Jump to content



Search



Shoutbox Open the Shoutbox in a popup
@  carlie : (30 August 2014 - 06:27 PM) Vet211060 - I Guess They're Not That Shameful After All : - ) Congrats On Some Positive Adjudication
@  vet201060 : (30 August 2014 - 04:24 PM) Dav Sent Letter Saying I Am 100% Effective Oct 2013
@  MarkInTexas : (30 August 2014 - 12:35 PM) Wish There Was A "like" Button For Some Of These Comments.......
@  MarkInTexas : (30 August 2014 - 12:26 PM) Amen To That!
@  vet201060 : (28 August 2014 - 09:55 PM) Va Is So Shameful!!
@  artlouis : (27 August 2014 - 11:36 AM) Code 7019
@  vet201060 : (26 August 2014 - 11:41 PM) Damn Post It Notes
@  vet201060 : (26 August 2014 - 11:41 PM) True That
@  Asiadaug : (26 August 2014 - 07:46 PM) I Have Yet To Deal With Any Piece Of Va That Isn't A Dysfunctional Mess...ebenefits, Claim Filing, Billing...and To Think Our Tax Dollars Are Used To Perpetuate That Calamity!
@  carlie : (26 August 2014 - 05:39 PM) notorious kelly - loved your shout ! ! !
@  GlassRose1500 : (26 August 2014 - 03:40 PM) Would Someone Add Smc Housbound Plus Smc A&a Regular And One Smc K For Me? I Can't Seem To Do That Math!
@  Notorious Kelly : (26 August 2014 - 03:12 PM) Ebenefits Is Not A Thermometer In The Rectum Of Your Claim; It Is A Post-It Note That May Or Not Be Updated Or Accurate. Try Not To Obsess ;)
@  mcassidy : (26 August 2014 - 01:25 PM) Osa
@  Jaluluah11B : (26 August 2014 - 10:05 AM) My Reconsideration Finally Showed Up On Ebenefits As A New Claim.  gathering Evidence.  [font=Arial][size=3]Automated 5103 Notice Response Needed. [/size][/font]
@  vet201060 : (26 August 2014 - 10:00 AM) Went From Pending Decision Approval To Review Of Evidence Today, I Need To Stop Looking At It. Drives You Crazy Waiting
@  GlassRose1500 : (25 August 2014 - 09:30 PM) @coriemboh I Get My Best Claim Advice Here, But My Dav Guy Gets The Best Intel Once The Claim Is Filed
@  coriemboh : (25 August 2014 - 08:57 PM) The Average Processing Time Is 9 Months More Or Less. Every Time I Call The 800#, I Get A Different Answer. Goe, Roe....make Up Your Mind!
@  coriemboh : (25 August 2014 - 08:56 PM) I Just Want To Know Ballpark Figure Of How Much Longer My Claim Will Take. The Bills Are Piling Up. Adds To My Anxiety And Depression. Sure Wish I Could Tell Bill Collectors The Same Things Va Tells Me!
@  coriemboh : (25 August 2014 - 08:54 PM) @glassrose1500-No, I Don't. I Put In For Representation A Few Days Ago, But I'm Sure That End Won't Pan Out Until The Claim Is Closed.
@  GlassRose1500 : (25 August 2014 - 12:11 PM) Would Appreciate Feedback On My Smc Draft - Posted In The Smc Section! Tkx!

Photo

Tort Claim Denied For Statue If Limitations Reconsideration Request


This topic has been archived. This means that you cannot reply to this topic.
4 replies to this topic

#1 ytheydothis

 
ytheydothis

    E-3 Seaman

  • Seaman
  • PipPipPip
  • 20 posts
 

Posted 09 June 2012 - 06:29 AM

I got a reply back denied under sec 2401. I informed a lawyer who i was trying to get to take the case she told me they handle these claims all the time but they dont take cases once they are denied. Do that sound crazy maybe its me.....

The medical eviedence showed i had surgery on the wrong level of the spine. I didnt find out until by way of a mri 12 yrs later. I know their is a discovery rule in their somewhere..but was glad to see that this was the only reason it was denied I thought the lawyer would of jumped right on it. Im still looking for an attorney and I will get a strong IMO.


