Information for injured persons and Social Security disability claimants in Texas and throughout the United States. By Robert A. Kraft
About My Blog
The purpose of this blog is to provide information to people who have been injured due to negligence, and to those who have filed for Social Security disability benefits, or who are considering filing for Social Security disability benefits.
Our Dallas, Texas personal injury and Social Security disability lawyers want to help. To find answers to your questions, please use the Google search box or the Categories list below. If you still don't find what you need, just send an e-mail to me at firstname.lastname@example.org and I'll get right back to you.
The Military Times reported the Supreme Court's 1950 Feres decision has prevented active-duty troops from suing for injuries due to malpractice in military medical facilities, but now "government lawyers in Florida are seeking to expand that restriction to include the spouses and children of service members." Jimmy German, an active-duty Navy mechanic, sued when the Jacksonville Naval Hospital failed to diagnose his wife's soon-to-be fatal cerebral hemorrhage, but the government is seeking dismissal, saying under the Feres doctrine, whether or not Navy doctors committed medical errors, "troops should not be allowed to sue for negligent care provided to their dependents." Although the government has settled many cases involving injured military family members, this new interpretation, according to George Washington University Law School professor Jonathan Turley "is a very clear effort to establish the rule that children and spouses are equally barred from tort recovery from negligence."
Similarly, The Atlantic reported that "federal lawyers in court are now quietly trying to expand the US government's legal immunity from exposure to medical malpractice claims" by military families. It notes that the same federal judge hearing the German case is scheduled to hear another medical malpractice case involving the Jacksonville naval hospital, over the death of the newborn son of a pair of active duty military personnel. There the government argues that the birth "was 'incident' to his parents' military service, thus subject to Feres immunity, and that the case must be dismissed long before trial." The plaintiffs' lawyer in both cases "suggested the new argument seeking to bar lawsuits linked to dependents may be an effort to reduce government spending."
From the American Association for Justice press release.
I've written several times about the state-wide ban on texting while driving that was passed this year by the Texas Legislature, but vetoed by Governor Rick Perry. Governor Perry apparently believed this law to be too great an intrusion into our private lives by the government. Personally, I wish the government would intrude into the lives of the drivers around me, and keep them from texting and drifting into my lane.
Among many recent stories regarding the dangers of texting and driving is one last week from the Associated Press. Here are excerpts:
For all the criticism and new legal bans, texting by drivers just keeps increasing, especially among younger motorists.
About half of American drivers between 21 and 24 say they've thumbed messages or emailed from the driver's seat. And what's more, many drivers don't think it's dangerous when they do it — only when others do.
A national survey, the first government study of its kind on distracted driving, and other data released Thursday by the National Highway Traffic Safety Administration underscore the difficulty authorities face in discouraging texting and cellphone talking while driving.
At any given moment last year on America's streets and highways, nearly one in every 100 car drivers was texting, emailing, surfing the Web or otherwise using a hand-held electronic device, the safety administration said. And those activities spiked 50 percent over the previous year, even as states rush to ban the practices.
Last month, Pennsylvania became the 35th state to forbid texting while driving.
In 2010 there were an estimated 3,092 deaths in crashes affected by a wide range of driver distractions, from eating meals to thumbing email, the safety administration said. That number was derived using a new methodology aimed at getting a more precise picture of distracted driving deaths and can't be compared to tallies from previous years, officials said.
The increase in texting while driving came even though many states have banned the practice, and that's alarming, said Jonathan Adkins, a spokesman for the Governors Highway Safety Association.
"It is clear that educational messages alone aren't going to change their behavior," Adkins said. "Rather, good laws with strong enforcement are what is needed. Many drivers won't stop texting until they fear getting a ticket."
Today is, of course, Veterans Day in the United States. Please take a few minutes to thank the veterans you know for their service to our country.
