Where Are Records

[rattattat]

After a veteran dies where are the records located, and how do I get them?

I just wanted to see how badly the VA treated my husband, and if there is a claim I can file.

While he was alive we never knew anything about the claims process, and how we could call them to task. We completely trusted that the vet rep would do his job. It took my husband 10 years to get an increase for his COPD. By the time he got the 100% he died one month later after having been in a nursing home for 6 months.

Hadit has been a real eyeopener.

Thanks

[Berta]

As the surviving spouse you can request his VA medical records just be writing to the VAMC which treated him- "attention" Records Access Officer.Put his c file number on the letter.

The VAMC will want legal proof that you are his surviving spouse-I had to supply Letters of Administration naming me as administrator of Rod's Estate with a raised seal from the Probate office in our county.

Nursing homes, even VA nursing homes, are exempt from most FTCA laws and Section 1151 claims.

If you could prove the VA malpracticed on him prior to his being in a nursing and also contributed to his death by that past malpractice, the VA would award you Sec 1151 DIC benefits.You could file FTCA suit also.

I did both. I recommend that anyone contemplating these types of claims get an IMO and for the FTCA claim get a lawyer.I had neither and do not recommend doing what I did.

The malpractice on my husband was evident in his clinical VA records.

His death was unexpected and sudden.

I had to study medicine for months to make sure I had a valid claim.

The VA fought me tooth and nail- I had to knock down 3 or 4 VA doctors

with medical evidence.

If you feel there is evidence of VA malpractice prior to the nursing home that contributed to his death-in his medical records by all means file a claim under Section 1151 and obtain an IMO to confirm the VA malpractice.

Then again did his SC disability contribute to his death as stated on the death certificate? if so you should file a claim ASAP for DIC.

You will need 21-534 which is available at the VA web site.

[rattattat]

Thanks for your reply Berta. Good information as always.

I am already receiving DIC benefits. I do believe they malpracticed on him before he went to the nursing home. I just need the records to hang them with.

He was on steroids for his COPD and went from 170lbs. to 400lbs. That is why he was in nursing care. I took care of him until he got so heavy. I hurt my back trying to keep him from falling and after that I just couldn't do it anymore. He was helpless as a baby.

I am sure there is a lot of information in the records that will prove he had substandard care. There were many things that he suffered through. I know from people that have COPD and are being treated in private facilities get an entirely different medication and treatment regimen than he ever got from the VA.

He suffered lung damage during the Korean War. Nearly froze to death.

I think they also did not give him the compensation that he was entitled to for years due to the foot dragging on his claim.

Thanks again for all your help.

[Berta]

If you receive direct DIC due to his service now-a successful Section 1151 will not add anything to that benefit-

However if you do find medical evidence of malpractice you have 2 years from your time of knowledge of VA malpractice to file a FTCA claim.

An FTCA claim if successful will produce enough cash settlement (and you can negotiate for what you want-I sure did) to invest it to generate enough interest to overcome any potential offset to any 1151 DIC award-

HOWEVER you get DIC already for direct SC.

I foresee no way at all that VA could offset your present SC DIC with any FTCA settlement award.You could keep both.

I get DIC under 1151 with claim in progress for direct SC DIC-

the VA did offset part of my DIC-7 -8 years of it I think-

a direct SC death will render that offset as moot and they will have to pay me the offset cash they withheld.

You present the same issue I have also if you are successful in FTCA/and or Section 1151 claim.

If a veterans dies due to VA health care-that is one thing- if the veteran's death is also due to a service connected condition-that VA misdiagnosed or malpracticed on-that is a whole new ball game.and vice versa.

NVLSP told me my claim was the first of it's kind- but I have seen others like yours here that also could be just like mine.

There are no documented claims at the BVA or CAVC like these that ever involved these issues.

Long ago VARO tried to tell me that since I get DIC under Sec 1151 that precluded any other claim for DIC for direct SC. I proved they were absolutely wrong.

Now they are trying to re-open a CUE claim I had at the BVA to award under direct service connection.

They filed a Motion themselves at the BVA on this issue and just sent me a VCAA letter on this claim.On prepraing the VCAA response I see their point.

They have enough enough medical/legal evidence to award direct service connected death of my husband under one of three potential scenarios.I drew out all of these claims and offered to withdraw 4 additional claims if they focus solely on the 3 they have been working on-one of which is the award I want for direct SC death, the other 2 are CUEs supported by VA case law.

Quite some time ago the VA also tried to state to me that they cannot make an award on a claim that has already been awarded regardless of the type of award.

I didnt buy what they were selling there either-

they might try this with you too-

Sec 1151 awards are totally different from direct SC awards.I rattled off the regs in the response I made and they ,in 2003 , accepted the premise of my claims for direct SC DIC,are certainly valid claims in every respect,and are separate from the DIC I get now.

When an offset is recovered via a successful direct SC claim (in my case I won a CUE also that recovered the cash from a large additional erroneous offset the VA made)

and the DIC is stated as due to direct SC, the additional ancillary benefits kick in for the surviving spouse and they can involve quite a bit of money.

You receive those benefits already I am sure but a successful FTCA claim-in your case-would generate an award that the VA-in my opinion- could not try to offset or recover to your present DIC.

Independent medical opinions as well as a good FTCA lawyer are the only ways these days to successfully prove VA malpractice.

Anyone can file and pursue FTCA claims and 1151 claims themselves and succeed as I did but I do not recommend doing that unless you are willing to study the clinical data and med recs in and out,buy lots of medical books, study the type of medicine or specific malpracticed condition that gets you up to the level of the VA doctors, and are ready to combat the VA at every turn with documented evidence when they say you are not medically competent to opine on medical care.

O

Edited September 9, 2007 by Berta