1151hearing Comming Up

[JohnM.]

Have been fighting the VA for 10 years now and now have a hearing comming up next monh with a judge. can anyone tell me what to expect and how i should prepare for this? I have a DAVSO thats is suppose to be helping me, at leas i hope so, have never meant him. I really need some advice please. thank you and hope all have a GREAT weekend. God Bless. JohnM

[JohnM.]

Bertha: yes that is my case file you found, but that is also dated 2005. Can you get to the rest of my file ? If so let me know please. Not sure what to say as far as additional disability i have excfept that when these pieces of wire move or i bend , sit stoop, or lay down etc. i get this terrible sharp pain in my side where the wires are located. No this is not service connected. the only evidence i have is what i have told to to my VA primary drs, which they dont want to hear, as the last VA dr i had told me " to deal with it" the pain. All they do is give me pain meds. Yes i have xrays showing the wires, not just one either. Am not sure if the VA drs are making any comments into my folder or not concerning this matter. I have in my poesession x-rays showing the wire fragments. The pain is so bad at times iam doubled over and feel like throwing up. this makes things so impossible to do any of my normal activicties. even just to try and sit is impossible at times. I have told my Va drs all this but they seem to just ignore what im telling them, Am not sure if this was a Peer review report or a SOC to deny the claim it has been remanded back to the Phx RO tho. There are apartently some parts of my file that are missing and the judge says he needs them to decide the claim on its merits. whatever that means. sorry im so dumb about all this. the following are the reasons the judge remanded my case to the RO> 1. The RO should request the Veterans VA treatment records from Janurary1,1999 throught the present from the Phx VA Health care System. Attempts to obtain these records should be in accordance with 38 U.S.C.A. subsection 5103A(b0(3) and implementing regulations. 2. Thereafter, the RO should readjudicate the Veterans claim for entitlement to compensation under 38 U.S.C.A. subsection 1151 for the residuals of a reatined flexible tip of a guide wire in the perinnephric fatty tissue. If the benefits sought on appeal remained denied, the Veteranand his representative should be provided with a Supplemental Statement of the Case. Here is a paragraph from this same judge : The verteran under went if VA examination in May 2006. The examination report cites May 2001 VA urology treatement notes from the VA medical Center in Phoenix, Arizona. While some treatment records from the Phx VA have been obtained, they are from the period around the Veterans August 1998 surgeries, per April 2006 request from the RO. It is noted that, although the surgeries were prerfromed at a VA facility in New Mexico, the RO had been informed by the Albuquerque VAMC tyhat the reords were in Phoenix. Additional records from the PHX VAMC from approximately March 2003 through April 2004 have been associated with the claims file thoigh the Veterans file obtained from the Social Security Administration. Un fortunately, the Veterans complete records from the Phx VAMC have not been obtianed, and the May 2006 VA examination reports that there are missing records that are relevant. Therefore, the Board finds that they must be obtained in order to decide the claim on its merits. this is the latest letter i ahve received from the judge at my last hearing in June 2010. you do have the right docket number 00-25-062 . i very much appreciate your help. Sincerely yours , John Morris

[Berta]

I only have access to public BVA decisions John.And CAVC decisions.

"Un fortunately, the Veterans complete records from the Phx VAMC have not been obtianed, and the May 2006 VA examination reports that there are missing records that are relevant. "

Have you contacted Phoenix VAMC yourself?

I never believe VA when they say they could not obtain this or that.

Do you have a complete copy of your C file?

I still see the issue-if you can prove negligence, that there is no ratable disability.

What exactly did Dr. Bash say as to residuals stemming from this?

[JohnM.]

I only have access to public BVA decisions John.And CAVC decisions.

"Un fortunately, the Veterans complete records from the Phx VAMC have not been obtianed, and the May 2006 VA examination reports that there are missing records that are relevant. "

Have you contacted Phoenix VAMC yourself?

I never believe VA when they say they could not obtain this or that.

Do you have a complete copy of your C file?

I still see the issue-if you can prove negligence, that there is no ratable disability.

What exactly did Dr. Bash say as to residuals stemming from this?

Today in the mail i received a letter from the VA saying they received my application for benfits. It is their sincere desire to decide my case promptly. However, they have a great number of claims, action on mine may be delayed. They say too they are now in the processof deciding whether aditional evidence or information is need. If they need anything from me they will contact me. If there are parts of my c-file missing what happens then? I will dig out Dr. Bashs report and write to you saying exactly what he said. It shouldnt be to hard to find . No havent contacted the Phx VA i wish i could get ahold of my rep at the DAV RO and see what she says. I dont htink a copy of this letter was sent to her. i might make a copy and send to her so she has it too. Am sorry right now im really hurting in my side took my pain med so now will lay down for awhile. will get back to you this afternoon. Thanks for all your help. Sincerely, John

[JohnM.]

