Help with Denied Petition for Equitable Relief

[UpToHere]

Two years ago, I petitioned for equitable relief, on the bases of "A," "B," and "C."

Compensation Service denied my petition, on the grounds that "B" and "C" did not establish eligibility, but said nothing about "A."

One year ago, I petitioned for equitable relief again, but only on the basis of "A."

Last month, VA issued a new denial decision, again on the grounds that "B" and "C" did not establish eligibility, and again said nothing about "A."

Any thoughts out there on what my next step might be?

Thanks.

 

 

 

[UpToHere]

On 10/19/2018 at 2:26 PM, broncovet said:

When you provide only general information, we can only provide a general answer. 

If you want specifics, then you need to provide specific information.  

Long story: Upon my VAMC’s, 13-month delayed diagnosis of soft tissue sarcoma, they referred me to a civilian medical center for corrective surgery + radiation therapy, told me I had to pay, “counseled” me  I was not eligible for VA disability; I ended up homeless/bankrupt. Subsequently, I learned VA’s “counsel” was incorrect, filed for/granted 1151 benefits. Subsequently learned VHA mandates disclosure of “adverse events,” and about “fee basis” and “equitable relief.” My Senator’s office inquired. My VISN immediately tasked my VAMC’s director with investigating my allegations. He found no adverse event that necessitated disclosure, said if I liked, I could file an 1151, did not respond to my reply that I was already receiving 1151 benefits. Through my congressman, I petitioned for equitable relief on 3 bases, one of which was failure to disclose adverse events in my care. Compensation Service (CS) wrote my congressman (not me), globally denied my eligibility for equitable relief, specifically found 2 of my bases w/o merit, but was silent on failure to disclose adverse events. I drafted  a new petition, posited solely on VA failure to disclose adverse events, and, again, my congressman transmitted it to CS. My congressman got a denial letter from my VAMC’s director that was essentially  “copied & pasted” from CS’s denial letter of my 1st petition, but wasn’t remotely applicable to my vastly revised 2nd petition. My congressman set up a meeting with my RO/VAMC, for me to point out, given that the VAMC director’s denial letter didn’t fit the facts of my 2nd petition, it couldn’t possibly have been a denial letter of my 2nd petition, as well as try to prod a decision out of CS of my 2nd petition. My RO said they’d look into it. Instead, the RO drafted a brand-new “petition” that completely misrepresented my 2nd (still-unadjudicated) petition, and submitted it to CS. CS denied the RO’s bogus petition. To my complaint to the RO about the bogus petition, they said there was nothing they could do, but maybe I could take the matter to the Secretary. To my complaint to the White House Veterans Hotline about the RO’s bogus petition, and CS’s failure to hand down a decision on my 2nd petition, VBA replied that CS’s denial of the RO’s bogus petition ended the matter, and they would no longer respond to me.

OK, I get that I can’t appeal the denial of my petition for equitable relief.

The question that remains, however, is this:

What remedy does a veteran have when VA’s denial rationales appear to come from an alternative universe than the one that houses VA’s records of his case, and those records are consistent with his version of events, not VA’s? 

[Berta]

Somewhere here, this vet''s recent post popped up-erly this AM

I replied in Word because I was in a cloud and had problems staying connected. I saw the post again but cannot find it- this is my reply :

 

If I can get my bill passed by Congress/ Senate- I believe it might cover what you requested.Maybe not-

 

It is the “Rodney F. Simmons VA Malpractice Accountability Act”

 

If not you can write a Bill yourself and send it to the House Committee on Veterans's Affairs-but first see if your Congressman/woman would sponsor it.

 

But are you saying that there is no documentation in your VA files of the adverse event?

 

In my case, I did get a statement of an adverse event,in the pharmacy,  but it was too late- it came days after my husband died.Still my wrongful death claim took note of that (FTCA) and the Top VA Cardio doc did a write up for the OGC that included the pharmacy error.

 

I think you raised a good point-------many times an adverse event will occur at a VAMC and is documented.But sometimes the veteran or their survivors are aware of it and might think that means they have some sort of claim pending under 1151 or FTCA but they don't.

 

I know how low the VA can go on malpractice issues.

 

They did all they could,in my husband's case, to cover up malpractice in two VAMCs. They failed.

 

When I contacted my VISN director, he was alarmed because neither VAMC had told him of my charges.

 

I thought adverse events ,like you stated , were mandated to be disclosed to the veteran or their survivors.

 

Have you filed a FOIA with the OGC?

 

I need to think about this more-------actually I believe the VA hides any paper trail of some adverse events.

