Trying to understand veteran father-in-laws benefits with his complicated situation

[Angie]

I'm trying to help out my father in law get setup with better health care. He was a Marine in 1955. His wife, bless her, has a hard time wrapping her head around how to get more help. She looks after him and her 92 year old mother (the lady really has her hands full!). 

Here's what i know:
-His feet were damaged by frost bite, because they did not give them insulated boots in winter. And he was given shoes that were 1 1/2 size too small. 
-The above is NOT on record. 
-He received surgery at the VA hospital for his hip and they put the bone back in wrong (which makes his leg crooked) and they cut something connected with his lymphatic system so now his legs and feet swell up with fluid. As a result, his active lifestyle (he was an avid cycler and lifted weights) abruptly stopped and he is now housebound and severely depressed. I was also told he signed something about not suing them for the shoddy work when his wife was not present. 
-He falls almost once a week. 
-We learned recently his wife should be receiving caregivers benefit, but she is not. We were given this info by an amazing nurse at the VA hospital. She told him she was told by the social worker she was not entitled and he told us the social worker is lying. 
-The nurse had suggested the above (she should get a caregivers benefit)as well, he should be on disability & we should file a case with a lawyer or Morgan & Morgan. 

What are your thoughts on where I should start? I also saw a youtube video about a benefit for an extra $340 with disability if you are housebound... but this was a result of his surgery at the VA hospital and not active duty...does that count? 

Any suggestions are greatly appreciated. We're worried about our parents and leaving them alone at this point. He needs 24 hour care. 

Thank you in advance, 
Angela

[Berta]

"He received surgery at the VA hospital for his hip and they put the bone back in wrong (which makes his leg crooked) and they cut something connected with his lymphatic system so now his legs and feet swell up with fluid"

The date of all that is his Statute of Limits date.FTCA cases must be filed within 2 years of knowledge of potential negligence.

" He said the above is not as simple, and they just assume people know how to file this stuff. "Then rambled a bunch of different details and i suddenly felt way over my head :( He repeated that going the 'Tort Claim' route first would be best.

He is right about this stuff is not simple but I disagree with him a little as to filing the tort claim first. 

That is, my advise here is the same basically as his - get a lawyer and independent medical opinion, when filing tort claims, but I feel 1151 claims should be filed with the VARO , for the same reason given on the SF 95 as to the cause of action,...why wait. And the IMO /IME, if favorable ,revealing a strong medical rationale of malpractice based on a review of all of the medical records, can be used for both claims.

I am sure however he advised you of the FTCA offset- maybe that is what he means by nullify...?

"**However, when i spoke to the benefits counsellor he said not to file this if we are going to do a Torte Claim as it could nullify it.***"

He said "We"?     my former reps and most  vet reps I know of are not trained in FTCA law.

They are trained in 1151 and received the same training I got from NVLSP. I know what he means -but I am a FTCAer and 1151er and a tort claim does not necessarly nullify anything. Maybe he is preparing the SF 95 for you? Somewhere here is the cause of action I used on my FTCA tort claim, and my 1151 was a re open of my husband's 1151 claim but same cause of action basically.

He would need a 100% or TDIU rating however to get considered for any level of SMC.

But your rep  makes  good points----

You have to determine what disabilities he has- (we dont know yet except for the frostbite residuals,)that could possibly stem from his military service, to file for on the 21-526 form.)

"I think i should still apply Andy for benefits and find out what his disability % is, because even the benefits counsellor said he would like that info, and according to the VA that's the only way i will find out what his % is. "

That is correct, and also appying for benefits will generate a letter from VA telling you what they need as evidence. But the key for VA compensation, which can come from 1151 claims

as well as direct SC claims, ......that direct SC %s need a proven service nexus.

If we know when and where he served, what his MOS was and his unit, and what disabilities he has, we can help more.

I receive DIC under 1151, (1998 ,then under 2 AO disabilities as direct SC death ( DMII 2009, AO IHD 2012,and also under 1151 HBP as contributing to death.2015.

Maybe he means this could nullify a direct SC award...???But I am the only claimant I know of who has won DIC under 4 different thoeries of entitlement and there is a BIG $$$ difference between my  1151 awards and my direct SC awards. I am not sure what he means by nullify....

BUT he sounds like a Very Good Vet counselor!

-" I would like to get Andy a second opinion from a doctor not connected to the VA. "

They need to follow our IME format here in the IMO forum.

They would need make a very strong medical rationale statement as to the malpractice, after they thoroughly review all the medical evidence he has.

When we find out when and where he served, his MOS ,  and what disabilities he is claiming, maybe we can help more...
 

This is some more FTCA SF 95 info

https://community.hadit.com/topic/52218-ftca-and-1151-info-bumped-up/

[Angie]

18 hours ago, Berta said:

Sadly, I'm so new to all of this i'm having a really hard time understanding alot of the info. I have no idea what VARO is, i've tried googling it, but still not sure. FTCA Offset? 100% TDUI Rating? SMC? 
Also, I have no one helping me as of yet, the benefits counsellor is not preparing anything, he just gave me information. All i've been getting is information and bunch of different paths- i need to decide on one. Feel like i'm running out of time and not accomplishing what I set out for... I've stayed here almost a month, missing work, so i can try to set things right. My brain is getting exhausted.

Can you do me a huge favor and post a link for this IMO form? I can't find it, i find this website a little awkward to navigate (and im a millennial!) 


"He received surgery at the VA hospital for his hip and they put the bone back in wrong (which makes his leg crooked) and they cut something connected with his lymphatic system so now his legs and feet swell up with fluid"

The date of all that is his Statute of Limits date.FTCA cases must be filed within 2 years of knowledge of potential negligence.

