To file a VA tort claim, you submit Standard Form 95 in writing to the VA’s Office of General Counsel within two years of discovering your injury, wait up to six months for the VA to investigate, and then either accept the agency’s decision or sue in U.S. District Court within six months of a written denial. The claim proceeds under the Federal Tort Claims Act, which partially waives the government’s sovereign immunity and lets injured people seek money damages when a VA employee causes harm while doing their job.
The Two-Year Filing Deadline
Federal law permanently bars any VA tort claim not presented in writing to the VA within two years after the claim accrues. For most injuries, accrual means the date the harm happened. For medical malpractice, it means the date you actually discovered, or reasonably should have discovered, both the injury and its cause. The Supreme Court held in United States v. Kubrick that once you know you were hurt and who hurt you, the clock starts running even if you have not yet figured out that the care was negligent.
Once those two years pass, the claim is gone. There are no exceptions for good intentions or ignorance of the deadline. Note that this window applies to the administrative claim with the VA, not to filing a lawsuit. The lawsuit deadline is a separate six-month window that opens only after the VA denies the claim, and missing either deadline ends the case.
Who Can File
Any person injured by a negligent or wrongful act of a VA employee acting within the scope of their job can file. That includes veterans receiving treatment at VA facilities, visitors injured on VA property, and civilians harmed by VA employees during official duties. Legal representatives can file on behalf of minors or incapacitated adults, and in wrongful death cases the executor of the estate or a surviving family member may file.
The person who caused the harm must be a federal employee, not an independent contractor. Federal law specifically excludes contractors from the definition of “federal agency.” Courts look at whether the government controlled the day-to-day details of the worker’s performance. If the VA merely hired a company to provide services and that company directed its own staff, those workers are likely contractors, and the FTCA does not apply.
The injury must have occurred within the United States or its territories. Any claim arising in a foreign country falls outside FTCA coverage, so injuries at overseas facilities are not eligible.
Situations the FTCA Will Not Cover
Several statutory exceptions can block a claim even when a VA employee clearly caused harm. Knowing these before filing saves months of wasted effort.
Active-Duty Injuries: The Feres Doctrine
Active-duty service members generally cannot file FTCA claims for injuries “incident to service.” The Supreme Court established this rule in Feres v. United States in 1950, and courts have broadly interpreted it to cover medical care provided to active-duty personnel at military facilities. Congress has created narrow openings, including the Camp Lejeune Justice Act in 2022 for water contamination exposure, and a separate Department of Defense process for active-duty medical malpractice claims. Veterans no longer on active duty are not affected by Feres and can file FTCA claims for negligent VA care.
Policy-Level Decisions: The Discretionary Function Exception
The government is not liable for claims based on a federal employee’s exercise of a discretionary function, even if the employee abused that discretion. Policy-level decisions like allocating hospital resources or choosing treatment protocols are shielded. A surgeon botching a procedure is not exercising discretion, but a VA administrator deciding which medical equipment to purchase likely is. This is the exception the government invokes most often to defeat tort claims.
Intentional Torts
The FTCA excludes most intentional wrongdoing, including assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contract rights. A limited exception exists for certain intentional torts committed by federal law enforcement officers, but that exception rarely applies in the VA context.
Completing Standard Form 95
The administrative claim starts with Standard Form 95, the official form for reporting damage, injury, or death caused by a government employee. Using the SF-95 is not strictly mandatory as long as your written submission includes a detailed description of what happened, a specific dollar amount claimed, and your signature or your attorney’s. Even so, the SF-95 is the standard format, and using it reduces the chance of an avoidable rejection.
The most important entry on the form is the “sum certain” in Block 12d. This must be an actual dollar figure representing the total compensation you seek. Vague entries like “to be determined” or a question mark will prevent your submission from being treated as a valid claim at all. Your later lawsuit cannot seek more than this amount unless you uncover genuinely new evidence that was not reasonably discoverable when you filed. Underestimating here can cap your recovery permanently.
Build the sum certain from concrete categories:
- Past and anticipated future medical costs, based on amounts providers actually accept as full payment (adjusted for inflation) rather than inflated billed rates
- Lost wages and diminished future earning capacity, documented with payroll records or tax returns
- Property damage supported by professional appraisals
- Pain and suffering
Block 8 asks for a narrative description of the incident. Blocks 9 and 10 ask for specifics about the property damaged or injuries sustained. Attach supporting records including medical documentation from private providers, witness statements, and appraisals. One caution from the VA: do not send VA medical records with the claim, because the Office of General Counsel already has internal access to them.
