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  • 14 Questions about VA Disability Compensation Benefits Claims


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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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A Brief Overview Of The Ftca


A Brief Overview of the FTCA

Malpractice and medical negligence can happen at any top notch private hospital as well as within the VA health care system. VA heath care is most often as adequate and proper as health care found anywhere in the world. But medical errors can happen.

Any medical error, which could be an omission of a proper medical act as well as a documented prime facie act of negligence ,and which is not corrected immediately by the VA ,could result in additional disability and even death.The Veteran who was set for surgery a few years ago for removal of a gangerous leg, woke up after his VA surgery to find the good leg had been removed by VA instead. This is prime facie malpractice. Most medical negligence is not as obvious as that case was.

If you feel your VA medical records reveal negligence and,or malpractice to the extent that they have caused you an additional documented disability, that cannot be determined to have any other cause but for negligence ,(their negligence, and not yours) in most circumstances you have a basis to file a FTCA claim.

FTCA law is vast and time consuming to read.That is what malpractice lawyers are for. Seeking a FTCA malpractice lawyer should be the first step you take.They will surely advise you to obtain an Independent Medical Opinion and will have a template that the IMO doctor can use.The IMO could be costly. The IMO might reveal no malpractice or negligence whatsoever. At that point you have spent some cash but have peace of mind knowing that no VA negligence occurred.

The SF 95 form is the first legal document you will be filing. Most lawyers want to prepare this form themselves.There is a specific type of wording that is needed in Question # 8 as to the cause of action.Your lawyer will know how to file this form with the Regional Counsel who has jurisdiction over the alleged malpracticing doctor (s) you name in the charges.

The doctors you name in the charges must be employees of the VA as defined within 28 USC 2401 (b) and further defined in this link which explains how their actions had to also fall under the scope of their duties:

The Statute of Limits for FTCA claims is most often that the SF 95 MUST be filed within 2 years of the plaintiff's awareness of the malpractice. A malpractice lawyer will be able to adequately determine the proper SOL and will refer to “equitable tolling” as within Kreger V Saiki, (8th Circuit 1994) or other cases if needed. There are other conditions that regard the SOL but a potential FTCA claimant MUST act fast if the Statute of Limits could possibly be questioned by the VA.

Once the SF 95 is filed ,the VA Regional Counsel or Office of General Counsel will ask for evidence.This is where the IMO will come in as well as all relevant VA medical records.The IMO needs to determine and reveal exactly how the malpractice occurred and exactly what resulting disability it caused.All malpractice lawyers ,as mentioned above, will have a template for that type of IMO.

What happens next:

“After you file a claim, the agency has six months to respond. While the agency is considering your claim, you do not have to worry about any time limits to file a lawsuit. However, once the agency responds to the claim, you have six months in which to file a lawsuit. “

Then again:

“As set forth in 28 U.S.C. § 2675, once a claim is received, the agency receiving the claim has up to six months to act upon it before the claim shall be considered by law to be denied. In other words, assuming an administrative claim is timely filed within the statute of limitations, suit cannot be filed for another six months. If the claim is denied earlier than six months, suit may be filed once the agency has denied in writing the submitted claim even if time remains on the two year limitation period for presentment of a claim. Once the agency's rejection period has expired, suit must be brought within six months of the denial. Otherwise, it will also be denied by the statute of limitations. See generally , Bernard v. United States , 475 F.2d 1134 (4th Cir. 1973). While some Courts have recognized equitable tolling of the limitation period due to unique factual circumstances, counsel obviously does not want to rely on a tolling argument to defeat a limitation defense. Thus, claims should always be pursued on a timely basis. “

and in part:

“A plaintiff must wait to file suit until the agency rejects the claim or if six months pass without the agency's rejection, this may be treated as a denial. 28 U.S. C. § 2675(a). If a suit is filed during the first six months after the administrative claim is filed, such an action will be dismissed by the court for lack of jurisdiction, although the dismissal may be without prejudice to refile once there has been compliance with the statute. See, Fuller v. Daniel , 438 F. Supp. 929 (N.D. Ala. 1977).