Here is the history of Veterans Day from the official Web site of the Department of Veterans Affairs:
History of Veterans Day
World War I – known at the time as “The Great War” - officially ended when the Treaty of Versailles was signed on June 28, 1919, in the Palace of Versailles outside the town of Versailles, France. However, fighting ceased seven months earlier when an armistice, or temporary cessation of hostilities, between the Allied nations and Germany went into effect on the eleventh hour of the eleventh day of the eleventh month. For that reason, November 11, 1918, is generally regarded as the end of “the war to end all wars.”
Soldiers of the 353rd Infantry near a church at Stenay, Meuse in France, wait for the end of hostilities. This photo was taken at 10:58 a.m., on November 11, 1918, two minutes before the armistice ending World War I went into effect
In November 1919, President Wilson proclaimed November 11 as the first commemoration of Armistice Day with the following words: "To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations…"
The original concept for the celebration was for a day observed with parades and public meetings and a brief suspension of business beginning at 11:00 a.m.
The United States Congress officially recognized the end of World War I when it passed a concurrent resolution on June 4, 1926, with these words:
Whereas the 11th of November 1918, marked the cessation of the most destructive, sanguinary, and far reaching war in human annals and the resumption by the people of the United States of peaceful relations with other nations, which we hope may never again be severed, and
Whereas it is fitting that the recurring anniversary of this date should be commemorated with thanksgiving and prayer and exercises designed to perpetuate peace through good will and mutual understanding between nations; and
Whereas the legislatures of twenty-seven of our States have already declared November 11 to be a legal holiday: Therefore be it Resolved by the Senate (the House of Representatives concurring), that the President of the United States is requested to issue a proclamation calling upon the officials to display the flag of the United States on all Government buildings on November 11 and inviting the people of the United States to observe the day in schools and churches, or other suitable places, with appropriate ceremonies of friendly relations with all other peoples.
An Act (52 Stat. 351; 5 U. S. Code, Sec. 87a) approved May 13, 1938, made the 11th of November in each year a legal holiday—a day to be dedicated to the cause of world peace and to be thereafter celebrated and known as "Armistice Day." Armistice Day was primarily a day set aside to honor veterans of World War I, but in 1954, after World War II had required the greatest mobilization of soldiers, sailors, Marines and airmen in the Nation’s history; after American forces had fought aggression in Korea, the 83rd Congress, at the urging of the veterans service organizations, amended the Act of 1938 by striking out the word "Armistice" and inserting in its place the word "Veterans." With the approval of this legislation (Public Law 380) on June 1, 1954, November 11th became a day to honor American veterans of all wars.
Later that same year, on October 8th, President Dwight D. Eisenhower issued the first "Veterans Day Proclamation" which stated: "In order to insure proper and widespread observance of this anniversary, all veterans, all veterans' organizations, and the entire citizenry will wish to join hands in the common purpose. Toward this end, I am designating the Administrator of Veterans' Affairs as Chairman of a Veterans Day National Committee, which shall include such other persons as the Chairman may select, and which will coordinate at the national level necessary planning for the observance. I am also requesting the heads of all departments and agencies of the Executive branch of the Government to assist the National Committee in every way possible."
President Eisenhower signing HR7786, changing Armistice Day to Veterans Day. From left: Alvin J. King, Wayne Richards, Arthur J. Connell, John T. Nation, Edward Rees, Richard L. Trombla, Howard W. Watts.
On that same day, President Eisenhower sent a letter to the Honorable Harvey V. Higley, Administrator of Veterans' Affairs (VA), designating him as Chairman of the Veterans Day National Committee.
In 1958, the White House advised VA's General Counsel that the 1954 designation of the VA Administrator as Chairman of the Veterans Day National Committee applied to all subsequent VA Administrators. Since March 1989 when VA was elevated to a cabinet level department, the Secretary of Veterans Affairs has served as the committee's chairman.
