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#1 kimmig

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Posted 22 March 2012 - 11:48 PM

My husband was 80% service connected, Gulf War Veteran. He passed away in october 2011. had service connected surgery for previous back injury on 26 october and died at home on 29 october. released from the hospital the day after back surgery. VA had him on 14 medications, two doctors didnt talk to one another and he died from " mixed drug intoxiocation complicating recent lumbar surgery". an autopsy was completed and the death certficate does reflect the above. do you think i will have a problem with being granted my DIC? Four drugs found in system, all VA prescribed for his back. the oxy was the contributing drug

#2 Pete53

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Posted 23 March 2012 - 06:47 AM

That is horrible. You have much more than just a DIC claim you should sue the VA. Get a lawyer others who know a lot more than I should chime in soon.

My condolences

#3 Berta

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Posted 23 March 2012 - 07:13 AM

I agree but can answer better in either DIC forum or the FTCA or Section 1151 forum.

I dont think DIC under Section 1151 would be a problem, if this was in fact a VA Medical error that caused or contributed to his death.

I do foresee however that the claim might take quite some time.

VA caused my husband's death and I have posted everything I know on FTCA and 1151 DIC in the other forums here.

It is unconscionable that this medical error was made.

I think it happens more then we know, in both VA and the private medical sector.

" mixed drug intoxiocation complicating recent lumbar surgery". an autopsy was completed and the death certficate does reflect the above.

Have you obtained the complete autopsy from the coroner or Medical Examiner yet?

#4 Berta

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Posted 23 March 2012 - 09:11 AM

Thanks for moving this to DIC forum Pete.

The first thing you need to do is obtain a complete copy of his VA medical records. I assume the drugs and treatment were all through VA health care.

They can be obtained with a written request to the Records Access officer ,with his C file number in the request, via the VAMC that handled his care.

“He passed away in october 2011 “.

It might pay to call the VAMC records officer first to make sure of what you need for this request.

When I requested C file copy in 2003 they already had the death certificate and VA knew I was next of kin ,as surviving spouse.

I then requested a copy of a few records 2 years later ,because their print out was difficult to read ,and this time they made me supply my Letters of Administration from the probate court before they would release them to me.

Do not tell VA if you intend to file a charge of malpractice or negligence in the record request.

When you get the records, you will need an independent medical opinion that will reveal malpractice if it occurred.

You have until October 2013 to file a FTCA case.As I assume this would be within 2 years you learned of the potential malpratice.

I advice getting a malpractice lawyer to handle that.If the IMO strongly supports malpractice, then a lawyer would be hard pressed not to consider taking the case.

IMOs can be costly. If the IMO does not reveal any VA negligence or malpractice, the cost of the IMO will give you peace of mind.

It sounds to me like VA gave your husband contraindicated drugs.
In my FTCA and Section 1151 cases,I made multiple charges of malpractice, that I also proved, one being a medication that was unnecessary, and that also was contraindicated by my husband's HBP meds.

I think I mentioned at hadit I lost one charge but realized in my recent award that I had,in fact,proved all of the charges.

I handled my negligence/malpractice issues myself without a attorney and without an IMO.
I don't advise that because it meant I had to study cardiology and , neurology, as well as all FTCA laws.

Luckily I dealt directly with the OGC in Washington and the top VA cardio docs.I could speak their language and had the proof I needed.

But the VA Regional counsel here in NY wanted to settle with me, based on my evidence, within months of getting my SF95 form. Then some very unusual things happened. He retired, the Peer doctor retired and his Peer review report concurring with all of my charges, disappeared....for 9 years...... but I found it.
VA had told me it Never existed.

This unusual stuff added 2 more years to my 1151 and FTCA case and would not have happened, possibly,if I had gotten a lawyer.

There is considerable info here under Section 1151 caims and FTCA and what you need to do to pursue one of or both of these types of claims.

There is an offset of settlement awards under FTCA (the offset amount can sometimes be negotiated as I did with the General Counsel VA)
but this means they will not pay 1151 DIC along with any FTCA settlement,if the entire amount is offset.
I had enough legal background personally to negotiate and get only a partial offset.

Was the 80% SC he had, in part due to the back condition he needed surgery for?

If so, then you could possible file for direct SC death along with 1151 death.

They will only pay one DIC award however and I am the sole claimant I know who has ever been awarded FTCA death of the veteran, 1151 death of the veteran and direct SC death of the veteran.You might be the next widow who succeeds on something like that.

What is the breakdown of the 80%?

Did he receive TDIU? (the 100% rate)?

If so, for how many years?

The direct SC death award I got , that claim took 7 years and was awarded in 2010, brought me almost 100 thousand or more in additional ancillary benefits, above the DIC award.

So this is ALWAYS something any FTCA,Sec 1151 claimant needs to consider: Did they directly malpractice on a SC disability? or on a NSC one?

Do you have a vet rep?

There is considerable info here on Section 1151 claims, most of it is in the FTCA forum.