 

The adverse event documentation I got seemed to consider me as more important than  the adverse event itself because I went to the VA pharmacy and raised Hell. They almost killed another vet as well but blamed it on the Post Office- which was ridiculous.The statement said I was holding a clipboard, and taking names,  and accusing them of contributing to my husband's sudden death and they described what I was wearing.

 

The med dosage they sent to him ironically should have been what he should have gotten all along.But it definitely had contributed to his death. It was however a minor malpractice error, in light of the actual  extensive  malpractice I proved he died from.

 

Sounds like their attempts to "counsel" you were manipulations of the facts.

Good for you. In spite of the problems, You won 1151.

I am not sure of what your question was......

Sometimes members reply to a page that is not the last page of their thread.It will show up as a new post but we cant always find it.

Maybe you can and copy and post it here again, on the last page of the thread.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited September 9, 2019 by Berta

[UpToHere]

4 hours ago, Berta said:

But are you saying that there is no documentation in your VA files of the adverse event?

No, but it’s complicated: I presented to my VAMC with a “lump,” 5/2003. My PCP asked when I ‘d first noticed it. I said late-2/2003, just as I was finishing up a contract in Taiwan. I also added a snarky comment about Taiwan. My PCP told me the lump was “just a lipoma, nothing to worry about,” but didn't enter his diagnosis in my medical file, just. my snarky remark. 10/2003, on a different matter with a different doc, I asked again about the lump. This doc, too, diagnosed lipoma, and, likewise, entered not 1 word about the lump. 12/2003, I re-presented to my new PCP with the lump having turned “violet,” which he recorded. He didn’t measure it, or formulate a treatment plan, but put the onus on me to figure out if it was getting bigger. 5/2004, the lump clearly was getting bigger, so I e-mailed the doc who recorded the color change. He set up a VAMC surgical consult, at which they offered me a resection of what they recorded was “consistent with a lipoma.” Upon resection, VAMC Pathology said, soft tissue sarcoma, specifically: “myxofibrosarcoma.” VAMC Tumor Board referred me to civilian care for corrective surgery, i.e., wide resection, because VA surgeons made no attempt to get clean margins, and for radiation therapy, all of which I would have to pay for. Tumor Board also referred me to a VA social worker for end-of-life/financial counseling; she said I wasn’t service connected, so I was ineligible for VA disability. 

4 hours ago, Berta said:

I think you raised a good point-------many times an adverse event will occur at a VAMC and is documented.But sometimes the veteran or their survivors are aware of it and might think that means they have some sort of claim pending under 1151 or FTCA but they don't.

At the time, I’d never even heard of 1151. Subsequently I did hear of 1151, disclosure of adverse events, fee basis payment for non-VA care, and equitable relief. Citing VHAHandbook 1050.1, and other VA sources, I asked my Senator to look into the way VA had handled my care. Soon after he did, my VISN Head wrote the Senator that he’d tasked the director of my VAMC to investigate my allegations. The director wrote me that he’d investigated a 5-month tranche of my 13 months of VA care and found, “The standard of care was met*. There was no adverse event which necessitated disclosure [...] Veterans who feel they were injured can file under FTCA, or 1151.” From what I had learned, however, a delayed diagnosis, or an unexpected outcome that requires corrective surgery, are both VHA examples of adverse events that mandate disclosure. Some sources state that, upon an adverse event, patients must also be referred to the benefit claims process. In one VHA  Handbook on Adverse Events, the Appendix includes a computer template (checklist) that directs providers to disclose both.

*Subsequently, a C&P examiner opined that the standard of care would have dictated evaluation of the lesion closer to the time it turned violet. The examiner also noted that he was unable to  find an entry in my medical file. for the initial “lipoma” diagnosis.

4 hours ago, Berta said:

I thought adverse events ,like you stated , were mandated to be disclosed to the veteran or their survivors.

 I can readily cite numerous VHA sources that say exactly that, including OHI Health Inspection reports, where providers, et al., who fail to do so, are “written up.”

4 hours ago, Berta said:

Have you filed a FOIA with the OGC?

No.

4 hours ago, Berta said:

The adverse event documentation I got seemed to consider me as more important than  the adverse event itself because I went to the VA pharmacy and raised Hell. They almost killed another vet as well but blamed it on the Post Office- which was ridiculous.The statement said I was holding a clipboard, and taking names,  and accusing them of contributing to my husband's sudden death and they described what I was wearing.

I got no adverse event documentation, whatsoever. VA has yet to directly concede there were any adverse event(s) in my VAMC care. Indirectly, though, isn’t the fact of 1151 benefits in connection with VAMC care proof of some adverse event(s)?

4 hours ago, Berta said:

Sounds like their attempts to "counsel" you were manipulations of the facts.

