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Jay Johnson
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Posts posted by Jay Johnson
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And/or can mean "in addition to" or "in the place of". So, baseball, basketball and/or football would mean any combination of those 3 or any single one alone. It's supposed to be a flexible phrase, but I can see your point how the VA could abuse it (I've seen it done with PTSD).
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GuaymasJim,
All good points and I wasn't aware that VA doctors had the same malpractice exemption as military doctors. However, we're still talking about something well outside of what people typically think of as malpractice suites that can end in rewards over 1 million dollars. In my uncles case, there was absolutely NO dispute over fault...the doctor had admitted to my uncle, and other medical personnel, that he made the mistake. My uncle was awarded 100% compensation for the injury because the VA admitted that they caused it, but getting some small compensation from the VA and winning a lawsuite against the government are two totally different matters.
I'm curious, what do you expect to win out of this lawsuite you have? My uncle is dead and he doesn't get a dime outside of normal VA compensation....I just find it hard to believe that anyone is going to win any real amount of money in a system designed to stop people from winning money. In essence, you're fighting for lost wages and if the VA awards 100% for your claim then what wages are you losing? Medical expenses are 0 because you have free VA health care at that point, so what, exactly, can someone win in a tort claim against the VA outside of VA compensation?
Here's some stuff on federal tort claims -
The Federal Tort Claims Act, however, prohibits award of punitive damages. 28 U.S.C. § 2674. The punitive damages prohibition has been construed to mean that income taxes must be subtracted from gross income and future economic losses must be reduced to present value. Trevino v. United States, 804 F.2d 1512 (9th Cir. 1986); Shaw v. United States, 741 F.2d 1202 (9th Cir. 1984).
A discount factor must be applied in FTCA litigation as a matter of federal law. See, e.g., Colleen v. United States, 843 F.2d 329 (9th Cir. 1987); Hollinger v. United States, 651 F.2d 636, 641 (9th Cir. 1981); United States v. English, 521 F.2d 63, 70 (9th Cir. 1975); O'Connor v. United States, 269 F.2d 578, 585 (2d Cir. 1959). But see, Barnes v. United States, 685 F.2d 66 (3d Cir. 1982) ("total offset" method not punitive); DeLucca v. United States, 670 F.2d 843 (9th Cir. 1982) (addition to award to compensate for taxes on income that would be earned by investing the award).
Failure to deduct income taxes from the income calculation permits an excessive, punitive recovery in some cases. Felder v. United States, 543 F.2d 657, 670 (9th Cir. 1976); Cf., Kalavity v. United States, 584 F.2d 809 (6th Cir. 1978) (income tax need not be taken into account for persons whose incomes are in the lower range); Harden v. United States, 688 F.2d 1025 (5th Cir. 1982); Kalavity-style limitation of income tax deduction rejected). Contra, Manko v. United States, 830 F.2d 831 (8th Cir. 1987).
The FTCA bars punitive damages from being awarded against the government. 28 U.S.C.§ 2674 At one time, this bar was interpreted expansively in favor of the government and was held to bar any form of damages that was not truly compensatory in nature. See, e.g. D'Ambra v. United States, 481 F.2d 14 (1st Cir.), cert. denied, 414 U.S. 1075 (1973); (Rhode Island Wrongful Death Statute); Massachusetts Bonding & Ins. Co. v. United States, 352 U.S. 128 (1956); (plaintiff obtained compensatory damages notwithstanding whether state wrongful-death statute utilized punitive standard). Flannery by Flannery v. United States, 718 F.2d 108 (4th Cir. 1983), cert. denied, 467 U.S. 1226 (1984).
In Molzof v. United States, 502 U.S. 301, 112 S.Ct. 711 (1992), the Supreme Court liberalized FTCA damage law relating to punitive damages. In Molzof the Supreme Court took a narrower view of punitive damages and held that punitive damages should be interpreted according to the traditional, common law meaning and not to mean damages that were not purely compensatory. In Molzof the question was whether or not damages for future medical expenses could be awarded when the injured party was receiving medical care from the Veteran's Administration and whether or not the court could award damages for "loss of enjoyment of life." The District Court and the Court of Appeals held that damages for future medical expenses, when the plaintiff was not paying future medical expenses, and for "loss of enjoyment of life" were not compensatory in nature and, therefore, punitive within the meaning of 28 U.S.C. § 2674. The Supreme Court did not agree with this interpretation and held that the punitive damages prohibition of Section 2674 barred only damages that are punitive in nature and intended to punish the defendant and not damages that were not, strictly speaking, not compensatory.