When the government is sued under the FTCA, the complaint should name the United States of America as the defendant and not the federal agency. The action may only be brought in the United States District Court, not in state court. It must also be brought in the federal judicial district where the plaintiff resides or where the negligent act or omission occurred. 28 U.S.C. § 1402(b). There is no right to a jury trial. 28 U.S.C. § 2402. If the plaintiff prevails, damages are measured by the law of the place where the act or omission occurred, meaning the whole law of that jurisdiction. Richards, et. al. v. United States , et. al., 369 U.S. 1, 6-7 (1962).”

One cannot determine ,after the SF 95 is filed, if the VA will act on the FTCA claim right away or allow the 6 month period to run out with or without a written denial of the claim.

In cases where the VA has noted medical evidence of merit,and has accepted the FTCA claim, they will order a Peer Review through the VA Office of Medical-Legal Affairs

The Peer Review report (there can be more than one done-in my case they did 3 or 4)

is a list of 10 or more questions that specifically regard the veteran's care.The IMO template your attorney provides will anticipate what these questions, for the most part ,will be. These Peer Reiews are only available to the plaintiff under FOIA , AFTER any final settlement occurs.

In one Report I have regarding my FTCA case, the questions solely focused on my husband's cerebral vascular accident and a confirmed medication error. In another 6 page Peer Review report the questions had 5 possible answers and the Review Doctor had to circle one answer for each question and then there were areas in which he expanded on his answers. This regarded my husband's malpracticed heart disease.

For example:

“Was the proper therapy/treatment executed in a timely manner?”

Definitely Yes Probably Yes Probably No Definitely No and N/A

The doctor circled Definitely No and enhanced his answer with direct references to 2 EKGs I had sent in with my SF 95.

and “Was the patient injured as a result of any of the above components of care?”

He answered probably Yes and added “it is possible that the fatal events cold have been averted or delayed with prompt diagnosis and treatment.”

In another Peer Report the questions had no multiple choices and this cardio doctor elaborated thus:

“This is the slowest work up I have ever seen.” and

his BP was NOT adequately treated and this is extensively documented.”

“Yes there are multiple deviations from the usual standard of care.”

“”All of these deviations hastened his death.”

The Peer Review reports obviously seek to resolve the 2 fundamental issues of all FTCA cases:

Did medical negligence/malpractice occur due to VA care that was substandard when compared to the “usual” or “Standard” medical community ?

Did the veteran patient have resulting disability(ies) or death due to the substandard care?

What happens next:

After receipt of a Peer Review report that reveals malpractice such as above reports, the RC or OGC will contact your attorney to begin negotiations for a settlement. Your state laws will possibly have a bearing on the amount of settlement you can get as well as how much VA health care actually damaged you.

If VA health care costs a veteran their life, obviously those settlement stakes are high. If the disability that VA malpracticed on as caused, has also stopped your ability to work,that too is a settlement consideration. There are many factors that your lawyer will make sure the VA considers in their offers of settlement.

What happens next:

The VA is supposed to honor a NPDB mandated agreement and report the settlement and those doctors charged with the settlement to the National Practitioners Data Bank.This list in turn goes to every state Department of Health and Human Services to report on their web sites under disciplined doctors in their state as public knowledge. VA doctors are not exempt.

Does the VA always do this? NO!! The VA is willing to defy this important mandate and if they don't properly report the doctors in your charges within a reasonable period of time after settlement is finalized you should get in touch with the NPDB yourself.

Once the settlement papers are signed the information goes to the US Treasury Department and they send the money. You pay no income tax on the settlement, but you do pay income taxes on any income it generates if you invest it or intrest if it is in a checking or savings account bearing interest.

If you also have a Section 1151 ,38 USC claim pending for the same malpracticed disability, by time of settlement your lawyer will have advised you on the offset ramifications of that.Of course you have evidence (the settlement with the US of A) to provide to VA now to get a Section 1151 award letter.