Any vet rep should be able to advise you on that and also a claim for direct SC death too if the back problem had been service connected.

Did he have any claims pending when he died?

If so did you substitute yourself as the claimant?

What is the status of those claims?

#5 Berta

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Posted 23 March 2012 - 09:15 AM

Forgot to ask-

are you aware of any possible Incident Report the VA did regarding your husband's death?

They might have put one into the C file record. That is where I found one.



His C file can be requested from the Regional office he dealt with.

Med recs come from the VAMCs.

#6 kimmig

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Posted 23 March 2012 - 09:41 PM

yes i have received the autopsy report and have his complete medical records in which i have poured over them over and over again. My husband had an enlarged heart,liver, spleen,30% blockage,an adrenal adomna (dont know if it was functioning or not). my husband had complete mri's ekg etc and the VA never not one time informed him that his heart was enlarged. We found in his medical records about the blockage of his cortoid artery and they did nothing about it (that was in august 2011)
20% back (had one back surgery in 1999 before getting off active duty)
10%-feet
10% feet
20%-ankle
10%- can remember what for urghh...
0%-ibs
0%-hearing
denied the liver-he had elevated liver enzymes approx 6 months after returning from the gulf-tested him for everything to include hep a, b, c etc all negative. My husband was so trusting of the VA he earned his medical benefits and he trusted these people, they really really let us all down.
The VA found him positive for a TBI in September 2011 prior to the surgery on his back. Also found him positive for PTSD however mental health doctor stated he was somatizing and obsessed with his health and gave him what MORE MEDICATION...
14 medications, who gives sleeping pills, valium,oxy,hydrocodoine, tramadol,zooloft, another anti depressant, neurotin ( for nerve damage). of course he was acting weird who wouldnt with that mix of drugs in your system. Also he had severe sleep apnea, who gives sleeping pills to someone with severe sleep apnea.
What is so disgusting is the day of his surgery, i asked the nurse to have his doctor that did the surgery to review his medications. They blew me off. He was supposed to stay in the hospital 5 days they released him the very next day.
i have contacted an attorney for a possible malpractise claim. I requested his C file and got that without a problem and have forwarded the records to them.
i do not want this to happen to another family. This has been devasting to us. why why why.....
My husband has a journal that he was writting in in september prior to his death he wrote
i feel like team one is blowing me off
i feel the doom of death over me and i could die at any time, i am worried about my heart and i cant breathe.
he wrote how he was concerned with his cortoid artery and that he was upset the VA did nothing,
DAV has been worthless. There is a huge lack of support for Gulf War Veterans, also the VA doctors have no knowledge of Gulf War symptoms and they totally disregard it.
I work for the state as a Disabled Veterans Employment Rep and i am seeing more and more of these young veterans whom are being medically retired discharged etc and am appalled when i hear the mix of drugs that these VA doctors are prescribing these guys, to include heavy narcotics they are making junkies out of these guys.
This has got to stop there has to be accountability!!!!!

#7 kimmig

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Posted 23 March 2012 - 10:05 PM

i served in the military and retired in june 2010, 21 years of service. my husband served 14 years on active duty and finished out the rest in the army reserves he deployed many many times, served tours in combat zones, was an airborne military policeman. he retired in december of 2010, after 23 years of service. the disservice that was done to my husband has been devastating. i have two sons, i never ever want them to serve in the military. my husband had to literally fight to get his ratings, he had to appeal and finally got his rating for his feet damage from being airborne. The VA denied service connection for his liver and neck though and they denied an upgrade on his back when the medical records reveal significant changes in his spine (where he had previously injured and was rated at 20%), he couldnt even walk, he had to use a cane. nothing good came out of my husband using the VA for his healthcare, NOTHING. yes i am upset, i feel cheated, i feel like it was easier for the VA just to give more and more meds not caring about the Veteran, rather just get rid of him with more meds....as i said this has got to stop, there has to be accountability

#8 carlie

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Posted 24 March 2012 - 10:56 AM

i have contacted an attorney for a possible malpractise claim.
I requested his C file and got that without a problem and have forwarded the records to them.


kimming,
Sorry you and your family are having to endure this.

I sure hope you sent a COPY of the Cfile and kept what VA sent you.
Only pass on or submit copies of things.

#9 Berta

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Posted 25 March 2012 - 06:17 AM

Kimmig, I totally agree with you as to the OIF OEF vets not getting proper treatment from VA, and being given in many cases, way too many meds, that could work against each other.

I am sure any malpractice lawyer with some expertise,hopefully,in dealing with VA on these matters, will give you the help you need.

Accountability? I am still concerned about something to that affect in my FTCA case.

The VA failed to send the names of the VA doctors who malpracticed on my husband to the National Practitioners Data Bank.
The VA has had a written agreement for decades with NPDB.It s a mandate wheenever the USA pays a FTCA settlement.
With no NPDB reporting, these doctors just went on to potentially malpractice on other veterans.

