Knowledge Is Power -We understand that you get frustrated when filing a claim and not knowing what they tell you, we hope this page will answer some of your questions.
VETERAN’S CORNER By Terry Richards, Veterans Advocate & Freelance Writer© 2005 by Terry Richards. All Rights Reserved.
Is there a difference between being "Rated" at 100% and being "Assigned" 100% TDIR by the VA? +
Are Veterans permitted to work when "Rated" or "Assigned" 100% VA Disability Compensation? +
Is it true that a permanent & total VA disability rating is not permanent until after 20 years or more? +
Is a Veteran permitted to earn any kind of income during the period he applies for 100% TDIU?
You may be surprised but the answer to all four (4) questions is YES… Article
ALMOST IMPOSSIBLE - But not totally Impossible - Federal District Court & VA Claims
If a Veteran is injured at a VA Hospital due to Negligence or Malpractice of a VA Employee, the Veteran can not only file a Federal Tort Claim against the VA and the United States of America in Federal District Court, but also can file a Section 1151 Claim for Service-Connected Disability Compensation…Yet, Congress has enacted laws that makes it "almost impossible" for Veterans to be heard in Federal District Court on injuries or diseases that they actually incurred while in service on active-duty if they don’t like the VA’s Administrative Procedures for filing these claims… Why is that since it does not violate the "Feres Doctrine"??? Article
Can Veterans or their families sue the VA for Malpractice or Wrongful Death? Article
Veterans Disability Commission Begins Work Article
VA Directive Against Veterans This directive affects all Veterans receiving service-connected disability compensation, in that the secretary's directive requires that regional offices review and re-evaluate all current and past Veterans claims. The claims that will probably be reviewed with the most scrutiny are those Veterans rated at 100% - and those rate 50%-90%... Link to Article
Pre-Programmed “False Statements” On Veterans’ VA “Medical Record Progress Notes ”Are Or Could Be Used To “Deny” Their VA ClaimsArticle
When reading the rest of this Article, please keep in mind that pursuant to VA laws, rules and regulations, a “100% Disability Rating” and a VA “Total Disability Rating” shall be synonymous.
Additionally the terms “Assigned” and “Awarded” as it pertains to 100% TDIU shall be synonymous.
When a Veteran has been “rated” with a service-connected disability from 10% to 100% it means that the Veteran has received a “schedular rating” from the VA’s “Schedule For Rating Disabilities” found in 38 U.S.C. Section 4.1 et seq.,(et seq means - all that follows) which sets forth with particularity how much the VA must compensate the Veteran for their particular service-connected injuries and/or diseases.
Moreover, Veterans “rated” at 100% can work full or part-time with no limit as to how much they can earn and still be eligible to receive their 100% monthly VA compensation check. The reason work is permitted is because the percentage of ratings represents as far as can practicably be determined the “average impairment in earning capacity” resulting from such diseases and injuries and their residual conditions in civil occupations, as well as to compensate Veterans for pain and suffering throughout their lifetime, among other things. See 38 CFR Section 4.15.
To further help you understand why a Veteran is permitted to perform Substantial Gainful Activity (SGA) while being “rated” 100% service-connected by the VA, is by placing an emphasis on “average impairment in earning capacity,” as opposed to being compensated for the average “total loses” in earning capacity over a lifetime. Furthermore, Black’s Law Dictionary Seventh Edition defines “impairment” as: “The fact or state of being damaged, weakened or diminished.” And it defines “compensation” as: ”Payment for damages, or any other act that a court orders to be done by a person who has caused injury to another and must therefore make the other whole.”
However, total disability ratings for compensation based on unemployability of the individual Veteran a/k/a 100% TDIU(Total Disability based upon Individual Unemployability) may be “assigned” where the “schedular rating” is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities as opposed to the percentage of ratings representing the “average impairment in earning capacity.”
Veterans who have been “awarded” 100% TDIU can only earn up to the MAPR (Maximum Annual Pension Rate) which is currently $846 per month or $10,152 Annually and still be eligible to receive their 100% TDIU monthly VA compensation check. See 38 CFR Section 4.16(a) for details.
Veterans should keep in mind that all injuries or diseases for which a Veteran receives service-connected disability compensation regardless of percentage, can be “re-evaluated” at any time.
