I filed a letter of complaint to BVAMC after suffering a heart attack and residual damage due to their (BVAMC) not addressing the diagnosis and complaint (non treament of a known condition for 3 years ). Instead of filing a complaint claiming an amount certain the VSO told me I could write a letter of complaint to the hospital but not to enter an amount for damages ! Of course they never replied to my letter.And I filed an 1151 within the 2years of my heart attack. It was denied after 4 years in the merry go round called adjudication. But strangely enough they awarded a 100% rating for heart shortly after learning where I was going with my complaint.. I did not even submit a claim for the heart ! anyway I filed an sf 95 (registered mail )shortly afterward and it got lost after waiting for a reply for 2 years and was told to submit a new one !! Yes! the ride is just beginning! I submitted a new claim( copy of original ) ,this time time they admitted reciept of the claim.I know the FTCA law stating you must notify the offending agency for a claim to be valid, so the question IS. do I stand on solid ground as far as procedure goes? My POA is the American Legion and my opinion of them is lower than a snakes belly ! Anyone with knowledge that could assist me would appreciated.. Sweeper 68 Vietnam Vet 67-68 Central Highlands

They are very rigid on the 2 year Statute of Limits-

The SF 95 must be filed within 2 years of knowledge of the malpractice.

Your proof of mailing the original SF 95 might be needed to prove you were within the statute.

SF 95 should be filed with the Regional or District COunsel for VA c/o the VARO you deal with and also send a copy to the OGC in DC.

The amount should NEVER be left blank and the amount must be totally at the bottom of the page-
I won simliar FTCA case and Sec 1151 claim.

Heart disease- evidence in ,med recs,but no diagnosis and no care.
This killed my husband.
Although they had a Peer review done within 3 months of the SF 95 filing date that totally agreed with my case-and the VA RC wanted to talk settlement but the report suddenly disappeared (it showed up years later in my C file)
It then took 3 years of going round and round with them and I had no lawyer and no independent medical opinion.
They also ended up admitting to all my malpractice charges but one.

I sure advise getting an IMO to support your FTCA and 1151 claims as well as getting a lawyer for the FTCA.

I did it myself but I had to study cardiology and neurology.

I studied the EKGs and the ECHOs and unfortunately I also had an autopsy to prove the damage they caused.
I laid the malpractice all out step by step with medical evidence and they had no way to go except to settle.


Sec 1151 -no time limit to file and any 1151 comp is offset by any FTCA settlement.It is often best to file both.

Hello Berta, I am updating on my recent contact with the VAOIG. The attorney assigned to my case informed me it was still under investigation. She was much more friendly and helpful this time as opposed to her arrogancy the last time I spoke with her ! Anyway they recieved the second mailing of the SF-95 on Aug.1 09 and I had the option of going ahead and filing suit in Federal Court if I so choose. The 6 months will expire in Feb. 2010, so I will wait another few months and see what developes. I have been studying Cardio testing procedures and what test results warrant further testing and blood lipids indicative of cardio problems existing. Also involved in studying procedural law for FTCA claims. I understand some Federal Courts have a program set up for assisting citizens in Pro Se FTCA claims action. I believe I have a solid chance at success considering the med reports stating Abnormal ekg, enlarged heart, coronary insuffiencies on 2 different C&P exams and abnormal blood lipids! Plus the IMO letter from my cardio doctor. I am also in possession of an inter office memo conversation that occured between my Congressional rep.and a review officer discussing discouraging the possibilty of me filing the 1151! And a physicians report (private) that had the diagnosis portion blacked out with a blackbox that had the words "Courtesy " visible. I brought this up in my documented evidence submission and asked for an explanation. Speaking of courtesy have you seen the proposed bill intoduced by Sen, Akaka stating that SC for any new AO disabilties would be effective only to the date that the new presumptive disabilty was officially added to the AO presumptive list? If this so called courtesy bill passes vets will only be rero'ed to the date IHD is added. Sweeper

Sweeper,
Unfortunately that's the way it is and I guess it should be.
After all,how can VA start paying disability benefits for something
that wasn't even on the list of presumptives yet.
I'm just truly glad for claimant's that is in there now.

I know I'm going to get someone ticked off by even posting this,
but I do feel it's true.

jmho,
carlie

"Speaking of courtesy have you seen the proposed bill intoduced by Sen, Akaka stating that SC for any new AO disabilties would be effective only to the date that the new presumptive disabilty was officially added to the AO presumptive list? If this so called courtesy bill passes vets will only be rero'ed to the date IHD is added. Sweeper"

I would think the retro would have to be to the date of the claim.And if Nehmer kicks in -to the date of any past denied IHD claims-in some cases but not all.

