Ftca Standard Form 95

[Mike Soumis]

Friday I went to a Federal Courthouse and asked for a copy of Federal Tort Claims Act Standard Form 95 and the clerk couldn't find that form in her computer or anywhere. Never heard of it. According to what I've read here on Hadit, that is the proper form for a Tort Claim. I thought I saw a site here on hadit once where you can copy that but I can't find it. Does anyone have that? Thanks, Mike

[Guest Berta]

Mike- I am attaching the form:

Under Question# 8 state the basis of your claim as to the medical errors and then state that the care from VA was inappropriate when compared to that of the standard medical community.

Also tell them that you have suffered additional disability due to their negligent care.

# 9 -put not applicable if this is a VA medical error.

Under # 10 you can expand on the situation and evidence and attach more pages- refer to them here-

(you dont have to send them any evidence yet)

Under # 12 b and 12 d-----Put millions in these boxes-use the same amount though for each box.

Under # 11 Witnesses-

Put anyone who can support your claim- I named many VA doctors (attached a separate page here too)-they witnessed and caused the VA negligence I claimed.

Sign and send (make copies for yourself) by priority with a tracking slip and then print out the USPS web site receipt.

The 800# should be able to tell you the actual name and address of regional VA counsel who covers your VISN.

If they hem and haw over this- (they might)

Send this form to Regional Counsel in care of your VARO and ask for verification in writing of their receipt of this.

(or you can send it to VA Office of General Counsel

Department of Veterans Affairs

810 Vermont Avenue ,N.W.

Washington, D.C. 20420 )

SF_95.pdf

[callover007]

Friday I went to a Federal Courthouse and asked for a copy of Federal Tort Claims Act Standard Form 95 and the clerk couldn't find that form in her computer or anywhere. Never heard of it. According to what I've read here on Hadit, that is the proper form for a Tort Claim. I thought I saw a site here on hadit once where you can copy that but I can't find it. Does anyone have that? Thanks, Mike

Mike,

I am going through this process now. In case you are not familar with this process they have 6 months to act upon your SF-95. At that time they can offer settlement, request an extention to gather more evidence, or completly ignore it thinkibg there is no case and let you sue. At the 6 month period I call the Regional counsil and left word on the answerinr service requesting the status so I would know weather or not to procedd further action. The next day their council returned my call and we talked for 45 mins, me giving more information. He requested a 90 day extention which I agreed to. He is going to turn over to VA medical panel so they will offer an opinion. He will let me know. Fell good about it. The attorney was very polite and seemed concerned (?)but stated he personnaly thinks I have a case and say right now he is going to submit VA settle. I'll wait and see.

Make sure you send enough facts with your SF-95 to have them consider. If you don't send enough evidence they will just ignore. Let them know you have a likely good chance if you do sue.

Frank

[Mike Soumis]

Mike,

I am going through this process now. In case you are not familar with this process they have 6 months to act upon your SF-95. At that time they can offer settlement, request an extention to gather more evidence, or completly ignore it thinkibg there is no case and let you sue. At the 6 month period I call the Regional counsil and left word on the answerinr service requesting the status so I would know weather or not to procedd further action. The next day their council returned my call and we talked for 45 mins, me giving more information. He requested a 90 day extention which I agreed to. He is going to turn over to VA medical panel so they will offer an opinion. He will let me know. Fell good about it. The attorney was very polite and seemed concerned (?)but stated he personnaly thinks I have a case and say right now he is going to submit VA settle. I'll wait and see.

Make sure you send enough facts with your SF-95 to have them consider. If you don't send enough evidence they will just ignore. Let them know you have a likely good chance if you do sue.

Frank

Thanks Berta and Frank for the info. I made 3 copies of the SF 95. I have a ton of evidence that I could use. My thoughts are that the VA did give me 10% disability for each arm on my 1151 claim, I did get disability retirement and SSDI all after my episode but I feel I should have gotten TDIU, not 20%. So I appealed the 20% decision, my 2yr since happening date is 10-04-06. If I get denied anything less than the TDIU I will file the SF95 or should a person file it now anyway? I have a clear case but my SO doesn't want me to file a tort. He said I could loose the 20% pay, I told him I'm willing to take that chance because its me thats suffering. Got a letter from my neurologist 2-22-06 , based on my examination of you on 9-25-05, essentially one year after you had severe GI bleeding which resulted in ischemic damage to your spinal cord, it is my opinion that you now have a permanent weakness of your upper extremities and your spine with a chronic condition of disabling weakness and pain. It is my opinion that you will be permenantly unemployable. This was all from the Naproxen prescription.

[Mike Soumis]

here's where I'm confused. My SO said I could file a tort claim, win, be awarded what they've paid me so far for my 20% disability rating, and that would cancel out my 20% award and I'd end up with nothing. Is that how it works. Mike

[Guest Morgan]

Mike,

You would not end up with nothing; you would end up with a lump sum instead of a 20% check--for a very long time.

