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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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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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hollywoodnc

Ftca, 1151's And The Dept. Of Veteran Affairs

Question

Hey gang...long time no visit.

I just want to share some helpful info with those of you, who truly feel that you were told that Statute of Limitations (SOL's) are a pre-requisite to filing a suit against the United States (in particular, your favorite agency, and mine...the DVA!).

I am using my case as an example, however am not disclosing any sort of personal information.

It's LENGTHY, yes, but very informative, and worth the time to read.

I wrote this, to an FTCA attorney, so it may start off weird, but it was because of the formatting of the sites' web page. BTW, he refused it!?

So sit back, relax, and do your due diligence.

BTW...I do welcome any comments, albeit, contradictory or supportive, and if applicable with sustenance.

Thank You, and Enjoy!

---------------------------------------------------------------------

As the question above depicts, I, and prior service officers were unaware of the stipulations of the FTCA, and as the record has shown since 1984, NO ONE advised me about an 1151 claim, even after I threatened the DVA with Medical Malpractice in a few SF4138 forms. However, I could not afford legal counsel.

A Medical crime and deliberate "Cover Up" was committed. Does that mean that the individual committing the crime, or the organization that was well aware of a crime, should go free?

Would a criminal that committed a crime be allowed to go free, even after twenty+ years had passed?

Would law enforcement, or even the courts not prosecute a criminal, even if the same amount of time passed, because as the U.S. Supreme Court stipulated, that the case grows "Stale"?

The WHOLE purpose of filing under the Statute of Limitations (SOL, hereafter) clause, is so that the claim/case doesn't go "Stale". Shouldn't the same apply to Law Enforcement, taking a case to court after twenty+ years?

Granted...

Technological advances supports Law Enforcement, HOWEVER, doesn't it also support claimants under the FTCA?

This makes absolutely NO SENSE, that SOL can be scrutinized under one situation, but not for the other!?

Here is my case...

In September of 1975, I entered the U.S. Army with three threaded Knowles pins (w/retaining nuts).

After careful evaluation by doctors at AFEES, the Army allowed me to enter, and ironically, I was considered fit enough for Infantry.

It is worth mentioning here, that I was in great shape, and my hip had full range of motion. I had NO pain, nor did any of the three pins penetrate into the joint space.

Midway during basic, while my company was participating in a company run in sand, I stepped in a low sand pit, and came down hard on the leg with the pins.

Not being a doctor, I suspect that, at this particular time, I had suffered from a Compression Fracture, being that now, a doctor diagnosed me with a pin starting to penetrate the acetabular (joint space).

Doctors at the VA level had diagnosed me with a SCFE (the reason for the pin implantation), but this wasn't the case.

In April 1976 I was medically discharged, and again, diagnosed with a slipped Prosthesis, DJD, and Atrophy. I was only awarded 10% for the S/C!?

In the June/July timeframe of 1976, I had flipped a car, and suffered from a L-2 Compression Fx.

I had no feelings in my legs, and spent around a week in the hospital.

Later, my private physician instructed me to wear a corset w/steel for a few months.

I wore it faithfully for several.

In the mean time, I am in excruciating pain, hip locking (severe crepitus) and weakness from the left S/C hip.

Finally, in April 1978, the VA decided to perform surgery (as it was recommended by other doctors that these pins MUST be removed), and I checked in at the East Orange, NJ Veterans hospital.

The surgery was performed, however the jackass operating on me COULD NOT remove the pins!?

Again, I'm no surgeon, however there are procedures that would ensure the successful removal of these threaded pins. There are Pin Extractors, and if possible, either cross, or parallel drilling to loosen the pins grip.

Instead, what this jackass did, was to leave the retaining nuts off (these nuts prevent slippage), and he clipped the pins even with the Femur!

This "Unorthodox" procedure, makes it virtually impossible for any other surgeon to remove them...In short, I am totally F*cked!

What makes this additionally criminal, is that this SOB, states on a form that I had:

"FULL ROM/NO PAIN"! How can that be though, with a pin penetration?

It is also worth mentioning that on the same form, someone had written in: "OLD CHART MISSING"!

In a follow up exam, and to cover his ass, the same doctor had written in:

That the procedure was a(n) "EXPLORATION" (as if he didn't know what the cause of pain was PRIOR TO the procedure!)

Even though all these fraudulent statements are DOCUMENTED, this inept, and incompetent agency "Turned the other cheek", and even though I received 100% for convalescence (two months) pursuant to Title 38, I was to remain at 10% thereafter until 1980.

Theoretically, this renders the DVA as an "Accessory to the Fact(s)".

For the next ten or so years, I constantly argued with doctors, regarding the installation of a THR.

Meanwhile, I'm still in excruciating pain, and through this period, I am unable to concentrate on my education, and maintain a job, while supporting myself.

