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retiredat44

Where I am with my 1151 claim

Question

So, it has been 4 years since my BVA hearing. On of the issues is the 1151. it was over the failed pancreatic procedures where everything went wrong. They were suppose to do fine needle aspiration of a8 cm cyst on the head of my pancreas. I signed a paper saying I understood that is what they were doing. The very long list of failures, and things that went wrong, also they did other things never discussed or agreed to before the procedure. There were also procedures which included trying to insert a Stent, somewhere in a tube (pancreas, liver, etc.), but the tube broke, ripped, tore open, etc.The complications are an extremely long list. Portal Vein thrombosis and Splenic Vein Thrombosis, (Permanent)The effects of tube feeding for six months, liver disease came up, Parkinsons came up, sepsis, inability to walk and eat (no longer able to absorb nutrients without medicines), no control over body limbs for along time and the therapy. The list is extensive. They also had tried a second procedure to correct problems after the first. Uncontrollable internal bleeding, and more.

 

All these year alter with claims and the 1151. They VA got an IMO from the college of physicians for the surgery, basically saying they did nothing wrong and the complications were within the scope of the procedures. Also a fact that the doctors kept trying to give me mind altering drugs, Drugs for anxiety, as they insisted I had IBS< and most of the pain was in my head, event though I had 10 years of solid diarrhea and great suffering. So, they often sent me to head doctors. Precious time was wasted when the window of opportunity for helping me was pissed away.

 

So, the have this IMO from their college of physicians saying that al this stuff was foreseeable. This was a few years after my BVA live hearing. I wrote the doctor at the VA clinic who was one of my main doctors who I saw everyday who made lots of decisions on what to do, before being and inpatient. During the time I spent as an inpatient. And for a couple years after The six months as an inpatient, because I have necrotizing pancreatitis and liver diseases (Budd-Chiari Syndrome), very, very rare disease, and even more rare together. I wrote a letter to him at the VA clinic that was at the hospital I lived in. He was also a GI doctor at UCSD. University California San Diego. i was asking him for info on my disease, the time I spent there and the long conversation we had were he discussed my pancreas and liver and causes of the diseases, in my case and other cases. Other case in general, not specific. Like what causes these diseases, and more. I also wrote it was time sensitive because I was asking for it to be used as an IMO.

 

A month goes by, I get a phone call from the VA GI Clinic explaining the doctor left the VA not long before my letter. A couple of weeks later, before a deadline I told them, for my BVA appeal, had another deadline for information I could submit, I get a phone (from the VA GI Clinic, the head person in the GI Clinic office who sends out correspondence for the doctors) call saying they are going to write me a letter to submit to the BVA judge. I get an IMO letter written out on VA GI Clinic Letterhead Stating in legal for as an IMO that my Necrotizing Pancreatitis complications are 'More Likely than Not'  caused by the procedures at the VA.

I send this and a letter and more with a letter of my letters to them before the IMO, to the BVA judge. Now, more months have passed.

I few months latter I see a big scandal at the VA GI clinic with refences in a Veterans forum, and links to publication about a big scandal where the VA clinic and the doctor who was my doctor during al this pancreas and liver, tests, procedures,, long talks, and more, well, he is the target of an congressional inquiry and left the country. He was doing unauthorized procedures and had caused uncontrollable bleeding on veterans and taken pieces of their liver without their permission. I got some copies, and sent this to the judge.

Going further I don't know when the VA knew about this doctor and investigation (brought about by a whistle blower). I don't know if the clinic wrote my IMO when I first contacted the VA Clinic and doctors that cared for me., and when they wrote my IMO, if they already knew about the scandal or not and when and how.

So, look at it this way, their IMO saying they did nothing wrong and the stuff that happened to me can happen to anyone is the IMO they put up against my 1151, and some of my claims.

