11 Years And 3 Days Later, Varo Still Punishing Us!

[TiredVeteran]

Long time, no post. Sorry and hello to all :)

Jimmy won his medical malpractice case at the BVA level. We thought it was finally over. Nope.

Nashville VARO seems to have a habit of punishing those who speak out about malpractice and only gave him

ONE year retro. So, he is still owed pay from 2003 to 2011. The VA maimed his cervical spinal cord in 2003;

Since then, thankfully he has fought successfully Agent Orange Cancer and a host of other serious illnesses, and is the same awesome hubby. We have much to be thankful for.

I wish the FBI would arrest the people who deliberately cover up wrongdoing and haul them off in handcuffs.

That is about as likely as VARO not being adversarial to veterans.

Hugs and thanks to all of you!!!!!!!!!!

PS: not sure what the e 3 seaman is?

Edited June 12, 2014 by TiredVeteran

[Berta]

Tired veteran

I assume you mean he won a Section 1151 claim for malpractice.

Did he also succeed in a FTCA claim that was on the same basis?

Is this his BVA case?

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp11/Files5/1143084.txt

I havent read it yet, if so.... I will read it....

I dont understand the EED they gave him at first glance to your post ,because in 2012 I won a Section 1151 issue (CUE filed in 2004 on a 1998 decision) and the retro went back to 1992.

The EED on my Sec 1151 DIC award was the date of my husband's death.because it was a wrongful death claim.

A vet friend had a 1151 EED of the date of the claim I wrote for him.In his case the malpractice had begun much prior to that date, but he didnt know it so never filed a claim sooner for it. we never questioned the EED in that case.Maybe we should have......

On another separate 1151 malpractice issue the VA resolved in 2012 (Nehmer IHD), no claim for IHD had ever been filed in the veteran's lifetime by my husband but he mentioned it himself in a 1151 claim,fearing the VA had malpracticed on other disabilities he 'might' have as well as his PTSD.

He filed his 1151 in 1994 and I had to reopen it in 1995 after he died. Even with my FTCA settlement info they still denied, .but I called the Office of General Counsel telling them no deal on my settlement and to start adding some money....and suddenly the RO reversed the denial to an award.

Under a 2003 CUE,i filed, in 2012 the VA awarded for that disability as well,AO IHD, with an EED of 1988.

So as you can tell EEDs for 1151 are often unusual and probably often wrong.

The ROs hate to get 1151 claims and they hate to award them. We discussed them briefly with Dr Bash at the radio show here yesterday, available to the right by clicking on the show banner......he agreed with me as to these 'secret lists' we 1151,FTCAers are on....

I was quite surprised that Dr. Bash and John Dorley are as fully aware and concerned about these secret lists as I am....Your husband is now on it as well.....

And I sure know how VA can retaliate with us, when we file additional claims...They somehow lost 2 claims I thought I had pending for almost 2 years and are 'working on' a claim I already won.....??. that all crap has to stop. VA is 'fudging" per Craig Bash. ALL of the books and he is RIGHT!

Actually it looks like the FBI will be brought into the VA, because of the latest Phoenix death scandal.

Edited June 12, 2014 by Berta

[Berta]

If that is his BVA decision I noticed something in a brief read:

And I believe the RO sure SCREWED UP on the EED. I would love to read their medical rationale.

Brief excerpts:

"There is conflicting evidence on whether the Veteran has an additional cervical spine disability following the surgery in June 2003."


"In July 2004 VA medical opinion, a doctor who only reviewed the June 2004 VA examination report noted that the VA examination revealed normal reflexes and norm"...the key word there is " only"......

"In a March 2005 VA medical opinion from a chief of neurosurgery, that doctor noted that after the June 2003 surgery, the Veteran initially seemed to be doing" etc

Do you have a copy of that entire opinion and MRI narrative?

"The Board notes that Dr. D.W., the VA chief of neurosurgery, and the independent medical expert have the most expertise on neurological disorders and therefore the Board gives greater weight to their opinions on the question of the existence of an additional disability due to VA surgery than on the opinions of the other medical professionals."

The Board is correct on that point.

. "The Board, therefore, gives the most weight to the opinions of Dr. D.W. and the independent medical expert and finds that the competent evidence demonstrates that the Veteran does have an additional cervical spine disability from the VA cervical surgery in June 2003.