" He said the above is not as simple, and they just assume people know how to file this stuff. "Then rambled a bunch of different details and i suddenly felt way over my head :( He repeated that going the 'Tort Claim' route first would be best.

He is right about this stuff is not simple but I disagree with him a little as to filing the tort claim first. 

That is, my advise here is the same basically as his - get a lawyer and independent medical opinion, when filing tort claims, but I feel 1151 claims should be filed with the VARO , for the same reason given on the SF 95 as to the cause of action,...why wait. And the IMO /IME, if favorable ,revealing a strong medical rationale of malpractice based on a review of all of the medical records, can be used for both claims.

I am sure however he advised you of the FTCA offset- maybe that is what he means by nullify...?

"**However, when i spoke to the benefits counsellor he said not to file this if we are going to do a Torte Claim as it could nullify it.***"

He said "We"?     my former reps and most  vet reps I know of are not trained in FTCA law.

They are trained in 1151 and received the same training I got from NVLSP. I know what he means -but I am a FTCAer and 1151er and a tort claim does not necessarly nullify anything. Maybe he is preparing the SF 95 for you? Somewhere here is the cause of action I used on my FTCA tort claim, and my 1151 was a re open of my husband's 1151 claim but same cause of action basically.

He would need a 100% or TDIU rating however to get considered for any level of SMC.

But your rep  makes  good points----

You have to determine what disabilities he has- (we dont know yet except for the frostbite residuals,)that could possibly stem from his military service, to file for on the 21-526 form.)

"I think i should still apply Andy for benefits and find out what his disability % is, because even the benefits counsellor said he would like that info, and according to the VA that's the only way i will find out what his % is. "

That is correct, and also appying for benefits will generate a letter from VA telling you what they need as evidence. But the key for VA compensation, which can come from 1151 claims

as well as direct SC claims, ......that direct SC %s need a proven service nexus.

If we know when and where he served, what his MOS was and his unit, and what disabilities he has, we can help more.

I receive DIC under 1151, (1998 ,then under 2 AO disabilities as direct SC death ( DMII 2009, AO IHD 2012,and also under 1151 HBP as contributing to death.2015.

Maybe he means this could nullify a direct SC award...???But I am the only claimant I know of who has won DIC under 4 different thoeries of entitlement and there is a BIG $$$ difference between my  1151 awards and my direct SC awards. I am not sure what he means by nullify....

BUT he sounds like a Very Good Vet counselor!

-" I would like to get Andy a second opinion from a doctor not connected to the VA. "

They need to follow our IME format here in the IMO forum.

They would need make a very strong medical rationale statement as to the malpractice, after they thoroughly review all the medical evidence he has.

When we find out when and where he served, his MOS ,  and what disabilities he is claiming, maybe we can help more...
 

This is some more FTCA SF 95 info

https://community.hadit.com/topic/52218-ftca-and-1151-info-bumped-up/

 

[Berta]

I know it can be quite overwhelming.

VARO Veterans Administration Regional Office.

The IMO format is here:

The IMO/IME doctor will  probably need to do a one to one medical exam .

He/she will need all VA medical records, all Private medical records, and all Service records.

I hope you are attempting to acquire them -( the SMRs ( Service medical Records) will not be need for the Tort claim (FTCA) Federal Tort Claims Act) But it would be best to seek a law firm with VA malpractice experienece as ,if they take the case, they might well have their own IMO doctors to prepare an IMO.

The Service medical records will surely be needed for any other type of service connected claim.

I strongly suggest that you see if your county has a Veterans Service Agency or if you live near a  State Division of Veterans Affairs or if the VA counselor could recommend how you can get in touch with a veterans represenative from the DAV, American Legion, or any main veterans organization.Or you could try here for the DAV:

https://www.dav.org/veterans/find-your-local-office/

There are 2 issues here...potential malpractice and also direct service connection.

Any NSO or vet rep you get will ask you the same questions I have asked you...as to service dates, where served, MOS, and what disabilities your father in law has...it is always possible he might have a presumptive disability of some sort, and/or other disabilities that can be claimed as secondary to a prime service connectable disability.

A nurse mentioned to you Morgan and Morgan.

They can assess your case via a form  at their site:

https://www.forthepeople.com/medical-malpractice-attorney/

Do you live in Florida?

Think about what you need to tell them and write the submission to their office in a Word program first....

Basically what you posted here should do but they will need the exact date of that surgery.

"he received surgery at the VA hospital for his hip and they put the bone back in wrong (which makes his leg crooked) and they cut something connected with his lymphatic system so now his legs and feet swell up with fluid. As a result, his active lifestyle (he was an avid cycler and lifted weights) abruptly stopped and he is now housebound and severely depressed. I was also told he signed something about not suing them for the shoddy work when his wife was not present. 
-He falls almost once a week. " Tell them a nurse at the VA told you to contact them.

As to the potential of any claims you are filing for on the 21-526, you can tell the vet rep of the 1151 potential but they will ask you ( or the veteran himself)  to see his DD 214, and they will ask the same questions I asked you.

I have no other advice to give because we dont know what disabilities he has, or when and where he (served ( Marines Korea 1955 has to be described better ) or his MOS.

That info is required for the 21-526. Anyone you contact on his behalf might certainly want to speak directly to him.I am sure he will need to sign the 21-526 form, himself  and anything else the VA counselor has given you....such as authorization forms etc.

 

 

 

Edited September 28, 2017 by Berta