Valid Complaint?

[pwrslm]

Hi Im new here. Thanks for having me.

I was set up with the VAMC Apr 14. First time since I left the Army in 84 that I had any real heal care. Back problem from service still is an issue, first time out, brought to the attention of my PCP. She gave me a tube of "stuff" to rub on my back, and that's all. Fast forward, 6 months, notified her on that next visit that the back problem is still there. She didn't say anything, no physical contact, no exam nada. Next thing I know, appointment for Phys Therapy comes in the mail so off I go.

PT gives me the going over, tells me that hyperextension of my back will help me. OK, Im game. First trip back, a week later, I have tingling down my left leg. I tell PT, who instructs me to go farther back, extend all the way back like a push up, but keep my pelvis on the ground. I trusted the PT knew what was going on, so I did. Next trip another week after, twitching in my leg and foot started, reported to PT. PT said keep hyperextension exercises up, and put a rolled up towel behind my low back when I sleep, and a pillow under my knees.

Next visit, I found out my PCP left town. The PT fed me a line, asked me if its good as its gonna get, I said aye, it is. Discharged me, with my tingling leg and twitching foot. Told me keep doing this exercise for the rest of your life. I said ok, but really felt like I was dumped.

Fast forward, the symptoms in my left leg got worse over the next month, foot drop, weakness, new pain central back, so I stopped the hyperextension, see if it would heal. But it got worse, 60 days later, Im a walk in at the clinic. They sent me to xray, and got me an MRI. I also got a prosthesis for foot drop. Turns out Ive had advanced arthritis in my facet joints for a while. The hyperextension jammed them, now I have 3 discs herniated and stenosis. Not sure how far the disc problem was all along, but nothing in the world outside of a crystal ball could tell anyone. Needless to say, it was probably an existing condition.

The question; Does this classify as a valid aggravation of the existing condition, and exactly how should VA personnel handle this issue once they become aware that I may have been harmed by treatment.

The 3 Surgeons Ive talked to all say I need surgery, L3 to S1 decompression and fusion.

Edited July 10, 2015 by pwrslm

[63SIERRA]

Also dont waste your time with the patients advocate at the va,, all they are is a trip wire to gaurd the director upstairs,, they have no power and will not confront a doctor or even bring your problem to the assistant director or director.. { one cannot be held responsible for a problem they werent aware of right}.. thats how it all works..

If the toilets are dirty patient advocate can help.. if the magazines are stale, patient advocate can help, if water fountain isnt working, pateint advocate can help, if seats in lobby smell like ass , patient advocate can help.. Other than that,, dont waste your time..

When I tried to have patient advocate file formal complaiint with the director of my hospital, I was told I needed to put the complaint in the suggestion box.. NO KIDDING.. Shre refused to bring the complaint to the director...a couple weeks later the patient advocate left.. for a while we didnt even have a patient advocate.

GET DOCUMENTATION BECAUSE NOTHING YOU CANT PROVE MATTERS..

[pwrslm]

I have the IMO. It was scanned into the vista system. They didn't use it to put the info on the record. I will bring this up next meeting.

I understand the advocate system is not so great. According to the VHA handbook, they are supposed to do specific tasks which they don't. I find this common in informed consent as well. It is a systemic issue, the failure to follow regulation really disrupts the system and makes it ineffective.

[pwrslm]

update

Got spine surgery Nov 2015.  L3 to S1 laminectomy, decompression and Fusion.  Still recovering.

From July on, my leg was slowly getting worse.  I chose surgery in the hopes that it would stop the progression.  Surgeons report detailed sever stenosis at L4/5.

 

Now, I am seeking an IMO on the exercise they gave me (hyperextension of the lumbar spine) stating that this exercise was contra-indicated for a person with my history and age.  The VA Treatment records record no incidence of leg problems for over the 1.5 years I was enrolled until I did these exercises, and with an IMO that the exercise was the cause of the severe compression in my lumbar spine, or further aggravated the existing condition, causing the partial paralysis of my sciatic nerve in my leg which led to the requirement for surgery I noted above.

 

FTCA claims have a 2 year limit, so I have the rest of this year to put this in.  Now that my back is better (hopefully) I can start this back up and work on it.

Edited January 1, 2016 by pwrslm

[broncovet]

Wait, give us some more information, here?  When did you get out of service?  If you got out of service within a year, then your back condition is presumed to have happened in the military, as follows:   

You had a physical to get in the military, and I will assume no back problems, noted on your physical.    

You get out of the military, and in the year that follows you have back problems.  That should mean that your back problems occured in military service and you need not file an 1151, in this Vets opinion.   You COULD file an 1151, but VA fights them even harder than "regular" service connection, so why go there, and make it harder on yourself, unless it is the only way.  The easy way is simply presumptive service connection:  You had no back problems going into service, and you had em when you got out, that is, if you applied within a year of getting out of service.    Even if its AFTER a year, you simply need a doctor to opine that your back condition is "at least as likely as not" due to xx event in military service.  If you do not have a documented event in military service that could have resulted in back problems, now that is different.  Still, the stress on your back of carrying a very heavy backpack over long periods and long distances can cause back problems.  My son had to carry about a 100 pound backpack for long distances.  The Army recognizes this is a prescription for back problems, and I even think they are lightening up that backpack.  Dont expect the military to admit that any time soon tho, expect them to deny it and accuse Vets of making up back problems instead.   Its just plain stupid for the Army to require troops to carry a rather massive load long distances, and then wonder why Vets have back problems.   

Its true you wont be compensated for the same symptoms on an 1151 claim that you are already service connected for, as pyramiding prevents that.  If your back is injured and service connected, and the physical therapist WORSENED your condition, then you may have a case for 1151, but you would have a similar case for a simple "increase" or worsening of the condition, and you need not prove the PT caused it.  Once you are service connected, the reason why it got worse is irrelevant, only that it got worse.  

[broncovet]

I will add that Berta is an 1151 claims expert, and follow her advice above mine.  If you do delay filing a 1151 while you wait to see if you will be service connected, I agree its problematic because the VA takes so long in rating us that you could miss the deadline for filing an 1151 while waiting on a decision for service connection.  

However, I do think the VA has to consider ALL the evidence, and that would include Service connection under section 1151, IMHO, but that is a legal interpretation of which I am unqualifed to make.  I do know when you apply for benefits you dont have to make a call, "this is presumptive SC", or this is "direct SC, or even "secondary SC".  They have to consider them all, direct, presumptive, secondary, and I dont know why they could exclude 1151, but Im not sure that has been tested in court.  You dont want to get caught in the "donut hole" where you apply for service connection, it gets denied, and then your 1151 claim goes beyond the deadline.  

[Berta]

just to point out, there is no time limit for 1151 claims but the Statute of Limits is 2 years for FTCA.

Sometimes a claim for "aggravation "of a SC disability is as good as a 1151 claim.And easier to succeed in, with a strong IMO,.

However a strong IMO could also cover both of those theories.

FTCA and 1151 need the same  evidence:

Documented medical proof of negligence/malpractice in the VA med recs and

Documented medical proof that those errors caused additional disability.