VA has some dirty laundry on it's "accounability" requirement of the NPDB mandate.

The OGC has blown me off many times by phone and by mail on this issue in my husband's case so I decided to hold onto my evidence in case I can use it in some other way.

I can relate so much with what you said here.

The lack of VA accountability in my husband's death still bothers me a lot.

They paid for what they did to him and are still paying for it (17 years after his death -I won additional Section 1151 benefits last month)

but I still wonder what VAMCs all those Doctors were transferred to, and how many other vets did they harm or kill?

Section 1151 awards dont come under NPDB guidelines.
A well known malpractce lawyer on the net who handles VA malpractice issues was stunned when I told him that.
I think it was Robb Graham.

I hope your lawyer makes the NPDB reporting issue as important as any settlement they offer, if your case succeeds.

VA attorneys assured me, when I settled, that the negligent doctors would receive disciplinary action.

They lied.

I have said many times here that VA saves lives every day. I believe that completely.

Their malpractice stats are probably no worse than those of private hospitals.

But when they cause any additional disability or death to any veteran, legal action must be taken against them.

#10 Gulfvet45

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Posted 29 March 2012 - 01:08 PM

Lot of good advice, file the FTCA as per 1151.

#11 kimmig

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Posted 30 March 2012 - 06:25 PM

Forgot to ask-

are you aware of any possible Incident Report the VA did regarding your husband's death?

They might have put one into the C file record. That is where I found one.



His C file can be requested from the Regional office he dealt with.

Med recs come from the VAMCs.


i am not aware of an incident report; The VA outpatient clinic here was horrible, did not care one bit for any of its Veterans. So i doubt if there is an incident report. They could have cared less that he was gone. I really appreciate all of your helpful advice!

#12 Berta

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Posted 02 April 2012 - 07:16 AM

That's OK.

Based on what you told us here, it would not matter if they did an incident report or not.

If they did one, the head of the VISN is supposed to know ,if a death was involved.

I called the director of the VISN up here in NY and he was stunned that he knew nothing about my husband's death and a pharmacy error.

The VA did an incident report , becase I found out they had sent him another vet's meds, which he took (long story there) afew days before he died.
but the report was on me - 'Mrs. Simmons confronted the pharmacist and was carrying a clipboard with VA regulations on it, wearing a yellow shirt and green pants.' blah blah blah.
Of course the VA blamed the error on the Post Office.

They could have killed the elderly vet who didnt get his meds on time. I noticed his name and not Rods name on the meds when the coroner asked me what he was taking.
I called this vet up and he was having a hard time getting VA to believe him, that his meds never came.
ATthat point I saw the director and the vet got his meds.

I hope you get a good lawyer.

VA could have taken steps many times to save my husband's life. They covered up at anther VA hospital, what the local VA here had done wrong.

It took me time to even 'uncover' the cover up.but it was there.

All negligence and proof malpractice, if it ocurred, is within the medical records.

Some is obvious, but some is very hard to find.

It has been many years since I got my FTCA /1151 award. But I succeeded again on another malpracticed issue in 2010, and most recently under Nehmer.

I also a preparing another Section 1151 CUE claim.

In my recent January AO decision the VA made a statement that was alarming. It surprised the NVLSP lawyer too.

It appeared to suggest VA was well aware of their malpractice, 6 YEARS before my husband died.

NVLSP and I are anxious to see how the VA responds to my request for more info on their recent statement.

I knew right away, when I saw this in my Nehmer award, that something else was hidden from me as well as the VA General Counsel.

Your lawyer will have to watch out for that kind of stuff.

#13 john999

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Posted 02 April 2012 - 09:04 AM

Berta

You should write a book on DIC. I drill my wife on DIC that she should never accept a final "NO" for an answer. I still don't think she understands what she may be up against.


John

#14 Berta

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Posted 02 April 2012 - 03:39 PM

John -I think if I wrote a book on what I know about VA no one except vets would ever believe it.

You are right- a surviving spouse should never accept what some dumb vet rep or the VA is trying to sell them.

I almost went ballistic the other day when I found out some vet rep told a newly widowed vet's wife that "his claim died with him and there is nothing you can do about it".

I thought the days of this stupid mantra were over.It is what the DAV told me 17 years ago.But I rattled off back to them that I could resurrect the claim.
Rod made me promise hours before his sudden death to continue his 2 claims if he died.There was no indication at all that he would die. We thought he was getting better.


These reps often are afraid of DIC claims because it means they have might have to learn what DIC is.
The dumb f--ks

#15 kimmig

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Posted 09 April 2012 - 12:24 PM

i also was told from the DAV that the Veterans claim died with him. My husband has just been buried. When you try to call the 1-800 number you cant even get thru to them. I filed for DIC in november and still no decision. i dont understand what takes so long

#16 john999

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Posted 09 April 2012 - 01:08 PM

Berta

If you wrote a guide to Dic with a trouble shooting chapter you might have your name added to one of the books of the bible. Nothing too fancy. One of these worthless VSO's should pay you to do it. You know the "Guide to Veteran's Benefits" the feds put out every year has about 6 pages on all aspects of DIC.