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I think you're missing the point of what "tort" means. Basically, in order to get any real money out of the VA (for pain/suffering) you need to prove that the VA, not the doctor, is responsible for the injury, which is nearly impossible. In most cases, it is doctor error, which means you can sue the doctor and NOT the VA...this is the essence of tort law. Of course the doctor can simply write off any law suite by claiming bankruptcy, so most lawyers won't even take a case against an individual doctor because, even if you win, they, nor you, will ever see a dime of the award. However, if you can prove the injury was due to VA policy then, and only then, can you sue the VA for real money that you'll actually see (they have deep pockets).
As I said in another thread...my uncle had his bowels nicked in a VA surgery which caused the inside of his body to, essentially, rot...he lived a life of hell and died 3 years later. The doctors readily admitted it was their fault..there was a ton of paperwork showing that the doctor did indeed cut the intestine...there was NO question as to the fact that the doctor screwed up. His family lost his case hands down andhe didn't have some small-town wanna-be lawyer either...this was the top tort claims lawyer in chicago.
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Tort claims against the VA are difficult if not impossible. However, you shouldn't have too much issue with getting compensation. Of course this isn't to say you don't hire a lawyer and try, but don't hold your breath either.....sueing the government is anything but easy:-(
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I guess I'm in the minority here, but I think the VA should weigh GAFs FAR more heavily than they do. As it stands now, they ignore a GAF when it's in the veteran's favor and they use ONLY the GAF when it's high and goes against the veteran. In my wife's case, she had an admitting GAF of 10 and a current GAF of 15, yet they ignored those in favor of the discharge GAF (42) and tried to rate her at 70%.
Now, if the VA applied their own laws (which they never do) they should be taking the LOWEST GAF, then assessing how often that low-point occurs. With this, they make a rating for compensation.
GAF *IS* an overall disability picture and does indicate the level of one's social and occupational impairment and, in most cases I've seen, most veterans have GAFs that would warrant at least 70% + IU (under a 50 GAF is "serious" occupational impairment). Anything 30 or less should automatically fall into TDIU and anything under 30 should automatically warrant a 100% rating based on GAF criteria.
The problem is that the VA does not want their hands tied, so they came up with this god-awful system that gives raters complete discretion when rating mental disorders and they use laws that are vague, at best, that the raters can easily ignore. Forcing them to use those GAFs would take the guess work out of the rating's process.
The only downside to a GAF is that NO doctor can properly assess one's overall disability picture in a single C&P exam, so those GAFs are meaningless. Also, the VA could simply instruct their psychs to give higher GAFs to keep claims down. However, both of those issues could easily be circumvented if vets would just quit using VA mental health care services and, instead, hire a private doctor. Of course, I strongly recommend using a private doc for mental health regardless of GAF issues.....
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Thanks Jay,
From one spouce to another, thanks for the information, please tell you wife we said thank you for serving and welcome home. It makes things so much easier when others can share their experiences and give directions to those going through the same or similar things. We will be mailing the form and DD-214 off tomorrow to get the letter before our son starts school. I appreciate you spending the time during your weekend. Have a nice evening.
Jangrin
It's the least I can do, Jan:-) Good luck with the process and please check back in if something goes bad...it's a state by state thing, so I'm guessing some states are smoother/quicker than others.
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Jason, Thanks so much. Do you know if my husband needs to call anyone or do anything once our son is signed up. The checks will be sent to our son for education but I think the VA will deduct the dependent payment my husband has been getting from his VA comp check. Also, my son will no longer recieve any social security once he turns 18. It used to be that kids got to draw SS if they lived at home and went to school and the parent was disabled or deceased. The government has very quietly taken that benefit away from dependents too.I don't ever remember hearing or reading about that coming up for vote. Too bad as it is really hard for kids to go to school and work now days.