The Uniform Holiday Bill (Public Law 90-363 (82 Stat. 250)) was signed on June 28, 1968, and was intended to ensure three-day weekends for Federal employees by celebrating four national holidays on Mondays: Washington's Birthday, Memorial Day, Veterans Day, and Columbus Day. It was thought that these extended weekends would encourage travel, recreational and cultural activities and stimulate greater industrial and commercial production. Many states did not agree with this decision and continued to celebrate the holidays on their original dates.
The first Veterans Day under the new law was observed with much confusion on October 25, 1971. It was quite apparent that the commemoration of this day was a matter of historic and patriotic significance to a great number of our citizens, and so on September 20th, 1975, President Gerald R. Ford signed Public Law 94-97 (89 Stat. 479), which returned the annual observance of Veterans Day to its original date of November 11, beginning in 1978. This action supported the desires of the overwhelming majority of state legislatures, all major veterans service organizations and the American people.
Veterans Day continues to be observed on November 11, regardless of what day of the week on which it falls. The restoration of the observance of Veterans Day to November 11 not only preserves the historical significance of the date, but helps focus attention on the important purpose of Veterans Day: A celebration to honor America's veterans for their patriotism, love of country, and willingness to serve and sacrifice for the common good.
Since 1950, U.S. veterans have been unable to make claims for medical malpractice committed in military hospitals. This seemingly unfair rule was decided in a U.S. Supreme Court case referred to by the Plaintiff's name, Feres.It is now called the Feres Doctrine.
Many lawyers who represent vets thought there was a chance this 60-year-old rule might have been overturned by the current Supreme Court in a lawsuit brought by a plaintiff named Witt. Unfortunately, Last week the Supreme Court declined to hear the case, and issued no comment on their reasoning.
The case concerned a 25-year-old Air Force staff sergeant, Dean Patrick Witt, who died after a nurse put a tube down the wrong part of his throat during a routine appendectomy.
Now New York Congressman Maurice Hinchey, has said he will file a bill to try to overturn the Feres Doctrine. The effort to change the law has gotten wide support from military officers and veterans groups.
If the law is changed, it could expose the federal government to billions of dollars in liability claims. That makes it highly unlikely a divided Congress desperate to cut expenses will act on its own to change it.
Hinchey argued that the cost would be less than estimated because the law would result in a better level of care in military hospitals and fewer negligence claims. He said federal prisoners have more rights than service members and their families when it comes to seeking damages for medical malpractice.
This was a foregone conclusion, but there will be no increase in veterans pension or compensation benefits for 2011. I wrote previously about no increase in Social Security disability or retirement benefits, and because veterans benefits are based on the same government standard, we knew there would be no increase for those benefits.
However, the official announcement did not come from the VA until today. The press release follows:
Update on Cost-of-Living Adjustment for Veterans Compensation and Pension Benefits in 2011
COLA Tied to Social Security and Consumer Price Index
WASHINGTON – The Social Security Administration has announced that no cost-of-living adjustments will be made to Social Security benefits in 2011 because the consumer price index has not risen since 2008 when the last Social Security increase occurred.
Like recipients of Social Security and other federal benefits, Veterans, their families and survivors will also not see a cost-of-living adjustment in 2011 to their compensation and pension benefits from the Department of Veterans Affairs (VA).
Under federal law, the cost-of-living adjustments to VA’s compensation and pension rates are the same percentage as for Social Security benefits.
VA provides compensation and pension benefits to about four million Veterans and beneficiaries. For more information about VA benefits, go to www.va.gov or call 1-800-827-1000.
Today is Veterans Day, when we celebrate and honor those brave Americans who have served our country and placed themselves in harm's way to protect our freedom. Of course we should do this every day, not just once each year.
Our law firm tries to show our appreciation for veterans by helping them, and their spouses, get all the VA benefits they are entitled to receive. One benefit that is almost a "secret" because it is discussed so seldom is the Aid & Attendance pension benefit.
