falsified documents

[wieser]

I have a claim for the residuals of mrsa, PCP failed to diagnose & treat.  Now at cavc, va has denied using totally false & misleading information and ignores all evidence even what is in my medical records.  When I filed my nod I requested a dro hearing, the rep at DAV got pissed and tried to start an altercation but it didn't work.this was on April 2 2013 , I got a denial on my nod and never got a hearing ,I checked my records and found that this DAV rep falsified a document and canceled the hearing I asked for.  The doctor, the Dav rep, my attorney, and everyone else involved with my claim all know each other. When I talk to my attorney, he tries to justify what the va does and ignores the Dav rep falsified document.   Any advise would certainly be appreciated.  Thanks.

[Berta]

Is this the BVA decision your CAVC  case is based on?

http://www.va.gov/vetapp15/Files3/1522231.txt

[wieser]

Very good, that is the one, any thoughts?

[Berta]

I only found 2 MRSA claims granted at the BVA, but a search under MRSA 1151 might reveal more.

http://www.va.gov/vetapp15/Files1/1500500.txt

 

http://www.va.gov/vetapp13/Files5/1340924.txt

In each case above there was medical evidence that the veteran had contracted MRSA due to hospitalization.

The decisions reveal there could be no other etiology at all, but for the VA medical care that lent to the MRSA.

What I mean is this....in 2009 I was treated at the local VAMC and discharged the next day (I am a civilian). One of the first things they did was to check for and rule out if I had MRSA.

In 2008 and 2009 and maybe earlier than that, VA nationwide, was aggressively trying to prevent MRSA,.by making sure a newly hospitalized pt was not bringing this infection in with them. The decisions above reveal why their MRSA was granted under 1151.

1151 claims need two things,

1.Absolute positive medical proof of VA negligence and

2. absolute positive medical proof of additional disability directly due to that negligence (or malpractice)

I didnt see those things in your BVA case and unfortunately the CAVC will not accept new evidence.

If your CAVC lawyer is lucky enough to get a remand from the court...which is not easy, that could possibly open the door for you to obtain an Independent Medical Opinion to support the claim.

They would need to argue on this point:

" Now at cavc, va has denied using totally false & misleading information and ignores all evidence even what is in my medical records."

I think you mean you have recently filed at CAVC or do you mean CAVC already denied the claim?

An NOD , as a claimants first avenue of attack, and the I-9 should contain any proof of any misleading or inaccurate statements in either C & P exams or in the SOC.

By time of the CAVC it is usually too late to do that.

I had misleading and inaccurate states in a SOC for a 1151 claim I continued with VA when my husband died.

I found right away that the VA had failed to give this doctor the most critical  evidence I had.And had even withheld it from the General Counsel for my FTCA case.

The Evidence list didnt list it and the posthumous C & P doctor,when I called him to raise hell, didnt even know about this evidence and told me it could have altered his opinion completely. The OGC medical opiner went ballistic when I called VA Central about it.

So there could be something seriously missing as far as what they based their denial on, but the time to argue that point ,and produce exactly what they didnt consider, could possibly cause a CAVC remand if your lawyer aggressively points that out to them, and then on remand BVA would have to consider that evidence.

Still the regulations for 1151 are quite concise.....there must be

Documented Medical proof of the VA negligence......

And documented proof of a ratable disability directly due to the negligence.

And that evidence almost always comes from an IMO doctor, as believe me, it takes a long time studying this medical records  to support this type of  claim yourself.

If I had contracted symptoms of MRSA shortly after I was discharged from the VAMC, there is possibility I had no other know etiology but for the VA hospitalization and a strong basis for a 1151 claim if I had additional disability directly from the MRSA..

VA had given me the MRSA test and ruled it out right away.

But when I left the VAMC I went over to the Chinese Restaurant and bought enough food for 2 days.

How could I prove that I didnt get the MRSA at the restaurant ?

That is what the BVA means by causation and these 2 decisions that are MRSA awards show what evidence the BVA found to be probative.

 

 

 

 

 

 

 

SVR Death Show March 18,2009.doc

Edited September 25, 2015 by Berta

[broncovet]

I knew of a CAVC case where there was an "altered" document, so I did a search.  There were 9 pages and hundreds of hits on CAVC website.

The most famous may be Cushman vs Shinseki.   In other words there have been hundreds of cases where the VA frauduently altered Veterans documents, and they continue to get away with it, en mass:

In part:

 

The Federal Circuit found that the appellant's"TDIU claim was tainted by the presence of an improperly altered document"; that "[t]he altered

document was the only piece of medical evidence that addressed Mr. Cushman's then[-]current

employability"; and that Mr. Cushman was prejudiced by the presence of the altered document.

Id

.

at 1300. The Federal Circuit stated that while the RO and the Board "did not discuss which evidence

was determinative, any reasonable fact finder would have at least considered the altered medical

record under these circumstances."

Id

. The Federal Circuit thus found that "there is a reasonable

possibility that the result of Mr. Cushman's TDIU hearing would have been different in the presence

of the unaltered document instead of the altered document."

Id

. Upon determining that

"consideration of the altered document instead of the unaltered document in adjudicating Mr.

Cushman's claim was a violation of his constitutional right to a fair hearing," the Federal Circuit

vacated this Court's decision, and remanded the case "with instructions to further remand to the

Board for a de novo determination of Mr. Cushman's 1977 TDIU request."

Id

. On December 15,

2009, this Court vacated the Board's first decision (August 2005) and remanded the matter for further

proceedings consistent with the Federal Circuit's decision

 

 

[Fat]

Interesting...............

[broncovet]

Notice what is going on with Cushman:  Even tho the VA got caught "red handed" at falsifying the Veterans documents, it was "only" a remand.  I would think the principal should apply that the Veteran should be awarded the whole tamale under the circumstances.  I can not believe this is a remand.