John

#17 Berta

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Posted 10 April 2012 - 08:05 AM

John-that was a good one!


I certainly went after a few vet reps here in NY for their incompetence.
“i also was told from the DAV that the Veterans claim died with him
I sued my DAV rep here in NY for that kind of BS.
If you complain to the DAV enough,they might give you a much better rep.Some of their reps are very good.


Kimmig, did you file a formal Section 1151 claim as well as a claim for SC death directly due to his service? Or just the 21-534 form raising the negligence issue?
I filed both when my husband died because the 534 form did not have enough room to clearly state the basis of my 1151 issue.I used the 534 form to claim direct SC death too and also mentioned 1151 death referring them to the enclosed formal Section1151,38 USC claim and alsoI used the 534 as the first statement of reopen of my husband's 2 pending claims.(One was his 1151 but I still had to formally reopen it)
It is Important for all survivors to raise the direct SC death issue, even if the claim is awarded under 1151.I won 1151 DIC in 1998 and then direct service death DIC in 2010.

I received date of death as the Earliest Effective DIC date in both cases, solely because I had raised both issues on the 21-534 and filed it within one year after my husband died.This is an important facet of DIC case law.




“I filed for DIC in november and still no decision. i dont understand what takes so long”


Based on what you told us the death certificate and autopsy revealed, he was on a contraindicated mix of meds that contributed to his death.


Even in spite of that fact, VA might aggressively fight the DIC Section 1151 claim.I am sure there are some very good vet reps out there who could help with that.It takes finding the right one.
Your state or county certainly also provides some services to VA claimants via their veteran's agencies.
These claims as explained in our FTCA and 1151 forums here have to be worded properly, so VA gets it.The VA doesn't care about how devastated we are. You might get a fast decision based solely on the death certificate and autopsy. That is certainly not the usual MOS of VA with 1151 claims however.


I dont know if I mentioned my malpractice claims took 3 years. It wasn't a question of the evidence,I had to fight them aggressively because the VA does not like to admit to malpractice and pay for it.
The VA Regional counsel was ready to settle with me in mere months after I filed my FTCA case.
There was no question in his mind of the malpractice and he got a Peer review done to prove it too.
Then everything (evidence, Peer Review, the RC himself etc etc )started to mysteriously 'disappear'-causing these claims to go on for years.


I don't want to see any widow go through what I went through with the VA on my 1151 and FTCA claims so it is best to have a vet rep helping you for the 1151 claim and a lawyer, if you choose to file FTCA.
I didnt mind doing all the medical and legal work, myself but it was time consuming and I had a school aged child at home and I was a livestock farmer.I was in shock too for along time. And I was very angry at what I found out about my husband's care.
VA knows full well that our lives change completely when we are suddenly widowed and they know we are vulnerable enough to possibly accept an erroneous DIC claim denial and then possibly get some vet rep without a clue on DIC.I think the VA counts on that.


It is important for you to find a rep to help with the 1151 claim.










"Defendants had a duty to provide reasonable, necessary, appropriate and timely medical care and treatment to Mr. Anglesey that was consistent with the standard of care in the medical community," the suit says. "Defendants breached that duty which led to Mr. Anglesey's untimely death."
“According to the lawsuit, Anglesey's death certificate says he died from "mixed drug intoxication and pulmonary emboli due to (or a consequence of) recent right leg fracture." An emboli is a basically a blood clot in the lungs.”


“In a wrongful death claim filed with the U.S. Department of Veteran Affairs in February, Kathy Anglesey's other attorney, Roger Sharp, sought a $5 million settlement. Because the VA did not respond to the claim within the allotted six months, her lawyers went ahead with the federal lawsuit.
The lawsuit does not seek a specific amount of damages but says they should cover medical expenses, funeral services, lost earnings and financial support as well as lost love, comfort and protection.”




http://www.deseretne...A-hospital.html


One of the widow's attorneys is mentioned in this article and can be googled.
Military deaths are often cased by drug 'cocktails', multiple medications that are not properly minitored at all:

“It happens on average once every five days — an active-duty service member is found dead from an accidental drug or alcohol overdose.
And the number has roughly tripled since 2001, a Military Times investigation has found.
The fatalities, mostly involving prescription medications, come at a time when military prescription drug use is soaring. Many troops are taking multiple drugs simultaneously. Orders for common pain and psychiatric medications nearly doubled from 2001 through 2009, according to Defense Logistics Agency data. And the Army on July 29 reported that the amount of stimulants prescribed to soldiers more than doubled from fiscal 2006 through 2009.
Death records show the military reported at least 68 accidental drug deaths in 2009, up from 24 in 2001. In total, at least 430 troops have died from drug use — or, in a small number of cases, alcohol use - during the past decade.”
http://www.navytimes...hs-soar-080910/

#18 kimmig

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Posted 10 April 2012 - 11:12 AM

at this point all i have done is contacted an attorney whom handles va malpractise suits, they first wanted to see the death certificate and then the autopsy and then they asked for all the records, so i will know in maybe six weeks if they take it or not. i have been over whelmed with everything. my husband filed a claim for social security disability prior to his death which was april of 2011 his death being october 2011. of course they denied and we already had an attorney and now finally after his death they found him disabled..go figure.
i have been totally alone on this, there might be some good va reps but i dont know any.....i have had no support other than this forum sooo i again say thank you so much for your advise and support.

