Can A Wife Of A Vet File After His Death?

[sawgunner]

My uncle is a highly educated Veitnam vet who is in very bad shape with cancer. "prostate,colon, and now liver".

As smart as this man is, he is also terrifed of doctors and neddles and the VA.... He flat out refuses to go through the motions of filing a claim with VA.

With certian cancers being linked to service in Nam, can my aunt file a claim after his death?

[Pete53]

I know that a 1151 claim establishes service connection but does a tort do the same?

[Berta]

Pete there are differences between 1151 claims and Torts.

A Section 1151 claim -if successful establishes "as if " service connection.

A FTCA tort does not establish service connection at all.

An FTCA settlement however can help establish" as if" service connection under Section 1151,38 USC.

My Section 1151 award contains the VA's exact admission of malpractice-they spelled it right out in that award letter-but

FTCA torts-however- the VA does not make any formal admission of guilt in the settlement process but I got plenty under FOIA as to how they considered the medical evidence from the clinical records and med recs.)

I was a DIC widow under a" as if SC death" award until my recent award- direct SC death award due to AO - there is a MEGA Big difference in these awards and this is why I had to get OGC on them for my money-

I posted info on FTCA claims in the FTCA forum-and I think there is plenty here on 1151 claims.

The only help I had when I won wrongful death FTCA and 1151 was I had the VBMs for 91-98 throughout that time.I also used law libraries and medical libraries as this was pre internet as we know it now.

The VBMs helped me understand FTCA law and then find in law libraries what the VBM didnt cover.

You need a good vet rep for 1151 claims and good lawyers for FTCA in my opinion.

A successful FTCA claim doesnt establish service connection at all-

A vet or widow with a FTCA settlement award can support a 1151 claim with this evidence-but that means a 1151 claim has been filed.Or will be filed.

The offset rules of most 1151 claims and torts as I state in the FTCA forum=depend on many factors.

There are vets and widows at the BVA and the CAVC fighting over these offset amounts.

I went into at length some of the offset info and how in my case-had not had the VBM the VA would still be illegally withholding plenty of my money due to a 1997 decision-

A tort can help support a claim under 1151 for "as if service connection".

Widows get into legal standing issues that affect any FTCA award they mght get. I think I covered that in the FTCA posts I made there the other day.

The nuances of FTCA law is so extensive that a lawyer should handle FTCA claims in my opinion.

A lawyer will want to see clear cut evidence of medical malpractice in the medical records.

A good IMO doctor could help with that.

Edited January 24, 2010 by Berta

[Pete53]

Berta:

Thank you for the energy you bring to Hadit to help Veterans and their families.Here is the evidence

First week in September 5 day hospitalization and many tests and work ups to rule out cancer, discover the cause of severe anemia and crippling pain. He could not walk nor stand up. Over the next three months my brother was given a cane, a rollator that was not properly sized and he was waiting for a wheel chair that was ordered over 6 weeks before he died.

He spent 18 days in Hospital and diagnosis was changed many times. 5 er visits that he was given morphine and sent home. One time he spent 11 hours in an ambulance waiting for VA and Army to decide how to treat him and than was sent home with a catheter and left on his bed. When his wife asked who would help her she was not strong enough to move him she was told it was not their mission to help her.

During the 90 days or so he was told he had kidney stones that were causing the pain and it was wrong, he was given very harsh medication to help all kinds of pain meds but not once did the VA address pain and someone told him to get used to it he would not get better.

I have his medical records and prognosis and VA plan and nowhere did the VA come up with a plan other than order pain meds and devises to help him. Although he was prescribed medication for depression and the VA knew he was depressed they did nothing

He was offered no hope and no treatment plan the only thing he had that helped was to go to er and get morphine and they told him he could not do that. On Dec 25th he took his own life and it breaks my heart.

I know that I am prejudice but the treatment my brother got was worse than none at all.

[Berta]

These types of claims can be very difficult to succeed in-but not impossible.

I hesitate to even mention the VA criteria on this type of claim because I had situation of Vietnam vet friend who committed suicide and the regulations themselves were very disturbing to me and very hard to try to explain to the wife what she was up against with the claim.

At the BVA there are many claims based on suicides. They contain the criteria for VA's definition of suicide.

It can be disturbing to read these claims but I had to when I attempted to help this local veteran's widow.

Only a good independent medical doctor could determine the basis here for any cause of action or for a sound 1151 claim (or both).

They will need all available med recs and any other available evidence.

I was with local fire department/EMS for 8 years.

The thought of an ambulance being out of service for 11 hours is VERY unusual-even more unusual with a patient in it all that time.

The EMS department of the VA or the Army would have record of that OOS period.Or if this was a private ambulance corp rig-there is an automatic mutual aid back up rig order when something unusual like that occurs and there would be an established record of that and something for any IMO doc and/or lawyer to consider.

[Pete53]

They got a bill from the ambulance company for 11 hours

[Berta]

That bill could be evidence-if the bill came from the VA.

but if this wasn't a VA ambulance- it might have no bearing on any 1151 claim or FTCA matter.

Hard to know .