FTCA

[ericledusmc]

Local V.A. failed to diagnose my Graves' Disease for several years even though I clearly had documented symptoms and blood work that showed thyroid dysfunction.  They blamed the symptoms on other things, and just totally ignored the blood work.  Graves' Disease is not that bad of a disease if detected and treated, but if left untreated it does all kinds of damage to your entire body.  Mine was left untreated for so long that it created what is known as a  thyroid storm (very deadly) and heart failure.  V.A. sent me home the day I was having the thyroid storm and heart failure. Told me I was just having panic attack.  Local E.R. (civilian) saved my life a couple hours later.  Ended up having my thyroid removed, seizures, heart damage, and other disabilities due to this.  After I found out the V.A.'s rules about disclosure of adverse events,  I requested they do one.  They concluded that they had done nothing wrong????  I then filed a Tort complaint 6 months ago.  It was denied by regional council a few days ago???  Also file an 1151 claim with RO benefits office.  Not sure if they were supposed to, but local state V.A. office gave me a copy of the V.A.'s report for 1151 claim.  It clearly states that the disability was foreseeable, Dr. deviated from standard of care, and added disabilities are a direct result of failure of V.A to diagnose the disease in a timely manner. Can not find many lawyers that handle Tort claims around here, but the ones I have called have all said they do not have time for claims against the V.A. unless the veteran was killed or wrong limb removed. WOW!!!!  Anyone know a good TORT lawyer that can handle a claim in the Mobile, Al. area?  I not only was tortured for several years, but I will now have to deal with these disabilities for the rest of my life, and have over $130,000.00 in actual debt as a direct result of this.

[ericledusmc]

I am very sorry for your loss.  God bless you.

[Berta]

Thank You! He had Blessed me more than I could ever say.

I feel you have the basis for a CUE claim- will prepare that and post it here later-

My husband did not die in vain.What he, and I and our daughter ( a veteran) went through with the VA covered so manyissues and  problems and legal errors they have made ,that by fighting back with their regulations, it has helped many many veterans and survivors here- for the past 21-almost 22 years at hadit, due to the knowledge I have gained.

I only wish he had lived to see his proper awards....he brought up how fearful he was that VA would fight me over his death, if he died due to VA health care..he had a Section 1151 claim pending and a request for higher PTSD rating. He died suddenly a few hours after saying that. As the claimant after he died, I experienced how right he had been.

No real problems with the OGC (FTCA)- but many , to this day, with my VARO. They could not even get my daughters DEA application right- they fixed it fast when mommy prepared a scathing NOD and CUE-for her to sign and send to them.

It says right on the DEA app, to include the DD 214 ,if the dependent is a veteran, because the VA will extend DEA eligibility for military service-

My daughter served for 7 years.They gave her one month of DEA until they got the NOD/CUE.

7 years and one month DEA granted immediately- VA Edu is a an oxymoron sometimes.However my Chap 35 DEA went fairly smoothly.

Again I ask vets here- to get your spouses up to speed on the PC, and the DIC regulations etc etc....

and explain what accrued means ----and how imortant it is to file the 534 for SC death and acrued right away and substitute thmselves, with the proper form, as the claimant, when you die.

and make sure they know that if they have a POA vet rep, they cannot depend on any vet rep to really help with their claim. Vet reps get minimal DIC claims, and although they got the same training from NVLSP-as I did- they still might not have a clue on DIC and the few but significant changes to it over the years.

Your spouses needs to come here for accurate info on DIC.

 

[Berta]

You can consider this CUE I wrote- if I think of any other reg they broke I will post it here to add- but basically CUEs under 38 CFR 4.6 have worked great for me...I have a few pending, and won the past CUEs I had filed.

Do not let any vet rep say you cannot CUE them in the appellate period-I have found that is the BEST time to file CUE, if the decision warrants it.ASAP! 

---------------------------------------------------------------

                           (Your name and address here)

 

Veterans Affairs Regional Office                                              (date)

(put their address here) (but add and send to the Intake Center)

 

Attention to: ( put here the alpha part of the alphanumeric code on the upper right hand side of the decision) that alpha holds the initials of the last person who handled your claim.

This is a claim of CUE ( Clear and Umistakable Error )under auspices of 38 USC 5109,et al.

 

In the recent decision I received, dated ( put decision date here) you violated Office of General Counsel Precedent Opinion # 08-97, which I have enclosed copy of as you failed to apply this basic tenent of established VA case law.... which indicates that I should receive ALL Section 1151, 38 USC monetary benefits due to me, as well as my direct service connected disabilities.

This is a violation of 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 ofVeterans 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

 

The “element” of this established OGC Precedent Opinion was ignored in the decision and thus, the decision has had a manifested altered and detrimental outcome to me, due to your erroneous statement:

 

(add here the part where they said they could not pay you 100% 1151 because you already get Direct 100% SC)

It helps to scan that into CUES, or type it in quotes verbatim from the decision.

                                                                                                                                                                                                                     Respectfully,

 

Enclosures:VAOGC Pres O # 08-97 3 pages

(I also send them as evidence a copy of the actual decision or at least I scan the part that contains their legal error into the CUE claim)

*(A CUE claim should always be short and sweet!

State the decision date, what legal error they broke, and why it had a detrimental outcome to you. Some VARO employees  can barely read anyhow, in my opinion,so no need for a long rendition)

 

 

Tweek,if you wish, and  maybe others here will have more input, then Sign and mail and get a USPS tracking slip to prove they got it-send it to the Janesville Intake center.

 

 

 

 

 

 

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

 

 

 

 

Edited December 13, 2018 by Berta