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rod

Question

After waiting 4 months I was told by the VA attorney that the peer review should be done within 2 weeks and then I should know something. 

Is Berta still around. Haven't been on here in about 9 years. Berta if your still around, if they deny me at the regional counsel how do I ask for a reconsideration from the Office of the General counsel?

I had a successful FTCA CLAIM  when my father passed away but have kinda forgot some of the ins and outs of this. 

Edited by rod
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Berta and Rod:

   If I understand this correctly (maybe I dont), this Veteran can not get more than 100% for an 1151 claim, so it would seem like Rod has nothing to gain.  

Im just unaware of the VA awarding stuff over/above 100% compensation even if they are at fault.    Please chime in if I have this wrong, Berta.    I have heard of families being compensated when VA caused the Veterans death, but while you are still here, the VA is like, gee, we are already paying you 100% plus 100% of your medical, so how can you be "damaged" beyond that?  

    Remember that medical malpractice is to compensate victims for "damages", and, sometimes (but rarely) for 
"pain and suffering".  

   We see that with workmans comp.   You will "almost never" get compensated by workmans comp and VA for the same injury.  Either the injury was principally caused by work or military service, but not both.  That is what the "at least as likely as not" is about.  The doctor says that there is at least a 51 percent chance this is military injury.  Well, that means it wasnt caused by workmans comp.  

     You see this with IRS, a lot.  With divorced parents, "only one" parent can provide over 50 percent of the child's support.  Sometimes, the divorce decree will say "which" parent that is.  The IRS will almost always disallow both parents claiming over 50 percent of the childs support.  

     In your case, you have a FTCA.  So, which part of your disabilities is FTCA, and which part is due to military service??  The VA is absolutely anal about compensating a Veteran Twice for the same injury.   If you got paid for it from workmans comp, or FTCA, then it stands to reason you are not going to ALSO get paid from FTCA for the same injury.   

    

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I gave a detailed reply but deleted it...my FTCA situation was probably much different than yours.

The initial Peer Review that Regional Counsel here in NY ordered, was favorable to every charge I had made regarding one of the 3 main disabilities VA caused my husband  to have, that contributed to his death.He (The RC) called me up to tell me soon he would begin negotiations with me on the settlement,after he got the report..

Then he disappeared, the Cardio doc who did the Peer Review disappeared and then the Peer Review report 'disappeared. At that point I contacted General Counsel.

I found out what happened to the RC and the cardio doc who both assured me the RO had that report.But I had to continue my FTCA case without it.

The RO had deliberately removed this critical report from my C file and their records at OMLA and also withheld this report and other Crucial (and I sure mean Crucial

and critical medical evidence even from the General Counsel and their Peer Reviewer. This caused a sudden denial of the claim at VACO but I immediately discovered what medical evidence had been withheld from GC and then after faxing it to them, the case was won and they settled with me right away.)

Hopefully you have a lawyer and also have obtained an Independent medical opinion to support your charges on the SF 95.

A lawyer would not have allowed this BS to occur regarding my medical evidence but 20 NY lawyers had already told me I didnt have a case, or you cant sue the gov etc etc...

In 1995 there was no internet as we know it today. I could not find a way to obtain an IMO so I had to study cardiology, neurology and numerous other medical texts and learn medical acronyms etc etc and then determine when the malpractice began (Aug 1988) and then how the VA tried to cover it up at a different VAMC in 1992 and then I had to prove how their malpractice was the sole cause of my husband's untimely and sudden death.

Lawyers could not advertise their specialties in those days so I could not find a malpractice lawyer to help me so I did this case myself.I had a pro se legal background but never handled anything like FTCA before so I also had to study everything I could on FTCA.And then practically become a doctor,too.

The only thing that matters in FTCA is documented medical evidence that proves the malpractice occurred and that also proves it resulted in additional ratable disability or death for the veteran.

The fact that you already succeeded in FTCA has nothing to do with your pending issues,because it is a new case..

I had 2 additional malpractice claims since 1995 and had to shape them and handle them very differently then the initial  FTCA matter.

One succeed under direct SC death and the other succeeded under Section 1151 a few weeks ago.

My advise here since joining hadit has been to obtain a IMO and  get a lawyer for FTCA issues,keeping in mind the basic FTCA regulations that are here at hadit   as to the Statute of Limits and the 1151 offset  factor, if 1151 is involved too.

 

 

 

 

 

By VA attorney, do you mean the Regional Counsel or an attorney from General Counsel.

 

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Just to add .this is a link, one of many to your rights under any denial of a FTCA issue:

http://www.nolo.com/legal-encyclopedia/when-veteran-is-injured-the-va-the-federal-torts-claims-act.html

What I cannot answer is if the any denial at the Regional Counsel level would also allow you to have a copy of the Peer review report the denial is based on.

What I can recommend however is to aggressively send to VA any probative evidence that the denial seems to have ignored or manipulated.

Broncovet said:

  "If I understand this correctly (maybe I dont), this Veteran can not get more than 100% for an 1151 claim, so it would seem like Rod has nothing to gain.  "

As fa4r as I know this is not a Section 1151 cvlaim issuie4, only FTCA.

In my recent 1151 awarded they awarded 100% under 1151 plus  SMC.

The battle I am having presently with VA is that the regulations clearly states that a veteran , with a 1151 award, cannot be 'deprived' of their direct SC rating.

In their decision the VA awarded 1151 100% P & T plus SMC from 1992 to 1994 but then subtracted the veteran;s 100% direct SC P & T PTSD award from their audit figures, thus depriving him of his proper SC rating.

In essence it appears they paid me as accrued,only the SMC award, in addition to the malpracticed IHD award due to AO.