Thanks for the help. jangrin
I'm not sure about how 18+ year old dependents works for the VA. I *thought* you would continue to claim them as long as they went to school, but I'm not sure how that conflicts with Ch 35 benefits. Anyway, to answer your question, I haven't done aynthing since signing up for my benefits (I'm the spouse by the way, not the veteran). My wife wasn't even needed to sign up or aynthing. All that is required of the veteran is to send off the award letter and the 214 (which the spouse can do).
The only thing required of me is to check in with the school VA office every other semester to make sure I'm still going to school full-time, but I did that via email this past semester, so it really wasn't a hassle at all.
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Jangrin,
The school counselor will only send him to the school's VA office. Honestly, the school's VA office can do everything for you, but it greatly speeds things up if you ge that letter as you're planning to do.
The 3-4 week period is simply a processing thing that takes place when you initially sign up. After you get signed up and the checks start coming, all you have to do is check in with the school's VA office (every few terms) to make sure that you are still attending full-time classes.
The most difficult part is getting the letter from the VA...when you've done that it's just a matter of time before the checks start coming.....
- Jason
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As for the general question - it only took me about 2 weeks to get the form from the VA that the college requires. Basically, you send your award letter + your 214 and they mail you a paper saying you're qualified. This letter, in turn, is brought to the VA office at the college and they set up the money according to part-time/full-time status.
A few notes - Berta is correct, you CAN utilize pell grants (if you qualify) AND your VA money...also, you can collect both of those with any scholarships you're awarded.
The money you get from the VA MUST come in the form of a check...they will not direct deposit.
Correspondence does not affect your VA money. Since my wife requires me to be at home 99% of the time, I take almost exclusively distance learning courses. The VA only cares about whether you're full-time, part-time, half-time, etc..
Also, look into your college bylaws (or state laws) and see if the college offers lower tuition for disabled veterans. On top of the VA monthly check, I only have to pay 50% of the normal tuition, per credit hour.
If you have any other questions, please let me know.
P.S. - You get the VA form (to send in) from the main VA website (under education I believe). The form tells you what you need (award letter + 214) and tells you where to send the letter (different for each state).
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Jan:
When he registers he needs to see the VA Office at the College. They will help him with a packet and forms he needs filled out. Once he gets paid he can even work at jobs paid for by the VA to help offset expenses. He will need a degree plan and he needs to know up front that if he adds or drops a course he needs permission from VA.
Every College has an office devoted to helping students with the VA
You don't need permission from the VA to add/drop in general... the only time you need to inform them of a class change is if it affects your fulltime status.
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Well, this is something that would not only help vets, but it would also help the VA. Their ridiculous stance on work, here recently, is leading vets to stay out of the work force, when they may be able to get back into it. The VA benefits when they can get people off of the 100% payrolls and it just doesn't make sense to punish people who are *trying* to regain employment. On top of that, it's obvious the regs were thought up with this in mind......
When I think of the average veteran, I think of the concept of "learned helplessness". This is traditionally associated with people who become apathetic to their abusers, but it seems to be becoming more and more frequent with the VA......veterans seem afraid to speak up about obvious regulations violations for fear of more abuse from the system, so they keep their mouths shut and go with the flow (so to speak).
As a matter of practicality, I agree with you sledge, but one can't help but wonder where veterans will be, say 50 years from now, if we keep letting them walk all over us even when the congressional law is clearly on our side /shrug.
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I'm about 20 minutes from the Portland VA and even closer to the Oregon RO, yet all of the wife's paperwork has to go through Seattle because we live across the bridge in WA. From what I've seen, it's a huge pain when dealing with the two different states here, especially in terms of a C-file.
I think you should try to schedule an appointment with that specialist and/or find a new one in WA, but don't expect them to sort it out for you, because the two states do not communicate well at all.
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I see this as another example of the law saying one thing, but when the VA ignores said law, people let it slide and, therefore, the law has no meaning. The purpose of the law is to allow people who cannot work, due to disabilities, to TRY to work and/or to find different work that may not affect their disability as much.
If you feel you want to TRY to work, then do so.....if the VA comes after you for following their own regulations, then fight them!
It kills me that the VA constantly cries that they have too many people on the pay rolls, yet so many here seem ok with the VA not allowing folks to TRY to get better and/or adapt????
