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Case Laws Needed For Failure to Diagnose


63Charlie

Question

I'm pursuing a claim for VA doctors failing to diagnose a condition when they should have.

This is type of claim falls under an act of omission, and I am purporting medical negligence under Section 1151.

So far I have found Roberson v. Shinseki which addresses acts of omission.

VARO is arguing that I failed to show causal connection.

Pro se here going to appeal to the BVA..

 

The following is the VA explanation of denial of my spine claim for IVDS and other secondary conditions:

    " Compensation for spine condition is denied because the evidence fails to show that your VA medical or educational services were the cause of additional disability. You reported back problems. A chest MRI was conducted on December 4, 2008 by West Coast Radiology. Results showed degerative changes and disc herniation in the mid thoracic spine. You received a phone call from a VA employee informing you that your MRI results were negative and normal. Later on February 10, 2009, Orange City Cnic physician acknowledged reviewing the radiology reports and reported the results were normal.

     On June 13, 2011 another spine MRI was conducted and the results showed a marked increase in back problems in comparison to earlier MRI results.

    In February 12, 2016, you reported continuation of back pain while working at your job in construction.

    You also reported that the VA misdiagnosis of your back problems prevented you from getting the medical care you needed since you had no way of knowing if you had a disorder, as a result, you did not have a chance for a transitional job because the VA never told you you had back disability issue.

    Based on the total of the evidence, you now have cervical bulge discs with herniation of canal and foraminal stenosis.

    However, there is no evidence establishing fault on the part of the VA in furnishing hospital care, or mediacl treatment.

    There is no evidence of carelessness, negligence, lack of proper skill, or error in judgment. The evidence does not show that the VAMC failed to exercise the degree of care that would have been expected of a reasonable health care provider, nor did the VAMC furnish care without informed consent.

    Although it appears you had an unfortunate outcome of your spine pain, there is no evidence of carelessnesss, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA Administration."

 

                  REBUTTAL

                 1.       I never worked in 2016 as the VA alleges.

                  2.     I applied for SSDI and was determined 100% disabled as of Sept 2, 2010, the last day I ever worked..

                  3.     I was never informed that I had ANY back problem by the VA. Was told the MRI was normal when in fact herniated thoracic disc, and degeneration was noted in the radiology report the VA doctors received and acknowledged informing me the results were normal. Only until after I was too disabled to work did I find out what was wrong with my spine. I had to acquire my VA medical records and when I got those, and read the radiology report from 2008, I discovered that my thoracic spine MRI was NOT normal. Multiple VA doctors treating me kept telling me all along the MRI was normal, even while I'm having chronic back pain from radiculopathy. I continued working in pain for about two years without knowing my spine was deteriorating rapidly.

                 4    I made an appointment in 2011 and told my treating VA doctor they had made a mistake in my diagnosis. My spine was not normal,. They started damage control them and expedited MRI studies on all levels of my spine..The results came back so bad that I became severely depressed. I blame the VA for not diagnosing me in 2008 when they should have, and by not doing so, they failed to treat/ diagnose my IVDS which allowed it to progress until I became disabled due to the severity.

                      The VA diagnosis and treatment came AFTER I was unable to work,and adjudicated disabled by a SSA administrative law judge.

                      Too little too late.

                       I'm feel fortunate to have not had cancer, or some other terminal disease, or I would have been dead for sure based on the poor standard of care the VA provided me.

                       Why do they need to lie and deny a legitimate claim of negligence leading to my permanent disability??

                >>> Hopefully one day my case makes it in front of someone who will actually apply the law as it is written.

                       The St. Petersburg FL. VARO has done me wrong..

                       In the meantime, I'm doing my best to fight Goliath on my own.

                       It's been an uphill battle, if I were healthy it'd be a different matter.

                       Fighting my spinal disease and fighting the VA for benefits is a war on two fronts.

                  

 

 

 
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63Charlie

Sir, No I have no''Beef'' with you I just think you will get more help with your claim to stay in your original post  , you can discuss your claim more efficient and learn more about the Claims process and the VA, with fellow members of hadit who have more knowledge and expertise & it helps stop confusion going from one topic to the next.

This is just my opinion,your free to do as you wish...if you don't like Hadit  your free to choose other veterans sites.

I apologize to you if I up-set you I certainly never meant that.

 Maybe you should read about the hadit guidlines.

