UpToHere

I eventually succeeded on my 1151 claim “for the residuals of surgery & radiation therapy.” ”Eventually,” because, initially, a DRO denied “my” “claim” for 1151 benefits for “soft tissue sarcoma.” 1.5 years passed, before a different DRO upheld my appeal that my 1151 claim was for benefits the “residuals” of surgery & radiation therapy needed to treat the belatedly diagnosed sarcoma, and not for benefits for the sarcoma itself. Flash forward to today, VA is continuing to deny there were any adverse events in my care (alternatively, that there was any adverse event that necessitated disclosure). My rebuttal to VA fell on deaf ears: examples of adverse events VHA states *must* be disclosed, include “delayed diagnosis,” and, “an unexpected outcome, e.g., one that necessitates corrective surgery.” I also argued/rebutted that the eligibility requirements for 1151 benefits in connection with VA care are such that, the award of 1151 benefits in connection with VA care, is probative of the occurrence of some adverse event(s). VA ignored me. 9 months ago, however, VA (VBA/Compensation Service) came up with a brand-new denial rationale: “Your petition for ER addressed issues involving care rendered by the Veterans Health Administration (VHA) ...” As this matter relates to the administration of care and services received from VHA, Compensation Service is unable to address issues involving VHA policy and procedures; moreover, your letter indicates that you have received responses* from VHA on this matter.” [Note: One such “response” I received was from my VAMC’s Director: “There was no adverse event in your care which necessitated disclosure...Veterans who feel they were injured can file a code [sic] 1151 claim.” The Director ignored my rebuttal (see above), that, I’d already filed an 1151 claim for the very same care he said was free of any disclosable adverse event(s), VBA had granted my claim for 1151 benefits, and, Without some adverse event(s) in my VA care, an award of 1151 benefits would be impossible. Three last points: 38 USC § 503(a)(b) conditions eligibility for ER on a loss a petitioner suffered due to a VA administrative error, or erroneous decision; Where, in 38 USC § 503(a)(b), does it say that petitioners who suffered a loss due to VHA administrative error, or erroneous decision, are barred from eligibility for ER? In reviewing my notes this morning, I found two additional requests I made for ER that VA never acknowledged, let alone “thoroughly reviewed,” and handed down a decision on.

So do I. My situation began 5/2003, and I’ve been pushing VA on it continuously (as I got new information), most recently, 2 weeks ago. (No “giving up” in that history.) The issue, as I see it, is that VA keeps feeding me bogus* denial rationales. ”Bogus” = my medical records & my C-file put oaud their denial rationales. The problem has been that, when I point out the discrepancy between the record, and what VA misstates is the record, VA doubles-down, and comes up with a new denial rationale. Other than a miraculous, spontaneous, VA “change of heart,” who/what entity, can force VA “to do the right thing”? A lawyer? I had one, but dumped him after he blew through his 14th deadline for finishing/sending my ER petition. (After him, had another guy who blew through 3 deadlines.) The WH Veterans Hotline? If only. (Been there, x4.) OIG? Dunno, haven’t tried them yet. The Administrative Procedure Act? Dunno, nobody’s ventured an informed (or even an uninformed) opinion.

Thank you.