The laws and regulations for federal courts regarding FTCA issues -if suit has been filed in court due to a VA denial of the FTCA claim- are so involved that even NVLSP, National Veterans Legal Service Program advises in the VBM to make sure you have a lawyer at this point.They dont go into the multiple nuances of federal court law at all in their extensive FTCA information. All I had when I succeeded in FTCA was the info on FTCA in the VBM by NVLSP ,also access to a local law library which was miserable to travel to and use, and I also had medical evidence of malpractice in my husband's VA records. It was not easy to find but if they malpracticed on you it will be in there. An IMO doctor, in the field of expertise of the disabilities you have ,will see it. We have the right to pursue FTCA charges with VA without a lawyer. I didnt even have an IMO. BUT I don't advise doing this at all. And no one should go into a federal court if the VA denies their FTCA case, without a lawyer.

There is a wealth of more FTCA info on the net. But a good FTCA experienced lawyer, who also has dealt with the VA already on FTCA issues, will save you the time of reading the intricate FTCA legalize as it applies to the VA. They know it in and out already.

Edited by Tbird
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      Indicate method used to obtain medical information to complete this
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      Page 18 of 44
      [X] CPRS
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      | A | B | C | D | E | F | G |
      | 500 | 1000 | 2000 | 3000 | 4000 | 6000 | 8000 | Avg Hz |
      | Hz* | Hz | Hz | Hz | Hz | Hz | Hz | (B-E)**|
      | 30 | 50 | 75 | 85 | 95 | 105+ | 100+ | 76 |
      LEFT EAR
      | A | B | C | D | E | F | G |
      | 500 | 1000 | 2000 | 3000 | 4000 | 6000 | 8000 | Avg Hz |
      | Hz* | Hz | Hz | Hz | Hz | Hz | Hz | (B-E)**|
      | 35 | 50 | 70 | 80 | 85 | 105+ | 100+ | 71 |
      * The puretone threshold at 500 Hz is not used in determining the
      evaluation but is used in determining whether or not a ratable hearing
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      *** CNT - Could Not Test
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      c. Validity of puretone test results: Test results are valid for rating
      d. Speech Discrimination Score (Maryland CNC word list):
      | RIGHT EAR | 56% |
      XXXXXX, xxxxxx
      Page 19 of 44
      | LEFT EAR | 56% |
      e. Appropriateness of Use of Word Recognition Score (Maryland CNC word
      Right Ear:
      Is Word Discrimination Score available? Yes
      Word Discrimination Score appropriateness:
      Use of word recognition score is appropriate for this Veteran.
      Left Ear:
      Is Word Discrimination Score available? Yes
      Word Discrimination Score appropriateness:
      Use of word recognition score is appropriate for this Veteran.
      f. Audiologic Findings
      Summary of Immittance (Tympanometry) Findings:
      | | RIGHT EAR | LEFT EAR
      | Acoustic immittance | [ ] Normal [ ] Abnormal | [ ] Normal [ ] Abnormal
      | Ipsilateral | |
      | Acoustic Reflexes | [ ] Normal [ ] Abnormal | [ ] Normal [ ] Abnormal
      | Contralateral | |
      | Acoustic Reflexes | [ ] Normal [ ] Abnormal | [ ] Normal [ ] Abnormal
      | Unable to interpret | |
      | reflexes due to | [ ] | [ ]
      | artifact | |
      | Unable to obtain/ | |
      | maintain seal | [X] | [X]
      Page 20 of 44
      2. Diagnosis
      [ ] Normal hearing
      [ ] Conductive hearing loss ICD code:
      [ ] Mixed hearing loss ICD code:
      [X] Sensorineural hearing loss (in the frequency range of 500-4000 Hz)*
      ICD code: H90.3
      [X] Sensorineural hearing loss (in the frequency range of 6000 Hz or
      higher frequencies)** ICD code: H90.3
      [ ] Significant changes in hearing thresholds in service***
      LEFT EAR
      [ ] Normal hearing
      [ ] Conductive hearing loss ICD code:
      [ ] Mixed hearing loss ICD code:
      [X] Sensorineural hearing loss (in the frequency range of 500-4000 Hz)*
      ICD code: H90.3
      [X] Sensorineural hearing loss (in the frequency range of 6000 Hz or
      higher frequencies)** ICD code: H90.3
      [ ] Significant changes in hearing thresholds in service***
      * The Veteran may have hearing loss at a level that is not considered to
      a disability for VA purposes. This can occur when the auditory
      thresholds are greater than 25 dB at one or more frequencies in the
      500-4000 Hz range.
      ** The Veteran may have impaired hearing, but it does not meet the criteria
      to be considered a disability for VA purposes. For VA purposes, the
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      *** The Veteran may have a significant change in hearing threshold in
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      for VA purposes. (A signi
      ficant change in hearing threshold may indicate
      Page 21 of 44
      noise exposure or acoustic trauma.)
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      [X] Etiology opinion not indicated as:
      [X] Service connected condition
      [X] VBA did not request etiology
      4. Functional impact of hearing loss
      Does the Veteran's hearing loss impact ordinary conditions of daily
      including ability to work: Yes
      If yes, describe impact in the Veteran's own words: DIFFICULTY
      5. Remarks, if any, pertaining to hearing loss:
      1. Medical history
      Does the Veteran report recurrent tinnitus: Yes
      Date and circumstances of onset of tinnitus: FROM 2.16.16 EVALUATION:
      describes a subjective, bilateral, constant tinnitus with an unsure
      2. Etiology of tinnitus
      [X] Etiology opinion not indicated as:
      [X] VBA did not request etiology
      3. Functional impact of tinnitus
      Does the Veteran's tinnitus impact ordinary conditions of daily life,
      including ability to work: No
      4. Remarks, if any, pertaining to tinnitus::
      No response provided
      NOTE: VA may request additional medical information, including additional
      examinations if necessary to complete VA's review of the
      NIC…., MARK
      Page 22 of 44
    • By Michigander
      My heart goes out to all of my fellow survivors of MST ...
      For me, I have found I can no longer suppress and manage the daily physical and emotional affects of the sexual assault that took place on December 25, 1985 while serving on active duty.  In effort to find some help, relief and hopefully someday healing I am starting the uphill journey to deal with this and try to share some of the highlights of my battle.  I will be the first to admit I have no idea what I am doing and can only hope that God the father.... will guide my feet day by day. 
      First step locating documentation of the event.  A few weeks ago I was able to locate the police dept. and requested a copy of the report.  I received a copy of the 15 page report this past week and it makes me emotionally and physically sick just to look at the envelope it's in.
      I also tried to locate medical records over the years from prior mental health therapists and physicians that would have documented my history as it related to these events, but the practices were closed or my records were no longer available due to time.
      April I called the VA to inquire about mental health services for MST and hesitated to start the process because the MST would not be marked in my record for all my providers to see.  This was a big hurdle mentally as I have always hid this event at all costs from my providers.   I am sure this did not help my physicians treat me and fully understand my ongoing medical problems especially those in which are usually brought on by some big life event which I always adamantly denied when asked. 
      May 2nd 2017, I submitted a "intent to file".
      May 4th 2017, I went to a VSO rep?? to asked questions about the process to file a claim related to MST.  The rep was belittling, insulting, hurtful, rude and I walked out of that office with no more information and the psychological affects were pretty devastating.  At the encouragement from my daughter to go straight to the patient advocate office and file a complaint....I did just that.  I found myself have a total mental breakdown just trying to give the details of what just went down and was thankfully met with support and many reassurances that I would have a team of people helping moving forward and that person would be brought in...dealt with and re-trained.  I will spare you all the details.
      My next step is hearing from the mental health dept. to set up an appt. to do some type of baseline evaluation of my symptoms etc. as it related to MST... I guess to get an official diagnosis on record and to get me the specific therapy I need started.  I will likely opt for tele-therapy once I have a few sessions onsite at the VA. 
      That's it for now
    • By bright
      I have been 100% perm and total since 2003, before that i was 70%.
      I just got an appointment for a C and P exam to reevaluate. WHY!
      Has anyone ever heard of this?  Has anyone ever had one after being perm and total?
      What is going on?
    • By mrkman123
      Forgive the first effort, injuries have a way of making things difficult.....   Twenty-four years of dealing with the VA, and the difficulties at hand ensure negative results.....  These are the copies of a C and P recently done at the VA, and leaves me to doubt this system is capable of conducting themselves in an ethical manner.   Enjoy the insanity, this veteran is tired of paying the piper; Eighteen Years were Enough !!!!    (Remand posted earlier.)  Still waiting to address attorney with the results of this remand and the Shabby, Disrespectful, and unethical way in which this Veteran has been treated at the VA hands......   Document 1.pdf ...   Comments, opinions, and suggestion greatly needed and appreciated....   Sincerely, Mark
      Document 38.pdf
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    • By ATCJen
      I got some feedback, thanks! 
  • Our picks