Keep in mind, that I suffer from and L/2 compression Fx, and I'm walking with an Antalgic gait. This is NOT helping my back out at all due to pelvic tilt with every step. I also was diagnosed with a 1/2 leg length differential.

Yet, ALL the doctors that I had communicated with from NJ to Calif, and back refused any sort of treatment EXCEPT, for Hip fusions to alleviate pain!?

With an L/2 being compressed???

When I refused such a medieval treatment, I was then viewed as uncooperative, when they used the wording of: REFUSED Procedure.

This is specifically stated in a BVA decision!

In 1989, I went to a VA hospital in Durham, NC and spoke with an intern of Orthopedics, described all my conditions, and asked for a THR. He also mentioned the VA's Medieval and inexpensive approach, until I mentioned the L/2 Fx. He notated this. A few days later, he concurred that I was NOT a candidate for a fusion, and that I was eligible for a THR!

His professor was the one that actually decided. FINALLY!!!

Even though this procedure was a success, my spinal conditions have not healed as they would have, IF the DVA acted with competence and a true Bona Fide concern, as early as 1978.

Additionally, and to date (2008) I still cannot twist my leg in a figure four position, and I still suffer from atrophy.

No matter how many years that I had begged, pleaded or demanded for help, the DVA blatantly ignored my requests, and ignored my threats to sue, as if they were calling my bluff.

The DVA has also documented particular wording throughout my file, signifying me as Uncooperative/Argumentative to a Fictitious claimant when I reapply.

IF someone would take the time to review my ENTIRE file, a picture would be painted in the mind of the reader, describing exactly what is being said here, and you will see that, none of this is an exaggerated claim!

I was under-rated since 1976, a victim of a clearly and indisputable Medical Malpractice, and as my medical file clearly depicts, I am considered as Incompetent & Uncooperative. This is also considered as Libel, being that others who read the file in it's entirety, views me as such, and gets the impression that all statements rendered by prior decisions and other doctors, are accurate and true.

In short, I made a terrible mistake, joining the Armed forces in 1975. I wanted to join to not only become a Medical Corpsman, but to serve the country that I was born and raised in, and that I love.

Is this the thanks and the legal process that we ALL have to expect when someone, such as what I have endured, is discharged from the Armed Forces?

What message are we sending when a law is amended stating that: "You are sh*t out of luck if you don't comply to time constraints."?

OR

"Professional criminal acts are 'EXCUSABLE', because the victim failed to comply to a two year time frame."

Was I supposed to present an incomplete/unsubstantiated claim to the DVA or the Federal Court, wasting their time, and having the claim forever barred, because of it not being completely accurate?

Furthermore, with my life the way it was, in trying to resolve this issue with the agency itself, and trying to get these pins removed, so as my spinal condition does not heal improperly (due to GAIT), then how could I file an FTCA (if I even knew of such), in the middle of trying to resolve this?

When I threatened to sue for "Medical Malpractice" in my 1984 SF4138, why didn't the DVA advise me of my rights under such and/or the filing of an 1151? Isn't THIS mention of M/M still tolling?

Yet, another example of depriving me and many others of Due Process, is their neglect involving Title 38, whereas, the DVA will assist the Veteran with the obtaining of evidence. However, in 2004/2005 I distinctly remember submitting the name of the Manufacturer of the Knowles pins (Zimmer, Corp.), and the DVA failed to follow up on asking this question that I presented:

When installing or removing the threaded Knowles Pin in or out of a patient, respectively, can the nuts be left off?

What could conceivably happen if the nuts were left off?

Recently, I filed a Request for Reconsideration for the BVA denying my 1151 claim, and again, I was not granted my "Due Process", when the DVA failed at submitting a letter to approve or deny my Request. Instead, I receive a "carbon copy" addressed to a rep at the PVA, that my 1151 was dropped from the docket, with no explanation, as to WHY?! This Half Baked letter, gives me NO GROUNDS to appeal to a higher court. Theoretically, isn't this request still tolling also?

I know that Case Law has influenced law overall, and as this case shows, any logical thinking lawyer would agree that two years to file an FTCA, has it's disadvantages.

There are medical conditions that don't appear until years later.

If it's 5+ years, how could anybody know?

There is also supporting case law, which excuses SOL, and bases decisions on a cases' Merits.

If there is Fraudulent Concealment, by the party in question, there is a term known as Equitable Tolling which could apply.

When this case is reviewed in it's entirety, it would be agreed upon that Equitable Tolling should apply, and that this case should be decided strictly on it's merits, especially when there is documentation which supports the claims made.

