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  1. No, but with respect, it doesn’t matter: VHA states: “VISNs and facilities must ensure that their staff provides appropriate and timely communication with patients and their families regarding Adverse Events that involve potential organizational liability [...].” [Source: VHA Handbook 1050.1, January 30, 2002, @ 8.b.(2).] “Pursuant to VHA policy, VHA facilities and individual VHA providers have an ethical and legal obligation to disclose to patients adverse events that have been sustained in the course of their care, including cases where the adverse event may not be obvious or severe, or where the harm may only be evident in the future.” [Source: “FACT SHEET, U.S. DEPARTMENT OF VETERANS AFFAIRS (VA), VETERANS HEALTH ADMINISTRATION (VHA), Response to the Honorable [XXX.] April 2012.”] “VA has an ethical and legal obligation to disclose to patients adverse events they experienced in the course of their care, including when the adverse event may not be obvious or severe, or where the harm may may only manifest in the future.” [Source: “Witness Testimony of Hon. Robert A. Petzel, M.D., Under Secretary of Health, Veterans Health Administration, US Department of Veterans Affairs, Hearing on 05/03/2011: Sacred Obligation: Restoring Veteran Trust and Patient Safety.”] VHA states: “Failure to make a timely diagnosis or institute the appropriate therapeutic intervention,” is an example of an adverse event. [Source: VHA Handbook 1050.1, 8. b. (2), January 30, 2002, @ 4.a.1.] [XXX] Medical Center ([XXX] VAMC), in delaying the diagnosis of Veteran’s left-thigh lump as a soft tissue sarcoma (“myxofibrosarcoma”), from May 19, 2003 through June 23, 2004, failed to make a timely diagnosis of Veteran’s cancer. VHA states: “An extreme example of an adverse event that calls for disclosure, is an improperly performed procedure that necessitates further (i.e., corrective) surgery.” [Source: “Disclosing Adverse Events to Patients, National Center for Ethics in Health Care, Veterans Health Administration, Department of Veterans Affairs,“ March 2003, @ p7, 2.] [XXX] VAMC Tumor Board, upon the pathology report that Veteran’s left- thigh lesion (resected without margins as if it were a lipoma), referred Veteran for corrective surgery & radiation therapy, all at Veteran’s expense (!), to [XXX] Medical Center. However, no VISN, VHA facility, or VHA provider disclosed to Veteran, any adverse event in his [XXX] care. Indeed, Veteran’s [XXX] VAMC PCP, in willful defiance of VHA Handbook 1050.1, January 30, 2002, @ 8.b.(2), refused to disclose to Veteran adverse events in his care: “ADDENDUM, [XXX], resident MD, March 29, 2005: “I appreciate Dr. [XXX]’s note and f/u of my longitudinal clinic patient. “2. Sarcoma: The pt continues to be concerned about a “delayed diagnosis of his sarcoma.” “Although I have not directly discussed this with the pt, I am concerned about any legal recourse that this pt may try to take against the VA/VA health care providers given his level of unhappiness with his overall care. Therefore I am assigning my clinical advisors as well as the prior PCP, Dr. [ XXX] cosigners to this note to communicate those concerns as I will be completing residency training at the end of June, 2005.” [Source: Dr. [XXX]’s March 29, 2005, entry in Veteran’s WRJ VAMC medical file.] “I think it is important to document the above to outline my attempts as a resident who cannot always access the VA system (I also have responsibilities to care for patients at [XXX]MC) to provide the best possible care for this pt in a timely manner. It is important to be careful about documenting phrases such as ”inadequate followup” as this could have negative implications towards the care provided by the pts health care providers.” With respect, it doesn’t matter whether care was “proper,” it only matters whether there was an adverse event. Even “proper care” can result in an adverse event, i.e., harm.
  2. From a VHA Fact Sheet prepared for my senator: A mnemonic for an adverse event v. a medical error: Adverse event: “Something bad happened.” Medical error: “Somebody did something wrong.”