Unfortunately, many of America’s veterans will eventually require long-term care. While Medicaid will help pay for nursing home stays, it usually will not pay for assisted living. Thus, veterans who would prefer assisted living or home care often end up in a nursing home instead. In addition, they risk losing all their savings and assets. Fortunately, another option is available. Veterans Beneﬁts can be used to cover the costs of assisted living and home care, without sacriﬁcing the assets you have worked so hard to earn and preserve. You owe it to yourself and your loved ones to get the beneﬁts you have earned and rightly deserve.
The Aid and Attendance Program
This program is available to veterans who need assistance with basic daily activities such as bathing, dressing, and eating. The beneﬁts can be paid to someone outside the home, (which may include family members) or to the veteran’s spouse, or most importantly, to an assisted living facility. However, if the beneﬁts are paid to the spouse, the funds are considered income when determining eligibility for the program. Veterans may use these funds in any manner they wish, including to care for a spouse. The top benefit rate is now almost $2,000 per month. This amount changes each year.
Who is considered to be a veteran for Aid & Attendance purposes?
Anyone who served in the active military, naval, or air services (including the Coast Guard and U.S. Merchant Marines) is considered a veteran. To be eligible for Veterans Aid & Attendance benefits, you must have 90 days of active military service with at least one day of service during a war time period (but with no requirement to have actually been in battle) and either suffer from a permanent and total disability or be 65 or older. Your income and net worth must fall within certain limits as well. The most recent official periods of war include World Wars I and II, the Korean conflict, the Vietnam era, and the Persian Gulf War. Call us to find out if your service was during an official time of war.
For a veteran or the veteran’s widow to qualify, the household cannot have more than the allowable countable assets. This figure varies depending on the specific situation, but our law firm can advise you about ways to become financially qualified. The household income cannot be more than the Aid & Attendance pension benefit amount.
Other benefits available through the VA
Veterans and their families may be eligible for a number of benefits, including:
• Dependency and Indemnity Compensation
• Disability Compensation
• Employment & Training
• Parents’ Dependency and Indemnity Compensation
• Special Monthly Compensation
• Survivor Benefits
• Veterans Health Care
• Veterans Life Insurance
• Burial and Memorial
• Death Pension
We are here to serve you.
At Kraft & Associates, we are committed to helping veterans get all the beneﬁts they are entitled to, and making the qualiﬁcation or appeal process as stress-free as possible. We believe Veterans Beneﬁts are an important and, sadly, under-utilized tool to help America’s heroes care for themselves and the people they love. Therefore, we stay abreast of the constantly changing laws surrounding eligibility to be sure our clients have the information they need to obtain the beneﬁts they deserve. We invite you to contact our ﬁrm with any questions, and we pledge to treat you with the respect and personal service you deserve.
CBS Evening News (9/14, story 4, 3:00, Couric) said "earlier this summer," revelations that Prudential, the "country's second-largest life insurer," was "profiting from the death benefits of fallen soldiers was news to almost everyone." Now, however, a "major development" in the story "points out that this was not the case at the US Department of Veterans Affairs," which in "September of last year," amended "its contract with Prudential, ratifying what had been a ten-year-long verbal agreement to allow the insurance company to retain lump-sum death benefits of soldiers and deposit that money into its own account." On Tuesday, VA "announced a list of reforms to its group life insurance programs, vowing to 'provide better clarity of payment options' to the families of fallen soldiers."
Bloomberg Rewind (9/14, 6:16 p.m. ET) reported, "Bloomberg Markets magazine has learned of a secret deal" in 1999 between Prudential and VA. At that time, VA's "insurance director e-mailed another VA official, saying the 'plan could backfire' and asking, 'Who is responsible' if the benefit account set up by Prudential without backing from the Federal Deposit Insurance Corporation 'goes belly up?'" After noting that VA, "New York State, Georgia, and a House committee" have launched separate investigations of Prudential and the survivors' accounts, Bloomberg added, "Prudential...says it is in compliance with its contract with Veterans Affairs." Other Bloomberg TV programs aired similar reports earlier in the day.