Have tried. Again & again & again & ... Failed. 2 adverse events (a 13-month delayed diagnosis of soft tissue sarcoma, and an improperly performed procedure that necessitated further (i.e. corrective) surgery; 5 providers’ failure to disclose them (1 of those providers is on record that he deliberately did not discuss my case with me, out of concern I might take legal action v. VA/VA providers); subsequently, the VAMC director’ reported that the standard of care had been met, and that there were no adverse events in my care that necessitated disclosure; his “advice” was that if I felt I had been injured, to file a code [sic] 1151, or FTCA suit; my rebuttal (cc’ed to the VISN head) included that I had already filed an 1151 claim for the identical care that he said had both met the standard of care, and had been free of disclosable adverse events), and that I had prevailed (and I added that the evidence requirements to establish eligibility for 1151 benefits in connection with VA care, were such that a grant of 1151 benefits, was probative of adverse event(s) in that care; the VAMC director did not respond; however, the VISN head did respond: “Reread the director’s letter, because it contains good advice on what to do, if you should decide to pursue this.” Yes. However, filing under FTCA long since impossible. In my case as well: C&P Examiner #1 said he couldn’t find anything in my medical file to show when the lump on my leg was first diagnosed as a “lipoma.” He added that the standard of care would have dictated that the lump be examined much closer to the time it turned “violet.” The VA General Counsel, doubled-down, and wrote, “Given that my 1151 claim for sarcoma [sic] was disallowed when received, it doesn’t appear I was deprived of benefits from the lack of referral to the benefits application process,” and “...your belief that pursuant to VA policy regarding disclosure of adverse events to patients, the VAMC failed its ethical and legal obligation to disclose to you that an adverse event occurred during the course of your care. Given that the VAMC acting director advised you that no adverse even was found which would necessitate disclosure, this policy would appear inapplicable.” I wrote the General Counsel a rebuttal; he didn’t respond. However, his #2 did, with new denial rationales for ER. I wrote the #2 a rebuttal; he did not respond. However, 2 years later, #2’s replacement wrote me with new denial rationales. Subsequently, I wrote #3 a rebuttal, bulked up with 95 pages of rxhibits from the record to make my case; he did not respond. When I wrote my furst pro se ER petition (2016), I addressed it to the Health Under Secretary, per the instruction in the OGC Fact Sheet on ER, and my congressman transmitted it. In short order, I got an email from the VAMC, advising me that VHA was not where I should have addressed it, that VBA was, and that VA had redirected it to VBA. I asked why VBA, and not VHA, but never got an answer. My congressman eventually got a formal denial from Compensation Service (CS). I wrote CS a rebuttal; CS did not respond. 6/2017, I wrote a new ER petition, and (naturally), addressed it to CS; my congressman transmitted it. As of Q1, 2018, my congressman had not heard back from CS. I asked for a meeting with VA, and my congressman’s office set one up. It was with someone from the RO, and someone from the VAMC; the purpose of the meeting was to find out when CS was going to rule on my 2nd petition. The RO head said what I was really trying to do, was get an EED to my 1151 claim. I responded that I wasn’t trying to get an EED, I was trying to get ER. The meeting end with the RO rep telling me she would inquire about the decision the decision on my 6/2017 ER petition. Instead, however, without telling me, she “authorized” her staff to draft a new “ER”petition,” of what the RO “reported” I “contended” I was “entitled to,” and that included everything but the kitchen sink. When I discovered what the RO head had done, and cited M21, on ER, on “who” may submit an ER petition, i.e., either the petitioner OR the RO, and pressed her on how she could possibly have “authorized” a new ER petition when my 6/2017 ER petition was still languishing somewhere in CS, unadjudicated, she fell back on, “I authorized it at my discretion.” 10/2018, CS denied the RO’s so-called “ER petition.” Through my congressman, I sent rebuttals to CS. CS’ latest justification for never having issued a ruling on my 6/2017 ER petition, was that CS doesn’t rule on matters involving VHA “policy.” It was only last week that my congressman sent my latest rebuttal to CS, so I haven’t heard back. My latest rebuttal included mention that the OGC Fact Sheet on ER is unequivocal: I was supposed to send my ER petition to VHA, and did. On what authority, then, did VA redirect my first ER petition to VBA ( i.e., to CS)? I asked how an entire class of ER petitioners (i.e., these who had lost benefits due to VHA administrative error/erroneous advice), could be barred entirely from ER. I also asked how it is that CS disregards failure to disclose adverse events to patients, and failure to refer such patients to the benefits application process, when OIG/OHI “write up” providers who fail to do do. See: “Quality of Care Issues at the Amarillo VA Healthcare System” vaoig-06-02429-62.pdf

Thank you fof all your efforts to be of help.

