Disability due to VA negligence

[htway750]

I had a right knee Arthroscopy Surgery on my right knee in 1997 and ended up with Stapf Infection about a month later. I was admitted to the Veterans Hospital in Denver, Co. and spent 6 weeks in the nursing home there on antibiotics. They had to operate on my knee while I was there to clean out the infection from staff. After I was discharged I found out what staff infection was and filed a Form 95 against the VA for Malpractice. In 2001 I received a settlement from the Veterans Administration for the sum of $40,000.00. I have heard that you can file a Form 1151 for non-service disability due to VA negligence. I am wondering if I can still file that, and what will I need. I don't have any of the original paperwork. What can I do? The VA had to do a total knee in 2003 because of the staph infection, and then a revision of the total knee in 2004. Both operations failed, and now I can only bend my knee at 90 degrees. Any help or suggestions would be appreciated. Because of this, now my right knee is giving me problems and is making getting around difficult. 

[broncovet]

Hopefully, Berta will chime in here, she is our resident expert on 1151's.  The short answer is you need to obtain your records.  Write or go to the VAMC(s) where this negligence was performed, and request your medical records.  See what is documented, then proceed.  

[Berta]

The FTCA was for your right knee- so you have basis to file under 1151 for the left knee-

As Buck said you need a copy of all of your VA  medical records-dont use FOIA- there is a simple form here under a search , as well as at the VAMC's Records Access office. Dont mention FTCA or 1151- that is when the MF shows up ( Mysterious force who removes evidence from VA files)I know the MF well.

Also you need to send a letter to the Regional, District or General Counsel VA who signed off on the settlement  and ask them for any Peer Review reports and any other medical reports regarding your settlement with USA.

I got this stuff without using FOIA as I recall , by contacting the OGC lawyer who dealt with me.I had no lawyer.

However if you had a lawyer they might have this info already- maybe not-

If your evidence reveals additional malpractice to the left knee as well as the right knee, beyond what the FTCA was for-you will need proof of that. I assume you will definily need an IMO/IME as well. from a real doctor, with expertise in the field of this disability,who can prepare the IMO/IME using the criteria for that in our IMO forum here.

 

[Berta]

 "and any other medical reports regarding your settlement with USA."

What I mean is this- within months of getting my SF 95 the RC wanted to settle with me.He said he had received a Peer Review report whereby the doctor (cardiologist) supported all of my charges.I had laid out my medical evidence concisely and had studied cardiology.

and this Peer doctor had gone over all of the record.

Then the RC, the doctor, and the Peer review report disappeared.I had to start all over again with the OGC istead of the Regional COunsel.

The VA OGC got a review done by a Top VA cardiologist....from VA Central. The cardio VACO doc agreed with my charges,.and soon I negotiated the settlement with OGC.Wrongful death of my husband.

6 years later I ordered my C file, when I filed a new direct SC death claim and the Peer Report wih VA had told me "never existed" was at the bottom of my  file. I used it as evidence for my AO DMII death claim.

I suggest you  order a copy of your C file as well from your RO.

Can you work with these disabilities?

Do you get SSDI ? If so what is it for?

 

 

[htway750]

How do I go in and ask for records from 1979? Aren't they going to be a little bit suspicious of just from my Federal Tort Claim just wanting files from those dates? Also, how do I get any records from the VA counsel regarding my settlement  I didn't have a lawyer to file for me, I filed myself and won. I can't prove my left knee is because of what happened to my right knee. I need someone who knows what they are doing to help me get these files. I have had some important files disappear for no reason at all. Know of any good Veteran representatives that could get me these files? DAV wants you to be a member, which I will not be, and the VFW, well they have been somewhat worthless in the past, I was getting Social Security Disability for depression until I turned 65, then they turned it into retirement benefits. I am kind of left out here in nowhere. I did request some of my records from the VA in Denver, Co, but never got them. Kinda stuck if you know what I mean. I really think the VA has blackballed me for filing the malpractice suite on them.

