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BVA sent remand back to regional VA, they failed to follow the judges directions

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retiredat44

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BVA sent remand back to regional VA, they failed to follow the judges directions. They only copied what was in the first denial, and did not meet the conditions of the BVA judge.

They totally ignored al of the injury and chemicals that got me sick. They did not use any of the missing evidence the judge stated in the remand.

I am asking my POA to help me craft a letter to the local VA and BVA, specifically citing areas of failure in the SSOC. 

I know my case is complicated and very lengthy.

 

I worked with chemicals and got sick on active duty. I had skin disease and was also hospitalized for gastritis, while on active duty.

I got sick from jet Fuel, Leaded Gasoline, Diesel Fuel and Trichloroethylene.

 

The denial only listed Jet Fuel, and they never addressed the other chemicals , never, ever, in any response to my claim. Not di they acknowledge my hospitalizations on active duty. All were omitted and never responded to which were also listed by the judge in the remand.

I am also the one who spent six months in a VA hospital with a dying pancreas.

After I moved from San Diego to Oregon, after being treated for 20 years at the VA in San Diego, the care has been lacking and not nearly as good. I am having more complications, so I don't know how much longer before the next medical emergency. I just had one where an artery swelled up that was blocked and I bled internally. I have budd-chiarri disease, Splenic vein thrombosis, and necrotizing pancreatitis, arteries are partially blocked to the heart. The femoral artery from the leg through the goin swelled up badly and bled inside of me. The doctors screwed that up and try to say I has skin infection. but nothing could be found from a scraping and microscopic inspection plus waiting 6 hours in the emergency room, they told me to come back if it happens again. It happed again, this time I took photos and of course my doctor was gone (vacation?) and the fill in doctor was worthless. It showed a very blood red and blistered area where the artery passes from the leg to the body. By the time I drive and sit the swelling goes back down. and leaves blood inside where the vein leaks. The doctors are clueless up here!

The VA is a nightmare here.

 

I would also like to get another IMO. My last one form a Toxicologist doctor was hard to find and extremely expensive.

 

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Steve This appears to be your remand:

https://www.va.gov/vetapp16/Files4/1627475.txt

 

As you know I felt your 1151 claim was superb.  But  this sure concerns me:

“However, the Board notes that the many volumes of VA and private records do not actually include reports of the actual surgeries forming the basis of his 1151 claim.  Such procedures were said to have taken place at the San Diego VAMC in March 2008.  See 310 pg VAMC in Virtual VA at p 52.  This would include no actual records of the biopsy procedure of the pancreatic cyst or the ERCP resulting in complications of a leak into the abdomen or the subsequent lengthy hospitalizations from March to April and April to May of 2008.  Additionally, the release form is not shown to be in the current records, although this as well as the surgical records were apparently available to the January 2015 VA examiner who addressed the 1151 claim.  An effort must be made to obtain the VA records not already of record that are in the VA's constructive possession.  See Bell v. Derwinski, 2 Vet. App. 611 (1992). “

 

 

 

 

 

That VA  ERCP caused the necrotising pancreatitis.Even your  VA doctor agreed with that fact.

It might seem odd that this critical evidence is missing, but it is not odd, at all, believe me.I went through the same crap with my Section 1151/FTCA issue in 1995

As the BVA states they had this stuff in January 2015. I guess the VA called their MF in- (MF Mysterious force who removes critical documents from med recs and C files, to deny the claim.) Then they often put the documents back. when the claim is denied.

The Jet Fuel claim costly long toxicologist report was useless in my opinion. Still you had enough evidence on that claim for a remand. This 1151 claim needs a strong IMO from a real doctor.

I laid out here (available under a search) considerable info to support your 1151 claim in the past...I wish I had MD after my name because it would be so easy to write that IMO.But then again I have never seen those records when they screwed up the ERCP....the procedure info -that is now missing.

The SOC however was evidence of the screw up in my opinion.

I have asked the new Secretary recently to consider some suggestions I had on reducing the backlog as well as the high rates of malpractice in the VA. I told him I am aware of the hidden proven cases as well..which neither Congress nor the public know about….blatant malpractice that VA awards at RO levels when they have no choice,due to probative evidence, such as strong IMos, and I told the Sec exactly what crap my  VARO ( Buffalo) pulled on me and pulled it on the General Counsel and their VACO medical professional as well.