Where to Send the Claim
The completed SF-95 goes to the VA’s Office of General Counsel. The correct mailing address depends on the state where the incident occurred.
- Waco, TX office (AL, AR, AZ, CO, FL, GA, KY, LA, MS, MT, NC, OK, TN, TX, UT, WY): Office of General Counsel (02), 4800 Memorial Dr., Bldg. 92, Waco, TX 76711
- Washington, DC office (CT, DC, DE, MA, MD, ME, NH, NJ, NY, RI, SC, VA, VT, WV): Office of General Counsel (021), Torts Law Group, 810 Vermont Ave. NW, Washington, DC 20420
- Minneapolis, MN office (AK, CA, HI, IA, ID, IL, IN, MI, MN, MO, ND, NM, NV, OH, OR, PA, PR, SD, WA, WI): Office of General Counsel (02), One Veterans Dr., Bldg. 73, Minneapolis, MN 55417
You can also email the completed form and supporting documents to ogc.torts@va.gov or fax them to (202) 495-5076. If mailing a hard copy, use certified mail with return receipt requested. That receipt establishes the exact date the VA received your claim, which controls every deadline that follows.
The Six-Month VA Review
After receiving your claim, the VA has six months to investigate and respond. The agency reviews the allegations, examines the employee’s conduct, and decides whether the claim has merit. You cannot file a lawsuit in federal court until either the VA issues a written denial or the six-month period expires without a response.
If the VA offers a settlement during this window, think carefully before accepting. Any FTCA settlement is final and releases all claims against the United States arising from that incident. You cannot accept a settlement and later sue for more. If the offer feels low, you can reject it and proceed to court. If the VA stays silent for six months, you can treat that silence as a denial and file suit whenever you choose after the six-month mark.
Filing Suit After a Denial
A denial must arrive by certified or registered mail. From the mailing date of that denial, you have exactly six months to file a lawsuit in U.S. District Court. This deadline is absolute.
FTCA cases in federal court are bench trials, meaning a judge decides the outcome. Federal law prohibits jury trials in tort actions against the United States under this statute. The case follows the Federal Rules of Civil Procedure, so expect formal discovery including depositions, document requests, and interrogatories. Most claimants benefit from attorney representation at this stage.
Damages are determined by the law of the state where the injury occurred. The government is liable to the same extent as a private person under similar circumstances, with two significant limits: no punitive damages and no prejudgment interest. You can recover compensatory damages including medical expenses, lost earnings, and pain and suffering.
Attorney Fee Caps
Federal law caps what attorneys can charge on FTCA cases, and the limits sit below typical personal injury contingency fees. Fees cannot exceed 20% of an administrative settlement or 25% of a judgment or settlement obtained through litigation. An attorney who charges more commits a federal crime punishable by a fine up to $2,000, up to one year in prison, or both. The caps protect claimants from losing the bulk of their recovery to legal fees, though they also mean some attorneys hesitate to take smaller FTCA cases where the potential recovery may not justify the work.
Section 1151: An Alternative for VA Medical Injuries
Veterans injured by VA medical care have a second option that does not involve the FTCA. Under 38 U.S.C. § 1151, the VA awards disability compensation when a veteran suffers additional disability caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause was either negligence on the VA’s part or an unforeseeable event. Compensation is paid at the same rates as service-connected disability, meaning monthly payments rather than a lump sum.
Section 1151 claims carry a lower burden of proof and do not require a lawsuit, so they are generally easier to win. FTCA claims can yield a lump-sum payment covering medical expenses, lost wages, and pain and suffering, and the award becomes part of your estate. You can pursue both at once, but you cannot collect double. If you win an FTCA settlement and also receive Section 1151 disability benefits for the same injury, the VA will withhold your monthly disability payments until the settlement amount is fully offset.
The practical trade-off is speed versus total compensation. Section 1151 benefits can start relatively quickly and provide ongoing monthly income. An FTCA claim takes longer and carries more risk, but a successful one can produce a substantially larger total recovery, particularly in cases involving severe injury or significant lost earning capacity.