Ro's Response To Imo....

[vetwife]

Hi all,

We got a IMO from Dr Bash for my husbands claim. Please read the attachment on the response from the RO in their decision (denial) letter. bash.bmp

This claim is a 1151 - the RO never ever sent him for a C&P , never got their own opinion, just swept this under the rug. Then they knock the IMO that we sent - the only medical opinion there is on this claim - it's not even disputed - because they never sent my husband in for one..... This came a while back...I'm am still REALLY upset.... please read & give me opinions on what to do ( I have just filed form 9).

I have his records! They x-rayed the wrong ankle & then reported that he only had a sprain - when he actually had a fractured ankle bone. They had him walking on it for over 4 months in excruciating pain before finally doing an MRI & seeing it was still fractured.

The decisions also reads "there is no evidence the VA caused additional damage" Could they truly believe walking on a fracture for months wouldn't cause additional damage?

If I am wrong - please set me straight here.... he ended up with sever nerve damage & having to have his whole ankle fused together. But they think they didn't cause additional damage? Is that possible?

[Testvet]

I don't know what the % is for a fused ankle but since you paid for the IMO from DR Bash you may now want to get an attorney for the appeal they get 20% of the claim which is a bargain compared to other lawyers SSD get 25% and car accidents get 40% and they only get paid after they win. Get one that does VA claims only, it is a specialized field and not all lawyers can do them. Good luck Mike

[Pete53]

Vetwife:

Don't give up. I agree with the idea of getting a lawyer from testvet

[poolguy11550]

vetwife- this is truly a complex legal argument and it may be be best for you inquire with an lawyer before venture to the next stage. I'll try to give you both sides-

For- Had the VHA accurately identified the correct medical condition then the severity of his current condition would not be as limiting as it is currently. Hence-aggravation of an injury.

Against- The VHA did not cause the condition neither did any of its medical procedures. Hence the cause the worsting of the condition was the natural effect.

You would most certainly need the IMO, but also a lawyer to help maneuver the appeals process. To be honest I see it both ways, but you can count on the VBA to put their lawyers on this.

[vetwife]

Thanks for your responses. I have not contacted a lawyer yet, but will !

Poolguy,

I do see you point, however their treatment did cause further damage. They put him in a walking boot & started weightbearing at just 2 weeks because they thought it was a sprain (due to mixing up the x-rays) The ankle was nowhere near healed and they had him walking on it. This caused the fracture not to heal (constant weight & moving bones) and caused sever nerve damage.

Had they know it was a fractured ankle & ordered proper treatment, he would have been casted & told to stay off his foot for 6-8 weeks while it healed. It would have most likely heal completely.

I am interested in what to do about their disregard of Dr Bash - he is a Dr & wrote his opinion based on the medical records. The rater is not a Dr , but chose to disregard his opinion .

[vetwife]

And, a little over a week after putting him in the walking boot he was told to "dis guard the walking boot" and to walk on it & use it as much as possible - (because they thought it was a sprain.)

[poolguy11550]

This is exactly why you should contact a lawyer. It has been my experience that you must prove the VHA was negligent. I am not saying that you do not have a claim, however, the VBA will pick apart your claim because your case is not so clear and that is were a lawyer is needed.

Example: a vet goes in to have his left foot amputated due to some condition and the VHA amputates his right foot by mistake- that is a clear-cut 1151 claim.

In your case waters are muddy and not so clear.

Example: The VHA may have said to your husband take two aspirin, rest in bed for two or three days and run a marathon next week. Thats not a good practice and it is bad medical advice but there is no negligent act.

Your claim has pros and cons and there are a few more process like the x-rayed wrong foot to take issue with. So best advice is to seek a legal professional.

As far as Dr Bash- I know him personally and I generally like him, but his IMOs are not the favorite by the VBA. He does punch the VBA where it hurts on the clearly evident claims. I see the VBA taking issue with the fact that he is not your treating Dr. and he has never examined your husband personally. Both of these issues are really non-issues. The VBA find it hard to continue that approch during the appeals stage. Case law strongly favors Dr. Bash. Give your treating Dr's the opinion by Dr. Bash and ask them to opine on the situation themselfs. You may want to fly to Maryland and have Dr. Bash do an examintion but I don't really see that helping that much. The VBA uses examiners that not are treating doctors and in many case I've seen the VBA will ask Drs to opine without examining the veteran. The VBA can do, but we can not- go figure.

I would say that Dr. Bash's IMO is good with the lawyers advice and your treating Drs giving a simliar IMO.

Sorry if that was a long write up- but your case is very complicated.