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7 replies to this topic

#1 richjh

 
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Posted 16 September 2012 - 04:43 PM

This is possibly going to be a load of retro pay, EIGHT YEARS WORTH! I have Multiple Sclerosis and when I went into the PTSD program in Menlo Park I was not able to take my weekly shot of Avonex because of a VA policy that did not allow the use of Interferon. Because of the stress of the program coupled with going off my meds I had a massive exacerbation late 2002. My Kaiser neurologist wrote a letter that stated, In temporal association with the medication withdrawal and the stress of the program, he experienced a significant worsening of preexisting bowel and bladder control problems; such that he ultimately required a colostomy for bowel control. He uses intermittent cauterization for bladder control. It seems to me that the association between these events is more likely than not.

The above letter was submitted twice over the years and for reasons beyond my understanding was discounted by the VA. When I showed this letter to the BVA attorney she immediately saw its significance and I finally received a positive ruling granting me, Entitlement to service connection for neurogenic bowel and bladder, as secondary to treatment for service-connected post traumatic stress disorder (PTSD). I received this ruling just 3 months after my BVA hearing. Now I am just waiting for my new rating. I am currently SMC M1/2. I am hoping for a R1 rating but I am not sure if you need a O/P rating first before you can get a R1. Does anyone know the answer?

Rich

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#2 carlie

 
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Posted 16 September 2012 - 05:50 PM

Sorry for the conditions, glad for the positive action from BVA.
Did you also file an 1151 claim.

Wish I could add more help.

#3 jbasser

 
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Posted 16 September 2012 - 08:11 PM

I think it iwll be an O.

I am with Carlie. File the 1151 claim. Their refusal of your treatment caused you some serious issues and they are responsible ragardless of their bullcrap rules.


J

#4 Berta

 
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Posted 17 September 2012 - 05:48 AM

"Entitlement to service connection for neurogenic bowel and bladder, as secondary to treatment for service-connected post traumatic stress disorder (PTSD)"

As an 1151er myself, this statement is, in my opinion, an omission of VA negligence.

We have a vet here who received a similiar statement in a SOC and finally he said a few weeks ago, he had sent them a formal 1151 claim.

But VA never 'infers' a 1151 claim and it must be filed under auspices of 38 USC Section 1151.

It will be interesting to see how the VARO actually prepares the award here.

As I understand VA case law, 1151 ratings must be paid separate from SC ratings. They cannot be combined.

My AO award proved how it works.

Husband had a Section 1151, FTCA stroke which contributed to his death.

The AO Nehmer award I got in January continued his SC death for 1151 and direct SC IHD, and death due to DMII contributing, and also awarded 100% for 6 months for his 1151 stroke as well as SMC for the residuals under 1151.
He also had 100% SC PTSD, in a posthumous award and I received that retro years ago. With No offset from the 1151 award and retro due to the Nehmer decision (which included a CUE claim award regarding the CVA but I explained that here before.)

My point is 100% direct SC does not mean that a 1151 SC 100% award wont be paid....too ,as it was in my case.

But a lot depends on the rating VA is preparing now and how they word it. I assume it will be a secondary SC rating but their could possibly still be the potential for the 1151 claim.

"The above letter was submitted twice over the years and for reasons beyond my understanding was discounted by the VA. "
They cannot consider an obvious potential negligence or malpractice issue without having a formal claim under that basis from the veteran. I tried to make that point many times to the other veteran here with the omission of VA negligence right in his SOC.
"When I showed this letter to the BVA attorney she immediately saw its significance and I finally received a positive ruling granting me, Entitlement to service connection for neurogenic bowel and bladder, as secondary to treatment for service-connected post traumatic stress disorder (PTSD). "

Of course she did. A good vet's attorney will consider every facet of potential SC for a claim and they never overlook potential for 1151 if it is evident.

Your lawyer will know better then me if you should also file 1151 here.It might be appropriate to reach the highest level of SMC possible in your case.

This is what was claimed,that triggered the BVA award:
"neurogenic bowel and bladder, as secondary to treatment for service-connected post traumatic stress disorder (PTSD). "

But malpractice and negligence often has a domino affect.
I am filing myself , 18 years next month my husband died, a new Section 1151 claim.

1151 claims have no time limit and the EED is determined by the proof of malpractice.

I have the medical evidence , had it since 1997, but didn't claim this specific disability and I thought the Nehmer award might cover it.

It didnt but the Nehmer award gave me a foot in the door for not only the 1151 claim but basis for a NOD too.

The VA has to consider the colostomy. I helped vet friend get 100% and SMC for a VA malpractice situation which he ended up with colostomy from. I forget how they determined that rating but it was under 1151.

In the claim I wrote for him to sign I just put down words to the affect that :

'my VA medical records ,to include medical records involved in my recent VA surgery at Buffalo VAMC, will reveal I have suffered from negligence at hands of VA and have resulting disabilities due to the VA's negligence.'


It was one of the fastest awards I ever saw coming from Buffalo VARO, awarded in mere months instead of years.







With the retro you expect ,at some point your lawyer might suggest getting an IMO to see what else the VA might have buggered beyond causing the neutrogenic disabilities.

That is what I mean by the 'domino' affect of negligence and malpractice.

Even a small medical error, if not corrected fast, can lead down the road to other major problems.

Edited by Berta, 17 September 2012 - 05:54 AM.


#5 Tbird

 
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Posted 17 September 2012 - 08:32 AM

I am happy for your success and I agree with 1151 information. I am so very sorry that you had to go through this.

#6 Pete53

 
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Posted 17 September 2012 - 03:24 PM

Congrats on your win. Sorry it took so long.

#7 ComputerGeek46

 
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Posted 18 September 2012 - 06:33 AM

congrats richjh and I concur with pete53 soory for the length of time it took and thank you for your service

#8 richjh

 
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Posted 23 September 2012 - 11:27 AM

I spoke with my VSO last week and she said my claim was filed as a 1151 claim. I looked through my decision letter and 1151 is not mentioned anywhere. I am a bit confused as to what is going on. Should it say 1151 somewhere on my claim? I am just playing the waiting game right now.
Rich




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