Posted on Jan 18, 2024
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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?
Posted in these groups: 
Veterans Affairs (VA)
Disability
Veterans Affairs (VA) Disability
Posted 4 mo ago
Responses: 7
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
● 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.
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PO2 Robert Frederick
I have a similar situation except it was a knee replacement done on Community Care. I know it is not Service related, however, is the process the same when it comes to malpractice? The VA is reconstructing the whole knee.
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COL Randall C.
PO2 Robert Frederick - You'll have a consult a lawyer regarding that, but malpractice from a Community Care doctor is likely handled through standard malpractice laws.
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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.
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