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]

Forgot at add, Yes she can register to use ebenefits.

Thanks for clarifying the type of cancer.I re read this all again.....

You stated the 1151 was not filed yet--- but I had assumed the DIC was filed under 1151.???

If not, that is possibly why they really didn't go further with this claim----

Now I am wondering if the CUE basis is here.??????

How did she actually word the DIC claim?

DIC under wrongful death has to be specific to the Section 1151, 38 USC regulations.

Even incompetent VSOs and vet reps know that. I sure am glad you are helping her.

 

 

[pwrslm]

We did a VA 21-0847 for substitution of claimant upon death of claimant and Peggy instructed us that we needed to fill out 21-534EZ at the same time. They processed both because the DIC was denied and the Substitution was noted in the decision.

The claim was submitted prior to the Vets passing, and was open when he went. This is why we filed both forms at the same time, but the RO failed to study the file, omitted facts and failed to ID evidence. I will use your example to outline the CUE. For the 1151, should we ignore the orig claim and initiate the claim under 1151?

[pwrslm]

We have the basic for service connection;

1-boots on the ground Vet w/Bronze star and V attacherment/DD 214  confirms 

2-Automatic presumption of AO exposure

3-current condition at the time the Vet submitted the claim (300 pages of civilian medical file diagnosing and treating vet for CMML-1)

4-Nexus letter from Oncologist/treating physician attesting that the exposure to AO included petro exposure which is known to cause CMML-1, see attached

 

[Berta]

That is Great !....

I researched a little more earlier ,saved in Word, but forgot to post it sooner....Gee DejaVu.........it involved the same type of MDS overlap.

This decision contains 2 competent medical opinions associating CML with Agent Orange.I know it isn’t CMML-1 but….

 

"ORDER

 

Entitlement to service connection for CML is granted."

https://www.va.gov/vetapp07/files3/0726852.txt

One of the doctors in above case did an IME:

“The veteran also submitted a March 2004 letter from Philip

McGlave, M.D., who indicated that he had treated the veteran

with a bone marrow transplant for CML in August 1990.  Dr.

McGlave noted that the veteran had served in Vietnam and been

exposed to Agent Orange, an herbicide agent mixed using

benzene.

Dr. McGlave indicated that "[t]here is no doubt

that benzene can be a causative factor in leukemia, and

exposure to it when he was in Vietnam is as likely as not the

cause of [the veteran's] subsequent development of CML."

 

 

With the benzene component referenced above, did the veteran’s MOS put him anywhere (in service) that benzene

exposure could have caused his cancer.

This list of occupations that involve benzene exposure is not based on military MOS but raising a benzene exposure theory as well as Agent Orange  exposure theory might be a good idea.

http://www.legalinfo.com/content/benzene-exposure/occupations-with-a-high-risk-for-benzyne-exposure.html

You stated

" For the 1151, should we ignore the orig claim and initiate the claim under 1151?"

It depends on what the original  claim was actually for.

You seem to have 3 theories of potentital entitlement-

1.DIC under 1151,

2.Direct SC due to direct AO exposure,

3.and possibly direct SC due to benzene exposure, unrelated to the AO exposure.

I would pursue all three claims if I were you.

I suggest that you file the 1151 claim separately from the other claims but refer to each claim, within each claim.They only need one 21-534.

I have awards on four separate DIC claims-however the best bet is to seek direct SC death because 1151 DIC

has none of the additional benefits that direct SC death has:

such as CHAMPVA, Chapter 35 educational bennies, REPS (if children under 18 at tim,e of death- searchable here), potential refund of any FTCA offset (I am only claimant I know who did that) ---but the CHAMPVA, Chap 35, and some burial benefits would come with a successful accrued claim,if the deceased is declared 100% P & T due to service disability.I have all of these benefits,some stemming from an accrued award,with EED to 1991, and others (REPs is misunderstood by many vet reps and claimants)

They only pay one DIC amount however..but someone tried to tell me because I put so much fire under their butts sometimes, they might take away my DIC....HA....they cant take away all of the DIC awards...I never give that a thought...

