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 think you should file a CUE on this, saying they violated 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.

https://www.law.cornell.edu/cfr/text/38/4.6"

State the date  of ( and refer them to copy of enclosed proof of mailing receipt)

all of the evidence the widow had sent to them, which they ignored.

Enclose again, and mention the IMO.Refer to and enclose a copy of the decision and the Evidence list that is posted in this thread .

Ask them for a valid VCAA letter that complies with the Hupp decision. It looks to me that they never even prepared one.

This would be faster----

Can the widow possibly do this herself via IRIS?

They have a complaint area pop down.

I filed at least one  CUE this way-forget which one---and am sure  I also faxed them to my VARO.

IRIS complaints go to VA Central Office as well as to the specific VARO.They (my VARO) knew the formal CUE was coming.

Is she PC savvy?

And did the widow receive anything at all, from VA, in addition to this decision, from the VA?

I feel I have not helped you at all.......because I  don't think we  have all the info.....if they did send her a VCAA letter, briefly describing the evidence they needed, she had to respond to it...

They received the signed 534 in late August 2017 ---and somehow have already made a decision to deny....

That tells me either they never received the evidence that was sent, or never properly prepared a VCAA letter- it will state Important Reply Requested.

Did her VARO of record prepare the decision or did another RO prepare it?

I saw no mention in the 2 pages you attached, of the VCAA letter...is there more to that letter?

She will not get a VCAA letter for the 1151, but they should have sent her one by this claim....

 

 

[Berta]

This is what I mean by the VCAA and it must contain provisions of the Hupp Decision:

"The VA's Duties to Notify and Assist Prior to consideration of the merits of the appeal, the Board must determine whether the VA has met its statutory duty to notify and assist the appellant in the development of her claims of entitlement to DIC and accrued benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). After reviewing the record, the Board finds that the VA has met that duty.

After the claims were received, the PMC advised the appellant by letter of the criteria for DIC and accrued benefits and informed her of her and VA's respective responsibilities for obtaining relevant records and other evidence in support of her claims. Specifically, the appellant was informed of (1) the conditions for which the Veteran was service-connected at the time of death; (2) the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet App 342 (2007).

The appellant was further advised that accrued benefits were based on existing ratings, decisions, or evidence in the Veteran's possession, but that the benefits had not been paid to the Veteran prior to his death. It was noted that they would be paid to a surviving spouse, child, or dependent parent of the Veteran. The VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records necessary to substantiate the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, as well as records reflecting his post-service treatment by the VA. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a). In this case, the Board finds that the record is full and complete and sufficient to make a just and equitable determination. In sum, the appellant has been afforded a meaningful opportunity to participate in the development of her appeal. She has not identified any outstanding evidence which could support either of her claims; and there is no evidence of any VA error in notifying or assisting her that could result in prejudice to her or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. "

https://www.va.gov/vetapp16/files1/1601295.txt

This description of the VCAA for surviving spouses has been in affect for years, yet VA has managed to violate this regulation many times , and did in my case years ago.I even asked for a remand on that basis.

BVA ( my DMII AO death claim) agreed with me, but felt it was a moot point because they had received sufficient evidence from me, to award.( I wrote my own VCAA letter based on Hupp and satisfied the requirements myself)- not all widows can do that...they certainly cannot be expected to have the experience I had re: VA claims. The VCAA, citing Pelegrino, is what VA must comply with for veterans. The VA has narrowed it down to the 5103 waiver now........

Did she receive anything else in writing from the VA at all????after they got the 21-534?

 

 

[pwrslm]

 I am asking her about this VACA info. See what she tells me and Ill bring it back. She is not computer savy, I have to help her.

We can get her up to register for the EBenefits account. I can sign on her acct and submit the cue via IRIS but its going to be huge because the medical file is 300 pages and they didnt mention it, or the NEXUS letter that the VET originally send in.

[pwrslm]

Much of the rest of the pages in the decision were related to the DIC denial. Its 13 pages and mixed up, but they dont go into the claim much, and explain way more about pensions than anything. Widow earns too much via SS for her to qualify for pension anyway.

I invited her to register, not seen her yet. Might not be able to get through it, will call her AM.

Edited October 7, 2017 by pwrslm

[Berta]

You dont need to send  300 pages of med recs to IRIS---

You just need to send copies of proof of mailing the med recs and also the Dr's IMO letter, as an attachment- it has been so long since I used IRIS I forget how the site works.

But -this might not be a valid CUE----the more the thread grows, the more confusing this is getting....

-perhaps this happened (lack of evidence on the evidence list) because the VARO,per the decision,  had not formally accepted the substitution form yet.. and the "note" on page 2 of the decision is difficult to interpret---because , as you said, there is more to the DIC denial in the decision

..I was surprised today at this statement :

" they didnt mention it, or the NEXUS letter that the VET originally send in."

I thought the widow sent in the medical records and Nexus letter with the DIC form. 

This is getting confusing because we do not have all of the info. I am not even  sure now ...that they actually committed a CUE at all. The entire decision ( except for the regulations they enclosed) as it pertains to the DIC denial,is what we need to see.

Does she have a copy of the veteran's initial claim?

Can she join hadit and tell us exactly what the veteran stated as reason for the claim andf attach any part of the decision that pertains to the DIC denial?

On the 21-534 form- it covers accrued, but also the basis for the claim has to be stated carefully.

My DIC 534 not only covered accrued, but I claimed a direct SC death as well as a wronngful death under 1151 and added a statement with evidence to the form.

There was no 534EZ form then.

I just accessed a 534 EZ form and there is no where to even explain, in any detail, what the claim is for.It is a form that would be beneficial  and EZ (easy) to anyone whose spouse died with 100% SC Pending for ten years or more.

I used the traditional 534 form:

https://www.pdffiller.com/en/project/138335708.htm?f_hash=da918b

Maybe that was the problem if she used the EZ version.This is not an "EZ" DIC claim.

I really dont feel I have helped at all here.....

She might want to call 1-800-827-1000 to see if they have processed the substitution form yet....

 

 

 

[pwrslm]

I helped the Vet send in the entire claim with the DD214, copy of the Brinze Star Award,  300 pages of medical files and the Signed Nexus before he died.  We also sent in a lay statement from the Vet as well as his children and spouse about his account of the Exposure to AO in VN. We documented the AO exposure, the Current Condition, the Nexus and the honorable discharge.

After he passed we contacted VA and informed them of the event and the VA sent the form for the widow to assume the claim, and the DIC form. Both were filled out and sent in just as they asked. 

The next communication that the widow received was the decision on the claim denying the SC, and denying DIC that I posted here.

This is all that we have done so far. There were no 1151 claims. We intend to start the FTCA claim next for wrongful death/failure to diagnose and treat based on the oncologists statments in the non-VA medical file.