Valid Complaint?

[pwrslm]

Hi Im new here. Thanks for having me.

I was set up with the VAMC Apr 14. First time since I left the Army in 84 that I had any real heal care. Back problem from service still is an issue, first time out, brought to the attention of my PCP. She gave me a tube of "stuff" to rub on my back, and that's all. Fast forward, 6 months, notified her on that next visit that the back problem is still there. She didn't say anything, no physical contact, no exam nada. Next thing I know, appointment for Phys Therapy comes in the mail so off I go.

PT gives me the going over, tells me that hyperextension of my back will help me. OK, Im game. First trip back, a week later, I have tingling down my left leg. I tell PT, who instructs me to go farther back, extend all the way back like a push up, but keep my pelvis on the ground. I trusted the PT knew what was going on, so I did. Next trip another week after, twitching in my leg and foot started, reported to PT. PT said keep hyperextension exercises up, and put a rolled up towel behind my low back when I sleep, and a pillow under my knees.

Next visit, I found out my PCP left town. The PT fed me a line, asked me if its good as its gonna get, I said aye, it is. Discharged me, with my tingling leg and twitching foot. Told me keep doing this exercise for the rest of your life. I said ok, but really felt like I was dumped.

Fast forward, the symptoms in my left leg got worse over the next month, foot drop, weakness, new pain central back, so I stopped the hyperextension, see if it would heal. But it got worse, 60 days later, Im a walk in at the clinic. They sent me to xray, and got me an MRI. I also got a prosthesis for foot drop. Turns out Ive had advanced arthritis in my facet joints for a while. The hyperextension jammed them, now I have 3 discs herniated and stenosis. Not sure how far the disc problem was all along, but nothing in the world outside of a crystal ball could tell anyone. Needless to say, it was probably an existing condition.

The question; Does this classify as a valid aggravation of the existing condition, and exactly how should VA personnel handle this issue once they become aware that I may have been harmed by treatment.

The 3 Surgeons Ive talked to all say I need surgery, L3 to S1 decompression and fusion.

Edited July 10, 2015 by pwrslm

[Berta]

A vet can certainly file, under Section 1151 for "aggravation of a NSC condition.

We have considerable info here in our FTCA/ 1151 section.

These claims need a strong medical opinion that enough negligence was caused by VA to cause the additional disabilituy. And the additional disability must be ratable at least at 10% to be worth pursuing this type of claim.

In your situation, do you have any documented medical records or MRIs, X rays, etc at all, regarding you back problem , prior to getting VA medical treatment?

"The question; Does this classify as a valid aggravation of the existing condition,"
Yes, if you can prove ,by medical evidence that VA made the back problem worse.

" and exactly how should VA personnel handle this issue once they become aware that I may have been harmed by treatment."

The VA seems to be giving you the proper testing now and 3 surgeons have agreed that you need surgery, and that will possibly fix this problem."

" I was set up with the Orlando VAMC Apr 14. First time since I left the Army in 84 that I had any real heal care. Back problem from service still is an issue,"

That is a long time to go without medical attention and .without any significant medical documentation for over 20 years, this will be a difficult 1151 issue to prove.

Did you ever file for direct service connection? You could file a direct SC claim as well as 1151 .

Do you have any proof that this original problem. resulted from your service, by your service medical records.

My neighbor filed for a back problem about 15 years after his military discharge.His VA job had 'aggravated' the condition.

He was put on FERS and also received SSDI solely for the back injury.

He was granted service connection for the back injury in service, which was clearly documented in his SMRs.

And also within his VA pre employment physical

I dont know what other med treatment he had.

I hope you have a copy or will get copies of your SMRs.

[pwrslm]

I have a VA Claim in for SC on my back now. 4 events in SMR, to include an ambulance ride to Rein Main AFB.

My PCP did not give me any exam prior to the PT, even though she stated that she did, and none is recorded in my VA bluebutton report from MyEvet. Informed consent is also an issue, nothing ever was disclosed about potential harm in PT, or any alternate treatment options, and there is nothing in my medical record that even mentions anything close to informed consent.

The only actual documentation I have is the condition I was in prior to PT, when the therapist examined my ROM and the degree of my existing back problem. There is nothing recorded about gait problems, sciatica, leg weakness, only moderate ROM and pain when I bend to the right.

After PT, my diagnoses included everything. The first time I was actually given a clinical examination for my back problem by a Dr. was 2 months after PT when I walked into the VA Clinic for help.

One of the surgeons were VA paid. The second was my own, and also provided me with a solid IMO/IME for my SC Claim that's already submitted. He also told me point blank that the exercise they gave me was contraindicated for my condition.. I am working with the 3rd surgeon now, he is a VA Doc. The extent of my back problem has not been determined, we are doing EMG/NCV testing now. Its been 4 months since they began treating me.