Seems like an idiotic circle to me.....
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This is a fundamental difference in ideology. A large portion of the country believes we should all be working and that disability is for losers. Heck, mitt romney was just giving a stump speech about how any health care plan would lead to a wellfare state. Anytime we give money to people who need money that group of folks cries "wellfare, wellfare!!", yet they are ok with giving billions to corporations who fire Americans and move overseas to make 10 cents more per share on slave labor....all because the DOW goes up by 1.5% as a result.
Once people stop voting against their own interest (at least 95% of us....I'm sure the folks at exxon are voting in their interests), we'll be a MUCH better country...both civilian and veterans alike.
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Actually, the way I read this is that the VA is now switching gears and going after physically disabled vets. "advancement in medicine" and "changes in work" are basically saying that just because someone loses a leg (or legs) doesn't mean that they suffer in terms of income. Also, there are far fewer "manual labor" jobs in the US (due to cheap oversea's labor), so the majority of work in this country is shifting towards white collar, sit-down labor. In this type of labor force, many of the current high ratings, for physical disabilities, would not apply.
One can be a fine lawyer whilst in a wheelchair....backpain plays little role in clerical work.....so on and so forth.
Personally, I look at this report as more reasoning to LOWER vets, not "fix the system" (unless by fix the system one means less veterans therein).
What should change, fundamentally, is that compensation should include a social component. Service men and women are not allowed to sue the military as a civilian could a privately owned business; thus, the military should pay proper restitution to veterans for things like pain and suffering, loss of consortion, and other social implications. To me, this is the ONLY fair course that can be taken on the part of our military...either that, or give vets back the right to sue their government when their government causes them undo harm.
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My congressman was on the news today, yesterday I guess since it is now 4 in the morning, and he was talking about letting vets in my area use the local medical facilities instead of doing all of that traveling.
This guy is one of the jerks that refuses to acknowledge that I even exist.
He is also one of the self serving dudes that used to say; "Our veterans get the best health care".
He talked all around the subject of veteran's health care without saying a damn thing that could possibly amount to a hill of beans.
Since the wife was interested in what he was saying, really NOT SAYING, I hobbled outa the room to find my third beer of this year.
sledge
This is exactly the same tactic the right uses to keep us in iraq. If you question the mission you are against the troops; if you question their health care, you are against the troops; if you question their actions (and try to get rid of the bad ones), you are against the troops.
So, by this logic the troops will NEVER get better because we cannot question ANYTHING regarding the military. Yet, time and time agaain and on both sides of the isle, our elected officials tell us that the troops have the best health care in the world despite the fact that most of the doctors in the military and VA are straight out of college and not even licensed to practice.
Of course, some sort of universal health care would fix this, but that would make us communists I guess.......
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They're doing what they always do in the case of psychiatric disorders......playing down the facts that support your case and playing up the ones that don't. It sounds to me that your case is fairly strong and you have a good chance of winning it, but, on the other hand, your RO seems bent on denying you at that level regardless of what any new evidence shows.
This is their way of weeding people out of the system...stick with it.
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That's classic PTSD stuff there:-( The wife got to a point where she would "see death" all around her every time she got into the car. She would visualize running off of the road and crashing into a tree and, of course, she doesn't drive anymore as a result.
Her issues, though, were just generalized fears and hallucinations from MST. I would imagine your issue, being far more specific to driving, is going to be even more difficult to deal with. I hate to say it, but you may want to stop driving all together until you can get a better grasp on your symptoms....you could end up being a danger to yourself, or others.
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I would talk to your pharmacist about your med combination; they tend to be the most knowledgeable in that regard. I can, however, say that the drugs that most often cause issues are NSAIDS, SSRIs and MAOIs. SSRIs (selective serotonin reuptake inhibitors) and MAOIs (monoamine oxidase inhibitors...I think; it's been awhile:-) are largely for depression/anxiety. I'm guessing the clonazepam is being prescribed for anxiety for you given your PTSD. The only thing I would worry about is that you are taking a few drugs that can cause drowsiness, but if you're alert and it's not affecting your rate of sleep, it shouldn't really be an issue.
