Temporary 100% Extend Past 1 Year

[SimplyAbused]

Hi, I have been searching many forums and also all of the Veteran Affairs regulations. I am unable to get a answer, so i am hoping someone else might have ran accross the same issue.

I had a surgery in a VA Medical center for a service connected disability. The VA has given me temporary 100% for 1 year while undergoing treatment for a mistake they made. Now they ahve stopped my temporary 100% and I am totally messed up from the surgery and unable to perform any work. The doctors have written many letters stating I do not need to be working period, until they can get me repaired. The question is, how do i get the VA to pay for longer than 1 year for convelesance? I have a family to take care of and would rather be at work. This is driving me crazy, as I am having to sale items I have worked hard for just to pay for food and my bills. The veteran affairs has already admitted they have messed me up and gave me and extra 10% to my claim. Which is 60% = $1045 a month. Impossible for a person to raise a family on this. I am sick of the way us veterans are treated and pushed aside as if we dont matter. Even after admitting that they are at fautlt, they still say they cant go past 1 year convelesancen for temporary 100%. I believe this is a way of brushing me off to try and discourage me and making matters worse than they already are. I was told to file a 1151 Tort Claim form and sue the VA, but this takes time. I need help now and I dont know where to turn. I go to the Veteran Affais Center and talk to the advisors there all the time and they are working to figure this out, as they all said this is not correct and the VA should pick up the temporary 100% for as long as the doctor is treating me for this. I am in need a of a regulation to shove back down the VA's throat to get back on track here. I have also written to the fedreral and state senators and congressmans. Of course no response from anyone. Typical thing to expect. Any advice guys would be deeply appreciated.

Thanks for all your responses in advance.

John

[Berta]

I say file the Section 1151 claim and the FTCA immediately-

Then again-do I understand that they already did award you 10% under Section 1151?

Did that award letter specifically say it was for Sec 1151 or secondary to something else- such as your SC disability ---I am confused here-

Has the POA suggested to file for TDIU? You can file for TDIU regardless of your VA percentage.That is a fact that many vet reps and SOs dont know and the VA doesnt want any vet to know it either.

It sure seems to me that getting a 100% convalescence for a VA medical screw up

is a good basis for TDIU and also FTCA claim.

FTCA -you only have 2 years from the date you became aware of the medical error to file a FTCA claim.

All you need to do is file the attached SF 180- and then attach any proof you have (like the 10 award letter? and also the convalenscence info and send it Priority with tracking slip to Regional Counsel VA - c/o of your VARO.

Unfortunately the Temp Hospital regs prohibit 100% temp comp beyond one year.

The regs are found within 38 CFR 4.30.

100% temo means the vet is 100% unable to work due to a medical situation that falls under the Temp regs in 38 CFR 4.30.

A year convalescence is so long that I wonder how the VA can say you are not 100% disabled unless they "cured" you suddenly.

I suggest that you file for TDIU -form attached, file the Section 1151 if that 10% was a secondary award, and also-if your reps suggest this- file for FTCA.

The reps cannot help with an actual FTCA claim but they could say what they feel your chances might be.

[Berta]

Here is the TDIU form:

Also the SF 95 ( I made mistake when I called it SF 180):

and please listen to my July 18th show at:

http://www.stardustent.com/svr.htm

Just click on the archive at the bottom left for the date- I did a whole show on Section 1151 claims.

TDIU_form.pdf

SF_95.pdf

Edited August 18, 2007 by Berta

[Pete53]

John:

Welcome to Hadit and good luck with your claim. I think that you ought to appeal forcefully the decision to cut your 100% you have the medical evidence to support a permanent grant of 100% but please do what Berat asked to protect your back.

Pete

[tssnave]

Berta,

Just listened to your Stardust broadcast - VERY INFORMATIVE !

Thanks for letting us know about it and please keep us posted on upcoming broadcasts that have to do with our VA claims.