#19 Berta

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Posted 11 April 2012 - 07:40 AM

I know how overwhelming this all can be.
It is overwhelming for vets as well as survivors to deal with the VA.

A few months after my husband died, I joined the local volunteer fire department auxilliary ..Although I knew many members from the local VAMC (there are many vets in my local even though it is farm country, in the fire department ,it was so vastly different from anything else I had ever done that it sure took my mind of my grief and anger from time to time.


Just about every large veteran's service agency has a page like this one from the DAV, whereby you can contact a NSO (Same as a vet rep)

http://www.dav.org/v.../NSOffices.aspx

American Legion NSO/VSO search page by state:

http://www.members.l...AL+language=ENG

Veterans of Foreign Wars
http://www.vfw.org/NVS/

Also your state web site should have a listing of all offices for state veterans accredited vet reps.

Even your county might have a web page with a listing for their county veteran's service agency.

All accredited vet reps are trained in handling both DIC claims and Section 1151 claims.

I suggest finding one near you whose org has an office in or near the VARO you will be dealing with.

I suggest you download the 21-534 form here at hadit under Forms and fill it out yourself, and bring it to the initial appointment you get with a service office or vet rep.

If they make suggestions to some of the answers you can correct it and then they should give you a blank form to fill out ,if needed, to make sure the 21-534 is properly prepared.

There is a lot of info on the 534 that needs to be stated correctly.

If your husband had a VA claim pending at death, the Rep will need to know that as well as his C file number and bring a copy of his DD 214, and death certificate and autopsy. Also he.she might need copy of your marriage license at this point. It is good to have these documents in a file as the VA will surely ask for copies of them too.

I think they (VA) will want a raised seal copy of the Death Certificate and not a copy of it.

Your legal standing as either administrator or executor of your husband's estate will be needed eventually for the FTCA case if you pursue the FTCA case The file I mentioned is a good place to hold these probate papers in too.

Every locale has a different way of dealing with probate issues.

Your county Surrogate's office could best advise you there.

I did my probate papers myself to save legal fees.It was not too difficult to do and the Surrogate accepted them with no problem.

But it was one of MANY have to's after Rod died. The paperwork seemed endless and I needed multiple raised seal death certificates too.


Feel free to print out my replies here to you, and give them to the vet rep.

They define your issues as to DIC,under Section 1151.The rep might well have his or her own way of handling the 534-maybe best when you call them to ask what exactly they would need you to bring with you.

I always feel claiming direct SC death also is a good idea too when filing Section 1151 claims, I made that point with explanation as to the reason in our Sec 1151 forum the other day here.

Gee maybe best to cover the DAV part about when I sued my NSO!!!!!

What I did regarding my other reps was worse than that.

But I sure dont want to scare off a good rep and there are many out there.

I had the same basic training in VA claims from NVLSP that most reps get so the rep should know my advise here is based on knowledge of VA case law as well as personal experience with a successful FTCA and Section 1151 DIC claim.
And also a subsequent successful direct SC death award, which might be the first of it's kind.

If the lawyer takes your FTCA case, the wording of the Section 1151 claim should be similiar to the wording of the potential SF 95 and vice versa so this too is something for the rep to consider.

I think my SF 95 is posted here or maybe a template of it.















ng this can be.

Edited by Berta, 11 April 2012 - 07:50 AM.


#20 Berta

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Posted 11 April 2012 - 09:39 AM

I am glad I re read all this-


This is confusing to me-

I asked yesterday “Kimmig, did you file a formal Section 1151 claim as well as a claim for SC death directly due to his service? Or just the 21-534 form raising the negligence issue? “

Because you had stated :
“I filed for DIC in november and still no decision. i dont understand what takes so long”


But I replied today assuming maybe no DIC 21-534 form was sent in---yet


“at this point all i have done is contacted an attorney whom handles va malpractise suits, they first wanted to see the death certificate and then the autopsy and then they asked for all the records, “

Unless they have formally agreed to do it, already, , the attorney will not handle the Sec 1151 claim at all. I dont even think they could file a Section 1151 claim or 21-534 in your behalf. Maybe they did???

If you meant you already sent the VA the 21-534 form to the VA Regional Office they will contact you and tell you what you need to send in next.

