Agent Orange

[fielg]

So Confused:

My husband has filed 1151 which I feel strongly that he will win. Lets assume he will win - would his disabilities be considered direct service connection? Have filed an SF 95 and we have not heard back. We are nearing the discovery of malpractice in a couple of months. Have not heard back - does filing SF95 toll the time clock on filing malpractice in Federal court or should we proceed.

Has filed for colon cancer due to Vietnam and TCE exposure at Fort Ord, CA. Has anyone won an agent orange claim for colon cancer. Have medical evidence that cancer started right after Vietnam and progressed for many years to diagnosis

[jbasser]

You need to talk to a Tort attorney and do it soon. There are time limits from discovery.

J

[Capt.]

Hello Fielg,

I believe that an 1151 will get you service connection award. I also think you need to do as Jbasser said and get a lawyer to help you. I would like to point out that you said you filed an SF95 and have not heard back. This concerns me as you only have a 2 year deadline to file. You should have gotten a letter from the Regional Counsel notifying you of receipt of your letter. This is the only way that they will acknowledge them receiving your SF95. I would immediately file again before your 2 year timeframe dissolves. Until you get the received letter from the Regional Counsel , then the VA is probably not going to honor your letter and the date filed. Imagine how many people file but think they are ok and come to find out the clock went on ticking and the 2 years went by and expired. The VA just says we never got it, you show you dated letter , but the VA wins because you can't produce the Letter received from the Regional Counsel. I am just starting my adventure and I do have an attorney and would try and do the same. I hope you are not out of time so you can refile and please make sure you send all correspndance registered mail. Please get that receipt letter from the Regional Counsel. Also remember to NEVER GIVE UP. God Bless, C.C.

Edited February 25, 2011 by Capt.Contaminate

[Berta]

"My husband has filed 1151 which I feel strongly that he will win. Lets assume he will win - would his disabilities be considered direct service connection? "

His disability would be deemed "as if" service connected.

38 USC 1151 explains more what that means to living veterans.

What "as if" means to widows is extremely limited ancillary benefits.A Sec 1151 "as if SC" death does not automatically mean Chap 35 or CHAMPVA or anything else except the basic burial amount.

The veteran's SC disability rating during their lifetime determines some ancillary benefits.That info is all in our DIC foruu.

"Have filed an SF 95 and we have not heard back. We are nearing the discovery of malpractice in a couple of months. Have not heard back - does filing SF95 toll the time clock on filing malpractice in Federal court or should we proceed."

I answered a similiar question like this yesterday-

"Has filed for colon cancer due to Vietnam and TCE exposure at Fort Ord, CA. Has anyone won an agent orange claim for colon cancer. Have medical evidence that cancer started right after Vietnam and progressed for many years to diagnosis" If the cancer is a soft tissue sarcoma that appears in the Agent orange STS list they will SC it.

The Soft Tissue Sarcoma Agent Orange list is available here under a search.

Has your lawyer discussed with you the offset factors of filing both 1151 claims as well as claims for direct SC?

This is something every veteran or widow MUST consider when filing both types of claims.

If you succeed in both 1151 and FTCA the VA will offset all FTCA monies (there are some excepts to that which I as a widow over came in part so that is possible but that info is not relevant here-it is all explained in the FTCA regulations which are all here at hadit)

And by offset I mean they will deduct the offset from the 1151 SC compensation.It pays to invest FTCA settlement money because the 1151 comp is only a paper award as the VA recovers from the offset with every 1151 comp check.

If however the malpracticed condition can also be found to be a direct SC disability, then there is no offset.

I have to give my personal example because there might be only one other similiar case and maybe I am still only one:

I won FTCA settlement (wrongful death)and Sec.1151 claim (If you win one of these obviously you will succeed on the other with the same Peer Review reports)

The VA withheld my awarded DIC for many many years to recoup the partial offset amount I had agreed with with the General Counsel.

I knew the FTCA laws in and out so I was able to deal with them on my legal standing as a widow.In most veteran's FTCA matters, the VA will offset the entire settlement unless a lawyer can negotiate something different as I did but it must be based on FTCA regulations.I have never seen it done except in my experience.If a lawyer can do that regarding a partial offset,for a veteran's FTCA and 1151 case-they will.

When the offset was recouped they started to send the DIC check to me every month.

I had also re opened under a claim for an AO disability as causing death.It had been an additional malpracticed disabilty for what had just become an AO presumptive.

The BVA awarded that claim last year.

The VA had to send me ALL DIC money they had recovered. Direct SC trumps FTCA and 1151 offset requirements.

It took me almost a year from the BVA decision in 2009 to get that money and I had to fight with the OGC over it.

Now I don't think they were deliberately playing games with me -I think it is because they simply don't have any cases like mine at the OGC in DC -as a template or reference for an offset refund.

Something for anyone to keep in mind here.And to pass on to your potential survivors if you ever have 1151 and FTCA issues that could cause your death.

If you don't have a lawyer call the OGC yourself to see whats up.I think I explained in the last reply I made to you that your case might have been constructively deemed denied already.I cannot tell from the info here if that is the case.

Your lawyer -if you have one will know what to do next- if that is the situation.Or the OGC might be obtaining a Peer Review.

If you do have a lawyer call them to see whats up.

[Berta]

I dont know if you filed a SF 95 with a Regional COunsel or with the General COunsel.

Carlie posted all Regional COunsel contact numbers er and I posted OGC phone nmber in the next link.

Edited February 26, 2011 by Berta