These doctors told me, almost quoting, most people don't live long and they want to make sure I got anything I needed because they knew the hell I went through they treated me very good. So far I outlived others with this, I was told by medical professionals I am the only person they know of that lived this long with this diseases. I live in hell every day and this just drags on, and every time I think they are moving it comes to a halt, with no action.  My first claims were from the 1990's, and most were denied, and I didn't know what i know now, these claims and the 1151 are a decade old. Now I see that I was under care of a doctor in a huge medical scandal and my appeal is collecting duct. Not only that but I still have to live day to day and get sick, and the new VA clinic and hospital, don't know my history and they have not been good, lots of problems and les here in Oregon at the VA. I had a very bad case of bronchitis and puking green slime out of my lungs this summer and was screwed around by the va, and have been screwed around several times. They will not give me a doctor closer to me, I have to drive 150 miles round trip, the closest VA clinic is 4 miles round trip, they tell me am on a waiting list but there are no doctors. My doctor is retiring in a few weeks. I have been treated terrible by some other doctors here.

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". I get an IMO letter written out on VA GI Clinic Letterhead Stating in legal for as an IMO that my Necrotizing Pancreatitis complications are 'More Likely than Not'  caused by the procedures at the VA."

You had one of the best 1151 situations I ever saw.

Sometime around March 2009- or maybe in 2010 I wrote a Section 1151 claim for you and posted it here.

I gave you links to the fact that the ERCP had caused additional disability ( and many malpractice cases ) in many veterans as well as civilians because doctors were doing the procedure wrong, for you to download and print out , to send with the claim, as they bolstered the 1151 claim.

Sometime in 2009 as well 

I also suggested using the SOC you had received because it was an admissions of the fact that the VA had caused the necrotizing pancreatitis. I could hardly believe it-but they still denied.

Also I suggested to obtain an IMO/IME from a real doctor, fully versed in this type of disability.

The IMO you obtained regarding the fuels etc you were exposed to, gave no medical statement at all regarding any disability you go from JP4 etc exposure because the expert who wrote it was not a medical doctor nor knew whattype of IMO you were actually seeking on the pancreatitis.

In 2011 I answered  this hadit post  from you  :

 

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

Of course he did- it was obvious that the VA caused the necrotizing pancreatitis.

 

AND I added 

 

"Posted 01 April 2011 - 02:29 PM

I forgot to add to my post

“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

http://www.hadit.com/forums/index.php?/topic/43149-depression-questions/

 

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

 

To add    -the term “Iatrogenic”means caused by a doctor or medical procedure."

I also added in 2011 that a good lawyer would see the evidence of malpractice right away-----

I suggest that you go over the older posts here as well as the 1151 claim I prepared for you with the citations I used, to see if there is anything the VA has overlooked.

I have won 4 or 5 personal 1151 claims, a FTCA case, and got a Vietnam vet friend one of the best 1151 awards I have ever seen  ) He has received 1151 100% P & T plus SMC for over 20 years)and  I gave you expert advice on your issues, as  to many other vets or their survivors here and elsewhere for over 2 decades.

Unfortunately probably 50% or more of past 1151 questions here, did not involve what seemed to be a clear cur malpractice issue to me. Often the posters did not answer my questions and a few changed statements they had made,which did not help. I certainly advised them all to obtain a lawyer when the VA denied their claims.

The most recent malpractice case I was involved in is here at hadit- the veteran's photo is of him in bed somewhere on the main page I think-I spent many hours trying to help him because his doctor was not a VA employee ( so OGC said) and they were not liable under FTCA.

Unfortunately, in his case, I withdrew my support because I realised  he lied to me about what the VA actually paid him.PLENTY!!!!! I had been under the impression from him  and his many news outlet interviews, that he only got a little over 100 a month under 1151- that didnt make sense, and months after I contacted his lawyer I found out the truth.

These are tough statements I am making because anyone trying to help anyone els with a 1151 claim needs to carefully understand what that entails. The 38 USC 1151 regs are very short and easy to understand and most often then not the veteran will need a strong IMO/IME. Most of us do not have the time or medical background enough to even consider reading a full VA medical record to determine if malpractice has occurred.

I based my responses to you over the past 8 or 9 years based on what you told us, and the SOC itself.

You need to make sure that your 1151 ( I think some vet rep wrote one for you too ???) complied to the points I had made in the original 1151 you had, that I posted at hadit. The evidence was excellent and this claim,- had you gotten an IMO/IME from a real doctor, could have been awarded long ago.

It is not too late to get one.

BUT the VA might consider the negative  opinion , along with the favorable one, and awarded under Relative Equipoise. A big Might.