Here's the VA information about the prohibition against benefits duplication. Notice that if the condition is SC (not "as if" SC), no offset is applied. See examples at the end.

22.04 PROHIBITION AGAINST DUPLICATION OF BENEFITS

a. General. If a veteran is injured under circumstances which result in possible entitlement to benefits under 38 U.S.C. 1151, the veteran may also seek a judgment against the United States in a civil action. The veteran may sue and recover damages after a trial. More often, the veteran will agree to a settlement or compromise. This means the veteran signs away the right to sue in court in return for payment of an agreed amount for damages. The prohibition against duplication of benefits applies whenever the veteran receives a sum of money or property to settle a legal claim arising from injury.

b. Tort Claim. It makes no difference if the award or settlement amount to the veteran is called a settlement, compromise, administrative award, tort award or judgment. For purposes of this subchapter, the term "judgment" includes all of these terms.

c. Offset Required. The total amount received by the veteran from a judgment for a disability for which entitlement to benefits arises under 38 U.S.C. 1151 is subject to offset until an amount equal to the judgment has been recouped from the veteran's compensation (38 CFR 3.800(a)). It does not matter whether the judgment compensates for economic loss (loss of earning capacity) or for noneconomic loss, e.g., pain and suffering. Attorney's fees, court costs, and other expenses incident to the claim are not deductible from the total amount awarded (VAOPGPREC 07-94).

d. Notice of Action on Tort Claim. The tort claim against the Government will be resolved by General Counsel, the U.S. Attorney General or the District Counsel. The circumstances of the individual case determine who is responsible for resolving the tort claim. In any case resolved in favor of the veteran, notice of the results of the tort claim will be referred to the Veterans Service Center Manager of the regional office having jurisdiction of the claims folder.

e. Deferral of Award Action. Disability compensation awards under 38 U.S.C. 1151 are subject to offset effective the first of the month after the month during which the judgment becomes final. Therefore, defer a compensation award under 38 U.S.C. 1151 if there is reason to believe a tort claim for damages may have been finalized. Do not defer the compensation award just because a tort claim has been filed unless there is reason to believe it has been finalized.

f. Pension Beneficiaries. No offset is required if a tort claim is concluded in favor of a veteran in receipt of pension or who is eligible for compensation under 38 U.S.C. 1151 but elects to continue to receive pension in lieu of compensation. The net proceeds of the settlement or judgment, however, are countable income for pension purposes (38 CFR 3.262(i); 3.271(g)). Do not adjust a veteran's pension award to count the proceeds of a settlement or judgment without predetermination notice unless the veteran is the source of information and understands that the judgment will affect the amount of pension payable.

g. Tort Claims Concluded Before December 1, 1962. An administrative award or settlement which became final before December 1, 1962, is a bar to further payments of compensation under 38 U.S.C. 1151.

March 31, 1995 M21-1, Part IV Change 68

However, a court judgment which became final before December 1, 1962, is neither a bar to payment of compensation under 38 U.S.C. 1151 nor subject to offset unless a bar or offset is provided for by the terms of the judgment (38 CFR 3.800). If a case is encountered in which payments under 38 U.S.C. 1151 were continued despite an administrative award or settlement which became final before December 1, 1962, stop or reduce the awards DLP under 38 CFR 3.500((2) (38 CFR 3.800).

h. Entitlement of Other Beneficiaries. If a judgment is made to or for two or more persons (either in individual capacities or as a personal representative(s) of the estate) and involves a claimant subject to the 38 U.S.C. 1151 offset, the individual distribution of the monies must be determined.

(1) If the claims folder is in the regional office when the question of distribution arises, the Adjudication Officer will request the District Counsel to determine the individual distribution of the judgment award or of the settlement or compromise payment. Forward the claims folder with the request.

(2) If the claims folder is in Central Office under review when the question of distribution arises, General Counsel will determine the distribution.

i. Death Claims. See subchapter II for adjudication of death claims involving 38 U.S.C. 1151.

22.05 EFFECTIVE DATE OF OFFSET

a. General. If withholding is required under 38 U.S.C. 1151, make the offset effective the first of the month after the month during which the judgment becomes final. If, however, the terms of the judgment specifically provide for a different date of offset, the terms of the judgment control.

(1) Administrative Awards. Administrative awards made by VA are considered final on the date of approval.

(2) Attorney General Agreements. A settlement or compromise entered into by the Attorney General after suit has been filed is considered final when the agreement is approved by the court even though a final order of dismissal may not be entered until a later date.

