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Filing A Tort Claim & 1151 Claim


Bound4heaven

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Greetings,

I was just told I should file a TORT claim aloing with my 1151 claim due to serious side effects from my unregulated medications perscribed by the VA Medical Center. Is this true? can a veteran file for both?Thank you all. God bless

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Absolutely- I filed both- I will attach the SF 95- the initial step in filing a FTCA claim against the US of A.

Under question # 8 I suggest stating that "The VA did not provide medical care consistent with that of the standard and usual medical community ,and as a result of those medical errors, I have suffered additional disability."

(FTCA and Section 1151 require two things- proof of medical error and proof of additional documented disability)

Under 12 B ask for Millions-I asked for $58,000,000.

(If they negotiate a settlement you wont get even close to that unless you take the next step and go into a federal court)

If they negotiate with you for out of court-check with you state to see if there is any ceiling on this type of settlement and then you know how much you could try to get.

Send this form to the Regional Counsel of the VA that covers your VAMC-ask the 800# people for the address -if they wont give it out or say they dont know it- email me-

HOWEVER -before filing this or any Section 1151 make sure you have copies of all of your VA medical records first.

On FTCA you have two years from the day you were aware of the malpractice to file the claim.

They are rigid on that-

I have a vet who I helped with the SF 95-he is in a nursing home and calls me and sends me mail-

however he somehow depended on a nursing home employee to mail his SF 95- he held it for a year and I had to keep reminding him to mail it-

Regional counsel called him and told him they received it but he had missed the SOL- filing date by two days.

There is nothing he can do-

I filed my SF 95 and Sec 1151 in the same month and then accumulated the evidence they needed.

FTCA settlements are offset to any Sec 1151 comp you could get- something to consider-

FTCA is a lump sum-and is handled initially by the regional VA counsel , then it goes to VA OGC in WAshington.

Sec 1151 is handled by the VARO.

Edited by Berta (see edit history)
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Absolutely- I filed both- I will attach the SF 95- the initial step in filing a FTCA claim against the US of A.

Under question # 8 I suggest stating that "The VA did not provide medical care consistent with that of the standard and usual medical community ,and as a result of those medical errors, I have suffered additional disability."

(FTCA and Section 1151 require two things- proof of medical error and proof of additional documented disability)

Under 12 B ask for Millions-I asked for $58,000,000.

(If they negotiate a settlement you wont get even close to that unless you take the next step and go into a federal court)

If they negotiate with you for out of court-check with you state to see if there is any ceiling on this type of settlement and then you know how much you could try to get.

Send this form to the Regional Counsel of the VA that covers your VAMC-ask the 800# people for the address -if they wont give it out or say they dont know it- email me-

HOWEVER -before filing this or any Section 1151 make sure you have copies of all of your VA medical records first.

On FTCA you have two years from the day you were aware of the malpractice to file the claim.

They are rigid on that-

I have a vet who I helped with the SF 95-he is in a nursing home and calls me and sends me mail-

however he somehow depended on a nursing home employee to mail his SF 95- he held it for a year and I had to keep reminding him to mail it-

Regional counsel called him and told him they received it but he had missed the SOL- filing date by two days.

There is nothing he can do-

I filed my SF 95 and Sec 1151 in the same month and then accumulated the evidence they needed.

FTCA settlements are offset to any Sec 1151 comp you could get- something to consider-

FTCA is a lump sum-and is handled initially by the regional VA counsel , then it goes to VA OGC in WAshington.

Sec 1151 is handled by the VARO.

Dear Berta,

Thank you again for all your wisdom. It has helped me and my family more then mere words can say. I do have another question. Should I get a Attorney? I was talking to one a few months ago, however he seem more concerned about the money then me. Can I do this on my own with out taking up so much time away from my family. I know how many hours I spent getting ready for the meeting with the Medical Center Director and filing the 1151 claim.

Should I file the form 95 first and wait for the VA 's response, or should I file the form 95 and get an attorney? Please forgive me I am ignorant on VA process outside of the norm. I do thank you so much Betra. God bless you.

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I did not have an attorney nor did I have an independent medical opinion.

I knew the specific medical issues inside and out and also knew the VA regs verbatim- that applied to these issues.

