An important part of VA Disability law provides relief if a veteran suffers an injury or dies as the result of “negligent” VA health care, VA vocational rehabilitation, or the VA compensated work therapy (CWP) program. The Statute allowing these benefits is 38 USC § 1151, better known simply as an 1151 claim. A claim under Section 1151 is similar to a medical malpractice claim against the VA, but there are some very important differences.
In order to file an 1151 claim, a veteran or family member has to write the VA indicating that he/she believes that a permanent injury/disability, or death has occurred as the result of an action, or failure to act, of the VA. You MUST be able to show “intent”, in order to apply for 1151 benefits or VA disability benefits. Once this is done, the claims process should be triggered.
In order to win an 1151 claim involving medical care, the veteran or his family must prove: (1) that the disability or death was not the result of willful misconduct, and (2) the “proximate cause” was due to a VA medical provider’s carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or (3) that the outcome was not reasonably foreseeable. If the 1151 claim is due to voc-rehab, or the CWT program, then the rules are different and the veteran or his family member only has to prove “proximate cause”, but not negligence or fault. The VA defines “proximate cause” to mean that the action or event must directly cause the disability or death. In simple terms, it must be the actual cause of the injuries or death.
If a claimant is successful in the 1151 action, then the VA regulations require that the disability or death be treated in the same manner “as if” it were a service-connected injury. This means claims approved under Section 1151 allow veterans or survivors to receive VA Disability Benefits or Dependency and Indemnity Compensation (DIC), as applicable.
Most 1151 claims are very difficult to win because the “standard of proof” is pretty high, and always will require the opinion of a medical expert. Not surprisingly, the VA often fights these claims by saying that the medical providers use proper judgment and provided adequate care. They say the consequences of a medical procedure were foreseeable, or that the patient gave informed consent. This is where the medical expert employed by the veteran or his family comes into play by providing an opinion as to whether or not there was carelessness, negligence, lack of proper skill, etc..
Finally, it is important to know that there are other remedies beyond a Section 1151 claim that may be available in VA malpractice situations; for example, filing suit under the Federal Tort Claims Act (FTCA). The intricacies of filing an FTCA claim are beyond the scope of this blog; however, it is important to have an awareness that alternative remedies exist, and to discuss all options with an attorney that has experience with FTCA claims. At Hale Law Office, attorney Roger B. Hale has the experience to properly evaluate an 1151 or FTCA claim, and to fight for your benefits if a veteran has been injured, or dies due to the negligence of a VA Medical Provider, VA Voc-Rehab provider or a CWT program.
WHAT IS A MEDICAL NEXUS AND WHY IS IT IMPORTANT?
Usually, the most important part of any claim for veterans disability benefits is being able to prove that there is a “link” between your current medical conditions and your service while in the military. This is called the “nexus”.
The nexus, or link, between a veteran’s current disability and something that happened to you “in-service” is often the hardest thing to prove in your claim for VA disability benefits. However, without a nexus, your disability benefits claim with the Veteran’s Administration (VA) WILL NOT WIN! How does a veteran prove this complicated, yet essential element of service connection? It is done by getting a “nexus letter” or “Medical Nexus Opinion”. In fact, a well written nexus letter may be the single most important document that a veteran can have as evidence in support of a claim for VA disability benefits.
A medical nexus letter is a “report” that a doctor or other medical professional prepares for a disabled veteran, and it explains that the current medical condition of the veteran is related to their military service. A veteran is not required to submit a nexus letter along with the claim for disability benefits, but the nexus letter can often make the difference between an award and a denial. Also, there is no exact time frame of when a nexus letter is allowed to be sent into the VA. A veteran can submit a nexus letter with the initial application for benefits, during development of their claim, or after receiving a bad C&P Exam. However, it’s good practice to submit a nexus letter earlier rather than later. The nexus letter becomes especially important in cases where a veteran has not submitted any medical evidence in support of their claim, and then a C&P examiner finds that there is no connection between the veteran’s disability and military service.
The opinion of a Doctor, in the form of a nexus letter, can be a very valuable tool in a disability claim if it is done properly from the start. It is extremely important to first of all make sure the Doctor or medical professional even knows what a “nexus” medical opinion is and how it should be prepared. While it is great if you can get your current medical provider to agree to prepare a “nexus” opinion, it will do you very little good if the letter does not include all the “magic language” and findings required by the VA.