As you stated:

"I get an IMO letter written out on VA GI Clinic Letterhead Stating in legal for as an IMO that my Necrotizing Pancreatitis complications are 'More Likely than Not'  caused by the procedures at the VA."

I hope they gave a full medical rationale and when you send them (VA)  that letter (if you are on remand I suggested sending it to the RO as well as the BVA and get a Proof of mailing, I suggest you go over my past dit posts to you, as they contain the information that will bolster the 1151 claim. Maybe  the above excerpts would be enough.

I have no time these days to really reply to 1151 questions, anymore , or even CUE questions, etc etc as much has happened for Blue Water Navy vets and AO and that has become my most important concern.

 

 

 

 

 

 

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This appears to be your Remand from the BVA- please let us know if it is not your remand:

In part:

“The post July 1999 records include records from January 2008 showing that he persisted with intermittent abdominal pain along with alternating constipation and diarrhea and abdominal CT done in February 2008 was notable for a pancreatic mass, questionable pseudocyst.  See 73 pages VA records from 1998-2008 at pages 32, 35.  The records indicate that he later underwent surgery at the VA in March 2008 to remove and biopsy the cyst with endoscopic retrograde cholangiopancreatography (ERCP) done, but with complications of a leak into the abdomen resulting in 2 lengthy hospitalizations from March to April and April to May of 2008.  Subsequently, he required hospitalization at a private hospital (Kaiser) in June and July of 2008 for hypotension, with findings of necrotizing pancreatitis as well as new onset portal vein thrombosis with additional splenic vein thrombosis.  See Kaiser records 75 pages incl summer 2008 tx at pgs 18-22, 69, 72. He persisted with the diagnosis of chronic necrotizing pancreatitis in VA treatment records from August 2008.  See 73 pg VA records received 6/29/10, at pg 12.  This chronic necrotizing pancreatitis was confirmed on CT in August 2009.  See 75 pgs VA records 2009-2010 entered 12/22/10 at p 44. 

And:

 

“Subsequent post July 1999 VA records from 2010 through 2014 continued to confirm the Veteran as having continued GI symptoms, with a diagnosis of chronic pancreatitis along with symptoms of persistent abdominal pain, with CT findings showing atrophic pancreas likely secondary to the chronic pancreatitis.  See Id at page 37 (June 2010 record noting atrophic pancreas and partial splenic vein thrombosis on CT).  See also 203 pages CAPRI in Virtual VA at p 189 (February 2011 abdominal CT scan showing the same findings) and page 15 (August 2013 record showing chronic abdominal pain with continued complaints of bloating and abdominal pain).  He has continued with regular GI consults for his chronic pancreatitis and symptoms of persistent abdominal pain.  See 310 page CAPRI in Virtual VA at pages 140-147, 249, 267 (October 2013, February 2014, and August 2014 GI consults for chronic pancreatitis).  VA examinations conducted after the July 1999 rating include VA examinations from July 2010 and January 2015https://www.va.gov/vetapp16/files4/1627475.txt “

 

“Regarding the GI disorder as it relates to the 1151 claim, although the January 2015 examiner answered this question in the negative stating that the subsequent pancreatitis was noted to be a potential complication of the abdominal cyst surgery, the Board again points to these records not currently being  associated with the claims file.  The Board further notes that the Veteran's March 2016 testimony raises further questions regarding the 1151 claim that need further examination to properly address.  Of note, the Veteran has now alleged that the pancreas condition should have been properly diagnosed by the VA earlier than it was, so that early treatment could have potentially avoided the surgery and subsequent complications.  Additionally the Veteran indicated in his testimony that his surgical consent was limited only to the needle biopsy, not for the further procedures he subsequently underwent.  3/16 Travel Board Transcript pages 46-52, 55-60.   Thus, additional examination of the Veteran's GI disorders should include consideration of these contentions made in his lay testimony and written statements in addition to the available evidence of record.  Further, if the examiner does find that the Veteran has additional disability subject to an award under 1151, the examiner should specify the nature of each disability claimed as complications as the Veteran has set forth a litany of medical complaints alleged to have been caused by his complications from the 2008 pancreas surgery at the VA.  Id at p 55. 

https://www.va.gov/vetapp16/files4/1627475.txt

The remand order is quite long and extensive, regarding multiple issues in addition to the 1151 claim and points out some information that was not  associated with the claims file.

