Can I make a claim for disability associated to a VA surgical botch after I left the service?

LCDR Greg Lotz — Thu, 18 Jan 2024 12:41:18 -0500

I'm familiar with the lengthy process through a VSO, they were very helpful when I was attaining my current 50% disability for another issue. The VA significantly damaged my body during a botched attempted colonoscopy and the pain and other symptoms I am experiencing continue to worsen over time. Before I embark on another VSO adventure, is it likely this will be considered? Or since it is after service, although caused by VA, will it not be covered. Is there some other avenue I should explore?

Response by CSM Darieus ZaGara made Jan 18 at 2024 12:48 PM

CSM Darieus ZaGara — Thu, 18 Jan 2024 12:48:33 -0500

It will be considered provided you have the documentation to back up the claim. A colonoscopy is not a surgical procedure.

If you had the procedure at the VA you should be able to garner the required data.

If the VA does not release nor agree with you claim, then you should seek legal counsel through one of the Veterans associations. DAV likely the best advisory avenue, the others good as well.

Good luck and tell us how it goes.

Response by A1C Phillip Franklin made Jan 18 at 2024 1:05 PM

A1C Phillip Franklin — Thu, 18 Jan 2024 13:05:55 -0500

Was the procedure related to the service connected disability, or not? If not, then I would say if the VA botched the attempted colonoscopy then you may have a medical malpractice claim, which would fall under the Federal Tort Claims act, and you have two years from the injury was known or should have been known. But to bring up such an action you would have to show negligence in the standard of care was grossly deviated from.

Response by SSG Laurie Mullen made Jan 18 at 2024 2:49 PM

SSG Laurie Mullen — Thu, 18 Jan 2024 14:49:32 -0500

I'm afraid to ask how you botch a colonoscopy, but I guess it is the VA.

Response by COL Randall C. made Jan 18 at 2024 2:49 PM

COL Randall C. — Thu, 18 Jan 2024 14:49:53 -0500

Taking it a piece at a time:
● Will it be covered as a service-connected injury (i.e., added to your rating)? No. But if you suffered an added disability while you were getting VA medical care, then you can file for a "1151 claim"*. A VSO may be knowledgeable in filing these, but if you are going to submit a FTCA claim (see below), then you should have your lawyer handle both of them because a 1151 claim could limit the scope of damages in a FTCA claim and you will need to ensure they are in synch.
● Regardless if the colonoscopy was related to a service-connected condition (since you are 50%+ on a disability rating, you're entitled to complete medical care from the VA), if there were errors committed during your colonoscopy that injured you or led to an injury, then you might have a malpractice claim*.
● Malpractice claims against the VA are handled under the Federal Tort Claims Act (FTCA)*. Military.com has a good write-up by a FTCA lawyer laying out the procedures you must follow on the administrative side to ensure you meet the timeline requirements (you MUST file a FTCA claim within two years of the incident, but must file an administrative claim with the VA first).
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* https://www.va.gov/disability/eligibility/special-claims/1151-claims-title-38/
* https://www.military.com/benefits/military-legal/what-you-need-know-about-winning-va-medical-malpractice-claim.html

VA Title 38 U.S.C. 1151 claims | Veterans Affairs

If you suffered an added disability, or your existing disability got worse, while you were getting VA medical care or taking part in a VA employment program, you may be able to get compensation. Keep reading to find out if you may be eligible.

Response by PO3 David Blank made Jan 31 at 2024 8:07 PM

PO3 David Blank — Wed, 31 Jan 2024 20:07:27 -0500

Keep every occurrence logged, and submit via Myhealthevet to your primary care provider. get with a good VSO (DAV,VFW, etc)- you can file an 1151 claim (in a nutshell: suing the VA for malpractice). An 1151 claim is the only way to do this and receive benefits to increase your disability rating.

Believe me, I went thru months of immersion into VA claim types and dealt with filing one. If you are having mental health issues, be sure they get well documented and logged by your mental heath provider and/or counselor so it is easily accessible to The Benefit VA claim dept to review.

Response by Vickie Peters made Feb 1 at 2024 5:01 PM

Vickie Peters — Thu, 01 Feb 2024 17:01:22 -0500

You should file a claim with VA under 38 USC 1151. Any accredited service organization can assist with this. If you go the tort claim route, any money you would receive would be withheld from any VA benefits for the same disability. If you get the disability established under 38 USC 1151, the evaluation would be assessed as though it were incurred in service. Also, any worsening of the condition would also be subject to increased evaluations with VA (not so with a tort claim). Strongly encourage you to seek assistance from a VSO since it would not cost you anything. With a tort claim, you would have attorney fees.

Response by 1SG John Millan made Feb 3 at 2024 7:13 AM

1SG John Millan — Sat, 03 Feb 2024 07:13:30 -0500

Yes, a condition that occurred on or was worsened by military service or by VA care. See a VA disability attorney. Jack Gateley in Virginia Beach is a medically retired USCG JAG. Hee is the veteran and troop disability silver bullet. John B. Gateley.