Medical Malpractice - Veterans 1151 Claims

Hodes Milman LLP

​VA Malpractice Attorneys Helping Veterans Harmed By The VA​
​​Veterans Healthcare Rights - Federal Tort Claims -

VA Medical Malpractice Claims, Misdiagnosis, ​Hospital Negligence, Medical Errors
For a review of your VA malpractice case contact our lawyers today.
Our firm serves throughout the nation, and is one of the few firms to have specialized experience in VA malpractice cases.
Call Now!  (949) 640-8222​​

PAPER Evidence Records

and Claims All Go Here

​V A Claims Intake Center
PO BOX 4444
JANESVILLE, WI

53547- 4444
Toll Free Fax:

844-531-7818​

Key findings about America’s military veterans

​​The experiences of post-9/11 veterans differ from

those who served in previous eras. Post-9/11

veterans more likely to have been deployed,

seen combat, experienced emotional trauma

Should I file a claim?

Potential VA claims?

​What am I missing in the VA claims process?

​r/VeteransBenefits

Best way to check on a supplemental claim online?

​Confused on what to do with claim.

​Dependent status with education benefits.

​Suing the VA for negligence and malpractice.​​

Veteran Proud

You've Arrived at the VAWatchdog Dot Org!
​Welcome Home
We've been keeping veterans informed of news and events important to them since 2005.
You'll find all you need to file your claim and referrals to professionals who can help you when things don't go well. 
What you won't find here is unending chat or opinions from strangers who like to think of themselves as experts. 
Our goal is to ensure that you are awarded the benefits you earned with your service to our country. 

We're here to help you take charge of your benefits, and that is all.

Extra Schedular Rating

​Extra schedular ratings under

38 C.F.R. § 3.321(b)

​How can I get an extra schedular rating?

​To receive an extra schedular rating the veteran

must first show that the veteran’s

conditions result in a disability picture

that is not covered by the schedule of ratings. 

Wounded Warrior Project Veterans Benefits

​C&P Service Clinician’s Guide
Scheduled For A C & P???    Filing A Claim?
This is a must read for you!!!​
I've been posting this again and again over the years 
and it's still one of the best ways I know to win 
your case. Published in 2002 the principles and much of 
the verbiage still applies and is in daily use at the VA. 

GLOVERLUCK
Veterans Law At Your Service
​PTSD and other mental impairments
Military Sexual Trauma
Traumatic Brain Injury
Agent Orange exposure
Camp Lejeune water contamination
Gulf War Syndrome
Asbestos or Radiation exposure
​Federal Tort Claims/Title 38 U.S.C. 1151
Also known as FTCA and Section 1151 Claims

​Nationwide Representation 
844 244 VETS (8387)

Department of Veterans Affairs

Permanent and Total (P & T) Disability Ratings

Veterans PTSD Assessments
Independent Medical Opinions    PTSD DBQs​

​Thomas Grieder, MD, PhD
​Twenty five years service as a VA psychiatrist
Assistant Professor and Associate Clinical Professor
UCLA Department of Psychiatry and Biobehavioral Sciences
​Lead psychiatrist for the East Los Angeles PTSD Clinical Team​


Contact Dr. Grieder

38 CFR 3.340 - Total and permanent total ratings and unemployability.


(a) Total disability ratings -
(1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.
(2) Schedule for rating disabilities. Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met.
(3) Ratings of total disability on history. In the case of disabilities which have undergone some recent improvement, a rating of total disability may be made, provided:
(i) That the disability must in the past have been of sufficient severity to warrant a total disability rating;
(ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and
(iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation.
(b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence.
(c) Insurance ratings. A rating of permanent and total disability for insurance purposes will have no effect on ratings for compensation or pension.

38 CFR 3.344 - Stabilization of disability evaluations.

Examination reports indicating improvement.

Doubtful cases.

Disabilities which are likely to improve.

