tinnitus Berta..question On 1151?

[broncovet]

I have been treated by the VA hospital since 1998. Never once did the VA diagnose sleep apnea, In 2007, I had chest pain. My wife, being a cardiac nurse, insisted I go to the hospital. She called VA, and my local VA was full and not taking new patients at the time. They said I could go to a private hospital and VA would pay.

I did. A local heart hospital correctly diagnosed sleep apnea, by running several tests, which revealed I have an enlarged right side of my heart, consistent with not enough oxygen and sleep apnea. The local private heart doc said "I definately have sleep apnea".

I took this report to the VA and they did a sleep study and diagnosed sleep apnea, and prescribed a CPAP which I have used since 2007.

Im considering an 1151 claim, based on VAMC's failure to diagnose sleep apnea. This was not a "new" sleep apnea...it takes a long time for the right side of the heart to enlarge because of the apnea. VA failed to diagnose it.

As a result, I must live with an enlarged right side of my heart, which, tho helped by a CPAP, will likely shorten my lifespan.

The VA claims my apnea is "not service connected."

If my apnea were SC, I would immediately be eligible for SMC S, because of the "100 plus 50" statuatory housebound, as sleep apnea with a CPAP is 50 percent, and I have another 10 percent for hearing loss and another 10 percent for tinnitus.

I would like your opinion if I should file an 1151 based on my VAMC's failure to diagnose sleep apnea.

[Berta]

"Im considering an 1151 claim, based on VAMC's failure to diagnose sleep apnea. This was not a "new" sleep apnea...it takes a long time for the right side of the heart to enlarge because of the apnea. VA failed to diagnose it."

Broncovet, sometimes 1151 is like the Watergate question I mention here sometimes regardin CUE claims...

'what did the VA know and when did they know it?'

In other words what evidence in your medical records indicated VA should have diagnosed the sleep apnea earlier then it was diagnosed?

Unfortunately sleep apnea is often difficult to diagnose or is 'underdiagnosed'

"It's one of the most underdiagnosed conditions around, and I'd argue that, in a sense, the diagnosis of sleep apnea is more a blessing than a curse."

http://health.usnews.com/health-news/blogs/eat-run/2013/02/06/why-a-sleep-apnea-diagnosis-may-save-your-life

If an IMO doctor ,with expertise in SA, stated that the VA (after he/she reads your med recs thoroughly) could state ,with entries from your records that they did fail to diagnose this in a timely way, , and thus that failure directly caused the heart's right side to enlarge, of course the VA would have to consider the 1151 aspects of a claim like that.

I think there are many vets who have sleep apnea and who live alone and dont not even know if it causes them a lot of snoring

(buddy statements have helped support inservice SA) and they and even their doctos might attribute their lack of getting a good night's sleep to medications or even to stress, or other MH issues.

It was one sole crossed out entry in my husband's extensive VA medical records, (that I did manage to be able to figure out) that gave me the main impetus, after my daughter's insistence, to file for DMII due to AO.

In the countless times I went over his records for my 1151/FTCA case, I had ignored the entry because it had been crossed out, but was still legible.

Another entry I had not focused on for my FTCA/1151 case stated 'the veteran has DVD.'

For some reason I never had looked up that acronym in any medical text...I had so much evidence for the FTCA as it was.

After I reopened and filed for DMII due to AO ( I had to word and shape this claim very carefully-as I could not claim the same death twice under 1151)

I learned quickly that the acronym meant Diabetic Vascular Disease.

One of the SOCs against that claim, said the endocrinologist stated the widow has misinterpreted that entry ( I also sent them something from Merck's acronym list to prove it)and this so called VA expert in diabetes (Endocrinology) stated that this entry meant instead==== that the veteran had

DeniedVenereal Disease. (DVD)

I bust out laughing on that bogus statement, because my husband had never denied he got VD in Vietnam.

It is even on all of his rating sheets but with a "0" rating, and I think it was documented in his SMRs.