Still, it is best to get a vet rep even though the formal 21-534 for DIC has been filed.

Now I think what I posted earlier today doesn't make any sense, -if you did file the formal DIC application with the VA Regional office that has jurisdiction over the claim.


“I filed for DIC in november and still no decision. i dont understand what takes so long.”

I hate to be blunt.The fastest DIC awards go to spouses of combat KIA service men and women ,killed in the Iraq/Afganistan theatre.

Other DIC awards can take from possibly less than a year (but very unusual) to many years.

Even DIC awards under Nehmer AO for many spouses who never got DIC for decades, have taken time in spite of VA's efforts to adjudicate those claims as fast as possible.

You will get a VCAA letter from the VA and eventually an acknowledgment of the claim.

While this appears to be absolute malpractice in your husband's death, the medical evidence is what will determine that and then hopefully the VA will award the claim.If a Section 1151 claim has been filed or clearly noted on the 534 form.
I advise filing this type of DIC claim separately from the 534 form (even if it is referred to on the DIC app)unless the veteran had a Section 1151 claim pending at time of death but even so, I still advise to formally file this claim in addition to the DIC app.

Vet reps might disagree but thats OK too.

My point is the 1151 issue has to be made clear.

Maybe the lawyer you contacted will handle the 1151 claim. It would be good to ask them ASAP.

#21 kimmig

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Posted 11 April 2012 - 12:53 PM

so i should file myself the 21-534

#22 kimmig

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Posted 11 April 2012 - 12:56 PM

im sorry i mean ther 1151. i have filed the dic claim 21-534 or whatever the form is. what i am saying is i need assistance filing the 1151? i dont if our va reps would even know what this is

#23 Berta

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Posted 12 April 2012 - 07:01 AM

This is basically the same wording I used for my Section 1151 claim and for others I helped who filed this type of claim.

“This is a claim filed under auspices of Section 1151,38 USC.

I believe my deceased husband's VA medical records will reveal that he did not receive an appropriate standard of VA medical care comparable with that of the standard and usual medical community, regarding treatment and hospitalization for his disability of( I dont have enough info to describe what his condition was that they overmedicated/ malpracticed on in your case) and as a result of the VA's medical errors , his untimely death occurred on (date).

I have enclosed a copy of the death certificate stating (put here exactly what the cause of death was) and the -- page autopsy."

It only needs the full address of the VARO and also put his C file number in the right hand side of the letter under the date.

Make a copy, sign and and send this with a Post Office proof of mailing but........

BUT --- first I suggest again to obtain a vet rep. And make sure the records you sent the lawyer include all med recs, all medication profiles, and make sure you get a copy of his C file first from the Regional office that has it beore you file this claim.

Although I mentioned serious issues I had with many vet reps, ALL of them fully understood my Section 1151 claim issues.
They all know what these claims are about. The regulations in 38 USC, 1151 are here at hadit ,googleable on the net, and every vet rep office has full access to them because they are trained on this type of claim.


The DAV as many other POA orgs have a template for Section 1151 claims.
You could copy my post here and fill in the parts I could not fill in and they could tweak it if they choose to (my reps didnt change mine) or they could reword it to confirm to any template their vet org uses.

The term 'standard and usual medical community' is a legal term that I used for my FTCA SF 95 too under the charges I listed. VA will understand that terminology right away.


Vet reps cannot get involved with the FTCA issues but tell them you did seek a lawyer already on that.

Also I am under the impression your husband had a VA claim pending at death (which caused the rep to say the claim died with him)

Did the rep then advise you that you can substitute yourself as the claimant for that claim?

If not , the rep should be reported to a higher authority for incompetence. As I did when this happened to me long ago.

Regardless, the form for substitution as the claimant is here :

http://www.vba.va.go...21-0847-ARE.pdf
If you can successfully continue his pending VA claim with evidence, the VA will award you an accrued benefit that was due the veteran in his lifetime.

This type of claim is completely separate from the 1151 claim.

This claim is something a vet rep can help with too.

Bring the DIC 21-534 and this 21-0847 form with you to the rep because the DIC form you filled out might
change the wording of the brief claim I wrote above as well as the way the Accrued substitution claim should be handled.

The rep will have more blank forms if needed.

I am not familiar with anything regarding your husband as to any SC he might had had established already or the VA claim he had pending at death.

The rep will be able to better advise on that.

Both the Section 1151 claim and the Accrued benefit claim ( the one you substitute yourself for) must be filed within one year after the veteran's death.

A successful 1151 DIC claim,filed within that year, will have the month of date of death or month after as the first
DIC payment.I forget which -the rep will know.

There is considerable info here in the FTCA forum on both FTCA and 1151 claims.

If you search for accrued benefits, there is stuff here on that too.

I didn't use a lawyer for my FTCA case so I don't know how they will handle yours.

I used my settlement papers from my FTCA award to support my Section 1151 claim at the regional office.

