ftca legal info

[pwrslm]

I am trying to find competent contact for legal advice on an FTCA claim. Vet went to VA for help and they failed to diagnose lukemia. Vet went to non VA Dr and was properly diagnosed many months later. Treating non VA Dr stated in medical file that if it had been detected earlier, the vet would have lived much longer. He passed in June 2017.  VA failure to diagnose and treat issue.

Need consult w/atty to see if she has a case, if so what course of action to take. Been helping her with a claim for DIC but the VA denied SC  and generally "really screwed up" the decision. The non VA medical records (300 pages) and the nexus letter from the specialist (oncologist that treated him till he passed) were completely ignored. Both were faxed and mailed w/return rect!!

Spoke to widow this AM, she is ready to take the fight to them. Anyone w/experience  with FTCA and knows a competent atty please refer us.

 

Thanks in advance for helping!!!

[Berta]

I won a FTCA for wrongful death of my husband, but I had no lawyer.

There is plenty of info here on how to begin and pursue this type of claim against the US of A.( That is who you settle with, signed off on by the Regional or General Counsel.)

I also was awarded DIC under 1151 which the VA changed in 2009 to direct SC death.

There are limited benefits to 1151 DIC awards. My 2009 award changed everything.

They had killed a combat veteran with 2 AO conditions they malpracticed on. 23 years ago this month.

Can she join us here at hadit?

And if so can she scan and attach the DIC decision? ( She needs to cover her C file # , name first before scanning it.)

This is good evidence to make sure the attorney knows of:

":. Vet went to non VA Dr and was properly diagnosed many months later. Treating non VA Dr stated in medical file that if it had been detected earlier, the vet would have lived much longer. He passed in June 2017.  VA failure to diagnose and treat issue."

Since  that doctor non VA has expertise in the field ( oncology) if they are willing to expand that statement with a full medical rationale, as found within our IMO forum, she might not even need an attorney if she is willing to follow the steps here herself.

FTCA is different from 1151 claims.But the medical evidence needed is the same:

Proof of VA malpractice ( which is always within the VA medical records, yet-as I well know- might be hard to find) and

proof of resulting additional disability or death that is directly due to the malpractice.

I am glad she is willing to fight. There are many malpractice lawyers with VA experience on the net.

She could search for them by the state the malpractice occurred in.

Also state laws often have caps on FTCA settlements, something else to consider, and the VA will award DIC under 1151,if she succeeds in th FTCA, but ther is an offset factor, explained in this forum as well.

My 1151 DIC claim and the 3 other claims I had that resulted from the VA malpractice were all a big battle.

The easiest claim I ever had was when I filed FTCA with General Counsel.

I dont mean that it didnt take a lot of work-it did....but the lawyers at the OGC (unlike my RO ) can READ.

This sounds like a CUE potential ( under the GoCue Yourself VA articles I did in the CUE forum)

" The non VA medical records (300 pages) and the nexus letter from the specialist (oncologist that treated him till he passed) were completely ignored. Both were faxed and mailed w/return rect!!

Yeah my VARO pulled lots of BS like this on me too. It might be a violation of 38 CFR 4.6.

I would need to see their decision and the evidence list to really determine that.

Did she have a POA on the  1151 claim?

Does she use ebenefits? Has she filed a NOD yet, with the proof of mailing the records and  nexus opinion?

I hope she can join us and I regret her loss and know how it feels to know VA could have extended her husband's life.My husband was only 47 years old. I am still ticked off. We were  with the Prodigy  Veterans BBS 

in the 1990s and he would be here with all of you if he had not died of Death by VA.

I said she might not even need a lawyer but she will need to learn FTCA case law- it isn't too complex at all, and know the full gamit of what the medical records reveal.

Also some vets, or their survivors might be a litttle intimidated by dealing directly with regional counsel  lawyers or VA OGC lawyers in DC.

I couldnt find a lawyer to help me so I just said to myself ( this was pre internet as we know it today and lawyers could not advertise expertise in malpractice and many told me I would never win)---I have been a successful Pro Se lawyer in the past and I was ready and able to go toe to toe with the General Counsel's lawyer in DC.

My evidence spoke for itself.6 years of VA malpractice to include  a VA cover up.

Which didnt work.

 

 

Edited October 3, 2017 by Berta
added more

[pwrslm]

we got the decision yesterday, she was distraught

I spoke w/her this AM she is giving me a 21-0845 so I can talk to the VA on her behalf to push the CUE stuff through. The talk about the FTCA just began this AM, I informed her that we should consult an atty to figure out what to ask for in compensation. The 1151 has not been filed yet. I helped them file a claim for SC due to AO before the Veteran passed. He had a Bronze Star from VN. They acknowledged boots on the ground, but denied the claim. They did not list the private medical records or the Nexus letter from the treatiing physician in the evidence list or the explanation for the denial. They included limited facts on the dates the private MD diagnosed the lukemia but made no mention of who did that, leaving it appear as if the VA did it. I am going to complete a VA 21-4138 where i can document the errors, and forward to the widow to sign asking them to CUE themselves,  

They didnt get signed up for EB before  the Vet passed, can she get into EB??