It cost me (had to use post office xerox machine in those days)

about $30 in copy fees , about 3 bucks to file the SF 95, and about 50-60 bucks in phone calls to deal with OGC Washington- this all took 3 years but I continued to study cardiology all that time and was able to talk not only to the VA lawyers in Wash but also to their top medical team about the medical evidence.

The disabled vet who VA almost killed around this same time (employed with Rod at same VAMC)-I wrote his 1151 and in three months they awarded 1151 at 100%.

He had no IMO and he-I might have mentioned before-and

with this immediate response as evidence of misdiagnosis- could have been very successful with a FTCA claim-yet he felt he would just blow a lump sum check that would have bee offset to his 1151 monthly comp.

That is something to consider on an FTCA claim-the offset-

however an FTCA claim puts you into the realm of VA lawyers and medical professionals at VA Central in Washington who all have the ability-

to READ! A successful FTCA claimant can negotiate that they would prefer the monthly VA 1151 comp

instead of the lump sum-

if they want-it all depends on many things and it also depends on how high the VA is willing to go to resolve this issue-no one gets rich over 1151 problems-

or FTCA settlements- they do not alter the disability or death that they spring from-that never changes-

And they will offer the low end of the stick at first to see if you will take it.

I told the GC "I know you have a low end and a high end- tell me what the high end is and maybe I will take it-" finally he told me and I refused it and then managed to squeeze out some more-

It depends on how severe the disability is that they caused you-your projected life span- with or without this additional disability and lots of other legal beagle things-

But -as I stated before-see if your state has a cap on these types of settlements and then push them for something close to it.

Berta

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I'm in the same boat, I filed a 1151 claim and was awarded 20%. Had 30% from before + 20 so now I have 50%. Not enough to file for TDIU but yet I lost my job at the PO. So I got SSDI and a disability retirement which is all fine. I asked a local contractor if he would hire me before I got my SSDI and he asked why I left the PO. I said the doctors won't sign my release to return to work. He said he can't hire me either until I have a release. I filed a appeal, my 2yr date is Oct 4, 2006 to file a tort claim which I am going to do if the VA doesn't feel I should get more. My case is all there in black and white and they gave me 20%. My SO feels I shouldn't file a tort claim, he stated I have a chance of losing what I was awarded. to date I haven't recieved any disability retirement either so I'm very frustrated a talking to much..

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Mike- your SO is wrong- just his way of getting out of more work--

I would NOD the 1151 percentage if I were you and also file for TDIU (I will attach the form)

It does not matter what a vet's percentage is to file for TDIU- if your SC disabilities make you unemployable- they have to award -with medical evidence-I got a vet with no VA rating at all TDIU in 3-4 months-

his evidence was excellent.

Your SSA-if this is for the same 1151 and/or SC conditions you have now- that is excellent evidence of unemployability and holds an indeendent medical opinion too if they sent you to a SSA doctor-

On # 18 put Yes and then under # 25 Remarks- state you are adding a separate sheet and list all of your VA meds and tell the VA how their side affects hinder your ability to work-

(their side affects can be found at many web sites and should be in the paperwork that comes with your meds.)

Also I would restate that you get SSA (Yes for # 18 ) and what it is for.

If your SO says you can't do this- give him my emal addy-

TDIU_form.pdf

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Mike- your SO is wrong- just his way of getting out of more work--

I would NOD the 1151 percentage if I were you and also file for TDIU (I will attach the form)

It does not matter what a vet's percentage is to file for TDIU- if your SC disabilities make you unemployable- they have to award -with medical evidence-I got a vet with no VA rating at all TDIU in 3-4 months-

his evidence was excellent.

Your SSA-if this is for the same 1151 and/or SC conditions you have now- that is excellent evidence of unemployability and holds an indeendent medical opinion too if they sent you to a SSA doctor-

On # 18 put Yes and then under # 25 Remarks- state you are adding a separate sheet and list all of your VA meds and tell the VA how their side affects hinder your ability to work-

(their side affects can be found at many web sites and should be in the paperwork that comes with your meds.)

Also I would restate that you get SSA (Yes for # 18 ) and what it is for.