No, not at all. EED & ER are not “birds of a feather.” They’re two entirely different beasts. Consider, “Case #13, from the Secretary’s CY 2002, 503(c) Report to Congress on Equitable Relief,” (attached). In Case #13, the Secretary held that although the statutory bar to an Earlier Effective Date of Claim (EED) is inviolable, it is, nevertheless, not a bar to a grant of Equitable Relief. To put it another way, in Case #13, the Secretary granted ER in the interests of justice, precisely *because* EED was barred by statute. 2002EqRelGrants.pdf

I prevailed in my 1151. 1151 is no longer an issue. The only remaining issue is ER. And that VA says I’m not eligible for ER under (a) or (b) of 38 U.S.C. § 503, *and* that a review of the record showed “X,” when, in fact, a review of the record unequivocally shows “not-X.” *That’s* the issue. The *problem* I have, is getting VA to *actually* review the entire record (not the “top-sheet” version of the record), page-by-page. I’ve tried this, from different angles, repeatedly. VA is quite happy with the bogus denial they put in the record, and refuses to go anywhere near correcting it.

Strictly speaking, my goal is to recoup the approximately 40 months’ benefits I lost when I believed erroneous counsel that I was not eligible for VA disability benefits. It took me 2 years to learn that was bum counsel. When I did learn that, I applied for 1151 benefits the very next day, but that was much too late to get 1151 benefits back tothe date of injury. My POA did, in January, with a request to expedite because of my age (84). To date, still no C-file. I believe I’ve already gotten all my benefits I’m entitled to. I appealed to BVA for EED to get the 40 months’s benefits I lost due to erroneous VA counsel that I wasn’t eligible for any VA disability benefits. BVA denied my appeal, on the grounds that I was entitled to benefits only to the date I filed my 1151, which was way past within one year of the date of injury. I will do my homework. AskNOD said that, and (no offense), given his eminence, I assumed he was correct. AskNOD said, no CUE, no way. To support denying me ER, VA disregarded their own widely publicized pronouncements that support my case for ER, including in witness testimony before House Veterans Affairs, in multiple VA Handbooks & Directives, in a Fact Sheet on ER OGC prepared for my Senator. As well, in an OIG/OHI Health Inspection Report, the OIG rebuked a provider for failing to do what all 5 of my providers failed to do. And in that VA denial that I was eligible for ER, VA even denied that providers have to do what OIG in that Healthcare Inspection Report said providers *must* do.

Again, thank you very much. Previously, AskNOD stated there was *no* way to appeal denial of an ER petition. I’m assuming AskNOD was, much more likely than not, correct. So, my question is, if VA gave me a series of denial rationales, all of them demonstrably incorrect (v. the record), how do I push back (*not* appeal), to more or less force them to revisit my petition? The only thing that comes to mind is the Administrative Procedure Act, which, as I understand it, doesn’t tell the government what to do, but simply requires that actions of federal agencies be supported by reasoned decision making, and that, when challenged agencies have to provide explanations that are plausible and consistent rather than “arbitrary and capricious.” Can VA serial, ever-mutating, “whack-a-mole,” ER denial rationales ever be said to be “plausible and consistent”? How can VA serial, ever-mutating, “whack-a-mole,” ER denial rationales ever be said to be anything but “arbitrary and capricious”? Finally (assuming I’ve accurately described my situation), how can I invoke the Administrative Procedure Act against the VA?

Thank you very much. The problem, however, is *not* error(s) in my record. The problem is that when VA says, “a review of the record disclosed [yada, yada, yada],” going back to the record, and *actually* reviewing it, discloses [not-yada, not-yada, not-yada]. To put it another way, someone at VA in the early stages of my situation *said* you’re not eligible for ER under 38 U.S.C.§ 503(a), or (b), because there was no administrative error, no erroneous decision you relied on to your detriment, when, in fact, the record *does* show *both* administrative error, and an erroneous decision I relied on to my detriment (but 1 is enough). One such “someone,” was the General Counsel who, “top-sheeting” me, inserted a “counter-factual” to *prove* I was not eligible for ER. [To call it a “counter-factual” is to put it diplomatically.] When I rebutted what he’d said by citing the relevant record in my C-file, he fell silent. ”Silent,” as in *not* apologizing for top-sheeting me, *not* withdrawing his denial letter, *not* referring my ER petition to the Secretary, with a recommendation for approval. To put it another way, if a rationale for denying ER is patently false, doesn’t it follow that there actually *is* a basis for eligibility for ER?