For example my award gave me EED for DIC back to 1994.Nehmer decision.
I have given many other examples here of Nehmer and veterans claims.

If a vet filed for SC IHD tomorrow and they have proven AO exposure and the regs come out dated Feb 1, 2010
I feel the date of the claim would still be the EED under Nehmer.

If a vet filed for IHD in 1997 or a widow raised this in a DIC claim in say 1997 -and they were denied-
then under Nehmer these could potentially be re-opened with EED to the earliest date that IHD showed in the clinical record or the 1997 dates.

Sweeper I fully believe that anyone with a FTCA claim should obtain a lawyer.

When I tried to find one- lawyers were not allowed to advertise their specialities years ago- the 20 lawyers I called in NY could have been real estate lawyers, civil court lawyers , probate lawyers-
I dont know -all I had was a phone book for the Souhtern Tier NY and none of them would even refer me to a malpractrice lawyer and they all told me I would not succeed without even looking at one single piece of my evidence.

This is why I had to do it myself.

If you are confident of your case and have the medical evidence to prove it-in my opinion a lawyer would be the best way to go in the Federal Court system-

I was pro se in a different Federal district court matter-(I sued a NSO from the DAV)
the rules and practices procedures alone take considerable time to understand-
and making service of complaint yourself with or without US Marshall- and meeting the court deadlines in a proper acceptable form of response..... preparing the interrogatories and the discovery and arranging the depositions......................

There are considerable formal technicalities to going Pro Se in Federal Court.Prisoners do it all the time and I got the prisoner's packet of USDC forms for Pro se filings along with the other large packet for about 150 bucks of the NY State court rules.

Maybe your states USDC rules and procedures are now free on the internet.




This new AO reg is going to be screwed around with- you can bet on it- because this new presumptive will cost the VA PLENTY.

Well Carlie here is my take on this. The Agent Orange Review letters I recieve have listed a limited suggestive association of Heart disease and AO for years now! Time is on THEIR side not ours! This releasing of a few AO diseases at a time has been going on for years. When in fact they have had the known effects AO exposure and the medical knowledge in their possession since the 50's. So it's a matter of who knew what and when did they know it! They hid it behind the problem of studying the exposure rates of veterans! Like a little bit of exposure may not be harmful. That's like saying a little bit of cyanide might not harm you!! I just see it as slowly revealing the truth about AO as time goes by and there are fewer of us Vietnam Vets left to worry about.. Sen. Akaka is no friend to vets !! JMO. Sweeper

Hello again Berta, I thought I would give an update on my FTCA claim.. Spoke to my assigned atty. at VAOIG and she said it was still under investigation by a hospital outside of their VISN for a IMO. And a PEER review would be NOT be done. Is that SOP for this? And when the IMO was complete I would not and could not recieve the results ! I mentioned even if I asked for it under FOIA, she said it was still privileged! What CFR will show that this is indeed the case? And where can one obtain a online training manual for the handling of FTCA claims ? On the IHD and Agent Orange presumptive issue. I filed a claim for it on the advice of my county SO in Dec. and go for a C&P next month! WOW! It seems they want to resolve these claims bullet quick.. For the good of vets or not remains to be seen. No luck on a FTCA atty. so far. but I have a good friend who is a regular Joe type lawyer and he is guiding me as much as his expertise in this will allow. Thanks for you advice and concern.Berta.. Sweeper

I posted some links and resources here in this forum for some FTCA info.

I got the FTCA medical info AFTER I settled.

There might possibly be a Peer report generated by this independent 'investigation'.

I found my Peer report when I re opened and although they told me it did not exist-it was right at the bottom of my C file.

Both the regional counsel (who wanted to settle with me within months due to this report and my evidence) as well as the Doctor- assured me the report had been prepared but they both retired.

I think I have posted all the info I know of on FTCA and also the offset criteria in this forum.

Although the VA is very adversarial on these claims- it is solely the medical evidence (and Persistence) that awards any FTCA matter.
Once they sign off and they settle -they become as sweet as they can be.(I learned there are reasons for that-they dont want us to dig any further- but I did.)

If you have someone who is willing to read the intricate FTCA regulations-that is great.

All I had when I FTCAed them was the Veterans Benefits Manual for the years involving my case (from NVLSP) and I made many trips to law libraries ((there was no internet then like we have now)

I studied cardiology and neurology to get up to the level of any cardio doc they could find-I never even thought of getting an IMO.

It is difficult to go one to one with the VA attorneys and their docs as a non attorney.

