Ftca 2008 Smc 1151 Qusteion

[private Steve]

Can i file for smc after winning a FTCA in 2008. I have a claim for 1151 sitting with the Law Judge in Washington DC waiting for my final answer. I've been denied like four times on the 1151 1st was because of progression of my disease second time same thing. The third time they denied me saying there was no proof in my records I had hip surgery which I never had I would know. Then the last time it says I had a foreign object left inside of me after colon surgery. I had a Femoral Bypass Surgery in 2005. On my FTCA " Acts or omissions" it states they did the Arteriotomy improperly and my Wound care was IMproperly taken care of causing me to have a scrotnectomy and my right foot amputed after my surgery was on my left leg. There is so much more here than I can say and I would love to get some help or advice from you

[private Steve]

I would like to talk to the Admin Hadit if at all possible. I love the fact you care for us and I could really use some help since I refuse to use a lawyer I turned it over to the Lord because I believe what is right is right and wrong is wrong. I have read many of your words in the past and I can tell you care. Everyone should be told filing a claim there will be individual who will care as much as the person filing the claim. I've had nothing but headaches for 8 and a half years and I know I am right. I went in for surgery on my left leg woke up weeks later because of complications and my foot on the opposite leg had been amputated I and a scrotnectomy done on me. I caught MRSA, H.I.T.T along with infections and delirium. I went in for one surgery and had 16 I was to spend three days I spent months. I thank you for caring even if I never hear from you. Steven P bullshirts@yahoo.com

patriot,
Welcome.
Please repost your info and questions by starting it as a new topic in the
corresponding Forum.
Thanks

[Tbird]

Hi Private Steve - I put your questions in a separate topic it will get more eyes on it that way. I thank you for your kind words, I can not however help individual claimants with their specific claims. The website is what I can do, so it's what I do. This has nothing to do with you, it's my stress level trying to do individual claims for folks is just to stressful for me. I hope you understand.

[Berta]

VA will not grant a Section 1151 claim for the same medical malpractice issues as a FTCA claim.

Unless you can prove the same disability(ies( they malpracticed on for the FTCA settlement are in fact service connectable.

I did that...FTCA for wrongful death 1997, then AO DMII death 2009 and AO IHD death 9n 2012.

All of that info is here somewhere as to how I did it.

The VA was then forced to pay me a high five figure FTCA offset they had taken from my settlement.

I posted the Prohibition of duplication regulation here somewhere, maybe in this link:

There is no time limit on Section 1151 claims. I have on pending now over an additional malpraced condition that VA did not pay for almost 20 years ago.

You mentioned SMC. If the VA should have awarded you SMC under 1151 in the past, then you can file a new 1151 claim.....see my note below)

The VA failed to award my deceased husband SMC and I filed a CUE claim on their initial DIC award to me, due to that error.

That story is here to.

They awarded the CUE last year. The award however was wrong and I filed CUE against the award.

Yesterday VA told me that claim is with a specialist who ha a note in my C file regarding a 2997 issue ( which I believe was resolved vut need to fund that decision)

If they owe you additional retro under 1151 for SMC, based on medical evidence , they will pay it but it might not b easy.

I found that the lawyers at VA OGC were so up on the regs that they were easy to deal with when it came to the final settlement. My FTCA was the easiest claim I have had.....

I mean that it took me considerable time to study cardiology and neurology but the evidence was in my husband's med recs...as to the malpractice , and stated in the final OGC report as “Indefensible”.

You said:

“Can i file for smc after winning a FTCA in 2008. I have a claim for 1151 sitting with the Law Judge in Washington DC waiting for my final answer. I've been denied like four times on the 1151 1st was because of progression of my disease second time same thing. “

They denied my 1151 DIC claim about 3 times ,even after I won the FTCA settlement.

At that point I called the General Counsel in DC and told him to get it fixed. He did.

If the VA has copies of your FTCA settlement and any discover info, they should have awarded the 1151,if it ws for the very same basis the FTCA was for.

After mking FTCA settlement I was abgl, under FOIA, to obtain the internal documents from the OGC as t their high levl medical review of my evidence.

I suggest you obtain those documents.

I sent them with my current 1151 claim because they are prime facie evidence for my recent 1151 claim..

Like you,I didnt have a lawyer for the FTCA case I had and I do believe in turning things over to the Lord.

But I also believe God helps those who help themselves and I spent hours every day for over 2 years after filing my 1151 and SF 95 tort studying medical evidence in the record, medical texts on the prime disabilities VA malpracticed on, and I studied all of the 1151 regs and FTCA regs.

I also had purchased the VBM from NVLSP ,and that was a tremendous help to me for my 1151 issues and many other things.

This was all done re internet days too so it was very hard work but I new I would prevail when I decyphered the extensive medical records from my husbands many years of VA med care.

Note..in order to possibly have SMC under 1151 awarded to you by medical evidence, the VA MUST award the 1151 claim first.

I cannot understand why they denied you so many times........

You might have to call the OGC. There number is here somewhere.

