Berta, Direct Service Connection, 1151, Ftca

[GuaymasJim]

Berta, now that I have claimed IHD as an AO exposure presumptive as directly service connected. I am prepared to file the SF-95 to initiate an FTCA claim. My question is how do I keep from paying my own FTCA judgment through withholdings from any additional compensation I might receive. How would 1151 figure into this process?

I know you were successful, so when you have the time and inclination, could you please explain how I should go about it.

None of these claims are going to be adjudicated anytime soon, so thee is no rush.

Thanks,

Jim

[carlie]

They will offset any recoupment thru, the FTC from the 1151.

I hope this makes sense, I just felt like jumping in the water : - )

[Berta]

"My question is how do I keep from paying my own FTCA judgment through withholdings from any additional compensation I might receive."

The only way I know of (and never found any similiar case at VA and even NVLSP ,years ago, didnt know of any but I am sure there must be a few)

was that I proved both FTCA malpractice causing my husband's death and then years later I proved not only DMII from AO (2008) and then AO IHD (012) caused my husband's death. A SC death trumps a malpractice death regarding any settlement offset agreement you might make with the General Counsel but that is contingent on the same disability that VA malpracticed on as well as same disability that is in fact a direct SC disability.

This is one good reason I advise getting a lawyer for FTCA issues.

The offset VA made in 1998 to me, to my DIC, was what VA OGC and I had agreed on ,at that time, as part of the settlement I made with the USA.

A lawyer would know the best way to negotiate the offset nuances with the VA attorneys.

This took some time on the phone, back and forth, for me and the VA in DC but my case was wrongful death, so that changes the picture under FTCA in many ways.

How would 1151 figure into this process?

Good question..........in my AO IHD award was award of my SMC CUE claim, that involved 1151.

VA paid me accrued benefits for the 1151 SMC issue separately and then 100% under 1151 for 6 months and rated the residuals as the SMC S award.

I was appreciative of the excellent job they did at Nehmer in Phila on tat but I asked them to CUE the award letter because the evidenc VA had (and which I sent to the again) showed Rod was 100% 1151 for malpracticed CVA for almost 2 years, and not just 6 months.

Still, when they properly resolve that claim, the 1151 award will be separate from the AO IHD award.There is info ere somewhere that I posted some time ago which explains what I mean with the citations to the regs in 38 on that (and in M21-1MR)

But I feel a malpractice lawyer would best advise however on the 1151 issue as well as FTCA as these types of claims have 'nuances' that are specific to the circumstances of the malpractice. The malpractice lawyers with VA experience on the net know 1151 case law too as well as FTCA.

I have a great personal friend who I got 100% P & T under 1151 many years ago.

They malpracticed on an Agent Orange disability. I cannot get him to understand he should file a CUE on the 1151 decision,as it says right in it, he had a AO disability that caused the VA to award 1151, because their treatment of the AO was unconscionably negligent and they shortened his lifespan....and in my opinion VA still owes him Cash under direct SC of the AO cancer.As well as under 1151....oh well.

The best ting anyone with FTCA issue and time left on the FTCA Statute of Limits, is to get a strong IMO that reveals the malpractice, and with that IMO, any good lawyer would be a fool not the take their case.

A lawyer would surely suggest the SF 95 charges should be the essense of the 1151 claim. and probably would want prepare the SF 85 themselves.

.

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[GuaymasJim]

Thank you both for the info. I used a successful SF-95 as a format not so much to submit it exactly as written but really to serve as a concise way to explain of a very complex set of facts. The most difficult thing to explain is how the medication for my SC condition provokes cardiac events and the medication for CAD provoke my SC condition. Each contention is keyed to relevant entry in my VA medical records, VA imaging, and the relevant section in the national ACC/AHA guidelines for the treatment of PAD and CAD.

Believe me, I know I can't do an FTCA claim without attorneys! The attorneys are reviewing it this week. They agree that the first three requirements of successful malpractice claim are instantly clear-Malpractice 101. The problem (as usual) is determining the " $ value" of the damages. Shortened life span is prominent on the list of damages. The fact that AO IHD is accepted and presumed by the VA is also somewhat of a problem. That surprised me. It is because the VA views PAD, CAD, and ICAD (cranial arterial disease) as separate and different conditions while the rest of the medical community see them as manifestations of the exact same disease.

There really isn't more evidence to find. It's all there (and here). I don't want to devote the rest of my life to this, but I do have obligations to my family.

Anyway, thanks again. I will call on you both as issues develop.