 

[pwrslm]

evidence shows nothing about the private medical records or the nexus letter from the oncologist..they include date of diagnosis contained in the private medical records, but the VA did not diagnose him during the Jan 2016 to May 2016j period so he left and got a NON VA cancer Dr.  The second page indicates that they failed to process the form the widow submitted to take his place for the claim. They did not notify her of anything about this until this decision came. We spoke to them on the phone and were told that the claim was closed back in August after we told them that the Vet passed and could not attend a C&P exam.

 

Edited October 3, 2017 by pwrslm

[Berta]

It does state the substitution issue is  “pending”. But their next sentence makes no sense…..

Substitution is for any accrued benefits due on a claim that was pending at time of the veteran’s death. The Substitution form has nothing to do with the DIC claim. (In some cases it certainly could impact on a DIC claim,if awarded, but it would not  technically warrant “ reconsideration” of the DIC.

They selectively worded their decision, you are right…..they think we widows are unwilling to get a handle on VA case law and regulations, or get good help with these  types of claims, and/or so distraught with grief that we will accept their BS.

The fact is that a distraught widow ,not too familiar with the VA DIC process when she started out, is why we have the Agent Orange Court order and presumptives. (Beverly Nehmer)and due to NVLSP.

I believe this would fall under CLL cancers ( due to AO) but I need to do more medical research on the medical terms the VA used in the decision. The terms they used avoided CLL -maybe conveniently....to deny the DIC.

 

This is definitely ripe for a CUE, under violation of 38 CFR 4.6. within the appellate period.

With proof of their receipt of the private medical evidence, you can prove they violated this aspect of 38 CFR 4.1 et al:

38 CFR 4.6:

§ 4.6 Evaluation of evidence.

"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

This regulation sure has worked for me.

FTCA- ask for millions---- you wont get that in a settlement because the state might have a settlement cap but ask for millions anyhow, in case the claim has to go to a Federal Court- and make sure the three areas on the bottom of the SF 95 are filled in and added up properly.

I forget what I put on my SF 95 but will check...

I used failure to diagnose and treat, put under witnesses ,the names of all the VA doctors I could decifer ( handwritten medical records in those days) and referred them to attachments, whereby I had done many reviews of my husband's medical records, spent long hours in medical and law libraries, bought every medical book I could find at bookstores and yard sales, decifered every single blood chem report, and MRI, ECHO , EKGs etc etc, and took them step by step of the 6 years of malpractice, to include proof of an attempted cover up by VA doctors in another VA.

Also I had a 6 page autopsy which revealed their first DIC denial was completely incorrect.

BTY ,in my Testimony to the H VAC years ago ,I included page after page of bright green and white USPS Priority mailing slips- 53 of them, 12 for the autospy, and all of those submissions were ignored by the Buffalo VARO. My C file revealed one copy of the autopsy which they withheld from the OGC! In those days I was quick to use the phone and called not only OGC but also called the VACO doctor who opined on the claim.They were astonished that this piece of prime evidence had been withheld from them.

VA fights wrongful death aggressively.Survivors can and must fight back aggressively.

And, we must inform the Secretary as well as POTUS of the deliberate way the VA manipulates their decisions, in order to deny valid claims.

That goes for all veteran claimants too. VA cannot fix what they do not know about.

Interesting-they did not even give the veteran a posthumous C & P exam......as well as consider the type of cancer might well be an Agent Orange cancer.Then again whoever prepared this ( their initials appear in the Re: alphanumeric to the right top of the decision) was not a medical doctor and their whole intent was to disregard evidence and deny the claim.

Do the private records indicate this was specifically  CLL ? 

It will take me time to find out more about the type of cancer they worded , in the VA decision...

This crap does not happen in a vacuum.

The intent of the VA claims process is often, not to serve the vet or their survivor , but to screw them.

 

 

 

 

 

 

[pwrslm]

I am with you 100%. Working on a 21-4138 statement now to rebut this mess. Have to fax it to the widow to get her to sign and send it up fax and US mail w/RRR.

We have fax rect and the Rect from the mailing where 300 pages of non va med files were sent as well as the nexus letter. The Vet had CMML-1, white blood cell leukemia. This is not a B Cell leukemia and is not in the presumptive list (I believe). The BVA decisions I pulled show that they have awarded SC for CMML-1 based on the petrolium/benzine exposure in AO. The Vet took leaking barrels of AO and put the AO into good non leaking barrels while he was in Nam. We have his lay statment and it was included in the claim. His exposure is not at issue, we have his bronze star with the V so they cant dispute that, he is a hero.

Its a shame they treat his spouse like this, maybe we should get the media involved to shame them...!!?

[Berta]

This is a copy of one of my requests for VA to CUE itself, within the appeal period.

It would help you shape the same type of claim.( filed within the year of NOD appeal period.) 