  3. Thank you. However, I only learned of adverse event disclosure after the clock had run out for filing under F.T.C.A.
  4. 13 months after my VA providers diagnosed that the lump on my thigh was a lipoma, pathological examination of the resected lump revealed it was a soft tissue. sarcoma. Because my VA surgeons did not take margins when they resected the lump, I needed corrective surgery. My VAMC’s Tumor Board referred me to civilian care for a wide resection, and for radiation therapy, but told me I had to pay for my care, myself. I commuted ~8500 miles for surgery & 34 radiation therapy sessions, but VA refused me travel allowance. I ended up bankrupt, homeless, and hit by MDD. Eventually I was granted 1151 benefits, for the residuals of surgery & radiation therapy. My date of claim, however, was ~3 years later than my date of injury. Subsequently, I petitioned for equitable relief on the basis that my providers had breached their “ethical & legal obligation” to disclose adverse events in my care, and thereby kept me in the dark about my care. VA globally denied I was eligible equitable relief, but didn’t specifically address my basis for saying I was: that by failing to disclose the adverse events in my care, VA had deprived me of the knowledge I needed to file timely for 1151 benefits. What options do I have now?
  5. Thank you. The 2 communications below just happened to be on my iPad. 12/20/2012, Transcript of call from OMI: Hi. Mr. Xxxxxxx], this is Xxxxxx], I'm one of the the nurses at the Medical Inspector's office. I think I talked to you about a week or two ago, about your case, and I just want to give you an update. A couple of things: Number 1, we are looking into this; it's an interesting case. The Medical Inspector has taken this to another team to be reviewed. So that's why you haven't heard back from us immediately, because we're still working through all the paperwork here. You do have this remarkably well documented. You can reach me today or tomorrow on this number but I am going to let you know that I am retiring at the end of this next week (I've been at the VA for 35 years), but I am going to give you a contact number of another person in this office that you can reach. We certainly aren't going to let this drop. That person that you could initially reach is [Xxxxx]? He's Dr. [Xxxxxx’s] assistant. His number is (202) 461-xxxx. We are going to continue follow up. We won't let this drop, but it may be a little bit, a few more days, before we get an answer back to you. Anyway, I hope that this helps your questions, at least to give you a status update. And if you have any additional questions feel free to call me today. Okay? Thanks, bye. OMI let it drop. August 4, 2017, I personally handed this to the Secretary: Secretary Shulkin: SOS(!).• 13-Month delayed diagnosis(!).• VAMC > Veteran:• “You have cancer (“myxofibrosarcoma)(!).”• “You need: corrective surgery & radiationtherapy(!).”• “VAMC will cover: nothing(!).”• “Go to Dartmouth-Hitchcock Medical Center(!).”• “You pay(!).”• “You’re not eligible for VA disability benefits(!).”• Result: pain, depression, joblessness, eviction,bankruptcy, homelessness, and more(!).• But, VAMC had erred; Veteran actually waseligible for VA 1151 disability benefits.• Veteran learned of/petitioned for, “equitablerelief.”• VA, flouting its own rules, repeatedly blockedVeteran’s petitions(!).• VA personages who blocked Veteran includeVHA’s [Xxxx Xxxxxxxx], [Xxxxxxx Xxxx-Xxxxx], [Xxxxxxxx Xxxxxxxx], [Xxxxx Xxxxxxxxx]; OMI’s [Xxxx Xxxxxx]; OGC’s [Xxxx Xxxx], [Xxxxxxx Xxxxxxx], et al. Shulkin/Shulkin’s office, never got back to me.
  6. Thank you. Most of this is way over my head, so I'll have spend some time on it. But as for the White House Hotline, I did go to them. Here's they statement they dictated me over the phone: "The VBA Central Office has already addressed this matter, and Veteran was provided a copy of this letter, September 18, 2018. VBA Central Office does not send any decision. This is delegated to the individual ROs. This matter remains closed, and VBA will not engage on this matter."
  7. Thank you. My understanding is that a petition for equitable relief is not a “claim,” and that a denial of equitable relief may not be “appealed.”