If your SO says you can't do this- give him my emal addy-

Ya know, I got a bad feeling about how my whole situation is proceeding. I told my SO my 2 yr. period since my GI bleed ordeal happened is 10-04-06, he thought you had 7 yrs. anyway, if the VA gave me TDIU in the first place, I would be satisfied. my original SC disability was 10%for flat feet, got a increase to 30% after 29 yrs. The VA then gave orthodics and naproxen for pain. My new award is, Gastrointestinal bleed due to medication intake 0% , left anterior interosseous nerve entrapment, left ischemic cervical myelopathy 10% June 14. 05, right ischemic cervical myelopathy 10% June 14,2005. I can no longer take any meds for pain except a plain tylenal. Due to such severe blood loss and low blood pressure, I had a watershed effect of the cervical cord (stroke). There is no cure for this. I sent all my records from when I was in the local hospital to the SSA when I applied for SSA and was granted SSDI in 4 mo. I didn't have to see there DR. or anybody, just gave them my hospital records and was awarded my claim. I just got my disability retirement with the same medical records from the P.O. To me, these Dr. reports and nuerologist reports speak for themselves, they don't award SSDI and disability retirement without the facts. Somehow, the VA thinks otherwise. My SO thinks I should go out and ask for a job, get turned down because my DR. wont sign a release to return to work and send this evidence to the VA. I disagree. IF you have SSDI and disability retirement who in the hell goes look for a job. I told him about all I could do is answer the phone at a taxi cab stand. Why would I jeapordize the benefits I now recieve for that. MY wife and I will make ends meet but my way of life since the stroke which was caused by the blood loss, has been pain, numbness, loss of strength, and on and on. I have the hard facts medical evidence from about 10 DRs and if the VA doesn't think its adaquate, then I'll try the tort. I did appeal there award of the 20% additional and filed for TDIU. My overall rating is 50%. I guess its wait and see, I feel I don't have to prove anything, all they have to do is look at my medical records, the proof is there, its real and its unfortunate. I would never have taken the naproxen if I knew the side effects. I read when you have a blood vessal break in your stomach, there is a 22% servival rate. I was one of the lucky ones.

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Yeah-it is 2 years SOL on a FTCA tort- he thought it was seven? ridiculous-

Mike -what is the reason the docs said that you had a stroke? is it directly related to the cervical myelopathy? and /or the wrong meds?

Oh-OK- I re-read it- the blood loss---OK- they gave you "0" which does reflect that they acknowledged this medication error-as service connected-if they said SC "0" and not NSC "0".

Are you absolutely positive that the VA has those SSA records and have they ever mentioned them at all in any decision as evidence and as how they actually used these records?

I would attach a copy of the SSA award letter to your TDIU application and state the facts on the TDIU form under Remarks - or separate page, exactly how you did here- as to your medical condition.

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Yeah-it is 2 years SOL on a FTCA tort- he thought it was seven? ridiculous-

Mike -what is the reason the docs said that you had a stroke? is it directly related to the cervical myelopathy? and /or the wrong meds?

Oh-OK- I re-read it- the blood loss---OK- they gave you "0" which does reflect that they acknowledged this medication error-as service connected-if they said SC "0" and not NSC "0".

Are you absolutely positive that the VA has those SSA records and have they ever mentioned them at all in any decision as evidence and as how they actually used these records?

I would attach a copy of the SSA award letter to your TDIU application and state the facts on the TDIU form under Remarks - or separate page, exactly how you did here- as to your medical condition.

