Nod Or 1151 Dilemma

[OSC]

November 2010 I put in a claim for PAD of my right leg, left and right carotid arterial surgeries and a couple of other things. During the waiting process I was diagnosed with DMII and I also found out about the AO presumptive court decisions for Viet Nam Navy Vets and since I had proof of “Boots on the Ground” I added a claim for the heart attack I had in 2003.

Last September I had a scheduled Roto-rooter on my right leg performed by the VA. This was the third or fourth one done so it should have been no big deal. The procedure went fine and because I was having the surgery out of state, I was to spend the night in the hospital and then fly home the next day.

The next day and a few hours before I was due to be released to fly home, my blood pressure dropped and I felt tremendous pain in my abdomen area. What they discovered was that an artery (one of the ones they had been working on the previous day) had burst and I was bleeding internally. They rushed me to emergency surgery to patch me up and I ended up spending another week in the hospital in recovery.

The doctors during that emergency surgery had to “Filet” me and I ended up with a 22cm scar as measured by the doctor who conducted a C&P exam on me 4 months later. I still have some pain in that area plus of course that new lovely scar.

Fast forward to March 2012 when I received my completed compensation package from the November 2010 claim. I received approval for SC of the 2003 IHD heart attack and DMII, but all of my PAD surgeries and procedures were denied including this one done in September.

My intentions are to seek a civilian doctor and pay for a second opinion and while I am being examined I will have them fill out the appropriate DBQs.

I am in the process of preparing my NOD for appeal, but was wondering if this would be an 1151 claim instead. In reading the past posts about 1151 claims, I’ve been unable to make the determination if this is either a standard appeal or an 1151 claim or both.

If during the appeal process, I am again denied Service Connection for PAD etc, will the raters consider an 1151 claim and then rate it as such, or can I and should I file both?

Because I receive my entire medical from the VA, I am very hesitant in filing a full Tort claim. I really don’t think that I want to have surgery performed by someone I just sued. So with that in mind, would I be able to file strictly for compensation without a tort claim if I go the 1151 route?

Thanks for listening and any help would be greatly appreciated.

OSC

[Berta]

“Fast forward to March 2012 when I received my completed compensation package from the November 2010 claim. I received approval for SC of the 2003 IHD heart attack and DMII, but all of my PAD surgeries and procedures were denied including this one done in September.”

It takes a medical opinion to service connect PAD as directly due to DMII or IHD.

The IHD regs specifically state it is not secondary to IHD-but that can be overcome with a strong medical rationale.

“My intentions are to seek a civilian doctor and pay for a second opinion and while I am being examined I will have them fill out the appropriate DBQs. “

Good!

I”f during the appeal process, I am again denied Service Connection for PAD etc, will the raters consider an 1151 claim and then rate it as such, or can I and should I file both? “

You can file both and one does not need to file FTCA when they file Sec 1151.

This is the problem you will encounter with the 1151 claim.

They require proof of documented current disability directly due to the VA negligence ( at a ratable level)

and proof of negligence.

“The next day and a few hours before I was due to be released to fly home, my blood pressure dropped and I felt tremendous pain in my abdomen area. What they discovered was that an artery (one of the ones they had been working on the previous day) had burst and I was bleeding internally. They rushed me to emergency surgery to patch me up and I ended up spending another week in the hospital in recovery. “

Obviously they buggered the artery that they had worked on.

BUT they (VA) then took immediate steps to mitigate the damage.

If the scar ,so far, is the only documented disability from that, and you can prove (if they re-entered the same incision, that the incision go bigger due to the medical error) then it was prior to this unfortunate event, the VA would possible rate the scar and determine it as 1151 “as if” SC.

“scheduled Roto-rooter on my right leg”

Was this possibly to remove plaque from DMII atherosclerosis?

DMII and IHD can cause atherosclerosis. Even PAD could cause need for this type of surgery.

“My intentions are to seek a civilian doctor and pay for a second opinion and while I am being examined I will have them fill out the appropriate DBQs. “

A good civilian doctor could make the PAD connection to IHD or DMII as well as determine if you have atherosclerosis from either the DMII or IHD to the point they needed to even do a 'roto rooter' procedure.

