Articles Tagged with soldiers disability

If an illness or injury is caused by VA activities, including VA healthcare, the VA offers an alternative procedure (38 U.S.C. § 1151, hereinafter referred to as “§ 1151”) to the usual remedies under the Federal Tort Claim Act (28 U.S.C. §§ 1346(b), 2671-2680, hereinafter referred to as “FTCA”).  This internal procedure mirrors the VA’s disability compensation procedure and takes full advantage of the highly veteran-friendly benefits granted by statute and regulation.  This article will briefly describe when both § 1151 and FTCA actions are available, what the procedures and requirements are, and what the possible remedies may be.  It is important to note that both § 1151 and FTCA actions may take place simultaneously, but an award from one may have to credit an award from the other.  Because many factors need to be weighed and certain deadlines have to be met, it is highly advised that a Veteran consults his or her attorney as soon as possible after receiving an illness or injury at a VA facility or due to VA care, and before deciding upon either a § 1151 or FTCA claim.

stockfresh_7295473_vet-concept-wooden-letterpress-type_sizeS-300x200The first thing to do is to look at the two actions.  FTCA is applicable any time an employee of the government commits a negligent or wrongful act or omission while acting within the scope of his office or employment.[1] The FTCA further defines employee of the government as “includ[ing]…officers or employees of any federal agency…and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.”[2]  This scope is far broader than the scope of § 1151, which is only applicable when the injury or death is caused by VA hospital care, medical or mental health treatment and examinations, and vocational rehabilitation or Compensated Work Therapy (“CWT”).  If a VA maintenance employee incorrectly hung a sign in the Lobby of the VA and the sign fell, injuring a visitor, then this visitor could have a claim against the VA under the FTCA.[3]  However, if a VA Doctor amputated the wrong limb of a patient, then that patient could have a claim under both § 1151 and the FTCA.

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stockfresh_5818980_handsome-soldier-reunited-with-partner_sizeS-200x300Some of the best advice a veteran representative or attorney can give to a veteran, who is filing a claim for a new disability or a claim to increase the rating of a current service-connected disability, is to journal. Journaling will (1) help the veteran remember his or her conditions, the severity of his or her conditions, and the limitations his or her conditions set; (2) help the veteran record and remember dates of flare-ups; (3) help the veteran accurately record sleep; (4) help the veteran precisely and efficiently convey this information to his or her primary care provider so that this information makes it into the veteran’s health records; and (5) help the veteran’s representative or attorney better understand the complete picture and look for potentially compensable secondary disabilities.

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Soldier Holding CrutchMost veterans usually start pursuing disability benefits in the presence of strong economic incentives, such as recently losing a job, when retirement does not pay as much as expected, or when healthcare expenses become too burdensome. The danger in waiting to pursue VA Disability Benefits until it is needed is that you will not start receiving your benefits until it is already too late. The two questions most asked by veterans are:
1. How long will it take to start receiving my benefits?
2. How much back pay will I receive?

This article will attempt to answer this second question for the majority of case types.

In General
The amount of back pay or retroactive benefits, awarded to a veteran is dependent upon that particular veteran’s “effective date.” Generally the effective date is either the date that entitlement to the benefit arose, the date the claim was filed or the date a re-open claim was filed, whichever is later. This is true for most new claims and for claims to increase the rating of an already existing service-connected disability. Continue Reading

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