(3) Finalization Date Uncertain. If, after reviewing the evidence of record, there is any question as to the date the judgment became final, request clarification from the District Counsel.

b. Retroactive Adjustments. Do not offset compensation payable for any period before the month following the date on which the settlement or judgment becomes final. Action to adjust a 38 U.S.C. 1151 award for receipt of a judgment creates a 97K recoupment balance in the C&P master record. If final notice of a judgment is received after a compensation award under 38 U.S.C. 1151 is already running, VA must offset retroactive to the first of the month following the month of the judgment. This retroactive adjustment to prevent duplication of benefits will create a 30B accounts receivable in the C&P master record in addition to the 97K recoupment balance; however, the 97K recoupment balance will be reduced by the amount of the 30B accounts receivable. After processing the retroactive award, the sum of the 97K recoupment balance and the 30B accounts receivable should equal the amount of the judgment.

EXAMPLE: A judgment is final on June 15, 1992. The rating board later grants compensation effective March 16, 1992, under 38 U.S.C. 1151. Do not offset any portion of the veteran's compensation benefits prior to July 1, 1992, the month following the date the judgment became final.

22.06 AMOUNT OF OFFSET

a. General. The amount of the offset must not deprive a veteran of any part of the compensation payable to him or her if a claim under 38 U.S.C. 1151 had not been filed. Apply this principle in determining an 1151 offset amount.

b. No Other Disability. Offset the full amount of compensation under 38 U.S.C. 1151 if the veteran has no non-1151 service-connected disabilities.

c. Increased Evaluation. Determine the compensation for all disabilities (1151 and non-1151 disabilities). Next determine the compensation for non-1151 disabilities. Offset the difference.

d. Combined Evaluation Unchanged. Do not offset any amount if the 38 U.S.C. 1151 disability does not increase the total amount of compensation. If VA established an offset, discontinue it if there is an increase in the evaluation of a non-1151 disability such that the 38 U.S.C. 1151 disability no longer increases the total amount of compensation.

EXAMPLE: A veteran has two non-1151 service-connected disabilities each evaluated at 60 percent and a 1151 disability evaluated at 30 percent. The combined evaluation is 90 percent and for the non-1151 disabilities the combined evaluation is 80 percent. Per paragraph c, VA offsets the difference between the 90-percent rate and the 80-percent rate. Subsequently, VA increases one of the 60-percent evaluations to 70 percent. Now the combined evaluation of all disabilities has not changed (remaining 90 percent), but the combined evaluation of the non-1151 disabilities is increased to 90 percent. Therefore, discontinue the offset. In the reverse situation (the 70 reduced to 60), commence the offset.

22.07 OFFSET NOT APPLICABLE

The offset provisions are applicable if compensation for a disability is payable SOLELY under 38 U.S.C. 1151. If compensation is otherwise payable for a disability, no offset is required.

EXAMPLE 1: A veteran is rated 10 percent disabled because of a service-connected foot disability. The veteran enters a VA medical center for treatment of the disability. The evaluation is increased to 30 percent due to an aggravation of the injury as a result of the medical or surgical treatment. The veteran sues the hospital and recovers. No offset is required because the foot disability is service connected without regard to 38 U.S.C. 1151.

EXAMPLE 2: A veteran is service connected for a severe pulmonary condition which requires the administration of significant doses of steroids. The veteran later develops cataracts and claims that the cataracts are due to the steroid treatments. The veteran files a compensation claim under 38 U.S.C. 1151. The rating board should consider whether the cataracts are proximately due to or the result of a service-connected disability so that the condition can be service connected under 38 CFR 3.310. If the rating board does grant service connection for cataracts under 38 CFR 3.310, no offset is required.

Edited February 27, 2006 by Morgan

[Guest Berta]

Carrie is correct unless the award is not offset under 22.06 provisions-

Great post Carrie-

1151ers- Read this carefully-

"22.07 OFFSET NOT APPLICABLE

The offset provisions are applicable if compensation for a disability is payable SOLELY under 38 U.S.C. 1151. If compensation is otherwise payable for a disability, no offset is required."

These claims are usually resolved at VARO level and therefore we do not have any hard copy references on how they are handled-

This is why the VARO is giving me a runaround. 22.07 and the Nehmer court Order.

I get DIC under 1151 .

My present AO claim will award DIC retro for over 11 years under Nehmer and an additional DIC check every month for direct SC death. They aren't stupid. They know this is not a Duplication of benefits.

NVLSP confirmed this-if I get the award letter but no cash-they will help me at that point.

The examples here are basically the same ones in the VBM that NVLSP publishes-

we do not have any hard copy award on record as a bonafide example.

I told NVLSP they can use my claim when I succeed-to have an example.

One thing about a FTCA lump sum-

good investing can help recover the loss of any comp that is offset-

another thing to consider (each individual case if different)

If you succeed in a lump sum and then die -your family will have what is left as part of your estate-

If you take the additional comp instead-that comes to an end when you die.

It depends on many things and how much the settlement is-

and if you dont like their offer you can go into a federal court too.