Thanks again,

TS

[SimplyAbused]

Berta,

Thank you for pointing me right direction. Alot of good information and will get me going.

[Berta]

TS -the August 1, 2007 broadcast had Congressman Filner on - he has not gotten back to me yet on what I discussed but he will-I am sure-

Every broadcast involves veterans issues- and ultimately the claims process--

The Edwin Crosby show is very compelling- DD 214 RE codes etc-

(forget which one it is)

Simply abused-

The initial charges in the SF 95-

I posted info here available under a search as to how that should be worded.I used my own SF 95 as template I believe. The SOL date is critical-

the date one first becomes aware of VA malpractice or negligence is the date that must fall within 2 years of filing the SF 95 claim.

I helped a local vet with this type of claim but he mailed it 2 days too late and lost his chance at a good case.

I gave him the SF 95 and helped him collect medical evidence extensively for the entire 2 year SOL period.

He had the SF 95 for all of that time-I filled it all out for him- and yet he would not send it in until the last minute- and claims he asked someone else to mail it for him and they forgot to for 2 days.He had a good case - but it is lost now.

Basically it should state that 'the treatment /surgery etc was not consistent with standards found within the usual medical community and these medical errors resulted in residuals, or additional disabling condition(s) of--------.'

There is section at bottom as to the damages-

sometimes FTCA claimants fail to list and amount twice- once under the first part and then they must total it again.

BTW I suggest ask for Millions- I sure did. Make sure that amount appears in both boxes at the bottom of the SF 95 form.

Although it appears to me that VA granted your additional disability as secondary- this might not be the proof needed for an 1151 claim- and a successful 1151 claim might result in the same amount of additional comp -which might well be offset to what you already get-

Section 1151 and FTCA both need (independent claims-so independent submissions of evidence-1151 VARO, and FTCA (General Counsel)

proof of additional disability

and medical proof that VA caused the additional disability.

A win under FTCA and a settlement does not mean success at the VARO-without a fight-

I won wrongful FTCA and settlement and the RO -astonishingly- denied my Sec 1151 for about the third time-even after I sent them copy of the settlement I made with the US of A.

I was so fed up I called General Counsel and they squared it away real fast and the Sec 1151 claim got awarded right away.

FTCA usually involves a lump sum settlement- you negotiate what you want with GC in DC or the Regional Counsel.

Some states have an out of court settlement cap so if you do succeed and want to settle out of court make sure you know the cap amount.

An FTCA settlement also involves an offset- this is a critical point to this type of claim-

It is usually an offset of the entire award.

I settled for a partial offset because of numerous other laws I studied in my specific case-

otherwise they would have offset the whole thing-I am not the same type of claimant you are-

It took VA however years to comprehend that my offset was partial but they did rectify that when the RC awarded a CUE claim I had on all this-and they sent me the money they had illegally withheld from me.

This offset area needs legal expertise- often a vet is better with just the Section 1151 award yet every case is unique.

What I learned as to the offset laws are only applicable to wrongful death awards-some not all-

if a vet takes the lump sum FTCA settlement with offset to their VA comp- they should also get a financial advisor because good investments can recover the lost offset comp.I suggest both annuity investments and diversity in T Cap long term stock investments.Every bank has a financial advisor who can help with that.

As I understand your post-this medical error cost you to become totally disabled for a long time-

I am surprised that it resulted only in a 10% award-

that doesn't make sense-

If you have not formally filed Sec 1151 yet- get copy of ALL of your VA medical records before you file the formal claim.

Because that is when the med recs start to "disappear". They write Section 1151 all over the c file and then the MF might show up (Mysterious force who removes the good stuff from the file)

That happened countless times to me-at the RO level.

make sure they only get copies of your medical evidence-

and send it all Priority or certified with a tracking slip.

Any good vet rep should be able to assist you well with Section 1151 claim.

FTCA needs legal expertise.

There are FTCA lawyers under a Google search.

Edited August 19, 2007 by Berta