What I see here is a terrible incident that happened but VA corrected it right away.

What I also see (I am FTCA and 1151er) is the possibility that a real doctor might see something else in the medical records, like were you treated properly for cholestrol concerns as soonas those cncerns became evidence by blood tests....

When I proved my husband died not only of VA health care (1151 and FTCA),years later I reopened the claim for malpracticed DMII from AO and I won it.( a direct SC death trumps a 1151 death)

DMII never appeared once , as a diagnosis , in his medical records. I also won a recent AO IHD claim.

As past of the extensive medical research I had to do for the DMII claim-.

I also studied HDL and LDL and importantly their relationship to my husband's documented high triglyceride levels.

These are the cholesterol concerns from blood chem reports that are often diagnosed and treated early on ,in most patients , speciically DMII and IHD patients, as they can lead to artherosclerosis ( plaque and clotting in arteries that can cause

strokes, heart attacks, and many other conditions.

I got 3 IMOs for my DMII claim and they all concurred with my lay medical findings.

Dr. Craig Bash who did 2 of the IMOs also stated my husband had PAD and it was from either his DMII or his IHD (I forget what he stated in the IMO ) and I have not made a formal claim for that yet as I thinK VA covered that in the CUE claim they awarded in January to me.

Still I shows that with DMII and IHD, Dr Bash was able to medical opine that this PAD (never diagnosed before) was from his SC DMII and subsequent AO SC IHD.

My point here is that both the PAD association could potentially be made by an IMO doctor and then the 1151 issue might be a lot more than getting a small scar rating.

In your case maybe VA treated the evidence of potential atherosclerosis with cholestrol reducing meds, and diet.

Perhaps the roto rooter surgery had nothing to do with plaque or atherosclerosis.

Or perhaps whatever caused the PAD should have been treated by VA long ago,for it to advance to a surgical level.

A real doctor can answer these questions and prepare an opinion on both the PAD nexus to either the DMII or IHD-

as well as review all of your medical records carefully to see if any 1151 issue has a strong basis.

In my case, I won 1151 and FTCA without IMOs but I hired Dr. Bash for the DMII claim.

He considered all of those prior findings for my direct SC death claim as he is familiar with Section 1151 claims as well.

BTW, the Mayo clinic gives Atherosclerosis the first listed cause for PAD:

http://www.mayoclinic.com/health/peripheral-arterial-disease/DS00537/DSECTION=causes

But we aren't dealing with doctors with the level of expertise at Mayo.

The VA needs a full medical rationale of the PAD connection here, that needs to come from a real doctor.

I am betting that it potentially came from either the DMII or IHD unless there is some other potential medical cause but I am not a doctor.

Are you able to scan and attach here (cover the personal stuff) the Reasons and Bases for the PAD denial?

[OSC]

Thank you so much for your reply Berta.

Sorry for the length of this reply, but that is how the scans came out.

Here is a list of all my VA surgeries:

20060619 Right Leg Arterial Replacement (Fem/Pop) Before SC

20070312 Right Carotid Arterial Endarterectomy Before SC

20070627 Right Leg Incomplete Angioplasty (Fem/Pop) Before SC

20070717 Right Leg Angioplasty (Fem/Pop) Before SC

20100831 IHD Service Connect Date

20101123 DMII Service Connect Date

20110426 Left Carotid Arterial Endarterectomy After SC

20110908 Right Leg Angioplasty/stenting with After SC

residual complications

As you can see from the list of VA surgeries, I have the secondary issues but in order to have the secondary’s service connected, there must be a primary disability service connected; and this is where I have a problem.

Regarding the scans of the disabilities which were denied, there is one statement that is consistent with all these denials and that is “However, (insert disability) is most likely related to your hypertension, which is not a service connected disability.”

I have been treated for hypertension since my 2003 heart attack with no service connection. Additionally I submitted a VA claim for disability in 1991 for hypertension which was denied and never appealed. (I did not have the time or the energy to fight an appeal at that time) and I’m not sure if I can prove service connection today. I have only partial service medical records.