Hi Berta, due to severe blood loss and severe low blood pressure (80 over 55) I had the stroke. That is written in my reports. I am not absolutely positive the VA has my SSA award, I just got my disability retirement one week ago today so I know they don't have that and I sent all my med. records there but I know they didn't acknowledge them all in the evidence. I told my service officer that. He said what probably happened is I sent my records to Detroit around the time I had my C&P in Iron Mt. Mich. so the med. records didn't make it into my file. I sent everything delivery confirmation. Maybe they need to go certified. My SO filed the TDIU for me at the end of Dec 05. He seems to think I need at least one disability such as for my feet to be at least 50% to get TDIU. So he reopened my claim on my feet again to try and get them from 30 up to 50%. The VA didn't give me any disability for the damage to my stomach because since the blood vessal was coterized, I had a follow up scope of my stomach 3 mo. after the episode and it was healed and looked as new. My whole problem now is from the side effects of the stroke. Also he reopened the claim for my feet because I can't take pain pills anymore. My gut feeling is the SO just doesn't seem to really understand my situation. The doctors can't even believe what has happened to me. They checked around the whole USA to see how other doctors treated someone with my particular problem and nobody responded. This is from the Hands and Upper Extremeties Clinic of Northeast Wisconsin, where they have a team of 5 Drs. and neurologists. I will make up a packet of my SSA award, My med records that they didn't acknowledge in the evidence, my retirement letter and resubmit to the VA DETOIT. Will they be mad if they have them now and I send again? I'm beginning to feel I should have done all this on my own and not used a SO.

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"My whole problem now is from the side effects of the stroke"

As a residual serious consequence of the VA's medical errors-

a disability that the VA, based on my understanding of your situation, that the VA caused.

"Will they be mad if they have them now and I send again?"

Who cares Mike-I assure you I have resent evidence to the VARO many many times-

because if they can say they dont have it, they dont use it to support an award.

I had to send my husbands autopsy to them 6 times-

then they told VACO and OGC that there was no autopsy ever done-never sent it with the med recs of the veteran.

Good thing I was willing to call Washington and talk to the medical team there-

The autopsy was the most significant evidence I had- and it was pretty upsetting, after 3 years , to here the VA's Chief Cardiologist say to me-Mrs. Simmons-WHAT AUTOPSY?

I faxed it and within days OGC called me to settle with them.

I am so pissed that they now keep ignoring my IMO for my 2003 claim that I printed copies of it and type on the opposite side to the VARO with additional submissions of evidence- and refer to it as enclosed again.

I have sent them about 7-8 copies of it so far.Never been acknowledged-my vet rep said it should have awarded the 2003 claim 8 months ago.

"I'm beginning to feel I should have done all this on my own" you are dealing with what so many of us deal with- vet reps or SOs who really dont have a clue---

As I see this, it is the stroke that they have to secondarily service connect due to their medical error, under Section 1151.

A stroke can have many additional serious affects-obviously brain damage, balance problems, memory deficits, peripheral neuropathy, loss os use of hands or feet,

visual disturbances, congnitive dysfunction----etc , etc-

If I interpret you correctly-please tell me if I am wrong-

due to a VA medical error, you had this stroke because your blood loss caused a dip in your blood pressure-

Is this is the case -then VA owes you 1151 compensation for the stroke and all residuals and possibly SMC- Special Monthly Compensation.(38 USC 1114)

I see no problem with resubmitting stuff to make sure they have the whole picture.

I add to each medical submission in my claim (I am still finding evidence)a list of all prior submissions and medical evidence I have sent-(29 so far-undebatable and irrefutable) in my case I have to repeat and resend stuff to this VARO continually-

just as I did for 6 years in the 1990s then at some point they cannot continue to ignore the evidence.

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"My whole problem now is from the side effects of the stroke"

As a residual serious consequence of the VA's medical errors-

a disability that the VA, based on my understanding of your situation, that the VA caused.

"Will they be mad if they have them now and I send again?"

Who cares Mike-I assure you I have resent evidence to the VARO many many times-

because if they can say they dont have it, they dont use it to support an award.

I had to send my husbands autopsy to them 6 times-

then they told VACO and OGC that there was no autopsy ever done-never sent it with the med recs of the veteran.

Good thing I was willing to call Washington and talk to the medical team there-

The autopsy was the most significant evidence I had- and it was pretty upsetting, after 3 years , to here the VA's Chief Cardiologist say to me-Mrs. Simmons-WHAT AUTOPSY?

I faxed it and within days OGC called me to settle with them.

I am so pissed that they now keep ignoring my IMO for my 2003 claim that I printed copies of it and type on the opposite side to the VARO with additional submissions of evidence- and refer to it as enclosed again.

I have sent them about 7-8 copies of it so far.Never been acknowledged-my vet rep said it should have awarded the 2003 claim 8 months ago.

