Medical Malpractice?
Question:
I was diagnosed with Hurthle Cell carcinoma and the Memphis VA decided to have a general surgeon remove the tumor. The surgeon noted that they had trouble finding the recurrent laryngeal nerve and in fact severed it during surgery. They were unable to complete the surgery due to the difficulty of removal. I woke up unable to speak, coughing due to nerve paralysis. The doctors at the VA wrote they had stimulation of the nerve before closing. I asked to be sent to a thyroid surgeon specialist outside of the VA. This doctor was excellent and found the severed nerve in the side that the VA removed. He also removed material they left behind along with completion thyroid on my right side and protected the nerve on that side. Now I will have to get more injections in my left vocal cord to be able to speak, not get out of breath, etc. I am trying to get disability through the VA due to this incident as I am a self employed realtor and need my voice. Is there anymore I can do? This will be lifelong as they paralyzed my vocal cord. I know students did the surgery with the surgeon scrubbed in. I’ve sent both the surgical report from the VA and the non va doctor to disability.
Jim's Reply:
You need to talk with a lawyer. Not just any lawyer, you need to talk with a lawyer who knows how to sue the federal government for medical malpractice.
Yes...what you've described to me is a demonstration of incompetence, frank medical malpractice and coverup typical of how VA reacts when they've made a serious mistake. You're going to deal with this the rest of your life and VA should pay...this is going to get worse as you age.
I refer to one attorney group only for cases like yours. https://verdictvictory.com/medical-malpractice/va-malpractice/
I hope you'll make contact with these folks soon. There's a time limit to filing and you need to start ASAP. Good luck.
How To Hire A Veterans Law Attorney
HOA Blues
Question:
Being sued by my HOA. I allowed my son and his wife to live in my home when they fell on hard times from COVID-19. They are under 55 years of age and no one under 55 is allowed to live there under my HOA rules. I didn't know about this rule at the time. The HOA tried to fine my wife and I for letting them live there. I have since moved into the house to avoid this issue, but the HOA has taken us to court and still wants to fine us and collect attorney fees. We cannot afford an attorney as I’m a disabled vet living on SS.I contracted COPD from working at the World Trade Center site. Went to court and the Judge gave us till the 20th of October to answer questions and submit questions to the HOA. I need help on what questions to ask and how and to who I need to submit the questions to. Plus what forms to use and where to get them.
Jim's Reply:
You and many others continue to confirm my belief that I've been wise to avoid purchasing a home in any HOA community. I get an awful lot of email from veterans who run afoul of their HOA rules and regs and those HOA boards can be brutal.
You say you didn't know the HOA rules wouldn't permit your underage son and family to live in your home. That's a real problem. I think you'll have a hard time convincing a court you didn't know.
Every HOA community has very strict rules about who is eligible and under what circumstances any person may use your property. I believe that to be the most common rule of any HOA community and I'll have to assume you signed a binding contract agreeing to that.
Thus, I have no good news for you.
While I empathize with the fix you're in and I deeply appreciate that you've served your country honorably, you need some professional legal help and you'll probably have to pay out of pocket for it.
There aren't any instant breaks or discounts for veterans when you're dealing with civilian problems and your HOA is a civilian problem. If you're a homeowner and your household income is over the federal poverty limit, you'll likely have a challenge ahead of you to find any discounted legal help. Because of the COVID pandemic many agencies that may ordinarily be available to help you aren't.
You need a lawyer to represent you...there's just no getting around that. If you are eligible because of your low income and assets, you can seek help in your community via legal aid programs, law schools that may be nearby and by searching the Stateside Legal site for help in your region.
If I were you I'd be on the phone right now with local attorneys to choose one who may be willing to help you and also to make fee arrangements. Good luck sir.
How To Hire A Veterans Law Attorney
Welcome Home
The VAWatchdog Dot Org
Question:
Since the VA adopted the new mileage application via the internet, I haven't received any travel money. I checked with my travel clerk and he told me that there is a big back log here in Florida. Have others experienced this problem? Thank you Jim.
Jim's Reply:
I'm in Florida so I feel your pain.
We're supposed to be reimbursed a per mile amount for certain travel to and from medical care. In my time with VHA I've seen long lines and over an hour wait to receive a few dollars gas money. Then we went to a fill-out-the-form system. The check-in kiosks were introduced a few years back and those worked well other than you had to remember to sign out and sign in again to submit the travel voucher.