In retrospect, why did I need “financial counseling”? From “Diagnostic Code 5329, SoftTissue Sarcoma,” soft tissue sarcoma and its treatment are such that temporary total durability benefits are mandated for the time the canner was active (needs fact checking), through all treatment(s), through convalescence, until such time examination finds the patient to be cancer-free. Because I had not been alerted to the adverse events in my care, I was deprived of proper notice, and deprived of benefits as a result.

4 hours ago, Berta said:

Good for you. In spite of the problems, You won 1151

TDIU, too, and “real” service connection for one condition (not an 1151-type “service  connection”).

4 hours ago, Berta said:

I am not sure of what your question was......

My question, essentially, boils down to:

Given that a petition for equitable relief is “unappealable,” does any other avenue exist to inform VA that its rationales for denial of eligibility for equitable relief are not consistent with the record?

If there is such an avenue, doesn’t it follow that VA would be obligated to thoroughly investigate, and respond “officially” with a written statement that’s much more “professional” than the one below, which they read me over the phone?

”The VBA Central Office has already addressed this matter. [...] This matter remains closed, and VBA will not engage on this matter.” 

 

 

Edited September 9, 2019 by UpToHere
“Typo.”

[Carl the Engineer]

Bear with me, I am slow on the uptake sometimes. 

I did read this entire post, and am trying to learn.

What are you after, regards benefits and or compensation?

I read you are 100% right now..

Thanks,

Hamslice

 

[Berta]

Have you attempted to use the contact info in this link from VHA?

https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=8120

If the link does not work-  I can post the pdf.

You are correct. This policy written in 2018 stands until 2023. It clearly explains the VA's position on these event reports  and the right to obtain them.

But my question is also the same question Hamslice asked.

I fully understand your feelings, probably of anger, and of disgust - the very system created to help our nation's veterans, has, in many cases, caused those veterans harm or death, by lousy medical care.

I am still angry sometimes that they caused my husband's death- 25 years ago this October, but I have used that anger and all of the feelings that come with it ,to help others who might have basis for FTCA and/or 1151.

And I certainly have met wonderful people who work at the VA and truly put the veteran first.

My point is this- how would obtaining what you seek actually help you ?

If this is for a better EED on the 1151 award, that would make sense.

Have you also gone through every single thing in your C file and VA medical record file to make sure the report is not there?

But still, even if you do obtain the adverse event info, how will that help you?

You also might try to contact VA OLMA via the closest appropriate District Counsel's office here:

https://www.va.gov/OGC/DistrictOffices.asp

Then again this office ,many years ago,told me a Peer Review Report that prompted a Regional Counsel to want to begin settlement talks with me ( the report disappeared) had "Never existed" when both RC and the doctor who prepared told me it did exist and my RO had it and it supported all of my malpractice charges-I found the report in the bottom of my C file many years later and used it for my AO IHD death claim. You might get a better reception.

The link explains their relationship to the NPDB.

If the H VAC supports my bill, all that will change. It is violations of the NPBD mandate,by the VA ,that has made malpractice continue to plague  the VA, with no accountability, and at great cost to the taxpayer and horrific  suffering to veterans and their families, harmed or killed by VA health care.

 

 

 

 

 

 

[UpToHere]

Thank you.

24 minutes ago, Berta said:

Have you attempted to use the contact info in this link from VHA?

https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=8120

No.

However, it’s OGC and VBA, not VHA, that have explicitly held I’m not eligible for equitable relief.

35 minutes ago, Berta said:

My point is this- how would obtaining what you seek actually help you ?

If this is for a better EED on the 1151 award, that would make sense.

My understanding is that EED is barred by statute, so I petitioned for equitable relief for the monthly disability benefits I lost (approximately 30 months) + unreimbursed mileage (8500 miles).

53 minutes ago, Berta said:

But still, even if you do obtain the adverse event info, how will that help you?

It’s not so much thatI need info on the adverse events in my care, but, rather that I feel I need VA to 1. acknowledge that there were adverse events in my care, and 2. their failure to disclose them to me deprived me of key information I needed to file , timely, for full disability benefits.

 

1 hour ago, Berta said:

Have you also gone through every single thing in your C file and VA medical record file to make sure the report is not there?

No.

There don’t appear to be missing pages on my “lipoma” in my doc’s 5/2003 and 10/2003 entries in my medical file

However, not only did my third doc, a resident, not disclose any adverse events in my care, he deliberately did not, in 3/2005, entering this in my file:

”I am concerned about any legal recourse this this pt. may try to take against VA/VVA health care providers given his level of unhappiness with his overall care. [...] Therefore I am assigning my clinical advisors as sell as the prior PCP,  Dr. [Xxx], cosigners to this note, to communicate those concerns ...”

[NB: Not one of them did.]