PLEASE ADVISE AS TO HOW RESTRICTED CLAIMS FILES ARE

[Otrgypsy]

My C&P report was so F'd up that the doc has disciplinary exposure with the State medical Board and even a civil action. I am offering her a chance to avoid any complaints. I want to honestly tell her how hard it is for anyone not working on my claim to access the claim file. Please advise.

I would like to be able to tell her that there is a snowball's chance in hell that anyone (particularly her supervisors) on the West Coast will find out she has owned up to and corrected her errors. Is this true? Citations to controlling regs would be great.

Thank you.

[Berta]

Regarding the California SOL.

 

"California Court of Appeals Rules that Statute of Limitations is Tolled Upon Payment in Medical Malpractice Action

August 20, 2015| Sharifi Firm, APC

The California Court of Appeal recently held that the one-year statute of limitations is tolled when a payment is made for medical malpractice actions. Statutes of limitations determine the time period within which a legal claim is to be filed. After the specified period has passed, those legal claims cannot be filed."

https://www.southerncaliforniainjurylawyer.net/category/medical-malpractice/

I pulled out my extensive file on the Tally case.

I was initially told by Brian Tally that he received NO payment for the malpractice. He said he was denied under Section 1151.

 

Then many weeks later  I found out he received 1151 VA compensation  ( I believe at 100% rate)and also received a "litigation risk" fee from the General Counsel.

So this is where I got the One year SOL-dont bother to contact him-

He wanted me to help him but did not give me the actual facts of the case.

This link I just found makes me realize he must have been paid something -thus the one year California SOL for him.

[broncovet]

You posted:

Quote

I came here for advise on regs and procedures

In one or more of my posts, I cited regulations, such as 38 CFR amendment of records, below:

Quote

§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to: Secretary; Deputy Secretary, as well as other appropriate individuals responsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requester of the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requests to amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment of records or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with the request the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. (5 U.S.C. 552a(g)(1)(A))

(d) In any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (c) of this section, the Department of Veterans Affairs will clearly note any part of the record which is disputed and provide copies of the statement (and, if the Department of Veterans Affairs deems it appropriate, copies of a concise statement of the Department of Veterans Affairs reasons for not making the amendments requested) to persons or other agencies to whom the disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C. 501)

None of us here are lawyers, and none of us are competent to give legal advice.    We can only give "lay" advice.  To get competent legal advice you would need to retain the services of an attorney.  

The "regs" are 38 CFR and procedures are covered by M21 manual.  Some of us do case law searches at CAVC, BVA, or even Federal Circuit.  USC is also used and referenced, in part, above.  

Berta, myself, and many others use the Veterans Benefit Manual, written by NVLSP (Stichman, et al).  I have a copy, but mine is old (2014).  

Berta has a much newer and more up to date version.  Since the VBM is copyrighted we are extremely limited in being able to cite VBM without written permission from NVLSP/Stichman/VBM.  

The VBM is for sale for a little over $200 and change.  

     I would not think of filing serious documents without first consulting VBM.  I get away with using my old VBM, by using it, then "self updating" it by checking recent case law on my issues.  Often, both Berta and myself, cite case law, or regulations for our opinions, as I did previously.  Since you are a retired attorney, Im sure you want to review 38 CFR 1.579, posted above, as well as the other citations.  

Edited March 29, 2021 by broncovet

[Otrgypsy]

Thank you

[Carl the Engineer]

"My C&P report was so F'd up that the doc has disciplinary exposure with the State medical Board and even a civil action. I am offering her a chance to avoid any complaints. I want to honestly tell her how hard it is for anyone not working on my claim to access the claim file. Please advise."

The VA doc has immunity, as I have shown in an earlier post.  Especially with an "opinion".  Operating on the wrong leg would be a different thing.

Berta, 

While I have read everything you and others have posted, the original question was about coercing an VA employee to change a medical report, i.e., her opinion.  You did dig deep and are answering questions that interest me and hopefully others, and I am grateful for that, but I don't see it helping here, and not because of your effort.

From what I can gather, this Veteran has some exams to go to for some more "opinions",

Hopefully they will be beneficial for this Veteran,

Hamslice

 

 

[Otrgypsy]

Hamslice,

When you last mentioned coercion, I reluctantly agreed that that term could apply. However, it feels so wrong to call it coercion, I  looked up the definition. It seems that in a technical sense that word applies, but the most common usage of that term is very negative and used to describe unlawful "coercion". Convincing is much more accurate.

In the practice of law the best use of lawyers is often to convince people to correct their ways or their errors so that litigation is not necessary. yes it is coercive, but it is not wrong.

I absolutely did not come here seeking to disrupt the place. I have received some good advice, about regs an procedures, but that has been the smallest part of what I have rec'd.

Yes, I have upcoming exams, but the problem with that is the bullshit VA fiction that any clown with an MD and a labcoat is qualified to opine on any subject. So, As I don't have much chance of 'Forcing" them to bring in a doctor with actual neurotoxic  experience or training, I am looking to shore things up through other methods.

You are absolutely wrong that you can not sue a doctor for an opinion, if that opinion harms you. It is also absolutely true that you can not sue a doctor simply because an opinion harms you. It has to be "below standard" which means negligent or worse. Medical Malpractice is a term that is not used in courtrooms generally, The more accurate term, and the heading under which Med Mal Jury instructions are found is "Professional Negligence." It covers all negligence occurring in the practice of the profession, generally.

The big problem, or the big argument here has been caused by people who are very, very ingrained in how the VA says to do things and they are ingrained in how they are used to doing things and seeing things done. Therefore, obviously, many or certainly most (the people posting anyway) think that is the only way things can be done. For many things that may be true.

You can sue a VA janitor if he spilled water on the floor and left it there causing you to slip and fall and hurt your back. That is true no one is arguing with that.  So, tell me, if you go into the room for a C&P and a doctor who is distracted for some reason or exceptionally incompetent in the practice of her profession writes things that are absolutely false and exceptionally negligent and it costs you to loose your home, why would you not be able to sue her. Both actions are negligent. I assure you that is not the case. There is no law that says if you are working with Vets it OK to negligent and screw them up.

Suing or threatening suit isn't prohibited. It is simply uncommon because most Vets do what they are told even if it is against their own interests. I did it they way I was told for years and I got screwed because of it.

I simply see another route to achieve legitimate objectives (because of my background) and it seems to offend everyone. It is simply "thinking outside the box." If I do not get at least a major retraction By April 29, I will be absolutely shocked. Because if that happens the doctor is in deep shit. Lets table this argument until then, I will post a redacted copy when I receive it. In my mind, the only question is if she will give me all I have asked for - which would really solidify my claim, maybe even cause it to be sent for rating. Or will I receive a more limited retraction that merely assures that everyone working on the claim knows the former C&P report and the whole basis for denial is worthless and cant be considered.

[Carl the Engineer]

My "opinion", says you will here nothing regards/from this C&P examiner by April 29.  One month at the VA is like a day in human time.

I wish you luck, and also, will wait for it,

Hamslice