Up to that point, the 1151 claim I had to keep separate from the FTCA case and I ad to challenge every denial and rebutt every C & p report.

The 1151 award statement from my VARO came directly from the VACO doctors team report which validated my charges on the SF 95 (the initial form filed to begin an FTCA case against the VA)

(The evidence was the same but I had to send the evidence to the RO as well as to the General Counsel in DC. I was proactive and directly personally involved with the General Counsel attorney of the VA (more accessible than anyone at the RO)
but this is a job for a lawyer.)

I think I have exhausted all advice I can give you and also please realise that a good vet rep might have a different approach then mine when he/she sees the death certificate and autopsy etc.

So bring them with you when you get a rep apointment.

They might also advise getting an independent medical opinion.

I didnt have one for my 1151 and FTCA issues so I dont know at this point who would be best to handle that.

IMOs (Independent Medical Opinions) are costly. I know of a forensic medical firm that might have someone with medical expertise in drug toxicity
or maybe I can get a referral from an IMO doctor I know.

Bu the vet rep can advise better on that.An FTCA lawyer will probably suggest an IMO too and I would think ,if you pay for the IMO yourself, the same IMO could be used for both 1151 and the FTCA case.

Edited by Berta, 12 April 2012 - 07:06 AM.


#24 Berta

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Posted 12 April 2012 - 07:20 AM

I find I have to carefully re read multiple posts because I often forget how they started out:

"My husband was 80% service connected, Gulf War Veteran. He passed away in october 2011. had service connected surgery for previous back injury on 26 october and died at home on 29 october. released from the hospital the day after back surgery. VA had him on 14 medications, two doctors didnt talk to one another and he died from " mixed drug intoxiocation complicating recent lumbar surgery". an autopsy was completed and the death certficate does reflect the above. do you think i will have a problem with being granted my DIC? Four drugs found in system, all VA prescribed for his back. the oxy was the contributing drug"

Make sure the vet rep considers any potential way his SC contributed directly to his death.

Prescribed VA meds as you stated here, should certainly do it and that was a factor in my husband's death but only one of many factors.

Was your husband paid at the 100% rate for TDIU?

If so How long was the TDIU in affect?

Do I understand here that the lumbar disability was a SC disability?

If he had a TDIU claim pending at death, based on what you said, that could potentially generate an accrued award once the claim for that is filed and supported with evidence.
When VA awards posthumously for an accrued claim, they deem the SC ,if they rate it as 100%or TDIU, in the accrued award, also as Permanent and Total.

What I mean is this. My husband had 30% PTSD with claim for higher rating at rating board the day he died.

They awarded 100% P & T posthumously to me for 3 year period for the PTSD and also Chapter 35 DEA benefits and CHAMPVA -these are both wonderful benefits for survivors.

If his claim was for SMC instead, that too could generate accrued benefits.

These are all considerations the vet rep needs to consider and will need to go over the DIC form you already filed.

#25 kimmig

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Posted 13 April 2012 - 01:48 PM

yes he had a claim he put in for an upgrade on his back (bear in mind he could barely walk, walked with a cain, would be down in his back for days at a time, couldnt stand, couldnt sit, it was horrible) and they denied his upgrade even though we had evidence that showed a significant change
im on my own for this, for i have no support from DAV,veteran service reps here arkansas

#26 kimmig

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Posted 13 April 2012 - 01:50 PM

malpractise was on the service connected claim back surgery and both doctors had him on sleeping pills,valium,oxy the va pharmacy filled these prescriptions. two doctors that worked in the same hospital contracted by the VA, both neurosurgeons

#27 Berta

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Posted 14 April 2012 - 04:59 AM

Is this the office who held your husband's POA?



Department of Arkansas
Disabled American Veterans
P.O. Box 1620
North Little Rock, AR 72115

ardept@ardav.org

Office: (501) 257-1896 (Please do not call here for claims service)

Fax: (501) 257-1897

NSO Office: (501) 370-3838 (call here for claims service)

Transportation Office Little Rock: (501) 257-6991


http://www.ardav.org/contactus.html

You said in the 1151 forum:
"i call the local county veteran service officer who has yet to call me back and just what i suspected he didnt have a clue what an 1151 claim was....wow.... "

Can you tell me which county office on this list you called and who you spoke to?

http://www.veterans....s.gov/cvso.html

If they told you they don't know handle to handle a Section 1151 claim, they need to be called on the carpet.


I will call them Monday if you tell me what office it is. I am absolutely beyond anger at what they said.

As far as the claims-yes you can handle them on your own, but again I don't advise it in your case.

You have the template for the Section 1151 claim to prepare and send to them.

It can be prepared on the 21-4128 form here at hadit under Forms if you wish or just sent as a regular letter.But get proof of mailing.Make sure your husband's name and C file number is in the letter.

Again I assume you have copies of all medical records, to include medication profiles, or drug lists, and a copy of his C file.
It is imperative to get all that first before filing the 1151 claim.