So by all means support the accrued claim with evidence as well.

 

 

 

[pwrslm]

We have 1 and 2 you listed. The Vet gave us a written statement/lay testimony of what he did in Viet nam. He would take leaking barrels of AO and empty them into good barrels. The heavy exposure he had is the basis for his original claim. His spouse has a basis for 1151, and the FTCA claim. 

We tried to get the orig claim processed but the VBA blew that. 

We also plan on filing FTCA by  the holidays.

Benzine was used as a carrier for AO. It acted like a wetting agent, insuring that AO stuck to the leaves and was absorbed by the plants. Everyone exposed to AO was also exposed to benzine.

[Berta]

I am assuming that the veteran's pending claim, filed in his lifetime, is what they based their decision on, when his widow became the claimant (under substitution). Did he file under Section 1151 as well as under direct AO exposure?

"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.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.He passed in June 2017.  VA failure to diagnose and treat issue."

. "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."

Was that specific entry in the private medical records  highlighted to support the 1151 claim, if a 1151 claim was filed by the veteran ,or will it be filed by the widow?

Is that statement from the same doctor who prepared the IMO?

I dont think this raises to CUE yet---it certainly might but a lot depends on how the 534 was worded and how the veteran's initial claim was worded as well...... - as to the statement you attached from the doctor...it is a great statement ..however the VA might need much more details as to the medical rationale and certainly will need to see the statement as to the lack of timely diagnosis.

You can send any good internet abstracts that support his statement- I am not saying it isn't medical sound, it is just that I know how willing VA is, to overlook probative medical evidence.

That is why in the IMO article I did here, an IMO/IME doctor should give a CV ( Curriculum Vitae) as well as some medical citations,to support their opinion, and state that they have read all available medical records to base their opinion on.Particularily all available medical records from the VA, if it is a 1151 issue.

The IMO statement is great- dont get me wrong- and I get the 'MDS/MPN' overlap ,ie: CMML based on a few medical articles I found...but you are dealing with the VA , and some of the people who handle claims can barely read, in my opinion, and I also wonder if any C & P doctor -because these claims will trigger a posthumous C & P  are as up to date on oncology as the IMO doctor you have certainly is.

You can certainly send the IMO along with any good medical treatices or abstracts to explain the "overlap" factor-I will try to find a good one and post link here, and you can also take the time to assess the VA Med recs to pinpoint how they could have diagnosed the CMML earlier-( which can often be a LOT of work) but might only involve his blood chem records,and any documented symptoms of the cancer and send then copies of those medical records, that you can highlight and refer to in the 1151 claim.

Did the above Med opinion cost money? Is the widow prepared to spend more IMO money if needed?

I mentioned I had no lawyer nor IMO for my FTCA and 1151 claims.

However when I re opened the claim in 2003 I spent over 4 thousand on 2 separate IMOs, and part of one fee for a third was refunded because the BVA awarded without the third IMO being prepared in time.I also had a freebee which was dynamite ( from former VA doctor- the only one who knew what was really wrong with my husband and his Diagosis was crossed out during the cover up-that's OK I could decifer it.

I did extensive lay medical work for my lay medical opinion that my husband had been malpracticed on with failure to treat DMII from AO,  for my IMO doctor first- and am sure without that he would have changed me much more.The VA was giving me more problems with that claim then they did with my original 1151 claim...I wasn't going to take chances again, because this was the most important claim I had filed.

FTCA settlements attempt to rectify a terrible loss. That is all they can do.

My DMII AO claim is what gave my husband Peace with Honor- and me too.

These are 2 distinctly different claims issues.

On my 534 I claimed both service connected death as well as 1151 death.In those days I had to re-open my husband's pending claims ( one for high PTSD rating and his 1151 claim)and start from day one. 

The substitution rgulations have made that a little easier these days but this is a War of the Words, and claims have to be carefully worded, and if more than one claim, have to be addressed with evidence separately- evidence that solely supports each specific claim.

There is no deadline on CUE. But CUE in any decision - is much like the Watergate question.

What did they know and when did they know it...and that also applies to malpractice torts and 1151 claims as well.