I quess I am not the average claimant because I  raised a ruckus at OGC and VACO many years ago about what they-the Buffalo VARO ) did.

They did not get away with it. It is coming back to bite them again.

They will deny 1151 claims as long as they can get away with it.They will lose ,misplace, and manipulate the evidence any way they can.I made it clear that I cant be the sole claimant VA has done this to.But maybe I am the only one willing to gripe to the Secretary about it.

I saw no POA or attorney on the BVA case.Do you have anyone representing you now?

I sent a copy of my Secretary Shulkin to President Trump as well ,to follow up on something he received from me a few weeks ago and I certainly expect a reply based on some sensitive info I gave them.

I hope you consider an IMO/IME for the 1151 claim.I really didnt think you would need one based on what you posted here in the past but now I think they are definitely trying to screw you.

Edited by Berta
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I am meeting with my rep, POA, next week, We are going to assemble and write a letter to the BVA. I am going to take all my records... many boxes of the records. if I have to I will submit all the records the VA is suppose to have. They have all of them already. They have my records and al other medical records going back to my childhood. if I send them my records I would have to hand deliver the boxes, as they fill the trunk of a large car and the backseat.

 

My surgeons talked to me every morning 5-8 a.m. to discuss my prognosis and treatments for several months as an inpatient. (6 months 2008) They were the top surgeons, and also worked at UC SAD Diego medical center. They shared with the VA San Diego. They would ask me every morning about what I worked with that got me sick. I explained my job, and the chemicals. They constantly told me the only way to get the diseases I have were from alcohol or toxic chemicals. It is hell going through thousands of pages, but I will find anything pertinent that was written down in my notes. The doctors and nurses made notes about everything I said and did. I hope that doctors conversations with me are in there.

The notes are broken up into each area. Labs, treatments, tests, etc. They are in zerox copy paper boxes. I also have everything else going back to basic training, SMR's, etc... Then at one time Kaiser hospital did some work in the late 1980's to the mid 1990's, then the VA. They kept telling me it was in my head, then they finally saw a 5 inch cyst on my pancreas. the surgeons told me, the only way a person can get these conditions are from drinking or chemicals. They kept digging and digging everyday, interrogations every morning, imagine fighting for life, laying there in a bed, unable to move without someone moving and bathing me, unable to eat for 6 months, and have interrogations every morning.

 

Then to have these horrible people in VA claims trying to get me to die or give up.

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If you have copies of the multiple posts here I made over the years ,maybe back to 2008 , I am sure the vet rep will want the 1151 issue advanced aggressively.

I made considerable posts here over the years on the 1151 issue,that will make it very easy for an IMO doctor to opine favorably on your 1151 claim.I did the same type of research for you that I did for my IMOs,for my AO DMII claim, which would have been far more costly, it I had not laid it all out medically.My husband was never diagnosed or treated by VA for diabetes,.so I had to prove he had it, and then get IM0s from Dr Bash and a former VA Neuro to support my lay medical opinion and the claim (filed not as 1151 but as direct SC I already won 1151 death claim and the VA cannot award 1151 twice for same wrongful death.

Of course I am not a doctor but I supported your 1151 claim also the same way I won my FTCA and 1151 claim,as well, by doing a lot of research, and referring directly to the medical records and all other documents I had that revealed malpractice and the OGC accepted my lay medical opinion, because it was coorborated by a Chief Cardiologist at VA Central Office.I am mentioning all this here so that if your rep (or lawyer) peruses the info I posted here on the 1151 issue, they will know I saw definite evidence of VA malpractice that caused you to have , not pancreatitis, but "necrotizing" pancreatitis....far different from regular pancreatitis.

This is from your 2009 1151 SOC:

“We have received new and material evidence in the form ofOCCMED study from Maria

Nellie Betancourt M.D. with a history of medical retreatment dated September 2,2009.

Therefore, your claim is considered reopened.

The VA examination shows a diagnosis of status post necrotizing pancreatitis secondary

to endoscopic retrograde cholangiopancreatography with residual chronic pancreatitis. “

What that means is that the ERCP caused, as secondary, the "Post Status" necrotizing pancreatitis.

What that also meant to me is that they stated the actual nexus between the ERCP and the Necrotizing pancreatitis. An good IMO doctor (or lawyer) will Love that SOC.

Post status -meaning you didnt have the necrotizing element before they did the ERCP.

I also mentioned the 2 million $ lawsuit for the same procedure- same outcome.

And posted info such as this.

