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]

You might be interested in pursuing this regulation to become the widow's representative:

38 CFR 14.630

You might be interested in this regulation,

in part:

 

§ 14.630 Authorization for a particular claim.

(a)      Any person may be authorized to prepare, present, and prosecute one claim. A power of attorney executed on VA Form 21-22a, “Appointment of Attorney or Agent as Claimant'sRepresentative,” and a statement signed by the person and the claimant that no compensation will be charged or paid for the services, shall be filed with the agency of original jurisdiction where the claim is presented. The power of attorney identifies to VA the claimant's appointment of representation and authorizes VA's disclosure of information to the person representing the claimant.

There is a little more to this actual regulation.Maybe you have already used it to be sent correspodence they send to the widow.

I am putting this in claims researchforum---we have not mentioned this regulation for a long time and maybe a Mod will move this whole thread into claims research where others will see it and can chime in to help, instead of in the Geeks forum.

https://www.law.cornell.edu/cfr/text/38/14.630

[pwrslm]

We have only filed the original claim by the vet prior to his passing. The 1151 has not been filed. I think you mentioned it would be better for the widow if we pursued the original claim by the vet. 

 

[pwrslm]

4 hours ago, Berta said:

You might be interested in pursuing this regulation to become the widow's representative:

38 CFR 14.630

You might be interested in this regulation,

in part:

 

§ 14.630 Authorization for a particular claim.

(a)      Any person may be authorized to prepare, present, and prosecute one claim. A power of attorney executed on VA Form 21-22a, “Appointment of Attorney or Agent as Claimant'sRepresentative,” and a statement signed by the person and the claimant that no compensation will be charged or paid for the services, shall be filed with the agency of original jurisdiction where the claim is presented. The power of attorney identifies to VA the claimant's appointment of representation and authorizes VA's disclosure of information to the person representing the claimant.

There is a little more to this actual regulation.Maybe you have already used it to be sent correspodence they send to the widow.

I am putting this in claims researchforum---we have not mentioned this regulation for a long time and maybe a Mod will move this whole thread into claims research where others will see it and can chime in to help, instead of in the Geeks forum.

https://www.law.cornell.edu/cfr/text/38/14.630

i Will keep this handy, if the widow needs to have me stand in for her , I dont have any problem with it.

[pwrslm]

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 made sure that the entire non va medical record was sent in with the IMO.  We also secured a complete copy of the VA medical file before the Vet passed.

The widows daughter works in the medical office for the oncologist that gave us the IMO. IMO was no charge!! Cant beat that for helping out!

If we need expanding on the IMO I can probably land that for her if she cant afford it. This is extended family, son in laws uncle was the vet.

Edited October 5, 2017 by pwrslm

[Berta]

" I think you mentioned it would be better for the widow if we pursued the original claim by the vet. "

Yes, as an accrued benefit, but 

what did the veteran file for - direct SC due to AO exposure or

for Section 1151 due to failure to diagnose and treat,(as my husband did in his lifetime)?

Maybe this will help:

Your widow has three issues ( as I did)

1. Accrued claim:

My husband filed for higher PTSD rating ( he was 30% SC),. he died and I developed the claim and they awarded 100% SC P & T. They could have awarded this in his lifetime. The evidence was impeccable. In any event they gave him a very favorable EED..but which only benefited me.

2. Section 1151 claim

Along with this claim already filed the VA had made a serious medical error 2 years before he died that he accepted an apology on,until it bothered him that since  they did not diagnose his CVA propely at first, he believed his PTSD had also been misdiagnosed and poorly rated, and he ended the claim with a very horrible statement that he feared the VA could end up causing his death through misdiagnosis of more strokes or even heart disease..(which he didnt know he already had ,nor did he even know he also had DMII-all misdiagnosed,with clear evidence in the record that his death could be prevented.

He dictated the claim to me to type and got it in the mail.That was my 2 accrued claims.

3. Agent Orange claim

At that time,when my husband died,  the AO presumptive list was much smaller than it is now.When DMII and when IHD went on the presumptive list,I filed claims for those direct SC benefits.

Accrued claims rest solely on evidence VA had during the veteran's lifetime.

If his claim was for AO, direct SC for his cancer, and/or Section 1151, that is how the accrued claim must be pursued.

1151 DIC and/or direct SC death DIC both can be pursued,but the issues are separate.

I dont feel they should be lumped together in one claim but instead filed separately, but referred to in each claim.

In my CUE template I mentioned an addition 1151 claim I had in the CUE claim ----because the VA cannot handle too much at one time, and I didnt want them to overlook the other claim.It was a distinct and separate issue.

You might well need to copy the same pieces of evidence for each claim.

Once a timely accrued benefit claim is filed( I assume this was all mentioned on her 21-534) that will cover any future potential accrued claims.(that is Footnote One Nehmer- searchable here) although it does not apply to your widow's claim,one never knows what future accrued benefits could occur , as I found out with my SMC CUE claim, awarded almost 20 years after my husband died.

We have more info here under Accrued, and DIC, 1151, FTCA under a search.

I asked a MOD to move this whole thread to another forum where others can read it and opine on all of this.

.

[pwrslm]

Thank you Bertha.

You are such a huge help.