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Panic attacks can seem like heart attacks to some people and the worse they tend to be the worst they tend to get. In other words, once the panic attack starts the individual now begins to think the panic attack is something more serious (physiologically) like a heart attack; this compounds and leads to an even worse panic attack, which compounds even further.
The best thing you can do is find a safe spot, settle down, convince yourself this is simply a panic issue and try to talk yourself through it while taking deep, slow breaths.
I think people also need to keep in mind just how limited the field of psychology is. One's psychological state can have a huge impact on our physiology and there are very few studies that show why, or how, this occurs. Before my wife initially broke down with PTSD (while she had everything bottled up), she had all sorts of physiological problems. She was seen several times for shortness of breath and her blood work was always WAY off (at one point they thought she might have cancer due to high/low white blood cell count). In hindsight, we believe these abnormalities were caused by her psychological issues. It wasn't until she got treatment for her PTSD that her blood work starting showing up as normal.
As for specific treatments - The wife is currently on xanax XR for anxiety (XR = extended release). This is coupled with ativan PRN (PRN = as needed). The combination works better than anything she has taken thus far. However, the real key to avoiding anxiety is to avoid situations which cause high anxiety. No amount of drugs can "cure" PTSD, or other anxiety related issues, so one needs to be proactive in their daily environment in order to lead a somewhat productive life.
I would suggest that you seek out a civilian psychiatrist (NOT psychologist/therapist) that specializes in anxiety disorders. This is the best course of action in most cases, but make sure that the doctor doesn't over/under medicate you.....the doctor should be VERY receptive to YOUR ideas on treatment; if not, fire him/her and move on.
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On base care is typically quick and tricare is quick to pay because it's VERY cheap for them. The reason it's cheap is that most military doctors aren't even licensed to practice medicine and/or they are undereducated PAs and NPs. Quick + cheap doesn't always mean good.....
The military needs to do away with stateside military hospitals as does the VA....they are costly and useless.
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As far as the PTSD issue, I never once said that the symptoms could not appear for years, in fact I acknowledged as much when I said that PTSD can occur with delayed onset. My point about work was taken from a vet who has PTSD who said that his working kept him functioning. There is no doubt that keeping one's mind occupied will help one deal with the PTSD symtoms.
Work, in and of itself, can, and usually does, hurt PTSD vets. The only time work becomes therapeutic is when the job is such that one is not forced to work (IE - to pay the bills) and/or one's job is very low stress (good boss, good environment, etc). Although there are scenarios in which one can work without needing the cash while the same person can be in a low stress, good work environment, I don't believe that's the norm for 95% of us. Rather, we work to live in jobs most of us don't care for, while working for inferior, rude people.
This is the major flaw in Sally's argument to the VA. I guess she assumes that everyone makes 7 figures and gets paid to give opinions to a "think tank". Of course, if every vet had her job, they probably could work while being 100% with PTSD and it may actually help their symptoms......
To be honest, I do not feel that people should be able to get SSDI because they CHOSE to use drugs either. Now, if the alcohol and/or drugs are a means of self-medication, then that is a completely different story.
You say you have a degree in mental health and you use this tired cliche? Drugs and mental disability are inextricably linked. People who abuse drugs are almost always using them as a form of self-medication. Hell, Freud was a huge proponent of cocaine as a psychologically therapeutic drug.
People who are categorized as "choosing" to take drugs are just folks who are self-medicating and cannot admit to others, or even themselves, WHY they are self-medicating. Do you honestly believe hookers become hookers because it's a good career path? How many prostitutes, and other women in the sex industry, say that they had no childhood trauma? Yet, they smoke crack and sleep with dirty old men for money (which is used to buy more crack). In truth, these women cannot admit to THEMSELVES that they were molested as children and have become desensitized to the act of sex.
I took drugs as a kid (LSD, coke, pot, etc.) and I never even came close to getting hooked or abused it. However, the friends who came from rough backgrounds ALL got hooked on the drugs and some even died as teenagers. So, is it conceivable that some people abuse drugs just for some sort of "high"? Perhaps, but it's far outside of the norm.