I accept asknod’s points: 1. Only the Secretary can award ER. 2. There’s no way to appeal a *denied* ER petition. 3. There’s no way to file an NOD for a denied ER petition. 4. There’s no way to file a Writ at the Court. 5. ER is a one-shot deal that’s not appealable. Nevertheless, I have a question: When VA provides its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA misstated the record, is there a way other than NOD, CUE, Writ, or, Appeal, to urge VA to revisit its denial? To put this question another way: When VA cites the record to support its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA *misstated* the record, can a petitioner invoke the Administrative Procedure Act, to prod VA to revisit its denial? “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.” https://www.nytimes.com/2019/11/21/opinion/sunday/Supreme-Court-DACA-Trump-taxes.html

I accept asknod’s points: 1. Only the Secretary can award ER. 2. There’s no way to appeal a *denied* ER petition. 3. There’s no way to file an NOD for a denied ER petition. e. There’s no way to file a Writ at the Court. f. It’s a one-shot deal that’s not appealable. Nevertheless, I have a question: When VA provides its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA misstated the record to justify that denial, is there a way other than NOD, CUE, Writ, or, Appeal, to urge VA to revisit its denial? To put this question another way: When VA provides its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA misstated the record to justify that denial, can a petitioner invoke the Administrative Procedure Act, to prod VA to revisit its denial? “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.” https://www.nytimes.com/2019/11/21/opinion/sunday/Supreme-Court-DACA-Trump-taxes.html

“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.”

Godspeed with your audit request/CUE issues. But what are folks who know just enough to “get” VA’s incompetence/obstruction, but not enough to get an audit request off the ground, to do? Thank you.

Thank you. Yes. My PCP ( a resident) did in fact put in my medical file that because he was “concerned” I might take legal action against VA/my providers, he did not discuss my case with me. He aded that because he was completing his residency in 4 months’ time, he was “assigning his clinical advisors as well as the prior PCP, Dr. [XXXXX]” to do it. His clinical advisors/my prior PCP, all failed to do so, i.e., they kept from me that there had been adverse events in my VAMC care. I didn’t even learn of “adverse events,” and that there was a class of adverse events that had to be disclosed, until years later. When I did learn this, I filed a complaint, in accordance with the “Fact Sheet,” VHA prepared for my Senator. The Fact Sheet included that there was no statute of limitations, and that I should file “at the facility level,” through the Patient Advocate. I did, but the Patient Advocate immediately turned my complaint over to the Risk Manager. The Risk Manager never addressed what the Resident put in my medical file, nor did anyone else I reported it to. Not then, not subsequently. I included it in my 1151 claim, but VBA said it was an VHA matter. I tried to get an earlier effective date (EED), based on the Resident’s deliberate silence, via a BVA appeal. BVA denied my appeal. It’s too late to file a F.T.C.A. suit. Any thoughts on where else in VA I might take this, and how I might get them to act on my complaint? TYVM.

Thank you. I contacted OAWP. They told me the WP side is only for VA employees. They also told, me if I suspected a VA senior leader of performing poorly, or of misconduct, I could file a complaint. I believe the record shows that a number of senior leaders did, at the very least, perform poorly. As for misconduct, that, to my mind, requires willfulness. While I intend to include all adverse details in my account, I won’t “charge” misconduct. If OAWP finds misconduct, however, so much the better.