"ORDER

Entitlement to compensation under 38 U.S.C.A. § 1151 for an additional cervical spine disability as a result of cervical surgery in June 2003 is granted."

If that is your BVA decision can you scan and post the Reasons and Bases part of their RO decision and the evidence they used?

(Cover C file name and address first)

They might have some good reason but I sure dont get it..........

The BVA legally established the EED as June 2003. if that is his decision....?

[Berta]

I could be wrong on something....if this is his BVA decision I posted the link to...it states:

"This appeal comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee."

I therefore assumed the veteran had filed the 1151 claim within one year prior to the EED he sought ( 2003 EED.)

"The statute and regulation governing the resolution of this
case are 38 U.S.C.A. § 5110© and 38 C.F.R. § 3.400(i)-
which state that the effective date of an award of disability
compensation under § 1151 shall be the date such injury or
aggravation [at the VAMC] was suffered-but only if a claim
was received within 1 year after that date; otherwise, the
effective date shall be the date of receipt of the claim."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp01/files03/0124746.txt

However, the BVA ,I am sure, would have rattled off the above regulation if the veteran had failed to file within one year after the 2003 malpractice occurred.

Thus BVA gave the veteran the 2003 EED.

Then again I dont know if the link I posted from BVA is the same decision you got.......and I have a tendency to jump in fast on 1151 issues.

And to add to others out there...it is imperative for veterans or their survivors to jump in fast on 1151 and FTCA issues.

Dont hint in any way to your VARO or VAMC that you are filing these claims....because that is when the good stuff disappears.

Get copies of your C file and all VA med recs first before sending in a 1151 claim or before sending a SF95 to the VA counsel.

Edited June 12, 2014 by Berta

[Berta]

bumping it up for more input

[TiredVeteran]

Hi Berta!!! I subscribed to this but didn't know it was replied to.

Yes, that is Jimmy's claim!!! The tort got tossed out as the Judge ruled contract doctors were not covered. However, in the discovery, I got the

addicted doctors file, so at least got some proof.

We have never had a chance to get a copy of the c file as they say it will slow things down more.

The BVA actually send Jimmy's records for an IME. He called it like it was..........negligence and malpractice.

We filed the claim right away in 2003.

This is the worst year ever for my emotions about this case, likely because my husband is so very sick and the look in his eyes is that he has given up the VARO ever treating him fairly.

Edited June 14, 2014 by TiredVeteran

[Berta]

To get back to this post you made:



You said
"VARO is the one holding his back pay hostage for the 1151"

"My husband has been retailiated against by the Nashville VARO since he reported the illegal activity and malpractice at the VA hospital. His claim is 11 years old. The BVA found it to be malpractice. He has a R rating.

The VARO is refusing to pay his retro, he only had a few months backpay."

In the BVA decision the BVA stated:

"ORDER

Entitlement to compensation under 38 U.S.C.A. § 1151 for an additional cervical spine disability as a result of cervical surgery in June 2003 is granted."

You confirmed that the 1151 claim was filed within the year the regulations call for.

"The statute and regulation governing the resolution of this
case are 38 U.S.C.A. § 5110© and 38 C.F.R. § 3.400(i)-
which state that the effective date of an award of disability
compensation under § 1151 shall be the date such injury or
aggravation [at the VAMC] was suffered-but only if a claim
was received within 1 year after that date; otherwise, the
effective date shall be the date of receipt of the claim."

http://www.index.va....s03/0124746.txt



"My source says the Nashville VARO has a policy in place to do this to patient who are victims of medical malpractice. He is likely not going to live long enough to go through another BVA appeal."

What policy? Who said that?

Is this a question now of VA attempting to find him incompetent?

"The VARO is refusing to pay his retro, he only had a few months backpay."

The BVA award is dated Dec 2011.

I had the same problems with my VARO in 1998 and then in 2009.

But I got on the General Counsel to call my stupid VARO up and square it away (which they did)

Is the General Counsel award of the BVA award? By 'judge' do you mean a federal district court judge?

I know I asked lots of questions and I know how Low the VA can go on these types of claims.

"The VARO is refusing to pay his retro, he only had a few months backpay."

Maybe this is the most important question I asked.......What documentation of the refusal do you have?

Can you scan and attach here ( cover C file,name, address first) whatever the VA said in writing ,as to why they refused to pay the back pay?

What date is on that letter and did you appeal it?