Service-Connected Disability and Other Compensation for VA Retaliation by Intimidation

Section 1151 Service-Connected Disability Compensation Claims – A Benefit the VA does not widely-advertise.

PREFACE & WRITER’S NOTE: This Writer filed a Federal Tort Claim and sued the VA in Tampa, Florida Federal District Court in 2001 for being verbally and emotionally abused, and for being wrongfully discharged early by VA employees while a Resident-Patient from October 1998-March 1999 at the VA Domiciliary at Bay Pines VA Medical Center located in St. Petersburg, Florida .  The verbal and emotional abuse was in retaliation for my filing a complaint with the VA Inspector General and my Congressman and ”Blowing the Whistle” on Domiciliary Staff for physically, and verbally and emotionally abusing other Veteran Resident-Patients, and for mistreatment of White Resident-Patients by Black Domiciliary Staff (“Reverse Discrimination”), among other things.  After 11-months in Court as Plaintiff Pro Se, in about August of 2002 I prevailed by settlement.  Because of the confidentiality agreement I signed I am not permitted to disclose the amount or other details of the settlement.  My Section 1151 claim that I also filed was denied after my settlement, and for a number of reasons I did not Appeal it.

Pursuant to Section 1151 of Title 38 of the United States Code Service (U.S.C.S), there are several avenues of compensation available to Veterans who because of subtle or overt but real retaliation by intimidation against them by VA employees for blowing the whistle on VA Misconduct and now have a  fear of going to a VA Medical Center for medical care or blood tests and/or the Veteran’s Medical Care or Prescription Medication is intentionally held-up or otherwise compromised by the VA and this results in the Veteran suffering physical, psychological, or psychiatric injuries.

All of the above are wrongful actions and omissions associated with 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 (CWT) Program (Pursuant to 38 U.S.C.S., Section 1718), and Veterans can be compensated for it under Section 1151 claims and under the Federal Tort Claims Act.

Moreover, other wrongful acts and omissions for which Veterans can be compensated under Section 1151 and the Federal Tort Claims Act are injuries caused by the negligent or wrongful acts or omissions of any VA employee while acting within the scope of their employment including but not limited to malpractice, neglect, physical or verbal or emotional patient abuse, exploitation, and wrongful discharge from a VA Hospital, Domiciliary or Nursing Home.

HOW TO FILE SECTION 1151 CLAIMS

First, a Veteran, or his or her survivors or estate may pursue a medical malpractice claim against the VA under the Federal Tort Claims Act (FTCA).  Information on the FTCA is set forth below.  At the time of filing a FTCA lawsuit, or at any later time, a Veteran may apply for Service-Connected Disability Compensation under Section 1151.  If under Section 1151, the VA determines that the Veteran’s disability was caused by VA malpractice or negligence, the VA will pay Service-Connected Disability Compensation Benefits as if the disability were service-connected.

Also, if under Section 1151, the VA determines that a death was caused by VA malpractice or 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 malpractice, negligence or wrongful death in VA rehabilitation or participation in the VA CWT Program.

If VA malpractice or negligence results in making an already service-connected disability condition worse or aggravates it 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 by filing a Section 1151 claim.  There is no time limit for filing a Section 1151 Claim.  You can file the claim on your own or ask a Veterans Service Officer from once of the Veterans Service Organizations to file it for you and represent you in the matter.

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 Fees and represent them in both Administrative Federal Tort Claims, and in Federal Court.

CAN VETERANS OR THEIR FAMILIES SUE THE VA FOR MALPRACTICE OR WRONGFUL DEATH?

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).  Click on link below to read about the FTCA.  http://www.answers.com/topic/federal-tort-claims-act

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, retaliation by 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.

Keep in mind that although you do not need an Attorney to file an Administrative Tort Claim or even a Federal Tort Claim in that you can act on your own behalf (Pro Se), there are certain technicalities that you could overlook that could cost you time and money.  So unless you really know what you are doing, 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.

Although there are no provisions for punitive damages in the FTCA, according to Federal District Court statistics in the mid 2000’s in which Plaintiffs have 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.

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