Today in the mail i received a letter from the VA saying they received my application for benfits. It is their sincere desire to decide my case promptly. However, they have a great number of claims, action on mine may be delayed. They say too they are now in the processof deciding whether aditional evidence or information is need. If they need anything from me they will contact me. If there are parts of my c-file missing what happens then? I will dig out Dr. Bashs report and write to you saying exactly what he said. It shouldnt be to hard to find . No havent contacted the Phx VA i wish i could get ahold of my rep at the DAV RO and see what she says. I dont htink a copy of this letter was sent to her. i might make a copy and send to her so she has it too. Am sorry right now im really hurting in my side took my pain med so now will lay down for awhile. will get back to you this afternoon. Thanks for all your help. Sincerely, John

Ok im back. here is what dr. bash wrote: In review of this record it is clear that this patient has significant pain and disability from the retained surgerical stainless steel that is still in his rigth flank. I have reviewed his abdominal films dated 5 and 9 April 1999 and he has at least 4 piecesof metallic wire densities in his right upper quadrant both of which have bery pointed ends. The film of August 1998 reported that the metal was a single wire, which meansthat the wires are under some sort of stress or strain that gas caused them tp fracture, likely due to the patients lifting movements and respiration. Drs. campbell and dolan likely did not review this patients record fully because Dr. Campbell described the wire as single and Dr. Dolan said that the wire was made of soft silicon. These retained surgerical stainless steel pieces along with the post operative scarring is likely the result of his current right flank pain because thesurgical stainless steel is in the location of the patients pain, the steel has fractured over time which means that it is likely under stress and/or strain forces,, the steel has sharp points which is consistent with pain generation. The patienthas described his pain as very disabiling in both his testimony and the letter he wrote me on 2 Sept. 2003. The VA attending physicians have either said that the pain is coming fron the patients residual post operative scar ( Dr. Campbell) or were unsure of the patients pain (Dr. Dolan). I have discounted the opinions fo Drs. Campbell and Dolan because they likely did not review the record well because they describe the steel as single piece or made of plastic or unsure (in Dr. Dolans case) as to the cause o fthe pain. Mr. Morris has a current disability, which is recurrent flank pain. This patients medical records clearly document that the wire fragments were left inside the verteran as a result of a sirgical treatment by a VA medical center. It is my opinion that the recurrent flank pain experienced by this patient is far more likely than not due to imbedded wire fragments left in him after surgery at the VA medical center on 26 August 1998. This fragment appears to have broken into several smaller fragments all with sharp points, which have the likelihood of exacebating the painfull condition. The act if trying to force the wire into the patient in spite of considerable resistance from the existing kidney stones likely caused the wire to break off in the patients right flank. The rate for failure for fractureof guide wires is very small using standard techniques and judgement (In my experience i have not had a guide wire fail during an angio procedure), therefore it is very likely that poor technique (numerious compacted kidney stones made it difficult to pass sthe guide wire--BVA appeal 6 Feb 2002 page 4) and or poor judgement ( multiple unsuccessful attempts BVA appeal 2002 page 4 ) caused the guide wire to fracture. The exertion of considerable force againist resistance in this procedure was in my opinion as act, which falls well below the standard of care normally excercised by physicans doing such procedures. It demonstrates an inadequate knowledge on the part fo the provider to understand the limitations of the equipment and materials being used. Conventional medical technique and judgement dictates that if failureof a procedure is likely ( difficilty passing or multiple unsuccessful attempts) then the procedure is stopped prior to failureof equipment so that an alternative approach can be used and /or the patient is not injured. It is not the normal or the expected outcome for a practioner to use excessive force at level suffcient to break his equipment or materials, and then fail, neglect or refuse to first inform the patient of the event and to then take appropriate corrective action. It is also not the normal or expected outcome of this type of surgery for the patient to have retained surgerical steel and to have prolonged recurrent pain. The care provider, Dr. Ashby was well aware of the fact that the guide wire broke during the procedure as he dictated the following "... This guide wire was sheared off after attempting to bypass the rental stones... The distal tip fragment appears to be in the subcutaneous tissue..." ( see attached dictation). This fact , plus the exertion of force that must have taken place, along with the standards of medical care call on the provider to specifically locate anatomically the missing wire piece and retrieve it if appropraite, and to inform the patient of what had happened so that future complications can be avoided. It does not appear that either step was taken. This failure to act is anothe instance of provision of medical care below medical standards, however the patient's pain is primarily die to the first failure described above. Craig N. Bash MD

Hope this will give you somemore information. John

[JohnM.]

HI Berta,, was wondering if you had time to read my reply i sent you what Dr. Bash had wrote in his IMO to the VA. Going to the VA this mornig to have my ICD checked--every 3 months this has to be done. John M

[Berta]

That is an excellent report from Dr. Bash and I do not see how it would even matter if he physically examined you as the outcome of his opinion would not have changed.

"Oh i meant to add is i had a Dr. Bash write his medical opinion for me, quite costly, and submitted it to the VA, they looked at it and basically said fine, but since he did not physically examine me they will not accept his report"

Can you tell us how the VA worded that?

Dr. Bash stuck to the documented medical evidence in his opinion.Seeing you inperson and giving you a full exam wouldnt alter- in my opinion- te established facts in the medical records.

Have you contacted Dr. Bash to see if he feels his opinion should stand as it is?

Do you have a POA?

I am a 1151 er and I know how aggressively VA will fight 1151 claims.You need to challenge every single thing they say is wrong.

There might be a CAVC decisions regarding whether inperson exams are required by IMO doctors but many who get IMOs never even met their IMO doctors as the opinion is based on the established VA medical record.

Did the VA give you a C & P yet specifically for this claim?

If so do you have those results?