If you are going to have a current treating medical provider prepare the “nexus” letter, be sure that they understand that they only have to say that your medical condition is “more likely than not” related to your military service or some event while you were in-service. It can ruin the whole purpose of the “nexus” letter if the medical provider fails to include the “more likely than not” language.
To show just how important words can be in the VA Disability claim process, your medical provider could prepare a letter and state that it is his opinion, “based upon a reasonable degree of medical certainty” that your current medical conditions are related to your military service. While this sounds great, it is in fact pretty worthless. A “reasonable degree of medical certainty” is not the same thing as “more likely than not” and the VA may very well just ignore such language.
Your doctor must not only include the “magic language” required, but he/she must also tie all the facts of your claim together to show the connection to your service. Further, the medical provider MUST clearly state that he/she has “had the opportunity to review your entire claims file and medical records”. Again, good intentions by your medical provider can get you no-where if this language is not included in the report.
Once more, it is very nice if your treating medical provider can prepare the “nexus” letter for you properly. But, there are many, many times that your medical provider just will not do this for you. It does not mean they do not like you or they do not believe you, it is just that some medical providers will not prepare any type of medical opinions.
There are many medical providers throughout the country that have experience preparing “nexus” reports. They all charge a fee for such a report, and there is never a guarantee that their report is actually going to help your case. In fact, sometimes the report will basically end your case if that medical provider just does not feel that the evidence in your case supports a connection of your current condition to an in-service event.
WHAT TO REMEMBER
Here are some things that make for a stronger nexus letter:
1. Keep the letter brief, but still complete. Do so by focusing on facts and conclusions.
2. Use a doctor who is “board certified” in the area of health that is at issue, or at least has board certification in similar areas.
3. Make sure the doctor has access to your military service treatment records and personnel records. Have the doctor state in the letter that he/she had access to, and had the opportunity to review your entire VA Claims file.
4. The doctor’s opinion does not have to be absolute. Remember to tell the doctor that they just need to state “it is as least as likely as not” that the current condition was caused by an event during service.
A doctor that has experience performing VA type examinations and preparing “nexus” type of reports is always going to be very valuable to your claim. At Hale Law Office, we work with a doctor who is a veteran himself and who has been providing medical “nexus” opinion reports on behalf of disabled veterans for over 35 years. His reports are extremely well supported by the evidence in your file and contain all the “magic language”. However, if he does not think your conditions are related to your service, then he will say so, which is how he maintains his credibility. Finally, his charges are very reasonable and much lower than you might expect. CONTACT US for more information.
If you are not able to get a medical opinion on your own due to the expense, all is not lost. The VA may send you to a C&P examination and have one of their doctors provide an opinion on service connection. It is extremely important to remember that the C&P doctor is most likely NOT going to be the doctor who you see on a regular basis at the VA Medical Center. You MUST be honest and open with the examiner, because they will not go out of their way to detail your condition. You must take the step of making sure the doctor fully understands all of your problems. It is also important to remember what is done during the examination, because if the opinion of the C&P doctor is not helpful, or you feel the examiner left out or even changed important information that you told him, you can submit a statement that tells your side of the story as to what take place during the examination.
There are many times that the C&P exams will be very quick exams. I encourage everyone to make note of the exact time that your examination starts and ends. Then immediately write down exactly what you remember about the exam. For example, did the doctor have you do bending of different body parts? If so, did the doctor use a device that looked like this?
The type and length of exam can be used to show that you were not provided with a properly conducted exam.
This is but a very brief look at the “nexus” requirement in proving your claim for veterans disability benefits, but I hope it will provide you with some valuable information.
As many of you may know by now, the new VA Secretary is David Shulkin. You can see Dr. Shulkin's initial press conference by CLICKING HERE.
The new Secretary stated that disabled veterans can get "same-day" medical care at their local VA Medical Centers, but there are still long waiting periods for disabled veterans seeking new appointments in about 30 locations. Many of the VAMC's are running out of space, and as we all know, appeals of VA disability claims are backed up for years with no end in sight with no real accountability.
One of the big problems is that even if an employee is under consideration for "disciplinary action", the VA must still wait at least one month before doing anything while the out-of-control employee is still being paid!
While we are all hopeful that Dr. Shulkin will make a huge difference at the VA, I am sure many disabled veterans that are seeking care and benefits are not going to be holding their breath.
If you have been injured or contracted a disease due to care at a VA Medical Center, and you believe that it is due to medical malpractice or medical negligence, DON'T WAIT around as you only have a limited period of time in which to seek benefits. CALL HALE LAW OFFICE TODAY!