Being that there are documents in the possession of the DVA, supports the argument of Fraudulent Concealment, and the Denial of Procedural/Administrative Due Process , when in fact, the DVA failed in addressing and advising the Veteran (me) on claims made on a(n) official Gov't. document (SF 4138) "Statement in Support of Claim", regardless of how inartful it may appear.

Furthermore, if individuals attempt to work with the agency, (as I tried to do for many years) as opposed to suing, how is that to be interpreted by the court?

The average American citizen is not always privy to ALL the laws, nor, can ALL Americans afford counsel.

I wasn't made aware of an 1151 claim, until my employment with the DVA in 2002.

The Bottom Line...

This case clearly has merit, is triable, and that the Statute of Limitations should not apply, and this should be based solely on it's merits, due to my ignorance of not being aware of the FTCA, prior Service Officers being ignorant to the jurisdiction(s) of the FTCA and 1151 claim, my concentrating on trying to resolve the issue with the DVA, and the DVAs' blatant hiding and ignoring of the facts and warnings, to a doctors' unusual note taking, and admittance of a botch up, making this direct and unmistakably, a Fraudulent Concealment case against the DVA.

It is clearly obvious that the DVA, has "swept this under the carpet", when they were made aware that something was awry with this procedure. The missing chart is definitive proof. It is also proven that the imbecile that performed this procedure, covered up and ironically, admitted guilt, and then lied about my pain, and Full ROM. It was written, and I along with the DVA possess the documentation.

The noting of "EXPLORATION", as a means to "Cover his Ass" legally, AFTER the procedure, instead of prior to, shows his attempt to "Cover Up".

I recently (within a few months) discovered this terminology, and it dawned on me, from the different time that it was written on a standard form, one month AFTER the surgery.

If ANY exploratory surgery is to be performed, it MUST be disclosed to the patient PRIOR TO the procedure, so that the patient can agree/disagree to such.

This wasn't the case here!

Despite the fact that thirty+ years have passed, does not exempt the DVA from Criminal and Fraudulent acts by it's employees.

Here is FTCA Case Law, which supports my claim:

Perry vs United States

&

Glarner vs United States

The questionable Supreme Court rulings...

In Irwin v. Department of Veterans Affairs, the United States Supreme Court, interpreting Title VII, held that there is a rebuttable presumption that limitations periods in waiver-of-immunity statutes may be equitably tolled.

Directly from the FTCA handbook:

Tolling of Limitation Period During Negotiation. The two year statute of limitations is tolled indefinitely during negotiations.

Additionally supporting "Tolling":

Dawson v. U.S., 68 F.3d 886 (5th

Cir. 1995), sanctions reversed originally imposed for lack of good faith negotiations by Government.

Under "Kubrick", the SOL as decided by congress, should be strictly adhered to.

However, as you may be aware, what if some conditions manifest AFTER the SOL expires?

What if it takes certain conditions 20+ years for conditions to manifest, due to a Malpractice?

What if the victim cannot receive cooperation from Doctors, for disclosing that a procedure such as this, is illegal, Unorthodox, or downright criminal, because, any sort of disclosure would force them to have to testify and/or implicate themselves for any illegal procedures that they may have performed in the past, or just to simply not go against their fellow physician?

What if the victim cannot afford the many hundreds of dollars to see specialists to confirm his theory?

What if the Veteran has multiple statements denying his/her requests for a THR, by Gov't. paid doctors, to remedy his condition(s)/pain and as this case shows, danger to his health, and a University Professors' decision is the deciding factor to remedy his ailment(s) AFTER the SOL expires?

Should the case be permanently barred from pursuing?

Should SOL be so stringently held as a prerequisite for ALL cases?

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hollywood,

At the bottom of you post you have questioned,

"However, as you may be aware, what if some conditions manifest AFTER the SOL expires?"

The two year SOL is from the time the claimant becomes AWARE and/or HAS KNOWLEDGE of the injury.

jmho,

carlie

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hollywood,

At the bottom of you post you have questioned,

"However, as you may be aware, what if some conditions manifest AFTER the SOL expires?"

The two year SOL is from the time the claimant becomes AWARE and/or HAS KNOWLEDGE of the injury.

jmho,

carlie

Thank You for responding Carlie!

I was aware when the incompetent "J-O" told me that he couldn't get the pins out.

My problem, is waiting for 33+ years. Yet, when you see this case, I truly believe that I can utilize the Equitable Tolling argument, because of the Fraudulent Concealment, and the lack of Administrative Due Process violations.

I was not made aware, that there was such a thing as a FTCA or even an 1151 claim, that could be filed.

Recently (1-2 months) I was told by a neurologist that it is probable that my Antalgic gait from my leg length differential could effect spinal conditions...using the wording: "It is more likely than not,..."

No one till that Neurologist volunteered such valuable information.

I had to pay out of pocket for it though.

Try getting such valuable information for free, from a VA QUACK!

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