Do I Have A Case Against The Va?

[carterrj2020]

I'll keep this short and sweet. 50% SC 10% of that is because of back surgery i had while active duty. Hurt back again in August of Last year. MRI showed i had re-hurniated the same disc and it was pressing on my nerve that runs down my leg...again. VA Doc said I need surgery. Had surgery. Woke up and doc said i didnt have hurniated disc, only scar tissue from former surgery. 2 week follow up and my calf does not work! cant go on my tip toes or anything. Had another MRI done. 6 week follow up and calf still doesnt work. Doc says he doesnt know why. Also, pain in leg is back.....post op MRI shows get this.....hurniated disc....i asked doc why he didnt take care of that while he had me open on the OR table. He shrugged shoulders and said I dont know...then asked if I wanted another surgery! UM NO! Not by this guy at least. So VA says I have to go to Houston VA ( i live in arkansas) for second opinion and for 3rd surgery. This is very frustrating....i basically had surgery for nothing and now my calf doesnt work.

What can I do? Do i file for increase in disability? if so, for what? Do I sue? Tort? CUE? Please help.

[Pete53]

Welcome to Hadit. My opinion is that you should file your claim but keep in mind any time you ask for an increase the VA can review your current rating.

[Berta]

You have 3 options:

You can file for increase without raising a 1151 issue.

You can file a Section 1151 claim. (It can also be raised in the claim for increase)

There is significant info on this type of claim-Section1151 ,38 USC , in the FTCA form.

You can file a Federal Tort Claim (FTCA)

and you can do all of above . I have explained the offset info in the FTCA forum and just posted info in the Sec 1151 forum recently on how SC disabilities and 1151 awards are rated.

FTCA has a two year Statute of Limits, meaning you must file the SF95 (paperwork that starts the tort) within 2 years of learning the VA was negligent or malpractice on you.

Based on what you posted this sounds to me like malpractice.

But my opinion means nothing to the VA.

You need to obtain a copy of your complete VA medical records, and you can file the 1151 claim and even the tort yourself but I highly recommend anyone considering these types of claims to obtain an independent medical opinion from a doctor with expertise in the field of this disability, to support the malpractice charges.

An Independent Medical Opinion can be costly but it will reveal proof of the malpractice /negligence, and if it doesn't you have peace of mind knowing VA did all they could. (Which sure doesn't seem to be the case here)

VA fights back aggressively on Section 1151 issues.

The General or Regional Counsel will too on FTCA issues.

If you have medical evidence that shows your surgical situation was out of the normal standard in the “usual” medical community ( usual- a term lawyers use- meaning the care was not consistent with normal medical practices outside of the VA)

and if you have suffered additional disability (which also it appears you have)

then VA would have to rate the 'additional' disability they caused under Section 1151.

Successful FTCA awards involve a settlement and that is negotiated with General Counsel VA or the Regional Counsel for VA in your district.

As posted within the FTCA forum

Section 1151 and FTCA claims require proof of medical negligence and

proof of a ratable disability that resulted directly from the negligence.

"So VA says I have to go to Houston VA ( i live in arkansas) for second opinion"

Do they mean a second VA opinion on potential surgery?

Make sure you get a copy of that opinion.

For my FTCA and 1151 cases, all of my evidence came from the VA.

I also succeeded on an additional malpractice claim last year.All of these cases involved the death of my husband due to piss poor VA health care.

Many VA doctors who opined on these claims provided in their statements geared to deny my claims, more Proof of my charges!

FTCA- I suggest too -requires getting a lawyer.

You have the right to do it yourself and some of us have succeeded without IMOs or lawyers but that is very time consuming and VA will try to deny it and string it all out as long as they can.

Edited March 8, 2012 by Berta

[Berta]

Just to add- here is info and link to the SF 95 form (FTCA cases)

and here is a template to prepare Section 1151 claims:

It helps to read all of the info here at hadit on these types of claims.

[carterrj2020]

Thank You!

[Berta]

Just to add- Pete made a good point.

This goes for anyone reopening a claim or filing a new claim.

In January I received a Nehmer award. It seemed higher then what I expected but I put off doing the math until I obtained some historic rate charts from back to 1988.

I even started to become horrified that maybe they might have overpaid me.

But I went over the rate charts and award audit very carefully many times and the reality is they might owe me some more money.

My point here was that some of the money involved a Section 1151 issue that went back to 1988.One of many 1151 issues VARO fought me aggressively on.

I can tell from the lengthy evidence list and decision I got in January that this was the first decision I ever got from a RO that fully considered all available records. The entire claims file was reviewed,even mentioning evidence I forgot I had sent to them.

and best of all- after almost 18 years, my deceased hsband's original Section 1151 claim was finally acknowledged as received by the VA.

I had an 18 year argument with VA on that claim,which they consistently said they had never received.And they said it ,after the prime witness ,the actual claimant, had died.It was in the rating board the AM he called 800 #, and the rep spoke to me and to him and he died unexpectedly a few hours later.

They awarded my Sec 1151 I filed after Rod died but that was technically a reopen of his 1151 claim.Yet they refused to see it that way.

His actual 1994 Section 1151 claim was critical to my award under CUE regarding one of the 1151 issues he had mentioned in his claim.

It took another VARO-Philadephia, under Nehmer ,to reveal the statements I received from Buffalo VARO were unfounded fiction.

The Phila acknowledgement of receipt of that 1994 claim my hsband filed means more to me than the AO decision does.

I had multiple problems with my RO when I filed the Sec 1151 claim.They wrote (a VSO told me) 1151 all over the C file folder and then deliberately withheld evidence from the General Counsel and VACO.

I raised a major ruckus on that and would not have had those problems if we had the right to obtain lawyers in those days for VA claims issues.

My FTCA case unfortunately was the easiest claim I ever prepared and although I went round and round with the OGC lawyers, they are by far smarter than the RO input I had and they actually will read the medical evidence.

In most cases you cannot get both FCA award and Sec 1151 award without an offset.

VA wont pay twice for the same disability or death.

They did in my case but I was in a unique position and proved both 1151 death and also SC death.

If I had to do it all over again today,re 1151 or FTCA - I would get an IMO doc and a lawyer right away as they could cut through a lot of the VA Bull crap I had to put up with.

My NSO at the time was useless regarding my 1151 claim and even my accrued benefits claim.

Oddly enough I wrote a 1151 claim for a local vet friend a few months after my husband died.

He didnt have his med recs and I told VA in the Section 1151 claim that his VA medical rcords would reveal extensive malpractice.

The claim wasn't more than a few sentences.

It was an educated quess based on what he had told me during a visit to my home.

The same VARO I deal with awarded his claim right away.No BS at all.

They will probably go over all of your records regarding your SC disability.

Edited March 10, 2012 by Berta

[jstone1950]

I don't know if this is the right place to post my issue, but here I go. I was written by my primary care provider at VA to report for an annual physical. I did and was asked to take a urinalysis before leaving which I did. Later, a letter was sent by him to my mother's address which is my home of record. She called me and told me I had some mail from VA which she has done many times of which most would be future appointments. When she opened the letter it contained my lab report that stated that I tested positive for marijuana and cocaine and that he attempted to reach me by phone twice. My question is whether my confidentiality has been breached since I signed no release of information. Everytime I've needed any lab results, I had to go to VA and sign a release of information request. Why could he have wrote in the letter to give him a call. Again, is this a violation of my confidentiality to send unsolicited sensitive info through regular u.s. mail. I've never heard of a physician sending sensitive info through the mail before and most of the time request that you come into the office.