FTCA SF 95 Pro Se...

[maine1963]

I have been granted 60% additional disability rating (not to worry, I was already at 100% prior to filing the 1151 claim). I am now about to file the SF 95 along with evidence... I am SO confused as to where to physically mail the SF 95 and evidence! 

Treated at Togus VAMC. Live in Maine...

 

Thanks, 

G

[Berta]

To add , you stated:

" have been granted 60% additional disability rating (not to worry, I was already at 100% prior to filing the 1151 claim). I am now about to file the SF 95 along with evidence... I am SO confused as to where to physically mail the SF 95 and evidence! "

That means they awarded you SMC S.....???

What do those rating have to do with the FTCA issue?

Is the 60% a Section 1151 award? and specifically stated that way in the decision?

 If so are you aware of the offset factor?

 

Your District Counsel contact info is found  here:

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

Office of General Counsel is at 

Department of Veterans Affairs

810 Vermont Ave. NW
Washington, DC 20420

( James L. Byrne is the present General Counsel of the VA.)

Their phone numbers have never changed -I called them last week-but you wont need those numbers yet-and it is best to wait until they contact you.

 

[maine1963]

Thank you Berta. I completely understand. My 1151 was granted, mainly because of the VA Comp and Pen Doctors review and the black and white evidence. Here is the review by the VA Comp/Pen doc.

LOCAL TITLE: C&P EXAMINATION NOTE                               STANDARD TITLE: C & P EXAMINATION NOTE                    
Medical Opinion                        Disability Benefits Questionnaire
ACE and Evidence Review

EXAMINER'S MEDICAL OPINION: 
It is at least as likely as not that the claimed disability of skin and scar condition (groin) was caused by or became worse as a result of the VA treatment at issue, and that such disability resulted from the attending VA    personnel's failure to follow the appropriate standard of care. The disability resulted from an event that could have reasonably been foreseen by a reasonable healthcare provider. 

The issue of higher potency topical steroids potentially causing skin atrophy and associated conditions has been well publicized and addressed in the medical literature for many years, both in scientific journals and review articles that would likely be seen by primary care providers. This has also been addressed for years in medical school and continuing education courses geared toward primary care physicians. In my own experience as a primary care internist for 25+ years prior to joining the VA Comp and Pen Department I saw many such articles warning against long term use of higher dose steroids in sensitive thinner skin areas such as the groin and face. Such warning I therefore believe is one of which any reasonable, prudent primary care health care provider should be aware. Although I believe the veteran's treatment of his groin rash was appropriate in all other respects, I believe that by not specifically warning the veteran to not use the betamethasone/clotrimazole cream on an ongoing basis, Dr. X deviated from the standard of care expected of a reasonable, prudent primary care physician. This in turn led to the veteran's inner thigh striae and groin skin atrophy. 

[Berta]

WOW- you sure do not need a lawyer for the FTCA! You did VERY well!!!!!

And hats off to the VA too, for supporting this claim.

To file FTCA Pro se, all you need to do is use this as basis for Question # 8, and refer them to and attach a copy of that C & P exam.Attach to it as well a copy of the 1151 Award letter.

And please forgive me  for thnking you were a novice-we need more sucessful 1151- ers here-like you!

This is GREAT!

I mentioned the FTCA/1151 offset- I do not  believe they can offset any 1151 money yet- not until you get a FTCA settlement- which will also preclude any further 1151 money until the settlement is recouped by the VA.

But I need to check that in the 2018 VBM by NVLSP-

Also it seems you would be owed SMC S- also subject to any offset under FTCA - did the VA consider you for SMC S?

My former so called vet rep, in 1998, who had nothing to do with my 1151 award, told me not to NOD it although I questioned the lack of SMC. He said 1151s were different  so that s why no SMC. I filed CUE on that- 

and won the CUE- my husband was 100% SC P & T for PTSD and also over 60% ( corrected in 2015 to 100% P & T due to the 1151 stroke.

100% SC plus over 60 % 1151 equals SMC S.The decision also awarded Housebound  and also stated the 100% plus over 60% but they only pay for one SMC S theory.

Did the VA state  in the 1151 award what rationale they used-if they denied SMC?

Thanks for this info- I need to study 1151/FTCA to make sure I am correct on the offset and will get back to you here on that-

WOW-since you are indeed Pro se qualified, you wont have any problems dealing with the OGC lawyers.

They know 38 USC , CFR and M21-1MR in and out- more knowlege than the ROs have, in my opinion.

They were tough but so was I and were easy to talk to- same for Regional Counsel. I assume you are still within the 2 year Statute of Limits( which might be longer or shorter than the 2 year federal SOL.-info which should be at your state's web site.)

Goodie for you!

I won my FTCA and the VARO, even with the settlement papers I sent, denied my 1151 AGAIN.I called the OGC lawyer and he got that fixed very fast.

 

Edited February 2, 2019 by Berta

[maine1963]

Berta, Thank you!! 

Ok, now I have to get smarter... I no NOTHING about SMC S. If you are talking about an offset due to an increase due to the 1151 being granted for 60% additional disability - I was already 100% P&T. No increase in disability pay resulted. I will research SMC S to understand. There was NO mention of SMS S in my 1151 claim.

Thank you for your vote of confidence. The one law firm I approached about handling my Tort claim told me that I would be wasting my money in hiring them - that my case was something that I could most definitely handle on my own but would be in hot standby if it went to suit due to denial or if I didn't agree with the settlement offer. 

**Need to clarify** I was (prior to 1151 Granted) at 90%SC P&T with TDIU. I also receive SMC-K (Loss of use of foot)...

AFTER the 1151 was granted for an additional 60% the VA bumped me to 100% and dropped my TDIU. Perhaps that is why there was no mention of Special Monthly Compensation -S? I did NOT file for SMC, should I? 

Again, I am a research freak, LOL! I will look into this deeper. Thanks!

G

Edited February 3, 2019 by maine1963

[Berta]

"**Need to clarify** I was (prior to 1151 Granted) at 90%SC P&T with TDIU. I also receive SMC-K (Loss of use of foot)...

AFTER the 1151 was granted for an additional 60% the VA bumped me to 100% and dropped my TDIU. Perhaps that is why there was no mention of Special Monthly Compensation -S? I did NOT file for SMC, should I? "

Is the 90% solely for one disability?

And do they pay you for the SMC K award in addition to the 100% (TDIU)  ?

That might be why no SMC S because they gave you the greater SMC benefit.

It is hard to determine how the VA handled this without seeing the decision.

If you can scan and attach here, cover your C file #, name, address prior to scanning it-

As to the other question the offset factor is explained here:

“Where an individual is . . . awarded a judgment against the United States in a civil action brought pursuant to section 1346(b) of title 28 or . . . enters into a settlement or compromise under section 2672 or 2677 of title 28 by reason of a disability . . . treated pursuant to this section as if it were service-connected, then no benefits shall be paid to such individual for any month beginning after the date such judgment, settle-

ment, or compromise on account of such disability . . . becomes final until the aggregate amount of benefits which would be paid but for this sentence equals the total amount included in such judgment, settlement, or compromise.”

VA General Counsel Pres/Op. # 07-94

https://www.va.gov/ogc/opinions/1994precedentopinions.asp

 

Also explained at:

https://www.law.cornell.edu/cfr/text/38/3.362

 

[Berta]

The 2019 SMC K rate  is 108.57

https://www.benefits.va.gov/compensation/resources_comp02.asp