Whatever the medic gave him in Vietnam to treat it was so strong that he also had evidence ( his ex wife testified to this as well in his old C file)that they were told after multiple tests that he could never father a child due to the affects of the inservice injection of whatever they used to treat the VD.

My point here is, 1151s need probative proof, although it can be very well hidden, from documented VA med recs, to reveal

an actual bonafide 'failure to treat' because VA would have to be aware of any documented symptoms that were ignored , as a failure to treat.

However ,if malpractice has occurred by the VA, there will be a paper trail of it in the med recs......and thorough readings of those records will reveal it.

Often it can be so obscure that one needs a medical background to do that and that of course comes ,in most cases, from an outside medical opinion.

I am certainly not saying your claim has any lack of merit , but it would take a strong IMO to succeed.

VA will question as well, I am sure, and raise any other possible cause for the enlargement of the right side of the heart,to be able to deny the claim.

In that regard however, you might get some bogus quack person with an apparent lack of any medical expertise , as I did in my 1151 HBP claim, that you can easily overcome with a strong IMO. My IMO came from a Top VA cardiologist.

They ignored that IMO until I fought back ...and a few weeks later they conceded.

If the sleep specialist is trained in the affects of SA on the heart, and can provide abstracts or treatises to support their IMO it is highly unlike VA will find a cardiologist unwilling to go against that....but then again...as I well know, they will do all they can sometimes, to get out of paying 1151 claims.

Even a VA Endocrinoligist ,I learned,with my DMII claim, will manipulate a well known medical acronym ,DVD, to be something else to deny a claim, hoping we will accept BS like that.

Edited May 24, 2015 by Berta

[broncovet]

Again, Berta, you are right. I did exactly that as a newbie. The "pros" told me to get my cfile, and, I was like..why would I do that??

Most of that was because I was so naive that I thought VA:

1. Had everything in my records

2. Knew all the applicable regulations and would apply "benefit of the doubt".

3. They would take the time to read my records.

4. Had a desire to be "fair", with no "agenda" to save money.

All 4 of the above turned out to be inaccurate. I think I will skip the 1151 claim, not because I could NOT win it, but because I would have to put considerable resources into it, such as IMO's, IME's, and much time. And, frankly, I think I can help more Vets focusing my efforts on a Writ Im working on (in part) to compel the VA to a written decision on my "Request for special handling due to shredded evidence".

Im convinced VA has "gotten away" with the 2008 shreddergate, and, no doubt will and is repeating it.

You see, by compelling a decision as in 38 cfr 3.103 (along with compelling compelling compliance with Board remand), the VA will either have to deny they shredded my evidence or admit it. If they deny it, here comes the appeal, which involves even more bad publicity for VA. If they admit it, then I will post this decision here and on other Veterans websites. I know the VA can not win that..that is why they want to hush it. However, the VA is compelled to follow its own regulations: 38 cfr 3.103 (f):

(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief.

end of 3.103 (f) quote

The regional director, told me in an email, that the VA did not "have to" notify me of a denial of Special handling request, because it was a "request".

However, in my Writ, I am going to argue that this denial "affects my payment of benefits" in that the special handling I requested would enable an earlier effective date, since I have alleged the VA shredded my evidence. This earlier effective date will "affect my payment of benefits".

I am simply "not gonna take" VA shredding my evidence "lying down". I cant make them grant my request, but, I think I can compel compliance with 3.103 (f).

I have raised the shredding issue in every appeal since 2008...neither the BVA nor the RO decisions ever addressed it. Instead, they acted "as if" the shredding never happened, repeatedly citing things like "no evidence of (my son's) birth certificate" in the file. That makes my blood boil!!! I submitted my sons birth certificate in 2002, 2006, 2009, and 2014. The VA got it too!!! They even awarded my son DEA Chapter 35 benefits on one side of their mouth, and then told me they did not have proof. Its an absolute lie, and Im calling them on it. They had my sons birth certificate, shredded it, then deny my dependent benefits as "there is no proof in the record".