VA announces life insurance policy reforms. Bloomberg (9/15, Plungis, Evans) also notes that on Tuesday, VA "said Prudential...will now send beneficiaries of VA life-insurance policies a check when they ask for a lump-sum benefit payment rather than keeping the money and mailing a checkbook. The veterans agency will continue to offer a money-market type account that lets the insurer withhold payments of benefits for survivors of fallen service members, while making clear the funds aren't insured by the Federal Deposit Insurance Corp. and the accounts aren't endorsed by the government, the VA said...in a statement on its website." While the "nonprofit advocacy group," Veterans for Common Sense, "called the government's action a positive first step," Paul Sullivan, the group's executive director, who said VA "reforms need to go further" so that, among others things, "Prudential repays families" who lost out on interest-earning opportunities while Prudential held their money.
From the American Association for Justice news release.
The Associated Press reports that diabetes is now the most common illness or injury among Vietnam veterans drawing compensation benefits. The reason is a link between Agent Orange and diabetes, even though that link is a bit questionable. In fact, side effects of Agent Orange account for a very large percentage of all disability benefits paid by the Department of Veterans Affairs. The list of illnesses tied to Agent Orange have continued to grow ever since the government finally broke down and admitted that the defoliant was indeed toxic to humans. Here are excerpts from the AP article:
By his own reckoning, a Navy electrician spent just eight hours in Vietnam, during a layover on his flight back to the U.S. in 1966. He bought some cigarettes and snapped a few photos.
The jaunt didn't make for much of a war story, and there is no record it ever happened. But the man successfully argued that he may have been exposed to Agent Orange during his stopover and that it might have caused his diabetes — even though decades of research into the defoliant have failed to find more than a possibility that it causes the disease.
Because of worries about Agent Orange, about 270,000 Vietnam veterans — more than one-quarter of the 1 million receiving disability checks — are getting compensation for diabetes, according to Department of Veterans Affairs records obtained by The Associated Press through the Freedom of Information Act.
More Vietnam veterans are being compensated for diabetes than for any other malady, including post-traumatic stress disorder, hearing loss or general wounds.
Agent Orange was a dioxin-laden defoliant that was sprayed over jungles to strip the Viet Cong of cover. American forces often got a soaking, too, and Agent Orange was later conclusively linked to several horrific health ailments, including cancers. So Congress and the VA set up a system to automatically award benefits to veterans who needed only to prove that they were in Vietnam at any time during a 13-year period and later got one of the illnesses connected to Agent Orange.
The VA, interpreting that 1991 law and studies that indicated potential associations, has over time added ailments that have no strong scientific link to Agent Orange. The nonprofit Institute of Medicine's biennial scientific analysis of available research, to which the VA looks for guidance, has repeatedly found only the possibility of a link between Agent Orange and diabetes, and that even a chance of a correlation is outweighed by factors such as family history, physical inactivity and obesity.
Disability benefits are a lot like workers' compensation, providing income to veterans who incurred ailments from their active-duty service. The benefits can last a lifetime even if the veteran holds a full-time job. They often transfer to surviving family members when a veteran dies of the disability. They are paid in addition to any medical, education and pension coverage that veterans receive.
Many veterans have a combination of ailments that are crunched in a formula to determine their benefits. This makes it difficult to determine how much is being spent solely on diabetes.
Most veterans get a 20 percent disability rating for diabetes, which amounts to about $3,000 per year if it is their only ailment. Others get up to 100 percent. If each of the 270,000 Vietnam veterans got the minimum compensation for their diabetes, it would add up to $850 million every year.
Congress gave the VA the ability to deem ailments "presumptive" — automatically awarded — because of exposure to Agent Orange. The VA did that for five illnesses for which the Institute of Medicine found "sufficient evidence of an association," such as leukemia, non-Hodgkin's lymphoma and soft-tissue cancers. Those illnesses have risen dramatically in both Vietnam and the U.S. since the war.