Most of my CUEs were much shorter than this one was but it was the first one I found in my file explorer search:

"Department of Veterans Affairs                                                   October 28,2012

Philadelphia Regional Office

PO Box 8079

Philadelphia ,Pa. 19101                                                  Re: 310/3POST/CG

                                                                Nehmer decision dated January 17,2012

                                                                                           XC XX XXX XXX

 

and

Department of Veterans Affairs                               Original Agency of Jurisdiction

Regional Office

130 South Elmwood Avenue

Suite 601

Buffalo, N. Y. 14202 2478

 

 

REQUEST FOR VA TO CUE ITSELF REGARDING PART OF THEIR JANUARY 17th 2012 DECISION

 

I was advised by NVLSP to send my correspondence to both above VAROs to determine who holds jurisdiction over this request .

 

I respectfully request the VA to call a clear and unmistakable error on part of the above January 17,2012 decision from the Philadelphia VARO and to correct it.

 

This is a separate issue from my recent Section 1151,38 USC claim filed with the Buffalo VARO on September 21, 2012.

 

I state that the VA failed to apply the basic concepts and evidentary requirements of  38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

 

http://cfr.vlex.com/vid/4-6-evaluation-evidence-19774393

 

The VA's CUE lies within this statement on page 2 of the January 17th,2012 decision :

 

“ Entitlement to accrued benefits or cerebrovascular accident  under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993.                              Exhibit A

 

That is wrong based on all evidence in VA's possession at the time of the veteran's death.

The veteran, Rodney F. Simmons was totally and permanently disabled by his August 9,1992 Section 1151 CVA until his death on October 14, 1994. His”residuals”certainly did not alter the medical fact of his total and permanent disability from his Section1151 ,38 USC “ as if service connected” stroke on August 9,1992.

 

He was certainly housebound and that is not the issue here.

 

The VA's failure (CUE) to consider and evaluate the evidence VA had in their possession manifestly altered the outcome of the decision referred to above ,January 17,2012, to my detriment as the claimant and surviving spouse of the veteran, Rodney F. Simmons.

(I added here a legal excerpt from a BVA decision, stating I am identifying here the three “prongs” of CUE, under  auspices of  38 USC, 5109A:

“The Court has established a three-prong test defining CUE. 

The three prongs are: (1) either the correct facts, as they

were known at the time, were not before the adjudicator or

the statutory or regulatory provisions extant at the time

were incorrectly applied; (2) the error must be undebatable

and of the sort which, had it not been made, would have

manifestly changed the outcome at the time it was made and

(3) a determination that there was CUE must be based on the

record and law that existed at the time of the adjudication

in question.  See Damrel v. Brown, 6 Vet. App. 242, 245

(1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992):

(source)http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp08/Files5/0844495.txt

 

 

The VA failed to 'observe' evidence in the veteran's lifetime, and within my C file,

that warranted a manifestly different outcome of your January 17, 2012 decision regarding the highlighted statement on page 2 (enclosed Exhibit A)  to my detriment as the claimant.

The VA has no medical evidence whatsoever that would indicate Rod was NOT ratable at 100%  'as if' SC, under 1151 , or TDIU under Section 1151 as unemployable due to the 1151 CVA , from August 9, 1992 to the day of his death, October 14, 1994.

 

The VA provided no medical treatment to even prevent a future CVA and the record shows that their 6 year prescription of sudafed as Dr. Steele stated, 'for no clear purpose' severely compromised the inadequately treated hypertension.

 

I refer VA to 21-1MR Part IV, Subpart B,Chapter 3,Section D ,et al, for further guidance on how these types of Section 1151 claims are to be adjudicated.

 

I added the following exhibits

Exhibit A       Initial page 1 and 2 of VA decision dated January 17,2012            2 pages

Exhibit B       Copy of Sept 13,1994 letter from Under Secretary Vogel to the veteran  2

Exhibit C       New York State Department of Higher Education                                                                                                                                                                dated Dec 2, 1992                                                                                   

Exhibit D       VA Voc Rehab letter dated Aug 14th,1992                            

Exhibit E        Agent Orange Administration letter of Aug.30,1993

Exhibit F       VA Syracuse  Discharge certificate Sept 18,1992

Exhibit G       Letter from Rod to OFCCP/ESA Sept 1993

Exhibit H       Letter from Senator D'Amato NY dated June 3, 1994

Exhibit I         Documentation from Dr. Steele to VA Office of General Counsel

Exhibit J        CT scan

 

Exhibit K         Syracuse Discharge Narrative

Exhibit L        Neurosurgical consult       Syracuse   VA Aug 25,1992

Exhibit M       Autopsy cover page and page 2                                      

 

And there was a little more explanation to support my request that they call CUE on themselves.

They did.

The 1151 HBP claim, mentioned, as a separate claim involved the same BS, as well.

I again asked them to CUE themselves on that denial and they did.

There might be more templates of this tactic here in the CUE forum.

I threw in a M21-1 link as well. I like to use everything I can against them.

I didnt use a 21-4138 form but I dont see why you couldn't use that for the CUE claim..