My question is when i ask for a reconsideration can i let a lawyer handle that or do i have six months to request that or sixty days

Advertise Here

 

#2 Berta

 
Berta

    HadIt.com Elder/SVR Radio Panelist

  • SVR
  • PipPipPipPipPipPipPipPipPipPip
  • 28636 posts
 

Posted 09 June 2012 - 09:04 AM

"I got a reply back denied under sec 2401. I informed a lawyer who i was trying to get to take the case she told me they handle these claims all the time but they dont take cases once they are denied. Do that sound crazy maybe its me....."
Title 28 USC § 2401(b)

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.




"The medical eviedence showed i had surgery on the wrong level of the spine. I didnt find out until by way of a mri 12 yrs later. I know their is a discovery rule in their somewhere..but was glad to see that this was the only reason it was denied I thought the lawyer would of jumped right on it. Im still looking for an attorney and I will get a strong IMO."


Did you file the SF 95 within 2 years of your knowledge that the surgery involved a potential medical error?

Anyone who discovers or believes they have been malpracticed on by the VA should get a copy of their Med recs right away, then get an IMO, and then if the IMO supports malpractice they need to get a lawyer.

They can file the SF95 themselves if they fear the SOL could run out before they get their med recs and an IMO and a lawyer-
there is SF95 info here in our FTCA forum.

However if the SOL ran out, there is no recourse.

You could however file a Section 1151 claim. Info on that too ere in our FTCA forum.

Section 1151 claims have no SOL.

I just won an additional 1151 award from my original 1151/FTCA matters this past January, and the veteran,who did not live long enough to see his proper VA comp (they malpracticed on my husband and caused his death)
was eligible for the additional 1151 award back to 1992.

There is a 1151 template in our FTCA forum here for this type of VA claim.

#3 Berta

 
Berta

    HadIt.com Elder/SVR Radio Panelist

  • SVR
  • PipPipPipPipPipPipPipPipPipPip
  • 28636 posts
 

Posted 09 June 2012 - 10:01 AM

In December 2010 you stated here:

o still havent put in a 1151 will they rate it in the proper rating or will i have to submitt another claim under 1151 “

It appeared that you had requested a secondary rating for the additional disability due to the negligence?

What is the status of that claim?

VA has no obligation to consider any issue under 1151 unless the claimant tells them to by clearly filing a claim under Section 1151.

38 USC.

I think I gave you the same 1151 advice in Dec 2010 as I did here today.

Have you filed a Section 1151 claim at all over the past 2 and 1/2 years?

Edited by Berta, 09 June 2012 - 10:04 AM.


#4 ytheydothis

 
ytheydothis

    E-3 Seaman

  • Seaman
  • PipPipPip
  • 20 posts
 

Posted 09 June 2012 - 03:36 PM

Ok Berta i filed the 1151 claim along with other issues it been 24 months without a decision and used the templates here. I discovered i had been malpratice on in June of 2010 by way of a Mri..I had surgery in 1997 took 12 yrs to find this out i thought the discovery rule applied so i filed the sf 95 in may of 2012 well within the two year statue and got a denial back in June of 2012 a fast three week process...Since they denied on statue of limitation maybe i should leave alone and wait on the 1151 process Im thinking if you win a sf 95 dont it offset the 1151 claim.... I know im getting in deep water should i still persue a lawyer to argue that i had no way of knowing until the June 2010 Mri?

If I previal on the 1151 claim will it retro back to 1997? or when i filled the 1151 claim? thanks

#5 Berta

 
Berta

    HadIt.com Elder/SVR Radio Panelist

  • SVR
  • PipPipPipPipPipPipPipPipPipPip
  • 28636 posts
 

Posted 10 June 2012 - 08:11 AM

Fighting a SOL denial needs a lawyer's expertise.


“.Since they denied on statue of limitation maybe i should leave alone and wait on the 1151 process Im thinking if you win a sf 95 dont it offset the 1151 claim.... “

Yes and that is why it is often disadvantageous to file both FTCA and 1151.

I invested most of my FTCA settlement because of the offset factor to my DIC.That way I used some interest every month until I was awarded DIC.



The only way around the offset is to prove SC as well, in addition to 1151/FTCA for the same disability but my claim is the only case I know of that was successful that way.

The VA, after another battle with me, refunded my entire offset last year.

The offset regs are here somewhere.

You will need a strong Independent Medical Opinion for the 1151 claim.

These days I foresee no way anyone can win 1151 without an IMO.

Or any FTCA case.

The VA Cannot offset a Section 1151 award to any established SC award.

They might try to 'combine' the percentages but I think that would be a CUE if they did that.I am really not sure on that.




Advertise Here