I dealt with George Bradshaw and Tim McKinney there years ago and they were horrified to hear from me in 2009 again because I told them the FTCA settlement was erroneously ignored by the Buffalo VARO ,when I won direct SC death, and I was considering asking for more FTCA cash..Ha Ha.......

Some top honcho at the OGC called my VARO right away then sent me copy of his follow letter to them and by end of that month I had received my FTCA offset cash.

But again I remind of the Prohibition of duplication of benefits reg..it is here somewhere at hadit.....

If I find the OGC contact number here I will post it...

Can you scan and attach here (cover name address, C file number) the last 1151 denial letter you got.

Agin I need to remind that VA will NOT pay under both FTCA and 1151 for the same disabiltys, unless........you can prove as I did, that the same malpracticed issues were service connectable.

If you do get a 1151 award but it says the VA is prohibited from paying twice for same FTCA disability, and that is correct, and yet the VA did not consider the SMC issue in the FTCA settlement, then you can potentially do what I did and either file CUE on their last denial or file a new 1151 claim for the SMC (the retro of which would NOT be part of the FTCA issue,since FTCA lawyers didnt consider it.

My SMC 1151 CUE claim is all explained here somewhere.

If we can read the last 1151 decision you got here,it will help us understand your situation better.

[Berta]

This is the VAOGC phone number I used many times in the past:

(202) 273-6660

This is the VA OGC Fax number that I used about 2 years ago:

1-202-273-6385

hopefully these numbers have not been changed.

Also I assumed a lot from your post and I could be wrong.

When I settled with VA I wheeled and dealing with them as to the offset amount.

It was due to the fact that I was a surviving spouse and not the actual veteran.

It involved estate laws and I had legal experience in that.

There are a few more nuances to FTCA for survivors,different from FTCA matters for living veterans.

This is an important Question and I should have asked it right away:

Did you agree with the OGC for a full offset or did they handle the offset amount differently in your settlement papers ….the ones you signed with the US of A ,that was also signed by one of the OGC lawyers?

One more question...

Has VA fully acknowledged the FTCA settlement papers in their Evidence list in the 1151 denials?

[Berta]

Just to add a final thought here....because without seeing here the 1151 decision it is hard to advise as to what the BVA could do:

I thought more about your situation and realize it is possible that No offset was even 
discussed with you by the OGC.It appears from what yu posted here that there was no legal need 
for an offset to occur.

This BVA case shows what I meant by offset.


“The facts show that the FTCA settlement was distributed to 
the veteran in his individual capacity.  As such, the Board 
finds the compensation benefits awarded to the veteran under 
38 U.S.C.A. § 1151 are subject to the offset in the amount of 
$70,000 against his FTCA settlement award.  Where the law and 
not the evidence is dispositive of the issue before the 
Board, the claim should be denied because of the absence of 
legal merit or the lack of entitlement under the law.  
Sabonis v. Brown, 6 Vet. App. 426 (1994).  Accordingly, the 
appeal must fail. “ 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp01/files01/0101466.txt

It IS possible that a veteran would receive a substantial FTCA settlement, then be awarded under 1151, and in time, the VA could recoup the FTCA award and then send the veteran 1151 compensation.

VA Awarded me 1151 DIC in 1997 and then recouped every single DIC check until my settlement was paid in full..I think it took them about 15 years or more to recoup the settlement amount.

I only started getting actual DIC comp money a few years ago.

It is possible that VA will award you Sec 1151 comp, then not pay it until the amount of your FTCA settlement is recouped.

If you have a spouse ,a Sec 1151 award (even with no receipt of 1151 monies due to the recoupment)

would help the spouse in most cases receive DIC under 1151,if you die directly due to the 1151 issues.

I have made the point here at hadit over the years that sometimes it is not beneficial to a veteran to file both FTCA and 1151.

Unless the veteran can prove the malpractice was also a direct SC disability, some vets feel better having a monthly 1151 comp check, then getting a large settlement in one FTCA check, that they could

possibly spend too fast

I have a friend who had that situation and I had to explain it to him carefully.

I helped him get 1151, at 100% and he eventually got SMC under 1151 as well.

He received a monthly comp check far great then the SC comp he already had been awarded.(GSW 40% SC)

He eventually got a 6 thousand retro check on a PTSD claim he had and he spent almost all of it in less then a week. He told me he would have spent any FTCA settlement too fast and thanked me again for explaining the differences between FTCA and 1151 and how sometimes that 1151 comp is better than FTCA lump sum cash settlement..

You did very well without a lawyer for your FTCA.

I did too but I advise,since then, strongly, that anyone ,contemplating FTCA, to get a strong IMO that reveals the malpractice and additional disability. due to it, and then to get a lawyer.

Also any FTCA or 1151 claimant should also seek any potential whatsoever that their malpracticed conditions should be directly SCed.

Unfortunately I am the only VA claimant I am aware of who ever did that.I am sure there could be more however.

But then again NOTHING is impossible with the VA.