Additionally, pursuant to 38 USCS Section 110 – Preservation of Disability Ratings states in pertinent part that: A rating of “total disability” or “permanent total disability” which has been continuously in force for twenty or more years shall not be reduced thereafter, except upon showing that such rating was based on fraud.”
In layman’s terms this means that even though you might have been furnished with a letter from the VA that states your “disability” is “permanent total disability,” unless you’ve actually received permanent and total disability for 20-years or more, the VA can re-evaluate your claim at any time and reduce your percentage of VA disability compensation.
Furthermore, all Veterans should duly note that a Veteran with absolutely “no rating” whatsoever at the time the Veteran applies for VA disability compensation can still be Granted and “rated” with a 100% “schedular rating.” This is also true in the case of 100% TDIU or a Non-Service Connected Disability Pension based upon what the VA calls “extra-schedular ratings.” See 38 CFR 4.16(b), and 38 CFR 4.17(a) and (b).
The “extra-schedular rating” rule will lay to rest the “myth” that the only way a Veteran can obtain 100% TDIU is if the Veteran has at least one disability rated at 40% or more, and sufficient additional disabilities to bring the combined rating to 70% or more.
About 4-years ago, a Veteran was referred to me for assistance. He had been rated at 70% for many years but then eventually was “awarded” 100% TDIU which he had been collecting for a couple of years. He showed me a letter from the VA saying that records they received from the IRS and Social Security Administration reflected that the Veteran had been working for about 4-months during the period he applied for a “Total Disability Rating”, and therefore, the VA was going to revoke his 100% TDIU and return him to 70% service-connected compensation, unless he could site a legal reason why the VA should not. So I researched 38 CFR (Code of Federal Regulations) and 38 USCS (United States Code Service) and found the legal reason why the VA could not revoke his “Total Disability Rating.”
The legal reason why the VA could not revoke his “Total Disability Rating” lies in 38 USCS Section 1163, of which I paraphrase as follows: “The disability rating of a Veteran who begins to engage in a substantial gainful occupation after January 31, 1985, may not be reduced on the basis of the Veteran having secured and followed a substantially gainful occupation unless the Veteran maintains such an occupation for 12 consecutive months.
UNITED STATES CODE SERVICE (USCS)
CODE OF FEDERAL REGULATIONS (CFR)
SECTION 1151 COMPENSATION… by Terry Richards, Columnist ã 2003 by Terry Richards. All Rights Reserved.
Pursuant to Title 38, Section 1151 of the United States Code Service (U.S.C.S), there are several avenues of compensation available to Veterans who suffer a physical, psychological, or psychiatric personal injury as a result of VA, VA Health Care, VA vocational rehabilitation (pursuant to Chapter 31 of Title 38 U.S.C.S.), or participation in a VA compensated work therapy program (Pursuant to 38 U.S.C.S., Section 1718).
First, a Veteran, or his or her survivors or estate may pursue a medical malpractice claim against the under the Federal Tort Claim Act (FTCA). At the time of filing a FTCA lawsuit, or at any later time, a Veteran may apply for Disability Compensation under Section 1151.
If under Section 1151, the VA determines that the Veteran’s disability was caused by VA negligence, the VA will pay Compensation Benefits as if the disability were service connected.
Also, if under Section 1151, the VA determines that a death was caused by VA negligence, the VA will pay to the Veterans surviving spouse, children, or other family members, or estate, Dependency and Indemnity Compensation (DIC) benefits as if the death were service connected (Pursuant to 38 U.S.C.S., section 1310).
Although, VA compensation and DIC benefits are primarily aimed at providing cash benefits for disabilities and death related to military service, Section 1151 expands the program to cover rehabilitation, or participation in the VA compensated work therapy program.
Of course, if VA treatment for a service-connected condition makes an already service-connected disability worse or creates a new disability secondary to the service-connected condition, the Veteran may apply for an increase in service-connected disability benefits or claim secondary service connection without relying on Section 1151. There is no time limit for filing a Section 1151 Claim.
In most cases, Attorneys are not allowed to charge Veterans Legal Fees or represent Veterans in Section 1151 claims, unless a disinterested party pays the Attorney fees or until it becomes necessary for a Veteran to appeal his or her case before the Court of Appeals for Veterans Claims (CAVC). However, Attorneys may charge Veterans Legal Fee and represent them in both Administrative Federal Tort Claims, and in Federal Court.