...............Buck

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Found this regulation today.........

Regulations provide that benefits under 38 U.S.C.A. Section 1151(a) for claims received on or after October 1, 1997, for additional disability or death due to hospital care, medical, or surgical treatment, examination,training and rehabilitation services, or compensated work therapy program, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, UNLESS the VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. Section 3.361.  

 

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  • HadIt.com Elder

That seems to be worded a little differently from the actual 38 USC 1151 regulations:

https://www.law.cornell.edu/uscode/text/38/1151

The above 38 USC regulation is the only one I used for my 1151 claims.

And IMO doctors are the only ones that can determine "causation" and if malpractice occurred, their IMO can help with getting a proper 1151 rating for the additional disability the malpractice caused.

 

 

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Berta has given great advice.  To summarize, you need a doctor to say that VA caused your problems, or that it was at least as likely due to an event in service.  No such opinion = no service connection.  I have not read your records, and you should do so, but if said evidence is not in the file, then it will take an IME/IMO.  You must have evidence, that is, a docs opinion, not your opinion, not my opinion, and not Obamas opinion.  It must be medical evidence of a disability. 

 

If you do have such a medical statement in your file, then the VA did not read it.  This is not unusual either.  In either case you need to file a timely NOD.  You should not do that until you have a copy of your cfile (unless VA wont send that to you before a year from your decision).  

Its a good idea to have the cfile before you file the nod, then you can refute their nod with evidence.  Example:  

While the VA stated there was "no evidence" of a causal link, Dr. B on 11/4/14 said otherwise when he stated, "The Veteran has had the condition since the may 12, 2004 MRI, indicating that it was mis diagnosed until today".   

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  • HadIt.com Elder

2.     I applied for SSDI and was determined 100% disabled as of Sept 2, 2010, the last day I ever worked.".

Was the SSA award solely for the back condition?

If so did the VA know and attain those records?

There is info in our FTCA/1151 forum on this issue.

The only 'case law' I used for these claims was Section 1151, 38 USC. And FTCA guidelines from the VBM.

I used "failure to diagnose and treat "as well as 'omissions of acts' for my 1151 /FTCA issues.

  "Why do they need to lie and deny a legitimate claim of negligence leading to my permanent disability?"

Because they need an IMO from an expert.

VA is quick to say we don't have the medical expertise to opine on these issues.

But if you are willing to gain some of that expertise yourself, that can turn the tide but I can assure you

it took my almost 3 years to succeed in my 1151/FTCA  claims without an IMO.(Wrongful death of my husband)

I also had an additional malpractice issue, AO DMII but filed a claim for direct SC on that but this time I prepared a significant amount of evidence in addition to having all medical records and gladly paid for 2 IMOs from Dr. Craig Bash.

DMII never was diagnosed or treated by VA, but I already had the evidence of that before I even called Dr Bash.I felt if I had to lay out thousands of bucks for a strong IMO, my evidence better be worth it.

I dont see evidence here of this.......for my claims I took the VA step by step from the first malpracticed incidents, ( IHD and Stroke), then HBP and the DMII.

I took them step by step regarding the cover up attempts, (all above from the VA medical records, ) and then I stated how none of this was consistent with medical care in the "standard and usual medical community."

That is the high bar you must reach with your evidence.

It is best to let a real doctor, who follows the IMO criteria here ,do that.

For me to reach that high bar to prove malpractice,to win FTCA and 1151  I had to study neurology,  and cardiology. enough to get up to VA's doctor's levels. Two VA doctors (Peer Review and IMO from VACO )fully agreed with my medical opinions based on established facts from the VA medical Records.

I do not advise anyone else to do that however because it is difficult medical work and takes a lot of time.I didnt even have the internet in those days nor any way to get an IMO.

You need a IMO specialist  ( Dr Bash has expertise in these types in claims and disabilities)

because otherwise, as I well  know, the VA will try to walk all over you.

In my case both an X ray of heart, then sinuses, and also an MRI were completely misread by the VA.

All of those results were factors for my cases. minimal incidents of malpractice compared to the big stuff.

I cannot tell if you have a valid 1151 claim because your entire medical records is what will reveal if they did not properly diagnose and treat..

You need a real non VA doctor to read them all and prepare a strong IMO.

Also you need representation too..

 

 

 

 

 

 

 

 

 

 

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