Not all that long ago I checked in to my small clinic and the kiosks were unplugged and parked in a corner. I was told to check in the old school way and only when I asked, I was given an old form to complete for travel pay. I was told the kiosks were gone forever.
I returned to that clinic 2 weeks later and the check in kiosks were back, plugged in and ready to go. There was no option for travel reimbursement, I was told to go to the Internet and figure it out. I haven't seen any deposits either.
I don't have any answer for you other than...welcome to your VA. They care!
Awards & Denials
Question:
My spouse has a VA decision letter that was sent by his attorney. It states he was awarded 100 percent rating and back dated to 2015. The decision is taking a long time to become final and I'm wondering if the VA can change it to a denial. Have you heard of other cases where this had happened?
Jim's Reply:
No, I haven't heard of VA changing an award this soon after it's made. The delay is probably due to the numerous tasks that have to be done since the retroactive award will be large.
VA will send the entire file to be reviewed by a quality check team to insure that all t's are crossed and i's are dotted. Then the big labor, it goes to finance to determine just how much he's owed. The retro calculation involves adding the 100% rating to his record and backdating, updating and balancing the account since the rates change each year.
Add the labor challenges that VA has had during the pandemic and there's your delay. Although you don't tell me that this was remanded from a higher authority (BVA) if that's the case the regional office will have more work to do.
This is a great question for the lawyer who represents him...get in touch! Good luck.
Tinnitus and Mental Health
Question:
VA gave me tinnitus rating, no rating for hearing loss and no rating for depression/anxiety. Can I make my depression/anxiety secondary to tinnitus?
Jim's Reply:
It sounds as if you've been rated for tinnitus (10% is max) and hearing loss. I'm not sure the % of your hearing loss rating but it's usually wrong or 'lowballed'. I'm also unsure whether you asked for depression as secondary to your hearing loss and you were denied or if you thought they should infer the mental health rating?
In any case, if you're not happy with the results of your hearing loss and mental health claims status, you should go ahead and speak with a veterans law attorney. Talking with an accredited lawyer about your options won't cost you anything and you won't pay anything out of pocket for the required appeals. Outcomes in cases like yours are always better with an accredited veterans law attorney in charge.
Hearing loss and tinnitus are the leading disability claims submitted by veterans...we're exposed to a lot of acoustic trauma. The connection between profound hearing loss and tinnitus to depression, anxiety and other mental health conditions are well established.
You'll want to speak with a clinical psychologist to better establish the link or nexus between your hearing loss and tinnitus and any mental health condition you may have as VA won't accept your word for it. In other words, you'll likely need an IMO. I refer to only one clinical psychologist and he is experienced with the often devastating effects of profound hearing loss. Talk with Brett and see what he can do to help you. Good luck.
Who Wins the Most Cases?
This report from the Board of Veterans Appeals Page 31 reveals the Veterans Law Attorney wins 44.61%.
An accredited agent wins 38.79%. Your State Service Officer brings in 35.17%.
American Legion is at 34.53%. Disabled American Veterans comes in with 33.70%.
Who are you gonna call?
Jim Strickland is a Vietnam era Army veteran and nationally recognized expert on VA disability benefits.
Jim writes extensively about VA and Social Security disability benefits.
Jim's Mailbag is a regular column featured at Stateside Legal where veterans, servicemembers, and family members can ask Jim their questions about VA and Social Security disability benefits.
Section C. Payment of Attorney or Agent Fees - Overview
General Information on Fees
Process for Paying Fees Directly From Past Due Benefits
Withholding From Claimant’s Past-Due Benefits and Authorizing the Claimant’s Award
Reasons to Consider Hiring An Attorney: The best reason for a veteran to hire an attorney is because the veteran believes that an attorney can help achieve a more favorable result than the veteran alone would otherwise obtain.
When do you call a lawyer? To hire or "retain" an attorney to guide you through a VA disability benefits appeal, you must first have a denial of an application that you submitted. The lawyer usually can't help you before that happens.
Attorney Fees: The most common type of fee is the percentage or contingency fee, which is the most favorable fee structure for most veterans in most veterans benefits cases. This is because the attorney is only paid if (1) an award is made and (2) there is an amount owed to the veteran at the time of the award. The attorney is then paid a percentage (usually between 20% and 33%) of the amount owed to the veteran.
What will your attorney do for you? A lot - but you won't see most of it. There isn't much hand holding in the VA appeals process. There is nothing your lawyer can do to speed up the process.
What will your attorney NOT do for you?
These are lawyers, not magicians.If you don't have a case...nobody can make that rabbit appear.