Gregory M. Rada - A Veteran for Veterans
​​Focusing on appeals involving psychiatric conditions
and/or individual unemployability (TDIU)

​Proven Results • Direct Communication •

No Fees Unless You Win
Nationwide Representation 
Free Phone Consultations - ​(844) 838-7529

§4.16  Total disability ratings for compensation based on unemployability of the individual.
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:
(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, 

(2) Disabilities resulting from common etiology or a single accident,
(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
(4) Multiple injuries incurred in action, or
(5) Multiple disabilities incurred as a prisoner of war.
It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.  (Authority: 38 U.S.C. 501(a))
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

 A Statement regarding Permanent and Total Disability (P & T) ratings
assigned to veterans by the Department of Veterans Affairs


Hello Jim:

I have a temporary rating. I need a permanent rating for the additional family benefits. How can I do that? 
My reply:

The 100% P & T designation is seen as important because of the additional dependents benefits of Chapter 35 educational benefits or the CHAMPVA health insurance. There are other benefits associated with a permanent rating; for example, a veteran must be rated as permanently disabled for an uninterrupted 10 year period for his spouse to be eligible for DIC should the vet die of anything that isn't rated as service connected.
P & T may be associated with either a 100% schedular rating or a 100% TDIU rating.

Whether or not a veteran receives a "permanent and total" (P & T) rating depends on a wide variety of factors. There are generally 2 classes of 100% ratings that aren't rated as P & T. Service connected cancer ratings are always rated as temporary 100% because it's assumed the veteran will get treatment and the cancer will go to remission or a cure. The other class of ratings that are always temporary are mental health related. VA assumes that with time and treatment, almost all mental health ratings will show measurable, sustained improvement.

Mental health 100% ratings may convert to P & T after the veterans 55th birthday. The 55th birthday is generally viewed as the point that a person can't effectively be retrained in any field that would allow him or her to reenter the workforce. This standard isn't unique to veterans or the VA, the SSA and other similar agencies use the 55 year old standard too.

We recommend that veterans do not try to appeal their temporary 100% rating to achieve a permanent rating. The first reason to avoid seeking an appeal is that VA will tell you there's nothing to appeal, you haven't been denied anything. Then you must consider that any time we ask VA to review anything in our file, they will review everything. During these reviews they look for areas of improvement in your rated conditions and will often seek to lower an existing benefit. Advocates have many horror stories of veterans who "appeal" or otherwise ask for P & T and end up with a 30% rating after VA opens the file.

As time passes and you attend those future exams, it becomes very difficult for VA to show sustained and measurable improvement. We agree that in broad terms, when 5 years passes between exams it becomes almost impossible to show sustained improvement.

Waiting it out also gets you closer to the 55 year old point and a better chance of a permanent rating after that.

While we understand that to not be rated as P & T may cause you to miss out on some dependents benefits, we believe the risks of seeking the permanent rating status outweighs any perceived potential benefits.
​​
Our recommendation is to wait it out and not seek a P & T status.

You should attend any and all future exams that VA schedules for you. Never miss or try to reschedule C & P exams. Be prepared for each C & P exam to show the examiner that there has been no change to the condition being examined.

Section B.  Determining Disability, Unemployability, and Marginal Employment

General Information on Determining Unemployability

Factors to Consider When Determining Unemployability

Determining Marginal Employment

Determining Unemployability or Marginal Employment of Farmers

Obtaining Evidence of Disability

Determining Permanent and Total Disability

Effective Dates for Disability Pension Awards

Requirements for Retroactive Payment of Disability Pension

How Do You Apply For Social Security Disability Benefits?
Information on social security disability benefits

Website Monitoring Tool

Training book used for VA

'How To Lie With Statistics'

INN TO THE FOREST

​Lodging & Camping in southern Illinois with access to the Shawnee National​

We offer lodging, camping,

​stabling, corral, pasture,

access to a hunting lease and

discounts for America's

military veterans!

Veteran Disability Claims 

Nexus and IMO Letters

Social Security Scammers Are Trying a New Trick
These criminals have added fake emailed documents to their repertoires -- often using the official SSA letterhead.

An IMO by an expert  often makes the difference!

How To File a VA Disability Appeal
You have the right to appeal any benefits decision made by the Veterans Benefits Administration. The VA appeals process is set in law and is different from other judicial appeals processes. Find out how to file an appeal.

Has VA medical care caused you an injury or other harm?

You can sue the VA for medical malpractice but it's a complex process and you'll want lawyers who have

done this successfully in the past. There are strict time limits and draconian regulations to follow. 

​Get some advice today...call now!

Download VA benefit letters
To receive some benefits, Veterans need a letter

proving their status. 

For Better Brain Health, Preserve Your Hearing
Hearing loss is the largest modifiable risk factor for developing dementia, exceeding that of smoking, high blood pressure, lack of exercise and social isolation.