I always use USPS priority and get a tracking slip so I can print of the receipt by VA on line at USPS site.

The VA will send you a VCAA letter on the DIC claim.

The Letter will state IMPORTANT REPLY REQUESTED.

They will state in the letter exactly what they need for the DIC claim.

That letter takes a few months to arrive.There is a date deadline for response.

They (VA) will handle the Section 1151 claim the same way. asking for more information.

Also they will handle the accrued claim.You have to send them the Substitution form for that and formally reopen his pending claim.

Meantime maybe you will hear from the lawyer you contacted for the FTCA case.

If you proceed with the claims without representation, you can go to the main VA web site,
click on the Contact us area and make a formal status request from time to time,after they have sent the VCAA letter and you have responded.

If the DAV has your POA, you can revoke it with a letter to them and to the VARO.

Personally, since they held your husband's POA from what I seem to gather here, but I could be wrong, ,
someone there is familiar with his past claims and email or fax might be a better way to contact them and, I assume, you sent them a copy of the DIC form too?

If you dont want any representation make sure any POA you might have given the DAV is revoked.

There are countless vets here who handled their claims on their own.

Hadit has been on line for well over a decade and we have had plenty of success stories because vets and widows have taken the time to read all they could here, and have succeeded ,with and without vet reps.

Everything I know as to 1151 claims and DIC I have posted here over the last ten years. as well as all I know on FTCA issues.

I dont know exactly how the accrued "substitution "regulations work as that is a fairly new format but will see what I can find on that.




































I

Edited by Berta, 14 April 2012 - 05:31 AM.


#28 Berta

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Posted 14 April 2012 - 05:41 AM

If you handle the claims yourself:


There are multiple posts here under “accrued benefits and this one explains them well:


http://www.hadit.com...crued-benefits/

This is info here on Substitution of the claimant:


http://www.hadit.com...er-opct-102008/

I am glad I checked it as it clarifies the POA status:


“Any representation by a service organization, attorney or agent prior to death does not transfer to the substituted representative. If the individual desires representation he/she must execute a new power of attorney. When a request for substitution is received the new claimant should be advised of this fact. “

#29 kimmig

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Posted 16 April 2012 - 01:40 AM

I AM for sure going to file the 1151. this week. Well friday the VA regional office calls me. she tells me she cant see anything because apparently the POA is still not squared away. Also she stated that the DIC claim was opened up on 28 December 2011. I filed the DIC on 23 November 2011 with the DAV mobile van. Now does this make any sense?

#30 Berta

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Posted 16 April 2012 - 07:19 AM

Actually it does make sense because everything takes so long when dealing with VA.

The filing date won't matter.
Because,it is within one year after your husband's death and they will award DIC back to the date of his death if the claim succeeds.

All you can do now is wait.

You might well hear from the FTCA lawyer before hearing from the VA on the DIC and 1151 claim.

If you and the veteran had any children under 18 in your care when he died, there could possibly be a Social Security Survivors monthly benefit for you and the children.

As long as he had the proper amount of SSA work credits,the SSA web site has more info, there is potential for these benefits.

It does not matter if he had adopted children, step children, or natural children that are still in your care and still in school.

The SSA regs might have changed since I received this benefit so best to check their web site for potential Survivor's benefits.


The VA will award DIC only under one type of award.But it pays to claim both 1151 and direct SC death.

Also the FTCA situation has an offset factor but I think I explained that before.

VA will deduct the FTCA offset from any potential Section 1151 DIC until it is recouped by the VA or until they make an award for direct SC death and then they have to pay back the whole offset if direct SC death is granted.

Your lawyer will know how that all works.

#31 kimmig

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Posted 19 April 2012 - 06:21 PM

I went back to work this week after being away from my job on FMLA. Just dealing with my husbands death had physically taken the toll on me physically and mentally. I believe I told you I am a Disabled Veterans Employment Representative for a state agency.
Last week i called my county's veteran service officer,,whom i happen to know personally and believe it or not had assisted him in obtaining his job. I asked him if he could check on my claim, i cant get thru to the 1-800 number and every time i call the regional office they are not able to really tell me anything.
He assured me he would make some phone calls and assist me , i felt confident that i might get some answers. I hadnt heard from him in over a week, so I called him. Well, he forgot all about me, forgot what I even called for and had the nerve to actually tell me that he "forgot"........forgot.....................forgot.............and thought it was funny. I do not think this is a laughing matter, my whole world crashed down around me, my husband whom served honorably for 23 years, was a combat veteran died after a VA surgery for his service connected injuries. How dare he....
As i have said before....I am alone on this...I know i am not "alone"as far as other spouses that are actually going thru the same thing as I. How hurt I felt, for a Veterans Representative to tell me that my husband was so easily forgotten.... this is what it is like for me and i am sure others, the ball is so easily dropped, time and time again....
God bless those whom take the time such as this forum and reach out to those whom need it.
Thank you!!!