I advise anyone with FTCA potential to get an IMO right off the bat to see if malpractice really happened (the paper trail will be IN the Medical Records)
and then if the IMO fully supports the FTCA claim, a malpractice lawyer would be a fool to not want to represent you.

You know exactly what your med recs reveal and you know best if you should invest in an IMO-as the VA will invest plenty of time and energy to defeat your claim.

FTCAs have been won without IMOs and lawyers like in my case- but my advise is to not do this Pro Se unless you have a great deal of confidence in your case, a full grasp of the medical nuances of what the med recs reveal -every single bit of them-(to include anything crossed out, or hard to read or in symbols),and you can highlight the proof of the documented malpractice and you are not intimidated by the VA lawyers or docs -who will want to walk all over you.

You could contact Office of Legal Medical (maybe thats OMLA)VA here in Buffalo to see if they have any record of any Peer report done or that will be done.

If I find their email addy and phone number I will post it here.

I caught them recently in a very big outright lie however-so dont rely on what they say too much.

And check out the links I provoded here for more FTCA info.

I see they took their contact info down:

http://www1.va.gov/forensic/

Maybe you could make an Iris inquiry to get their contact number.

The statement here is BS regarding their obligations with the mandate of the NPDB-as I recently informed the General Counsel.

Another reason to get a lawyer.

I did not find out for over a decade that VA did NOT honor the mandate in this link regarding my case (and GAO recently found there were more cases not reported as well) I hope this office can spell Inspector General.

A lawyer would have made sure the mandate was followed.

http://www.law.cornell.edu/uscode/html/usc...----000-.htmlta, Berta what is your take on this ? It's not agreeing with what the VAIOG atty. told me..

Link doesn't work, here is the law USC 38-5109

I dont understand your question

The question as to whether or not the vet has the right to see the IMO report done by the VAOIG in a FTCA claim.. (see my Jan. Post)

I never tried to get their internal med reports until after I settled.I did have one to one contact with the medical team during my case so I felt I didnt need to see it.

I dont think they would ever release these types of reports prior to any resolve of any FTCA claim.

You could send them an FOIA/Privacy Act request for it but they sure might not release it.

If you have a lawyer maybe the lawyer could obtain it.

Under USC 38-5109 plainly states ( claimant SHALL be furnished a copy of the IMO report) no room for if and but or maybe in that lanquage! My point here is to uncover the blatant lies that VA spews out to those who seek fair and lawful resolution to their claims. They require the claimant to submit their IMO, but want to play cat and mouse when the same is asked of them.. BS!! Anyway I think that it may be beneficial if this USC were pinned here on Hadit for all to see and add to the knowledege of veterans and their right to see documents that may help with their claims.. JMO. And to add an update on the IHD issue,I went for a C&P recently and was told by the examiner that I would be SC for IHD. And the cardiologist opined that this disease being added to the presumptive AO list was nothing but politics!! Her evidence... since we are getting older and THAT most of us smoked while in Vietnam the problem must be age and tobacco ! Of course me being me, I rendered my opinion as well! LOL.. Sincerely, Sweeper

Thank you for your service, 'sweeper68', and congratulations on surviving the heart attack. I hope that you are doing well and live long.


Question; Why don't you get a lawyer???

Good question Bob.. you see I live in Al. where in years past courts and judges awarded exorbitant amounts to claimants. This led to TORT reform in the opposite direction. And now every atty. I have spoken with touts the cost and developement difficulties involving FTCA in my state.. Others located in other states recommend a local atty. So I am left to go it alone, except that I have a atty. friend who assists me even though FTCA is not his speciality.. I know of 2 vets in my area that are having the same problem.. I plan on going Pro Se and presenting my case face to face with the federal judge, if I can wade thru the procedural requirements, which I feel I can do! Thanks for your service also, Sir ! Sweeper 68

I understand 'sweeper68', Although it's an uphill battle, I am impressed with your research and your energy. It sounds like you are caught up in the VA web now. The principle of the issue is paramount. I once took a VAMC parking ticket all the way to the Federal District Court, and prevailed, without an attorney. I was threatened with 6 months in prison and a $5,000.00 fine by a fed. magistrate for the parking ticket before I had the case moved up the line. Good luck.

Good deal Bob. fighting a parking ticket all the way to court..LMAO! We don't like being left behind on paper trails nor bureaucratic BS trails either !! Way to go man! Keep that attitude... Sweeper 68

Sweeper68,

In my last post here, I mentioned that I took my case to the fed. circuit court. Now that I think back into the last century, I remember it was a fed. district court that heard my case. I corrected my original post to reflect the correct court. Of course, back then I was willing to take it all the way, if need be.

"We were young once".