As far as leaving PTSD up to those who have PTSD, that does not seem very bright considereing the fact that they are having trouble functioning (hence the reason for the disability). Now my PERSONAL OPINION is that those with mental disorders and are rated 100% should be able to work without losing their benefits. This would accomplish both goals, that of compensating the veteran for the disability and allowing them much needed work therapy. This is the exact way that veterans with phyiscal disabilities are treated. Now, if you have a problem with that OPINION, you can take this board and all the opinions that EVERYONE posts on here and shove them where the sun does not shine.
Here we agree. 100% PTSD vets should be locked into that rating (after, say, a period of 3-5yrs) and they should be allowed to work. Money earned on said job should be deducted from their VA compensation. This would allow those vets to seek employment without having to worry about "needing" said employment to live, which takes away most of the stress associated with work. In essence, if you get $2500 from the VA you will always be guaranteed that wage, so income becomes less of an issue, which leaves one to focus on personal goals without unneeded stress.
The problem is that the VA still buys into this idea that PTSD can be cured with words (IE - therapy), which is voodoo medicine in my opinion. Regardless, the VA will not lock any PTSD vet into a rating, nor give them any real guarantees that a veteran could trust with so many people advising them that PTSD is "all in one's head" and can be cured with hard work and dedication. Maybe we should tell someone who is missing two legs to just "walk it off"? Their ideas on PTSD are just as absurd.
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Again, I can only speak about my own experience. I have not had trouble with TriCare, the claims that have been submitted have been settled in a timely manner, I have had no doctor indicate that they do not like TriCare (other than the codes), nor have I had trouble finding a provider. I will have to disagree that TriCare is run by TriCare, it is in fact contracted out in each region.
I've been in Tricare east, Tricare south and, now, Tricare west....these are the three Tricare areas in this country and all were equally horrible.
The problem with many folks, in this regard, is that a lot of veterans have been in the military health care system for their entire lives and have NO clue how health care *should* work. They only seem to consider that the health care is cheap and, therefore, good. Try a good civilian health provider that covers dental, medical and eye......see how much less red tape there is and just how many more doctors actually accept said insurance (as compared to tricare).
We are the richest nation on earth and we shouldn't have to beg for services from some pencil pusher sitting behind a desk.....be it civilians or military.
Yes, tricare will eventually cover most things if you go to their crappy doctors and jump through a ridiculous amount of hoops, but it's simply not worth it to me and it's designed, just like the VA system, to discourage folks from seeking benefits. Could I go to some idiot nurse practitioner for my wife's psych meds? Sure, if I was willing to travel for 1.5 hrs, get on a 5 month waiting list and fill out 25 forms that need to go to 10 different departments ONLY after getting authorization from her PCM. Personally, I'd rather pay out of pocket and get a REAL psychiatrist that is GOOD at his job and can actually HELP her.
Part of the reason that she has been so bad over the last 5 years is because we were stuck using tricare's list of providers....the instant we decided to pay out of pocket we found a psych that specializes in anxiety disorders and has been very open with her in the med process. Because of this, she is more stable than she's ever been on the best set of meds she's had thus far.
So, if you like bad doctors that are willing to accept pennies on the dollar then go for it....I would rather have a qualified doctor that actually has a medical degree and not a glorified nurse and/or some idiot with a general bachelor’s degree with 2 years of wanna-be med school (IE - a PA).
P.S. - Despite the nonsense the media tries to feed the average American, military health care (for active duty) is among the worst health care in the world. They have the least qualified doctors with the least experience and the least educated and trained staff of any health care system on the planet.....3rd world nations get better health care. But it's free, so I guess that means it's good /sigh.
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That's because, as Army stated, the VA misuses GAF scores on purpose. A GAF *IS* an overall disability picture...that's the whole point of GAF; hence, "Global Assesment of Functiong....Global = all around...functioning = occupational and social impairment.
The reason the VA doesn't like GAF is because it gives little room for them to screw around with ratings. It's a concrete assessment that ties directly into one's overall disability picture and level of functioning. The VA wants to be able to cherry pick information to fit their disability rating, rather than have their disability rating dictated to them by a professional.
Courts View On Gaf
in VA Disability Claims Research
Posted
I'll have to dig it up, but I'm almost positive that the VA is *supposed* to use the lower GAF as they are assessing your low points and not your high points with mental disorders. However, the reverse almost always seems to be the case, as they routinely ignore low GAFs in favor of the highest reported GAF. I'll look around and get back to you....