Berta

His advise is part -maybe all correct- Some states have a settlement limit to torts that VA settles out of court- so the $250,000 is right in some states- some states are higher limit to award , and some have no caps-at all. But a vet can file both a Sec 1151 claim and a FTCA claim- If he (the SO) is considering this as secondary 1151 to direct SC conditon- that is a good point -a good way to go with VA-there are many viables to 1151 claims- They have to be studied as well as 38 USC Sec 1151 et al. I would end up writing a book if I posted all the info here on them and FTCAs. He would need a medical nexus for that- still a good way to go on a VA claim-1151 as secondary to SC- SOs dont handle FTCA claims-they are not trained at all for this. They can certainly use the Settlement papers in support of the VA claim as evidence, if that is resolved first. The VBM makes point that a vet should get a good lawyer to help with FTCA claims. I had no lawyer and I know of others who succeeded under FTCA with no lawyer- If the medical evidence is there in the VA medical records-of malpractice and medical errors, one doesn't need a lawyer if they are willing to do the leg work, learn what the medical initials mean, the chem reports, decifer old doctors handwritting , and then show VA and General Counsel exactly what the evidence is. I studied cardiology ,VA laws, and Rod's med recs extensively as his sudden death didnt make sense at all- a VA doctor (Cardiologist) had told me there was nothing wrong with his heart-so it didnt make sense. I felt at first like I was looking for a needle in haystack. The reality was clear-cut malpractice and also a medical cover up. They never thought I would find out. You can do this yourself if you are willing to spend the time it takes. for the FTCA claim. The vet must file and make claim-within two years of the day they learned of or began to realise malpractice occurred. I have a vet who waited until the days and hours were ticking away and after I had helped him for many months-local vet-some good evidence in his med recs- VA counsel did not accept his SF 95. It was sent a few days late. Counsel could not accept it. I helped him with his 1151-too- long story there- it was a big waste of my time. An IMO can help tremendously - I didnt have an IMO. My FTCA claim was by far much easier to resolve with the United States of America (that is who you actually settle with when it is done) then any VA claim I ever had. That is because the VA employs excellent top notch legal and medical people at VACO - VA Central Office Washington DC -and all of their lawyers know how to read.

C & P- ooops I missed that before David-so it sounds like it is definitely going to be OK- as a re-opened claim- I am just worried about that retro that you might have lost---the retro EED now might be the day they got the RR. Thank you- one thing veterans need for sure is good and supportive friends. (added this to edited post----now I am re-thinking the RR they might have well considered as your NOD-I think you have saved the EED! But I dont think vet reps should file RRs though-a formal NOD is always the best way to go. )

OK- this is what it says- If this is a Request for Reconsideration on a BVA decision- that is OK. If this was that type of request with a VARO they should probably have contacted you by now- to clarify if this was a NOD-38 CFR Part 19 In order to stop the clock-they need to receive any written communication that can be "reasonably construed as a disagreement" with the decision and also a desire "for appellate review" the point Alex always makes here about NODs-- then the VA should consider this recon request as a formal NOD-and probably ask you to clarify it- does the 800# show it as a NOD filed? or have you asked the VA query system? All might not be lost- but this wasn't a decision under the old 'not well-grounded' stuff was it?That is different story- If so it would still be a re-open- possibly- all depends on how the VA has viewed this Recon request- Do you have an actual copy of this filed request to show the SO actually did this and sent it to the VA in your behalf? Documentation means everything-I wonder what he sent and whether he really sent anything to them. Also did you send to them yet, the medical evidence to support a higher rating then the Zero? There is only one CAVC listed in the VBM about this type of situation- I have not read it yet- Most important thing you can do is contact the VA through the query at www.va.gov or the 800 # and see what they considered this request to be ad tell them it was your NOD and you want to clarify it.

David- I will get back here to you on this- what I read in the VBM caused me great concern- maybe I am an error on that- but the vet rep friend of mine seems worried as to what it said too- I will get off here and double check-----and come back on---- PLEASE dont give up your claim- Maybe he just wants to get you out of his hair- I had a NSO who did that to me-no faith in my claims-no help whatsoever- years later I showed him my award letters in front of his vet org's lawyer-it was the DAV- The DAV is wonderful and I am a supporter -just got the supporter thing from them that you can frame- It is beautiful. It is only some of their NSOs that are problems-these few lousy NSOs hurt their entire image- Their NSO department is only one part of the DAV-they are really great as a veteran's organization. I gave money to their van fund at the local VAMC. Many of my vets need that van for transportation.This is a rural environment- I havent seen a bus in over 20 years. I will check out what the VBM says and get back here-

Yes- The VA -with an asbestos claim- will access your military MOS- they need to know what you specifically did that exposed you to asbestos in service- your MOS on your DD 214 probably doesn't even come close to covering what anyone of you did in the service----- If the VA finds asvbestos exposure in your military records, then they will attempt to deny for smoking -- Even smokers have won asbestos claims- see the BVA site and also the lawsuit sites ---- private citizens have won private lawsuits for asbestos disease---- The VA will need -regardless of being a smoker or not-medical evidence of the service link- and then smokers seem to need a good IMO to show that even with smoking the inservice asbestos -as likely as not-could have caused the disability- could have - this is the Benefit of Doubt- the vet should succeed - I say should because the VA likes to manipulate that reg. I have posted the VA training letter on asbestos here before- their might be a MOS list- I have one local asbestos vet and we are waiting for decision. They go back to NARA with these claim and it takes time to access and study all of the claimants inservice occupations.