"I'm beginning to feel I should have done all this on my own" you are dealing with what so many of us deal with- vet reps or SOs who really dont have a clue---

As I see this, it is the stroke that they have to secondarily service connect due to their medical error, under Section 1151.

A stroke can have many additional serious affects-obviously brain damage, balance problems, memory deficits, peripheral neuropathy, loss os use of hands or feet,

visual disturbances, congnitive dysfunction----etc , etc-

If I interpret you correctly-please tell me if I am wrong-

due to a VA medical error, you had this stroke because your blood loss caused a dip in your blood pressure-

Is this is the case -then VA owes you 1151 compensation for the stroke and all residuals and possibly SMC- Special Monthly Compensation.(38 USC 1114)

I see no problem with resubmitting stuff to make sure they have the whole picture.

I add to each medical submission in my claim (I am still finding evidence)a list of all prior submissions and medical evidence I have sent-(29 so far-undebatable and irrefutable) in my case I have to repeat and resend stuff to this VARO continually-

just as I did for 6 years in the 1990s then at some point they cannot continue to ignore the evidence.

Berta, yes, you are correct. My claim states, We determined that the following conditions were related to your militaty service, so service connection has been granted. Gastrointestinal bleed due to medication intake 0% June 14, 2005 Left Anterior Interosseous Nerve Entrapment, Left Isschemic Cervical Myelopathy 10% June 14, 2005 Right Ischemic Cervical Myelopathy. 10% June 14, 2005. The VA did not recognize the (watershed effect of the cervical cord) stroke, due to all this nerve damage my arm and shoulder, back muscles are aching all the time, I get fatigued easily, everything that you said in your post, I have.Thats what I've told my SO and he said I should be out asking for jobs, get turned down because my doctor won't sign a work release and present that evidence. What the hell, if a neurologist report isn't adaquete, then something is wrong. I don't have to do any of that, the evidence speaks for itself and I can't get that into his head. Were heading for Sunday services, I'll talk to you later.

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Berta, yes, you are correct. My claim states, We determined that the following conditions were related to your militaty service, so service connection has been granted. Gastrointestinal bleed due to medication intake 0% June 14, 2005 Left Anterior Interosseous Nerve Entrapment, Left Isschemic Cervical Myelopathy 10% June 14, 2005 Right Ischemic Cervical Myelopathy. 10% June 14, 2005. The VA did not recognize the (watershed effect of the cervical cord) stroke, due to all this nerve damage my arm and shoulder, back muscles are aching all the time, I get fatigued easily, everything that you said in your post, I have.Thats what I've told my SO and he said I should be out asking for jobs, get turned down because my doctor won't sign a work release and present that evidence. What the hell, if a neurologist report isn't adaquete, then something is wrong. I don't have to do any of that, the evidence speaks for itself and I can't get that into his head. Were heading for Sunday services, I'll talk to you later.

Berta, I thank you for your help, today I downloaded form 21-8940 from your post, filled it out and attached my SSDI award, Disability retirement award, and all medical records that the VA didn't acknowledge in the evidence section of my recent 20% disability increase. Sent it out certified mail with return receipt. If it doesn't work out before 10-04-06 or sooner I'll have to file the tort claim. Hope your claims work out for you. I appreciate the help you've given me and all other vets. Mike

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Mike- your SO doesn't seem to have a CLUE!

You are receiving SSDI and he wants you to apply for jobs?

Ridiculous- doesn't he understand the significance of an SSDI award? Let alone the Neuro report you have-

He sounds just like a DAV NSO I had many years back in NY-

I sure hope he isnt telling all his POA vets on SSDI that they should seek work-

I haven't griped about SOs for a while-but could write a book on them- the lousy ones-

and let's face it- we can't tell when we get a vet rep or SO whether they know anything or not---many act like they are power crazy-or omniscient- real know it alls-

but they probably couldn't rattle off basic VA regs if their job depended on it-

Some of the advice I have gotten over last two decades from vet reps and SOs is not only totally incorrect but often bizarre.

However -men and women- I do believe that a veteran with a claim and NO representation can sort of give the VA the impression that they don't have enough faith in their claim to get a vet rep-

I say Mike- stick with this booob , but dont depend on him to send anything to the VA for you-

and certainly stick with us here- we should be writing the NSO training manuals.

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