For further details or assistance to apply for a Section 1151 Claim, contact any Veterans Service Organization Claims Representative located at your nearest VA Medical Facility or VA Regional Office. Please note that you do not have to be a Member of a Veterans Service Organization to receive assistance or for them to represent you with your VA Claim.
The answer is YES… But prior to 1946, Americans could not sue the United States for personal injury or wrongful death caused by employees of the federal government because the federal government had immunity from civil suits. Victims of this negligence generally had to rely on members of Congress to pass individual bills of relief. However, after World War Two, as a direct response to the claim that citizens were left with inadequate remedies against the federal government, Congress passed the Federal Tort Claims Act (FTCA).
When Veterans or others sue the VA or any other agency of the Federal Government, they are actually suing the United States of America. And once in Federal District Court the claimant is known as the Plaintiff, and the United States of America is known as the Defendant. Additionally, there are no provisions for jury trials in the FTCA. Therefore, only a Federal Judge will preside and decide the outcome of the case.
When applied to the VA, the FTCA provides relief for any injury or loss of property or death caused by the negligent or wrongful act or omission of any VA employee while acting within the scope of their employment including but not limited to malpractice, neglect, physical or verbal patient abuse, intimidation, exploitation, wrongful discharge from a VA Hospital, Domiciliary or Nursing Home, or wrongful death while a Veteran is hospitalized or receiving treatment or examination provided by the VA, or while in a VA vocational rehabilitation or compensated work therapy activity or program.
The statute of limitations for bringing a claim under the FTCA is two years from the time a claimant learns of the injury’s existence and cause. However, before a filing a complaint in Federal District Court, the FTCA requires that all claimants must first file an Administrative Tort Claim against the VA by filing a Standard Form 95 at the VA facility where the injury or death occurred. Once claimants state an amount in damages on their filed standard Form 95 they cannot later ask for a larger amount should it become necessary to file a lawsuit in Federal District Court, unless the increased amount is based on newly discovered evidence.
After the claim is filed the VA has six months to dispose of the claim (approve or deny the claim). If the VA does not dispose of the claim within six months, their failure to act within this time period with or without written notification also constitutes a denial. Therefore, if an Administrative Tort Claim against the VA is denied, claimants have six months to file suit in Federal District Court. After six months, the claim is forever barred.
Although there are no provisions for punitive damages in the FTCA, according to Federal District Court statistics in which Plaintiffs won, the median damage for medical malpractice was $463,000. In 29% of those same cases, damages awarded were over $1million, and in 9% awards exceeded $10 million.
If you believe that you have a valid claim against the VA, you should seek the advice of an experienced Attorney, immediately. The FTCA provides a limitation on Attorney fees for claimants of 20% in settlement and 25% once the case is in litigation.
WASHINGTON – The Veterans' Disability Benefits Commission, established by Congress to review benefits going to disabled veterans and the survivors of deceased veterans, held its first meetings May 9 and 10 in Washington, D.C.
The 13-member panel, chaired by retired Army Lt. Gen. James Terry Scott, is scheduled to issue its final report to Congress in 15 months.
In setting up the commission, Congress instructed it to examine three specific issues:
The commission will take testimony at public meetings, oversee studies of the United States' disability compensation systems, and receive input from other organizations, including the Institute of Medicine and the Department of Defense.
People interested in presenting oral or written testimony to the commission should contact the panel's acting executive director, Ray Wilburn, at (202) 273-7509, or via e-mail at email@example.com
Pre-Programmed “False Statements” On Veterans’ VA “Medical Record Progress Notes”Are Or Could Be Used To “Deny” Their VA Claims
“PRE-PROGRAMMED FALSE STATEMENTS” on Veterans computerized “Medical Record Progress Notes” that are intentionally or unintentionally not corrected to describe the Veteran-patient’s true medical condition or its “residuals,” are or could be used as a “bases to deny” Veterans’ service-connected and non-service connected disability claims, federal tort claims, and social security disability insurance claims, among other things.
“FALSE STATEMENTS” ARE A VIOLATION OF:
TITLE 18> PART 1 > CHAPTER 47 > SECTION 1035, ET SEQ., AMONG OTHER THINGS.
Below are samples of “Pre-Programmed” statements that you will find on your “Medical Record Progress Notes” that may or may not be accurate. The ones highlighted, if not accurate, are the ones most likely to cause your claims to be “denied.”
