go to law school if we want that.  They also are not baby sitters, and they are not mental health counselers to vent on.  

Law firms often need to "write down billable hours" when they win to VA to justify their payment.  I dont think the following would fly:

1.  8 hours...taught Veteran the multiple reasons why I made each and every decision..including the pros and cons of each.  Cost : 8 hours time 300 per hour: $2400.  

2.  took phone call with Verteran who was upset that it took so long 8 times at 1 hour each call.       Cost: 8 hours times 300.  $2400

3.  Calmed Veteran in phone calls as he was mad I did not handle claim "just as he thought I should" Cost: 16 hours times 300 $4800

4.  took phone call from Veteran who complained "I could lose my home" if I dont get my benefits soon.  Discussed many different senarios and how long this could take.  Cost: 4 hours times $300 per hour..

...you get the idea.  The lawyer needs to "justify" the costs to VA, and the above stuff wont cut it, as none of the above will alter the outcome of the claim. 

Stuff he can bill for:  Time reading our file.  Time preparing for briefs.  Hearings.  Time filing appeals, etc.  

    Just like most of the rest of us, we want to get paid for all our work, not be a volunteer.  

     If your lawyer gets a "w" he gets paid, and you should be happy.  And, be careful about criticizing the attorney's work, UNTIL you get your law degree and work up to a law firm supervisor position.  

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  • HadIt.com Elder
Posted (edited)

Thanks Bronco.  You are no doubt right about the unwillingness to take more than the most money issue and easiest to win issue.  The Judge told me at the hearing I would probably have to come back one issue at a time to the BVA.  Forgot about that until your post above.

Like I told the attorney, I can always go back to the BVA and show that the item was filed and appealed but not represented under 38 CFR 20.1000.  When it is complicated like this it is supposed to be sent to the Director Compensation services.  The Judge told me at the 2016 hearing I would probably have to come back one issue at a time to the BVA.  Forgot about that until your post above.

Will wait until the attorney gets what he can and then go for the extra-schedular route for the 1151 mistreatment of epilepsy and the confirmation of epilepsy. The scattergun was actually created by the Remands in the 2017 decision with the de novo review.  Only the EED for TDIU was developed at VARO.  It is only a request to finish the remands that is needed, including an extra-schedular rating for tinnitus which was remanded by the BVA Judge in her decision.  Have the 2016 hearing and the 2017 decision as references.  Will separate the issues with separate 10182s filed on different dates next time.

Should get an EED back to July 1974 at 80% to August 1985 for additional compensation on the 1151 claim and appeal.  Seems to me this would have been a better choice for the attorney and let the SMC fall into place or be the second run.  Or at least tell me that he would do the 1151 next because there is no statute of limitations.  Just explain the situation.  I can always use 38 CFR 20.1000 to get this BVA hearing reconsidered and if necessary appeal again to the CAVC.

I think Haskell v McDonough will change everything in my favor on the SMC-T.  So, it would be the one to leave with a simple statement that he is waiting on that decision in a brief.  SMC may depend upon the epilepsy rating which because it was delayed since September of 1990 for confirmation and treatment did not begin with an effective treatment until August of 2015, the epilepsy rating will qualify for the 20 year rule the minute it is correctly made.

Edited by Lemuel
left out definitive phrases
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As far as epilepsy seperate from TBI, Im guessing that determination needs to be made by a doctor, because I certainly am not competent to decide that.  

That said, Im with you on the VA habit of chopping our claims into pieces and make us wait for years on each one.  I prefer a "one and done".

But, each issue can, and often is appealed:

1.  Service connection or no.

2.  Disability percentage dispute.

3.  Effective date.

4.  SMC eligibility.

5.  SMC effective date.  

      The VA wont do "one and done's", rather it can take 5 or even more appeals for the same claim.  For this reason, my claim took 17 years to do all these.  And, 2 decades for VA to process a claim is "the new normal" for them.  

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  • HadIt.com Elder

Isn't that the truth. 

There is a condition called anosognosia that some TBI victims have and virtually of the cerebral malaria (p. falciparum) victims have.  A 1914 Babinski neurology diagnosis.  You may have seen his name in your medical records detailing the foot reflex, a curl down or an extension up when the reflex hammer handle point is put to the sole of the foot from heel towards the toes.  "Babinski reflex is up (or down)"  I do not know which indicates what.  Private medicine is recognizing the anosognosia diagnosis occasionally with asomatognosia, but the VA has not because it would be one more disabling factor.  

There are two types of anosognosia according to some physicians, psychiatric and neurological.  With asomatognosia has to be neurological--brain damage in the subconscious (usually left) mid parietal area of the brain.  The effect of anosognosia can be experienced by drinking too much alcohol and playing a sport.  Then watching a video of the game after.  The experience of the drunk driver in California being taken to a driving track and videotaped driving a course set up in a parking lot without hitting any cones sober and then drinking 4 ounces of whisky and driving the same course again while being videotaped.

My first claim was in 1974.  All denied for compensation but all SC.  1984, on the advice of an neurologist, after failing the word recognition in the "say the word.." portion of an audiogram, to reapply for compensation, I did.  The neurologist got transferred and the clinic went to no neurologist for a time.

I got compensation for hearing and for "traumatic brain disease" which is now "mixed organic personality syndrome with depression".  Keppra, for seizures and oxygen therapy have pretty much cured the "depression" part.  I am not nearly as bad off as I was when I put in the form for SMC for me and for my wife before she passed.

Since 1994 some things have remained open.  The 1987 extra-schedular claim for TDIU is the only thing completely laid to rest.  And most items were remanded to VARO for another look.  Shotgun remand decision in 2017.

 

 

 

 

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