[broncovet]

For medical records, you go to the VAMC "release of information" office and request them.  My VAMC will print out a few pages right there, but if its over about 25 pages, they mail them to me.  Ask at your VAMC where this office is.  

For your cfile, you request those records from VA, and expect that to take a year or more, sometimes.  

When you hire an attorney or VSO, if they have your POA, and have jumped through all the hoops, they can sometimes see your records online.  

VA does not permit Vets to do this, only VSO's and attorneys who have jumped through the hoops get access.  I dont like it either.  My solution is to save every letter and piece of paper I get from VA and store it electronically (on the cloud, not on my hard drive only, as it will eventually crash.)  

I know we depend on VA to store all our records, but the best way is to take charge of those yourself and not depend on our opponent at law to watch over our records.  

[Berta]

"I really think the VA has blackballed me for filing the malpractice suite on them."

Recently I filed a new claim and gave a history of my issues at the end of it-

I felt the same way as you do when I read over older SOCs SSOC, and denials that never considered my evidence..

But I fought back and they awarded everything so far.Except for a new claim I have pending due to CUE.

"Aren't they going to be a little bit suspicious of just from my Federal Tort Claim just wanting files from those dates? "

You need all of your VA medical records. That is not an unusual request from a veteran.

You need a copy of your C file. That also is not an unusual request from a veteran.

 

", how do I get any records from the VA counsel regarding my settlement  I didn't have a lawyer to file for me, I filed myself and won."

As I mentioned above:

"Also you need to send a letter to the Regional, District or General Counsel VA who signed off on the settlement  and ask them for any Peer Review reports and any other medical reports regarding your settlement with USA."

I sent my letter to VA OGC in Washington DC.I had no problem getting that info as to the VACO review- as I mentioned before the VA hide the favorable Peer Review , and GC never saw it. I found it at the very bottom of my C file years later.

"I have had some important files disappear for no reason at all."

They might show up  when you ask for all of your records or your C file.My settlememt papers were in my C file but that is because I filed under 1151 as well.

When I reopened my claim for direct SC death, the VARO gave me a lot of crap.Because I already won wrongful death.That claim took 6 years ( and I had to get OGC to order them to pay me) ... I expect crap for my current claim. However I will give crap right back to them with 38 USC and 38 CFR.

Did you deal with a Regional or District VA counsel or directly with the OGC in DC?

I might have some phone numbers and addresses for them.

Will post what I find

Edited August 21, 2018 by Berta (see edit history)

[Berta]

Can you tell us what VARO and VAMC handled your issues in 2001?

VA changed the title of Regional Counsel to District Counsel some years ago.

You mentioned Denver VAMC so I assume the counsel listed here under Colorado is who you need to call, 

Continental - West

CO, MT, OK, TX, UT, WY
Jeffrey Stacey (Denver)
(303) 914-5810
(Standard Mail)
Office of Chief Counsel (02)
P.O. Box 25126
Denver, CO  80225

Office of Chief Counsel (02)
155 Van Gordon, Suite 551
Lakewood, CO 80228

https://www.va.gov/OGC/DistrictOffices.asp

If Jeffery Stacy cannot help you, he might well be able to refer you to someone else.

I am assuming you dealt with a regional (District Counsel) but if it was the OGC  in  Wash. DC it will take me time to find their number.
So that is something you need to ask Jeffery Stacy about.He would have their phone/fax info.

I loved dealing with the OGC General Counsel VA, not only do they know VA case law in and out, they also live for Evidence and I had plenty.

I bet whoever signed the settlement you got on behalf of USA,  might  still be employed as counsel for the VA.

The lawyer I dealt with was horrified over my last phone all to him.13 years after my settlement- he said I had been too tough to deal with- but we laughed at that- then  I told him I wanted more money-

long story ...OGC sent an order to my VARO- immediately I got my money.

My AO DMII direct SC death claim triggered the refund of my initial FTCA offset.

 

 

 

 

Edited August 21, 2018 by Berta (see edit history)