So after reading the information below, whether you have a pending VA or other Government Disability claim or not, be sure to check all of your current and future VA medical records for accuracy… You can get a copy of any of your VA medical records from the “Release of Information” Office at the VA Medical Center where you receive treatment.
· This patient denies any other new medical problems.
· “The patient ‘DENIES’ both short-term and long term exercise intolerances.
· “The patient ‘DENIES’ profound muscle weakness, which unable him to raise his arm to comb hair, stand up from a chair or lift his head from a pillow, fascial rash, Gottron sign, v-sign, and shwal sign.”
· “The patient ‘DENIES’ LE claudication and foot drop.
· “The patient ‘DENIES’ symmetric polyarticular arthralgia/arthritis, malar rash, oral ulcer, discoid lesion, photosensitivity, nephritis, serositis, dry eyes and dry mouth, Raynaud’s phenomenon and sclerodactyly.
· There has been no persistent nausea, emesis, or diarrhea, no persistent fever or chills, no acute sino-bronchitic symptoms, no acute dyspnea, no hemoptsis, no recurrent GI or GU bleeding, no significant chest pain or unstable anginal episodes of concern to the patient, no persistent weight loss, no UTI symptoms, no synscope, no TIA episodes, no persistent irregular bowel movements, no persistent anorexia, and no unusual palpitations.
· The tests were reviewed with the patient.
· Otherwise the patient has no further medical complaints.
· Also the patient relays no new significant signs of symptoms referable to the ENT, Constitutional, pulmonary, cv, GI/GU or Neurological areas occurring since the last clinic visit.
Also Visit the following other Pre-Programmed Categories on your VA “Medical Record Progress Notes” and check them for accuracy:
· Vital Signs, Reason for Visit, Pain Score, Allergies, Active Problems, Active Medications, Selected Medical History, Chief Complaint, History of Present Illness, Exam, Assessment, Mental Health Status, General appearance, Head/Neck, Eyes, Ears/Nose, Mouth, Chest/Breast, Lungs, Cardiac, Abdomen, Genitalia/Hernia, Rectal/Prostate, Back, Feet, Extremities, Skin, Lymphatics, Neurological/Psychiatric, Mobility, Activity Intolerance, Activity of daily living, Nutrition, Evidence of abuse or neglect, potential barriers, tobacco use, exercise, Contraindication to vigorous exercise, alcohol screening, PTSD Screen, PTSD Score, Mood Screen, Mood Score, Colorectal Screening, Vaccinations, Sun Protection, Hypertension, COPD, Diabetic Foot Examination, Plan, Active Medications.
TO READ TITLE 18> PART 1 > CHAPTER 47 > SECTION 1035, ET SEQ., AMONG OTHER THINGS
CLICK ONTO THE URL’S BELOW:
Law Cornell Univ UScode UScode18/usc_sec_18_00000024
About Terry Richards + contact information
·U.S. Army, February 15, 1968 – November 30, 1970. Rank at Discharge: Sergeant E-5 MOS: 95B40 – Military Policeman, Desk Sergeant, and Platoon Sergeant. Tours of Duty: 287th Military Police Company West Berlin, Germany. “Checkpoint Alpha,” Helmstedt Brigade, Helmstedt, West Germany. 4th Missile Command, Camp Page, Chunchon, Korea.
·Independent Veterans Advocate since 1990 (Non-Compensated).
·Publisher and Writer of Veterans Corner By Terry Richards (Non-Compensated).
·Freelance Writer/Journalist Specializing in Veterans Affairs (Occasionally Compensated).
·Contributing Writer for the Veterans Post News, St. Petersburg, FL (Non-Compensated).
·Member and Florida Registered Voter of the Veterans Party of America.
·Former Volunteer Managing Editor of the Veterans Free Press Newspaper which was chosen to be “archived” on the Internet by the “Internet Archive Organization” http://web.archive.org/web/20010518204121/http://www.veteransfreepress.com/
Contact Terry Richards· Veterans Advocate · firstname.lastname@example.org
Veterans Free Press-Archived Websitehttp://web.archive.org/web/20010518204121/http://www.veteransfreepress.com/
Veterans Party of Americahttp://www.VeteransParty.US
Veterans Post Newspaperhttp://www.VeteransPostNews.com
Veterans For Veterans Connection http://www.vfvc.net
Voice For Veterans Service http://www.vfvs.com
The American Veterans Networkhttp://www.theavn.org