  8. Thank you. I don’t have access to my C-file. However, I do have a copy of VA’s denial letter. Its 2 key passages are: VA’s failure to refer me to the benefits claim process would not establish eligibility for equitable relief. There was no erroneous determination of eligibility that I relied on to my detriment. The CUE if any, is that I did not posit either of the above in my petition. What I did posit was my VA providers’ breach of their “ethical and legal responsibility” to disclose to me, “adverse events” in my VAMC care Adverse events in my VAMC care included: A 13-month “delayed diagnosis” that the “lipoma” on my thigh was in fact a highly invasive soft tissue sarcoma, and, An “unexpected outcome that necessitated corrective surgery”
  9. My congressman arranged a meeting for me at the local VAMC, with someone from the RO, and someone from the VAMC. One purpose of the meeting was for me to ask why, after nearly 1 year, Compensation Service still had not handed down a decision on my petition for equitable relief. The RO rep said she’d look into it. What she actually did, was “authorize” a new ”petition” for equitable relief that “reported” what I “contended” I was “entitled” to, and ”my” reasons and bases. The RO wildly misrepresented my position. Compensation Service denied the RO’s “petition.” Q1: Was the RO “authorized” to submit a new “petition” while my actual petition sat at Compensation Service, unadjudicated? From M21, “who may request equitable relief,” “who” is spelled out: “a claimant ...” “or” “a regional office.” It appears to me that the RO had no basis for substituting their new “petition” for my existing petition. Q2: If the RO erred in substituting their “petition” for mine, would that have been CUE? Q3: If the RO did err, what are my options?
  10. Thank you. Yes, related to my successful 1151 claim, but loosely. "Reasoned decision making" came from the article that cited the Administyrative Procedure Act. "The VA must give claimants a Reason and Basis for their decisions." What's a claimant to do, when the VA's Reason & Basis is a fantasy, compared to the record?
  11. Does the Administrative Procedure Act (see below), apply to VA? If the actions of VA aren’t supported by reasoned decision-making, what recourse does a veteran have? If VA provides explanations of its actions that are arbitrary & capricious, what can a veteran do about it? https://www.nytimes.com/2019/11/07/opinion/supreme-court-daca.html?smid=nytcore-ios-share “Administrative law” may sound like a boring subject, but it isn’t. It’s both fascinating and, in the 73-year history of the Administrative Procedure Act, more important than ever for providing the legal structure in which encounters between citizens and their government take place. The Administrative Procedure Act doesn’t tell the government what to do. It simply requires that actions of federal agencies be supported by reasoned decision-making. When challenged, agencies have to provide explanations that are plausible and consistent rather than “arbitrary and capricious.”
  12. VA denial letter stated veteran’s “2 reasons in support of claim” [sic] were without merit. However, veteran did not posit those 2 reasons. The *single* reason Veteran did posit was an entirely different reason, but VA didn’t address it. Veteran took the suspect denial letter to POTUS’s White House Hot Line. The Hotline eventually reported back to veteran that VBA said they had already addressed the (suspect) denial letter, that the matter was closed, and that they would not entertain any further questions from him.
  13. They didn’t, my PCP, a resident, is on record that he didn’t, and nowhere is there a record that my (resident) PCP’s advisors, or my (real) PCP ever did either. Now that I’m trying to get equitable relief posited on the basis that they didn’t, VA, variously, denied that there were any adverse events in my care, wouldn’t respond to my rebuttal that a grant of 1151 benefits in connection VA medical care, is proof of some adverse event(s ) in that care, and, most recently, stated the matter of my petition for equitable relief was “closed,” and put me on notice that they were no longer going to “engage on this matter.” The bottom line is that, although I had every right to be advised by my VAMC what my options were, my VAMC flouted its obligation to me then, and VA continues to do so now. Poorly put, what I meant to say was, if someone files a disability claim within 1 year of an injury, the ED of any award would be the date of injury, whereas, if someone files a disability claim more than 1 year after an injury, the ED of any award would be the date of the claim Yes, but ET doesn’t apply, and I’m well past the statute of limitations to file under FTCA I applied for 1151 benefits years after I was injured in the course of my VA medical care, so the ED of my 1151 benefits, was the date I applied for 1151 benefits. ,
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