This is a key part regarding the 1151 claim:

“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).” Bell***

I read  that over three or four times-------this is key evidence, which the BVA considered that the examiner had, in January 2015 but somehow maybe the VA’s MF showed up ( MF Mysterious force who removes info from C files and then replaces that when the claim is denied)

I know the MF well- this has been the cause of numerous denials I received over the past 20 plus years dealing with them personally. When I knew what had been withheld from the VA  examiners and the OGC, I was able to send it to them and win those claims.

Bell V Derwinski- BVA citation

Bell is summarized here:

“Our jurisdiction is limited to "the record of proceedings before the Secretary and the Board."

38 U.S.C. § 7252(b). This limitation is implemented through Rule 10, which directs the parties to

designate for inclusion in the record on appeal "all material in the record of proceedings before the

Secretary and the Board that was relied upon by the Board in ruling against the appellant." U.S. VET.

APP. R. 10(a). Actual reliance on the evidence by the Board is not strictly required. In Bell v.

Derwinski, this Court held:

[W]here the documents proffered by the appellant are within the Secretary's control

and could reasonably be expected to be a part of the record "before the Secretary and

the Board," such documents are, in contemplation of law, before the Secretary and

the Board and should be included in the record. If such material could be

determinative of the claim and was not considered by the Board, a remand for

readjudication would be in order.

2 Vet.App. 611, 613 (1992).”

Many CUE claims are awarded on the principles of Bell.

Or, as above, garnered a BVA Remand.

https://www.uscourts.cavc.gov/documents/Urquhart_04-1559.pdf

 

 

Have you been able to find that information yourself, in order to send it to the RO and to the BVA?

This is a key point the BVA made in the Remand.

 

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She is my BVA specialist service officer. She only does bva appeals. She has a direct line to submit docs to the bva judge. I don't know how it works, but it gets there directly to the correct office.

 

the Doctor that was my doctor the whole time was the one these articles are about (he left the USA and went to the Middle East):

https://timesofsandiego.com/military/2019/02/26/inewsource-san-diego-va-liver-study/?fbclid=IwAR0Dosm8cI7ZMMFiAOhcurVDKYZT-WGcsVWOefTBdfWER79Qo5HGKO4bk3o

https://www.cbs8.com/article/news/local/incewsource/congress-to-hold-hearing-on-allegations-of-dangerous-human-research-at-san-diego-va/509-b8fdc5b1-f937-44e6-8712-9e413ff21e07

 

VA_name_of_service_officer_BVA_Snap2_Use_This.jpg

 

 

101619_VA_Medical_Opinion_1151_From_San_Diego_VA_GI_Clinic_0x.jpg

Edited by retiredat44

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the first doctor was indeed a doctor, a Toxicologist M.D. but she refused to use the wording I asked her for. I never went back to there. I asked her up front to use the words more likely than not. nothing I could do, I could not force her. So I ended up witha huge worthless toxicologist report on chemicals and their effect on the body.

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Yeah I read that long report that you had posted here-and felt  it did not help you one bit---but still maybe it will help on remand.

Steve, that documented statement you just posted is GOLDEN!!!!!

They based it on your VA Medical records. I am sure you blocked out the doctor's name- etc and their credentials---

It would not hurt to mention the scandal at  San Diego- when you submit this IMO.

By all means , get this to the BVA and to the RO as well via the woman you deal with here:

"She is my BVA specialist service officer. She only does bva appeals. She has a direct line to submit docs to the bva judge. I don't know how it works, but it gets there directly to the correct office."

That is GREAT!!!!!! I always focused on the 1151,as I saw it as the strongest claim  but then again the remand might develop the additional claims you filed, that could garner an award, as well.

I feel encouraged that you are Finally getting somewhere with this.

And I know how miserable it has been for you to deal with your disabilities and with  the VA.

But as many of us know- persistence pays off.

VA isn't our enemy (seems like it though)-

Time is the enemy of any VA claimant.

 

Edited by Berta

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