I have tried to explain this dilemma here many times along with the actual regulations,hoping someone would read those regs from M21-1MR and opine hjere  but none did. .I asked VA to get a General Counsel Opinion on this because so far, no one at my RO has even attempted to give me a valid R & B for the CUE award, yet no retro. A valid R & B would require them to cite the actual re4gs I am fighting over.

I am aggressively fighting this very issue for myself and certainly all others who it could impact on, , perhaps this veteran here too, as an 1151 award can go further than a SMC award. But this vet has never mentioned an 1151 claim.

 " Remember that medical malpractice is to compensate victims for "damages", and, sometimes (but rarely) for 
"pain and suffering". 

I need to pull out my settlement on that....and will post what they actually awarded for.....

FTCA....1151.........birds of the same feather....but not from the same nest.

2 distinctly different issues but the proof for each is the same.

 

 

 

 

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 Broncovet stated : "Remember that medical malpractice is to compensate victims for "damages", and, sometimes (but rarely) for 
"pain and suffering".  

I have my settlement papers in front of me....The veteran died due to VA health care.It says nothing about damages.

$xxxxxx ( I dont reveal the actual settlement figures) "for the pain and suffering of the deceased, Rodney F. Simmons."

$ XXXXX to me , "for the wrongful death  of Rodney F,.Simmons"

then they totalled it , I and General Counsel signed it and it was forwarded to the US treasury Department.

The amount specifically for me ,much less than the Pain and Suffering amount(loss of consortium, economic  losses etc ,,,discussed but not defined in the settlement papers) was the offset to my DIC under 1151.

When I proved additional malpracticed condition ( AO DMII) in 2009, they had to refund the DIC offset.

The pain and suffering of the veteran was defined better when I filed multiple additional claims.The disabilities had to then be rated and given a percentage under 1151 for my accrued claims.

There is considerable info here in our FTCA forums as to how this all works.

But the best input is from FTCAers here and/or 1151ers who have succeeded. Their experience alone is a wealth of knowledge as to how they succeeded, yet is specific to each individual case.

If there is no documented proof of malpractice nor any resulting disability from it, the claim will be denied.

Documented proof of malpractice is not easy to find and I read my husband's medical records, dozens and dozens of times, and finally figured out what a crossed out entry was and that became the basis of my additional DMII claim,years later . I had the evidence for malpracticed heart disease, HBP and stroke and I understood every blood chem report, the autopsy and just about every single thing in a large stack of VA med recs for my FTCA case.

I overlooked a medical term however in the autopsy (one word) and also kept disregarding that crossed out entry when I filed FTCA..

so my point is non medical lay claimants under 1151/FTCA  can easily miss something significant,  that an IMO doctor, hopefully, would not miss.

A settlement for a living veteran of course would be stated in a different way.But I dont know what way.

I dont advise anyone to do this themselves....then again my FTCA case was the easiest claim I have had yet.

That is because VA lawyers can read and will read every single piece of evidence they have, very carefully.

They will also request Peer Reviews reports in an articulate way (I have their requests and the replies from my case) that is far more intelligent in their wording then anything you get from a VARO. But those requests are based solely on your specific FTCA  charges....charges that have to be carefully filed and listed on the SF 95.

 

 

 

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This might help someone.When a veteran has both 1151 issues and a direct SC rating they have to get a handle on the regulations that control 1151 issues.

http://www.va.gov/ogc/opinions/1997precedentopinions.asp

VA GC Pres Op 80- 97  

And

http://www.benefits.va.gov/compensation/claims-special-index.asp  along with the Mtr1 1MR citations I have already posted in the 1151/FTCA forum   clearly state that additional compensation can be paid to a veteran with a service connected disability and also a 1151 disability.

The problem comes in when ,in this vet’s case, there is a 100% SC disab8ility but he might get a rating less than 60 % under 1151 (if he even has filed a Section 1151 claim....he did mention just FTCA ( 60% under 1151 would warrant SMC) and there is very little information to show how VA determines what they will pay in those circumstances,under 1151..in M21-1MR.

I got a vet friend 100% under 1151 but he also got a separate SC rating for PTSD and told me VA paid him both and also he got SMC due to 2 PHs GSWs.

 

I feel the General Counsel Prec Op is very concise as it states that 1151 compensation as  awarded, “authorizes payment  of 1151 compensation “as if” service connected. It does not state'in lieu of SC comp' or' instead of service connected compensation.'

In my recent case the 1151 compensation level of 100% was greater than  my husband’s 100% PTSD rating due to the SMC award, that came with the rest of the 11512 award.. It appears they only sent me the SMC award in the retro and yet these were 2 separate issues.

The General Counsel Pres Op goes on to say that ,as in VAOIG Prec Op 80-90 that

“ALL” (underlined in the actual Pres Op )

veterans’ monetary benefits  payable for service connected disability or death” are available for disabilities compensated under 351.”

They use the older 351 term for 1151 due to Gardner V Derwinski decision (1997)  which did not affect these VA OGC pres ops at all.

M21-1MR uses the term Offsets regarding 1151 ratings and payments but that only regards a disability that has succeeded under FTCA and tyhus regards an offset tyo the 1151 award.

 

 

When I asked the RO to get a OG Prec Op on my situation, that was sort os a trick, because it would mean they failed to even consider the Pres ops in the 1151 regulations and M21-1MR because the GC has already rendered many opinions on 1151, and they all reflect the same premise.

 

But since there are not many 1151 claims out there and often the  veterans is awarded a medical error injury etc, as a secondary SC award instead of a 1151 award, for the claimed disability,  these finite principles of VA semantics get ignored and lost in the shuffle and I bet to the detriment of MANY 1151 veterans.

And of course to those vets who dont even know they might have 1151 issues yet at all.

 

 

 

 

 

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