Thank you. My PCP ( a resident) did put in my medical file that because he was “concerned” I might take legal action against VA/my providers, he did not discuss my case with me. He aded that because he was completing his residency in 4 months’ time, he was “assigning his clinical advisors as well as the prior PCP, Dr. [XXXXX]” to do it. His clinical advisors/my prior PCP, all failed to do so, i.e., they kept from me that there had been adverse events in my VAMC care. I didn’t even learn of “adverse events,” and that there was a class of adverse events that had to be disclosed, until years later. When I did learn this, I filed a complaint, in accordance with the “Fact Sheet,” VHA prepared for my Senator. The Fact Sheet included that there was no statute of limitations, and that I should file “at the facility level,” through the Patient Advocate. I did, but the Patient Advocate immediately turned my complaint over to the Risk Manager. The Risk Manager never addressed what the Resident put in my medical file, nor did anyone else I reported it to. Not then, not subsequently. I included it in my 1151 claim, but VBA said it was an VHA matter. I tried to get an earlier effective date (EED), based on the Resident’s deliberate silence, via a BVA appeal. BVA denied my appeal. It’s too late to file a F.T.C.A. suit. Any thoughts on where else in VA I might take this, and how I might get them to act on my complaint? TYVM.

Thank you. My PCP ( a resident) did put in my medical file that because he was “concerned” I might take legal action against VA/my providers, he did not discuss my case with me. He aded that because he was completing his residency in 4 months’ time, he was “assigning his clinical advisors as well as the prior PCP, Dr. [XXXXX]” to do it. His clinical advisors/my prior PCP, all failed to do so, i.e., they kept from me that there had been adverse events in my VAMC care. I didn’t even learn of “adverse events,” and that there was a class of adverse events that had to be disclosed, until years later. When I did learn this, I filed a complaint, in accordance with the “Fact Sheet,” VHA prepared for my Senator. The Fact Sheet included that there was no statute of limitations, and that I should file “at the facility level,” through the Patient Advocate. I did, but the Patient Advocate immediately turned my complaint over to the Risk Manager. The Risk Manager never addressed what the Resident put in my medical file, nor did anyone else I reported it to. Not then, not subsequently. I included it in my 1151 claim, but VBA said it was an VHA matter. I tried to get an earlier effective date (EED), based on the Resident’s deliberate silence, via a BVA appeal. BVA denied my appeal. It’s too late to file a F.T.C.A. suit. Any thoughts on where else in VA I might take this, and how I might get them to act on my complaint? TYVM.

Thank you. I contacted OAWP. They told me the WP side is only for VA employees. They also told, me if I suspected a VA senior leader of performing poorly, or of misconduct, I could file a complaint. I believe the record shows that a number of senior leaders did, at the very least, perform poorly. As for misconduct, that, to my mind, requires willfulness. While I intend to include all adverse details in my account, I won’t “charge” misconduct. If OAWP finds misconduct, however, so much the better.

Thank you. Lots here for me to (try to) wrap my head around. (BTW: As with you, my RO invoked a regulation, but one, which, when actually read, more makes my case than the RO’s. Upon my rebuttals, VA doubles-down, or ignores me.)

The Secretary's 503(c) reports for the 14 calendar years, 2000-2008, 2010-2012, 2015 & 2016, show that, on average, he favorably disposed of 13 Petitions for Equitable Relief, per year. Is 13 (implausibly) low, in the Goldilocks zone, or (overly) generous? Do Congress, GAO, the public, know how many Petitions for Equitable Relief reach VA, each year?

Thank you very much. No, I never considered OIG, or heard of OAWP Do you think I should give equal effort to filing complaints with both, or should I concentrate on one? FWIW, here’s a recent piece in “Government Executive,” about OAWP: https://www.govexec.com/management/2020/03/vas-whistleblower-protection-office-again-faces-allegations-retaliation-intimidation/163538/

Thank you. Now you have, but that was the abbreviated version. What he wrote in its entirety, was even more damning. Too late for a tort claim; I already prevailed in the 1151. The issue (as I see it), is that, having been kept in the dark that some adverse event(s) had occurred in my care, and of any mention of the benefits claims process, I relied on what my VAMC was telling me, “to my detriment,” i.e. I lost 40 months’ benefits. So, circling back to my original question, given what VA says it has an obligation to do in cases like mine, v. what VA actually did in my case (and right up to this very day continues to do), what can I do about it?