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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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acesup

How Is An 1151 Claim Decided, By Whom?

Question

I had an emergency appendectomy by a private surgeon in a private hospital.

Two days later, I went to VA clinic for a previously scheduled exam. I complained to the PA of painful cough and coughing up a bit of blood.

He sent me for a chest X-ray, and they did routine blood labs, supposedly checked OK.

My painful cough with blood got worse. Two days after the VA visit, the PA called to tell me the lab results and X-ray checked good.

Three hours later, I was in the Emergency Room of the local hospital with severe chest pain, extremely painful shallow breathing, and blood pressure that was like 200/120 or something crazy. They did a doppler sonogram of my legs, plus a CT scan of my lungs.

I had bilateral DVT (Deep Vein Thrombosis, meaning blood clots in legs) and bilateral PE's (Pulmonary Emboli, potentially fatal blood clots in lungs), and was admitted to Pulmonary ICU.

They immediately put me on Lovenox (blood thinner). Next morning, they installed a permanent vena cava filter below my heart, and

I spent a week in the hospital, much of it in ICU.

I am now on Coumadin (blood thiiners) daily therapy for the rest of my life.

It is my belief that when I reported to the VA clinic, a medical professional should have suspected and investigated the possibility of DVT and PE, because, as I have since learned:

a) DVT and PE are always a distinct possibility after surgery

:( my painful cough with blood was obviously the onset of blood clots entering the lungs.

The PA, strangely enough, did NOT record that I presented with a painful cough. However, he did send me for a chest X-ray, and for the reason, he put "cough".

Interestingly, the PA added an addendum to my record two days after he saw me,(and the SAME day I went to the hospital) that said "Patient "Feeling fine, like a human being again".

I don't know if this will be considered negligence on his part, but I think I will file an 1151. What is the process? Who decides it, the VARO or a court?

Thanks in advance for your input.

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4 answers to this question

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You can consider FTCA case and Section 1151 claim.

It does appear that many damages have been mitigated because you did get proper care at the private ER.

That does not alleviate the VA of some responsibility here. I suggest filing a Section 1151 claim and making sure they pay for any charges under Fee basis at this private hospital (dont know how to pull that off however) and if they compensate you with a fair rating-that might not be worth pursuing, HArd to say.

File the Section 1151 claim with the VARO you deal with.(Get ALL your VA med recs before you do this)

State

"This is a claim under auspices of 38 USC, Section 1151.

I believe my VA clinical records will reveal that I did not receive medical treatment and care that is consistent with that of the standard medical community and due to this VA medical negligence, I have incurred further disability."

There could be evidence in your med recs of the deep vein thrombosis that they should have discovered sooner.And maybe even the PE clots should have been discovered sooner.

That would build your 1151 case and would be beneficial if you file FTCA.

I proved negligence and malpractice in 1997 only to discover more malpractice in 2003.You cant sue or FTCA the VA twice for same death or disability and I didnt want to re-open the 1151 claim so I re-opened for cause of death due to Agent Orange.

I had to prove the new malpractice I discovered in 2003 but only because that was part of proving my husband- dead due to VA health care (FTCA and 1151 awards 1997-1998 ) also died because they malpracticed on an Agent Orange disability and this caused a direct AO death award -April 2009.

Every single charge of malpractice I made but one- was agreed to by the OGC years ago but still not being a med professional myself I missed the main malpracticed condition which was well hidden in the records-until 2003 when I found it.

I can assure you that my experience showed that the VA usually fights these claims diligently so

You might want to consider getting a strong IMO (the criteria for IMos is here at hadit) to fully support their negligence.

A real doctor could assess -with all of your med recs-when the negligence actually began - if you were getting regular VA health care-

there might be more to their incompetence and medical error than just this.Which is horrible -as it is.

If you have any printout from any good medical site to support this- that would be good to send to them and refer to it in the claim with this statement:

"t is my belief that when I reported to the VA clinic, a medical professional should have suspected and investigated the possibility of DVT and PE, because, as I have since learned:

a) DVT and PE are always a distinct possibility after surgery

:( my painful cough with blood was obviously the onset of blood clots entering the lungs."

Use copy of this record too which reveals the PA's incompetence:

"Interestingly, the PA added an addendum to my record two days after he saw me,(and the SAME day I went to the hospital) that said "Patient "Feeling fine, like a human being again"."

The VARO decides 1151 claims. They can decide in mere months or string it our for years.

They will rate any additional disability as to its extent that their negligence caused- if they agree with the claim.

Often 1151s need an Independent medical opinion.But this sounds like a friend of mine's claim. We just referred them to his recent VA medical records and they awarded his 1151 in 4 months.

You need to go through your med recs from the VA VERY carefully.There might be more negligence in them then you think.

forgot to ask- what is the 50% SC for?

Edited by Berta

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Hi Berta,

Thanks for the great advice.

I have another complication to add into the mix. I have a couple of claims working with the VA, and yesterday they sent me a letter saying they have lost my C-file.

They asked me to send them everything I have for their effort to rebuild it. (That's really funny; if I lost my evidence to support a claim, they'd shoot it down, but if they have no evidence, I guess they'll STILL shoot it down, unless I provide what THEY already had but lost.)

I am 40% for chronic lumbar strain w/DDD etc. (also have just recently developed moderate stenosis and some sciatic problems, plus a convulsive tic (Periodic Limb Movement Disorder). The other 10% is residuals of hepatitis B. I got out of the USAF in 1974.

I will be going over my records with a fine-toothed comb to see what I can find, and try to get an IMO or two to support my 1151 claim.

Thanks again.

Ken

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acesup,

You posted,

"I had an emergency appendectomy by a private surgeon in a private hospital."

Did you not have a follow up appointment scheduled with the surgeon or your PCP

after this surgery?

carlie

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Carlie,

Yes, the follow up was scheduled for 11 days after I got out. (By then, I was about to get out again after the DVT/PE issues.)

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