    • I was rated at 10% for tinnitus last year by the VA. I went to my private doctor yesterday and I described to him the problems that I have been having with my sense of balance. Any sudden movement of my head or movement while sitting in my desk chair causes me to lose my balance and become nauseous. Also when seeing TV if there are certain scenes,such as movement across or up and down the screen my balance is affected. The doctor said that what is causing the problem is Meniere's Disease. Does any know if this could be secondary to tinnitus and if it would be rated separately from the tinnitus? If I am already rated at 10% for tinnitus and I could filed for Meniere's does any one know what it might be rated at? Thanks for your help. 68mustang
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    • Feb 2018 on HadIt.com Veteran to Veteran. Sharing top posts and a few statistics with you.
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    • I have a 30% hearing loss and 10% Tinnitus rating since 5/17.  I have Meniere's Syndrome which was diagnosed by a VA facility in 2010 yet I never thought to include this in my quest for a rating.  Meniere's is very debilitating for me, but I have not made any noise about it because I could lose my license to drive.  I am thinking of applying for additional compensation as I am unable to work at any meaningful employment as I cannot communicate effectively because of my hearing and comprehension difficulties.  I don't know whether to file for a TDUI, or just ask for additional compensation.  My county Veterans service contact who helped me get my current rating has been totally useless on this when I asked her for help.  Does anyone know which forms I should use?  There are so many different directions to proceed on this that I am confused.  Any help would be appreciated.  Vietnam Vet 64-67. 
    • If you are new to hadit and have DIC questions it would help us tremendously if you can answer the following questions right away in your first post.

      What was the Primary Cause of Death (# 1) as listed on your spouse’s death certificate?

      What,if anything, was listed as a contributing cause under # 2?

      Was an autopsy done and if so do you have a complete copy of it?

       It can be obtained through the Medical Examiner’s office in your locale.

      What was the deceased veteran service connected for in his/her lifetime?

      Did they have a claim pending at death and if so what for?

      If they died from anything on the Agent Orange Presumptive list ( available here under a search) when did they serve and where? If outside of Vietnam, what was their MOS and also if they served onboard a ship in the South Pacific what ship were they on and when? Also did they have any major  physical  contact with C 123s during the Vietnam War?

      And how soon after their death was the DIC form filed…if filed within one year of death, the date of death will be the EED for DIC and also satisfy the accrued regulation criteria.
        • Like
      • 14 replies
    • VA C and P Exam – Do’s and Don’ts – VA Compensation Pension Exam


      The following is written from a VA Compensation and Pension Examiners perspective relating to psychiatric exams. It is a good guideline for all exams but I only did psych exams. I’ve been examined by the VA for multiple problems and this is my format when I go to be examined. A little common sense and clarity ...

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