"Endoscopic retrograde cholangiopancreatography (ERCP) remains the most common cause of iatrogenic pancreatitis [1]. Studies have shown post-ERCP complications were responsible for greater than 65 percent of malpractice claims [2, 3]. "

http://americanmedic...ctice-case.html

(iatrogenic means 

  1.    relating to illness caused by medical examination or treatment.)
     
    I certainly hope you succeed in your claims and I saw the 1151 issue as the strongest issue you had and did all I could do to advise on an IMO/IME, that could have possibly covered both issues on appeal.
     
    Your GI doctor agreed with me:
     

    http://www.hadit.com/forums/index.php?/topic/48047-today-my-gi-doctor-blamed-teh-va-for-my-necrotizing-pancreatits/

     Others will chime in .

    I have exhausted everything I can think of to help you and I hope the rep you get,will fully understand the potential of the 1151 claim.If he/she has copies or links to my posts here, and that initial SOC,  they will get it.

     

     
     
     
Edited by Berta
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I decided to search briefly for anything else to bolster my opinion on your 1151 claim.

Within seconds I found this award:

 

"The court GRANTS judgment for the plaintiff in the amount of $793,423.78. An appropriate Order will be entered."

In Part:

Wrongful death award, denied by VA OGC, appealed in Fed District Court and won.

(Basically the same type of procedure you had:"

 "Dr. Kelley, testified that the standard of care required the Salem VA surgeons to at least consider a cholangiogram. In concluding that plaintiff met her burden on the issue of standard of care and breach, the court accords significant weight to Dr. Kelley's testimony that cutting "too far down" during a subtotal cholecystectomy and transecting the bile duct would breach the standard of care. While the condition of Lovell's gallbladder made the surgery a difficult one, Wertman proved that Drs. Choudhury and Butler did exactly what Dr. Kelley said they ought not do—sever the common bile duct while performing Lovell's subtotal cholecystectomy. Accordingly, the court finds that plaintiff has proved by a preponderance of evidence the standard of care and breach elements of medical malpractice."

Plaintiff has also met her burden in establishing that the Salem VA surgeons' breach of the applicable standard of care was a proximate cause of Lovell's death from sepsis. To establish causation, a plaintiff must show "it is more likely than not that the decedent would have survived in the absence of defendant's negligence." Murray, 215 F.3d at 463. "

 

https://casetext.com/case/wertman-v-united-states

Then I spent a few more seconds googling and found this:

“the Board is of the opinion that the veteran’s

current renal failure is at least arguably the result of

complications resulting from the ERCP performed by VA medical

personnel in late August 1994”

 

“ORDER

 

Compensation benefits pursuant to the provisions of

38 U.S.C.A. § 1151 for renal failure, claimed to have

resulted from medical treatment rendered at a VA medical

facility beginning in August 1994, are granted.”

https://www.va.gov/vetapp98/files2/9812891.txt

 

Others will chime in. 

 

 

 

 

 

 

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Bump-

more input needed from others.

2 issues- disability due to Jet Fuel and other chemical exposures, and Section 1151 due to ERCP medical VA screw up

 

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Something your "POA" (I assume it's a VSO) is overlooking. If VA fails to comply with the remand, you are always free to file that boatload of documents you describe with the BVA. I certainly would if the VA 8 has been issued and it's docketed. You can ask for a waiver of review (filed as a letter with the VLJ) in the first instance at the VARO and ask the Judge to decide it with what you have submitted yourself. 

The beauty of this is thus. The BVA is more backlogged than any can imagine. They have over 60,000 claims a year coming up for appeal. 79 VLJs can crank out 1.2 appeals a day if they are simple. They have 180 working days to do this each year Do the math 79 X 1.2 +180 = ?). The backlog is metastasizing like cancer there. If you allow the VLJ to remand it, it adds a year minimum to your appeal and usually nothing more than  a lousy SSOC to show for it. If you allow BVA to decide it, you'll get a better decision much sooner. Nowadays, VLJs are actually better judges than those we had ten or twenty years ago. Approximately 30 or more read Hadit and asknod regularly and are stand up folks. Several are friends of mine and we talk regularly. They come to the NOVA conferences so we get to meet them and buy them a drink and pick their brains. If your claim holds water, they'll grant- if for no other reason than to "up" their production. Remands are time alligators for everyone concerned-both the BVA and the ROs. 

Never make this harder than it has to be.

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