Why Getting a Diagnosis Matters

​A diagnosis does so much more than get noted in your medical history. It also can help you apply for programs like Social Security Disability and medical marijuana cards. And maybe even more importantly, it can help you explain yourself to friends, colleagues and family.

Jim's Mailbag

Jim Strickland is a Vietnam era Army veteran and nationally recognized expert on VA disability benefits

and a member of the Stateside Legal Website Advisory BoardJim's Mailbag, is a regular column where veterans,

servicemembers, and family members can  ask Jim their questions about VA and Social Security disability benefits.  

You can browse all of these Q&As here, and search the Jim's Mailbag archives for helpful answers.

AT WAR
40 Stories From Women

About Life in the Military​   

"Not Many Women Get

to Do What I Do"

Military Sisterhood Initiative to go live February 18
A social platform to build peer

support community for women Veterans

VAWatchdog Dot Org

Misuse of Certain Nonopioid Analgesics on the Rise
Gabapentin, Baclofen May Be Seen

as Opioid Alternatives

VA Releases Survivors Quick Start Guide
Reference guide to help during final

arrangements planning

How to file a VA disability claim
Find out how to file a claim for disability compensation

or increased disability compensation.

Jim's Mailbag

VA launches online patient portal for veterans

The U.S. Department of Veterans Affairs

announced the launch of an online patient portal

this month that will provide service veterans

with digital access to their patient statements.

Dr. David Anaise

Physician - Surgeon - Veteran

Veterans Law Attorney

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Owe VA Money??? 

​​Submit A Waiver Request

Google Tracks You

and we don't.
​DuckDuckGo apps block

Google's hidden trackers.
​The world needs an alternative

Robert Wilkie  <robert.wilkie@va.gov>  ​855-948-2311

One More Reason You Need An Independent Medical Opinion

VETERANS BENEFITS ADMINISTRATION

Accuracy of Claims Decisions Involving Conditions of the Spine

How Divorce, Alimony, and Child Support

Affect Veterans' VA Benefits
VA benefits can be garnished only for spousal

or child support, and only under certain conditions.

Your 2020 Guide to Social Security Benefits
Whether you’re claiming Social Security in 2020, have been collecting benefits for years, or are still decades away, here’s what you need to know about this critically important retirement program.

Marijuana Accessories

Where should we retire?

We get $2,470 a month from Social Security

and want a warm, friendly city near the ocean.

Untreated Hearing Loss Linked

To Loneliness And Isolation For Seniors

Did you know that hearing loss and tinnitus are the

most commonly rated veterans disabilities? Did you

know that hearing loss and tinnitus can cause

other secondary conditions, particularly mental

health problems like depression and loneliness?

Chronic Pain Is an Impossible Problem
A “safe” alternative to opioid painkillers

turns out to be not so safe.

The NPRC
Military Records DD 214

Your Health

Urgent Care Centers

One of the most important benefits you have today is

the authorization to use an urgent care center

near to you. But first, you have to

print your paperwork

to take with you. Don't wait until you need this

benefit to prepare for it. Read this now,

print your papers and be prepared!

What You Should Know about Disability and Debt

There Are Protections...When it comes to debt collection, disability income enjoys special status.

Welcome to the KnowVA Knowledge Base

Locate information more quickly and efficiently

Traveling?

​How to ensure seamless care while traveling

Hello Jim...

Can you help me with....

​Family Medical Leave Act problems after husband's deployment

Vet being harassed at work

VA doctor malpractice

Child support arrears create hardship

68 year old veteran with cancer

When did the Vietnam era start

Radiation treatment for prostate cancer and now C& P exam

Diabetes claim secondary to OSA

Revisiting child support order

Gulf War veteran behavior found to be willful misconduct

​All these and many more answers to your questions can be found at 

Jim's Mailbag

Florida Veterans

Medical Marijuana Card
Tell the doctor you saw it on VAWatchdog

and ask about veterans discounts!​

Be a  VA  Volunteer.

I did that for years & it's

the best thing ever. Get 

into the belly of the beast.

VA  loves  volunteers!

Do You Need

Medical Care

RIGHT NOW?
​You are already authorized

to use an urgent

care clinic!

38 CFR Book C 

Schedule for Rating Disabilities