David- many here will agree that 0% SC is often a LOT better than any NSC rating. It means the VA has acknowledged a SC disability but they find it does not meet the level of anything ratable- Say vet gets 0%SC for asthma-in 2001. the symptoms, affect to their employability etc do not warrant a higher rating than Zero. Then in 2002 they are hospitalized for severe asthma attack and the docs say they also have developed lung condition directly due to the asthma. Then say they have allergies that are being affected by the asthma- (I am making this all up of course) lets say the allergies are so bad that they can no longer work in a print shop where they had been employed due to the chemicals in print shops- (I stay away from that too and even xerox machines-cleaning product aisles in stores-I have allegies) This vet could NOD the 0 SC - or re-open their claim-with new evidence. OK I made that example on the asthma vet up- I am not making up this--- On a Request for reconsideration- a very good vet rep friend of mine made a critical error some years ago in asking the VARO for a reconsideration of a claim. The critical error was that neither he nor the vet filed a NOD as well as the Request for Reconsideration. This still bothers him a lot- Our VARO is so far behind that he doesn't know how the Recon request will go- they did acknowledge it- BUT- last year I saw in the VBM that only the NOD protects the EED- the request does NOT protect it- He is scared that the request for re-open will go through- it was pretty good claim for re-open- BUT he failed to protect the veteran's EED. Much of the potential retro has probably been lost. This is a dedicated vet rep- but he failed to search for info on VARO reconsiderations before he did this. PLEASE do not fail to file a formal NOD regardless of the Recon request- Bill Smith , an attorney at the Prodigy Veterans BBS in the 1990s made this point hundreds of times to the electronic veterans there. Gwen, Alex, Peter all know who I mean-Bill Smith is on BVA decisions. File the NOD as well as the recon req to protect your proper EED. If the NOD time did pass- maybe there is something this SO could do- please let me know- Geeee -could it be the same one I know -are you in NY State? Probably not same one -----

sorry I didnt reply to your email- I am a week behind on all that- If you sign an agreement under the FTCA -----for a settlement--- the VA General counsel will determine the offset amount. If the 1151 is successful before the settlement I think you can retain all Sec 1151 comp up to a certain date-----but I am not sure there- The Veterans Benefits Manual - about $125.00 -from NVLSP at their site-explains a lot of this- the advice you got was correct- a vet can file both Sec 1151 and FTCA claim. FTCA must be filed within two years of your awareness of the malpractice. On a formal SF 95 form-and in receipt of VA counsel before the two years are up. Section 1151 -no time limit.

That is a GREAT POINT Ricky- I got one two weeks ago on my CUE claim.It didn't make sense and did not say which CUE claim. Knowing that the BVA is questioning the way the ROs are sending and wording these so called VCAA letters- I copied the letter and corrected it and sent it back to the VARO-with more evidence for the CUE claim I think it is about- but not sure- at the very least the VCAA says they have to identify the specific claim they are sending it on. ROs are messing up big time on the VCAA letters. There has been discussion on other vet boards about it. Jim- I am very curious- did they actually say it was a VCAA letter? Mine didnt but I think that is what it is. Yet if so I never got one for the two claims they are working on now. Three years plus and I never received a VCAA letter-on them- or if I did I thought it was something else. My letter did ask for more evidence which I sent and listed 6 statements I had to respond to which I did. It never mentioned VCAA. Berta

Pete - long time no see!!!!! I forget the whole problem you had- but- have you asked any SSA lawyer to help you? There is a five year regulation- but it seems to me -if one is disabled and can prove they could not work in that period of time-perhaps they could prove they were too ill to file within those 5 years. I had local vet here with the same problem----he was found 100% PTSD by VA retro and I think he could use that retro date to support why he could not file for SSA in time--Berta

Jay- thanks- I need info on this new law too- Have two dear friends of over 35 years and they think that they do not need Part B- they are not veterans but they don't seem to understand- for the minimal amount Part B is-it should be purchased. I believe that SSA can penalise someone for not applying in time-for Part B but I might be confused-it is just a small monetary penalty- Another friend I have did not pay self employment taxes -he gets SSA Retirement but might not qualify for Medicare-he is afraid to call them---and ask- he got in trouble with an uninsured worker he hired decade ago ---didnt pay the workers unemployment money etc Maybe the penalty is in that part of the SSA site- they will sell Medicare to uninsured but it costs a LOT. I think maybe the penalty is about that. Thanks for this important info. Berta

Linda- do you have proof of mailing -certified green card, Priority tracking slip, ??? anything? Did you have an NSO or vet rep at the time you sent these appeals to the BVA? Is it the BVA themselves that stated the appeal time was over on those issues? Do you have -on your computer- copies of and the date you typed the appeals? There might be a way to be able to print off a page from your document file that shows the actual date you typed the appeals-and then - why would you not mail what you typed- know what I mean? In my document file where all my VA stuff is -there is a hard drive list with the dates they went on the hard drive- There might be some way you can prove you sent these appeals to the BVA. Berta Berta