I think now, if my SC goes through, the 1151 would be duplicative of the issue. Only 1 rating will be allowed for my thoracolumbar spine.

Thanks for your reply!

Edited July 11, 2015 by pwrslm

[Berta]

Not necessarily duplication at all.....

VA tried to get me to buy that logic years ago. It did not work.

Near the end of this part of M21-1MR is the answer to your question, under 4 (e):

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CCYQFjAB&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch02%2FM21-1IV_ii_2_SecG.docx&ei=RDOhVbaeKMaze-avu-gE&usg=AFQjCNGZYYPMXlJu2xaWEcn1n9HQ6g0bmg&bvm=bv.97653015,d.dmo

e. Combining the Disability Ratings of Qualifying 1151 Disabilities and SC Disabilities Combine the disability rating(s) assigned to disabilities for which compensation is payable under 38 U.S.C. 1151 with the disability ratings assigned to SC disabilities, as if the former were SC.

If two or more disabilities (at least one being a qualifying disability under 38 U.S.C. 1151) are rated zero percent disabling but interfere with the Veteran’s employability, the assignment of a 10 percent disability rating under 38 CFR 3.324 is acceptable.

Note: 38 U.S.C. 1151 disabilities may serve as the basis of an individual unemployability (IU) award.

I have no example as to how that works, from any BVA or CAVC case, except my own claims,

i|if the SC is 100% and the 1151
is additional 100%, in my case, they had to pay both 100% SC as accrued and then the 1151 100% additionally as accrued.

I used this part of M21-1MR for that claim:

Under # 13

"Change Date March 20, 2011

a. Principles for Determining the Offset Amount Under 38 U.S.C. 1151 The amount of offset must not deprive a Veteran of any part of the compensation payable to him/her if a claim under 38 U.S.C. 1151 had not been filed.

Do not offset any amount if the disability compensable under 38 U.S.C. 1151 does not increase the total amount of compensation.

The offset provisions are applicable if compensation for a particular disability is payable solely under 38 U.S.C. 1151. If compensation is otherwise payable for that particular disability, regardless of previous evaluation, then no offset is required.

Reference: For an example of a situation in which an offset is not required, see M21-1MR, Part IV, Subpart ii, 3.D.13.g. "

The link is in the above link to my hadit post.

[Berta]

forgot to add. An FTCA offset is negotiated during a FTCA settlement.

Practically everyone gets a total offset. I negotiated a partial offset.

The VA links above are using the word 'offset' regarding SC comp and 1151 comp.

When I won DIC under direct SC it trumped the 1151 /FTCA award. VA tried to say it would be a prohibition of duplication of benefits if they paid me by then almost 20 years of DIC and had already withheld too much DIC anyhow, in a CUE the Regional Counsel found, due to my attempts to get this straightened out.

Basically if the VA Regional or General Counsel has determined an offset amount for a FTCA settlement., once that amount is recouped by VA from the 1151 award, they then have to pay comp disregarding the offset.

But I think you are asking specifically for 1151 info, and not FTCA info.

I used the actual Prohibition of duplication regulations as well as a General Counsel Opinion to get some of my 1151 matters straightened out.

Unfortunately the General counsel had to step in and straighten them out as well, because they refused to read my legal evidence for the offset matters (I had one of each type of offset above)

If you have a SC for something that they also buggered up under 1151, there is no duplication of benefits...they might try to make you believe that however.

My former vet reps didnt have a clue on this stuff.

The internet ( 38 CFR and M21) is often our best avenue of defense.

Edited July 11, 2015 by Berta

[pwrslm]

Ok, that's a great tip. (thank you!)

1151 claims are not pyramiding over SC then?

I have not thought the FTCA would be much of a case though, the aggravation of an existing injury like mine, it would be hard to show that the condition would not have progressed on its own. The PT just pushed me over the edge of a cliff I was already standing perilously upon. Had they prescribed the correct exercise, this would never have happened this year, that's for sure. The proper exercise could have put it of 5 or 10 more years, if not indefinitely.

I've got so many handbooks and guides on this and on SC on my hard drive its just amazing that they don't follow the rules. Simple search for topical information gets me directly where I need to go in all the regulation normally, takes about 20 seconds. I was in Admin in the US Army for 5 years, and had the regulations almost memorized and we didn't have computers then. When these folks do nothing but VA Claims, there is no excuse for mistakes like I read about here and other forums for Vets.

[pwrslm]

After reading 4e, on combining 1151 ratings with SC, I see it says "as if the former(1151) were SC".

For the purpose of pyramiding, if a SC rating is for back problem with sciatica, and the 1151 is for sciatica, as they aggravated the condition making it worse, that would be prohibited then no?