Here are the scans from my award letter:

Left carotid arterial endarterectomy

0

The evidence does not show an event,

disease or injury in service.

G

We did not find a link between your

medical condition and military service.

0

Your condition is not one of the chronic

diseases that VA presumes is related to

your military service.

0

The evidence does not show that your

condition resulted from, or was aggravated

by, a service-connected disability.

You submitted a lay statement to support your claim. A credible lay statement may establish what was seen, heard; and directly experienced. The particular lay evidence was found not to be competent and sufficient in this case to establish a link or nexus between your medical condition and military service or to establish that such a link has been found by a medical professional. The VA medical opinion found no link between your diagnosed medical condition and military service. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition. The medical opinion we received from the VA Medical Center was more persuasive than your private physician's opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale. The examiner indicated that the left carotid arterial endarterectomy is less likely as not due to a service connected condition. There are no reasonable or credible studies linking left carotid arterial endarterectomy with heart disease. However, left carotid arterial endarterectomy is most likely related to your hypertension, which is not a service connected disability.

Medical Description

Denial Reason

Right carotid arterial endarterectomy

• The evidence does not show an event,

disease or injury in service,

o

We did not find a link between your

medical condition and military service.

o

Your condition is not one of the chronic

diseases that VA presumes is related to

your military service.

• The evidence does not show that your

condition resulted from, or was aggravated

by, a service-connected disability.

Explanation

You submitted a lay statement to support your claim. A credible lay statement may establish what was seen, heard, and directly experienced. The particular lay evidence was found not to be competent and sufficient in this case to establish a link or nexus between your medical condition and military service or to establish that such a link has been found by a medical professional. The VA medical opinion found no link between your diagnosed medical condition and military service. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition. The medical opinion we received from the VA Medical Center was more persuasive than your private physician's opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale. The examiner indicated that the right carotid arterial endarterectomy is less likely as not due to a service connected condition. There are no reasonable or credible studies linking right carotid arterial endarterectomy with heart disease. However, right carotid arterial endarterectomy is most likely related to your hypertension, which is not a service connected disability.

Medical Description

Denial Reason

Peripheral arterial disease

• The evidence does not show an event,

disease or injury in service,

o

We did not find a link between your

medical condition and military service.

o

Your condition is not one of the chronic

diseases that VA presumes is related to

your military service.

• The evidence does not show that your

condition resulted from, or was aggravated

by, a service-connected disability.

Explanation

You submitted a lay statement to support your claim. A credible lay statement may establish what was seen, heard, and directly experienced. The particular lay evidence was found not to be competent and sufficient in this case to establish a link or nexus between your medical condition and military service or to establish that such a link has been found by a medical professional. The VA medical opinion found no link between your diagnosed medical condition and military service. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition. The medical opinion we received from the VA Medical Center was more persuasive than your private physician's opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale. The examiner indicated that the peripheral arterial disease is less likely as not due to a service connected condition. There are no reasonable or credible studies linking PAD with heart disease. However, PAD is most likely related to your hypertension, which is not a service connected disability.

Medical Description

Denial Reason

Right leg arterial replacement

• The evidence does not show an event,

disease or injury in service,

o

We did not find a link between your

medical condition and military service.

o

Your condition is not one of the chronic

diseases that VA presumes is related to

your military service.

• The evidence does not show that your

condition resulted from, or was aggravated

by, a service-connected disability.

You submitted a lay statement to support your claim. A credible lay statement may establish what was seen, heard, and directly experienced. The particular lay evidence was found not to be competent and sufficient in this case to establish a link or nexus between your medical condition and military service or to establish that such a link has been found by a medical professional. The VA medical opinion found no link between your diagnosed medical condition and military service. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition. The medical opinion we received from the VA Medical Center was more persuasive than your private physician's opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale. The examiner indicated that the right leg arterial replacement is less likely as not due to a service connected condition. There are no reasonable or credible studies linking right leg arterial replacement with heart disease. However, right leg arterial replacement is most likely related to your hypertension, which is not a service connected disability.

Thanks again for your assistance in my case and I look forward to your reply.

OSC