Service connecting from VA procedure

[ROMAD]

So here is my question, I should start with asking what Form does a Widow use to file an 1151 claim. I know Berta has mentioned she had to use a different form that I did for a claim. And here is the 2nd part.

 A veteran goes in for a robotic procedure that's expected to take 3 hrs but it takes 6. Not a big deal, but when the Dr. comes out he tells the spouse and adult daughter that the Veterans heart stopped during the procedure (not related to the heart), but now everything is OK. Procedure went well.

10 days later the Veteran dies of Cardiac Arrest. So here is my question.

Can the widow file an 1151 for the Cardiac Arrest that the Dr. told her occurred during the surgery?

Can she and the adult daughter write a lay statement of what the Dr. told her happened?

The reason this is important to get on the record and have it rated is because 10 days later as I mentioned he died from Cardiac Arrest.

So If you are rated at 100% after having a heart attack, he would have died while being 100% disabled. Additionally he would have died as a result of the new service connected condition created during the surgery.

Is this how the process should be documented? Thanks for the help.

 

 

[Vync]

Please keep in mind that I am still learning about 1151's, but will try to help. I assume other members with more or firsthand experience will be happy to lend a hand.

 

9 minutes ago, ROMAD said:

So here is my question, I should start with asking what Form does a Widow use to file an 1151 claim. I know Berta has mentioned she had to use a different form that I did for a claim. And here is the 2nd part.

According to https://www.va.gov/disability/eligibility/special-claims/1151-claims-title-38/, it is filed just like any other kind of disability claim. I am not certain, but I believe the only difference is you have to indicate it is for an 1151 instead.

And then comes the question about which form should be used?

Did he ever file for a heart condition in the past?

If no, then 21-526EZ just like a brand new claim.
If yes, then the usual supplemental claim form.

I found this out the hard way. I filed for HBP years ago and it was denied. Last year after the appeals processes changed, I filed a new claim on 21-526EZ for heart attack and I was told you use the supplemental claim form because I already filed against the same body part.

 

12 minutes ago, ROMAD said:

A veteran goes in for a robotic procedure that's expected to take 3 hrs but it takes 6. Not a big deal, but when the Dr. comes out he tells the spouse and adult daughter that the Veterans heart stopped during the procedure (not related to the heart), but now everything is OK. Procedure went well.

10 days later the Veteran dies of Cardiac Arrest. So here is my question.

Can the widow file an 1151 for the Cardiac Arrest that the Dr. told her occurred during the surgery?

The widow could certainly file for an 1151, but keep in mind these have special criteria to be awarded. If the procedure was done at the VAMC, file away. However, if the VA referred the veteran out via Mission Act, I believe that may be excluded from being covered.

There were some topics about that here last year. I don't know for certain, but it should definitely be researched. There was some speculation that the VA was trying to route veterans to the Mission Act because they would not be held liable if something bad happened at the hands of contractors. Honestly, I am not certain. I would recommend researching this to learn more and be certain.

The good thing about an 1151 is there is no time limit to file.

 

14 minutes ago, ROMAD said:

Can she and the adult daughter write a lay statement of what the Dr. told her happened?

The reason this is important to get on the record and have it rated is because 10 days later as I mentioned he died from Cardiac Arrest.

Definitely. 21-4138 Statement in support of Claim.

 

16 minutes ago, ROMAD said:

So If you are rated at 100% after having a heart attack, he would have died while being 100% disabled. Additionally he would have died as a result of the new service connected condition created during the surgery.

The question here is was the veteran already SC for the heart? I realize that there is a temporary 100% rating for three months following a heart attack. If that is the case, then payments potentially would not begin for that until the first calendar day of the next month.

 

23 minutes ago, ROMAD said:

Is this how the process should be documented?

It definitely is a step in the right direction. It definitely is a horrible situation to endure, but it is important to get everything down on paper while it is fresh in recent memory.

 

Don't overlook FTCA either. 

 

I hope this is helpful.

[ROMAD]

Yes, very helpful.

So the procedure was at a VA hospital, so there is one hurdle out of the way.

He was not service connected for the heart, just some joint issues, and asthma. He was diagnosed for OSA, but did not have a chance to complete the claim for OSA secondary to Asthma.

He has an intent to file still open but my understanding is that is a "no go" because the spouse can only continue that, if he had submitted the actual claim.

Yea I know the payments would not be made for the 100%, but dying while rated 100%  service connected vs 60% non service connected would make a difference.

 He had surgery on Nov 12 (had the cardiac arrest), and died Nov 22 of cardiac arrest.

[Berta]

This is the form, as widow, that she needs to file:

https://www.vba.va.gov/pubs/forms/VBA-21P-534EZ-ARE.pdf

A form for accrued comes with it-

But she could file an Intent to file first:

https://www.va.gov/vaforms/form_detail.asp?FormNo=21-0966

That would give her time to get his medical records etc.

I had to file a different accrued form but I think that is because I already have DIC ( I fied 2 CUEs on the 21P 534 EZ) and have already been substituted as the claimant long ago I will check tomorrow however if widows/widowers still have to file for substitution.

She needs to read the forms over very carefully. 

The form states:

"In order to support your claim for DIC under 38 U.S.C. 1151, the evidence must show: • The deceased veteran died as a result of undergoing VA hospitalization, medical or surgical treatment, examination, or training; AND • The death was: • the direct result of VA fault such as carelessness, negligence, lack of proper skill, or error in judgment; OR • the direct result of an event that was not a reasonably expected result or complication of the VA care or treatment; OR • the direct result of participation in a VA Vocational Rehabilitation and Employment or compensated work therapy program"

You stated:

"He has an intent to file still open but my understanding is that is a "no go" because the spouse can only continue that, if he had submitted the actual claim."

Who told you it is a "no go" ?

I am not sure if it is a "no go" but will try to find that answer tomorrow.

"Is this how the process should be documented?"

When she gets his VA medical records and gets an IMO from a cardiologist or maybe an asthma specialist would be better, the malpractice- if it occurred, will be documented in the medical record,

She might need opinions from both types of doctors.

There is a possible adverse event report as to the heart stopping during surgery-that will be in his medical records or C file.

But his death could have been caused or contributed to due the service connected asthma disability-in my opinion- I am not a doctor.

She can raise any theory of 1151 death as possible.

I am not even sure, with the limited info here, how the DIC cause of death under 1151 should be worded on the application

She can get copies of his medical records with this form:

https://www.va.gov/vaforms/va/pdf/VA3288.pdf

 

As the form states: "The death was: • the direct result of VA fault such as carelessness, negligence, lack of proper skill, or error in judgment; OR • the direct result of an event that was not a reasonably expected result or complication of the VA care or treatment."

I proved both and even found a motive ( which she does not need) but I had to develop a medical background to do that. In those days neither  IMO/IME doctors  or malpractice attorneys could advertise on the internet- which was very limited in 1995. 

I do not suggest any survivor should try to prove death by VA, without an IMO.And I never suggest FTCA without an IMO/IME and a malpractice lawyer.

When I re opened my claim for a direct SC death, I got 3 IMOs and even ordered a 4th one I didn't need.

My FTCA case was the easiest claim I had. That is because the VA OGC can read.

But by then I had my husband's medical records and immediately discovered he had heart disease but the VA never followed up on it.I proved he was malpracticed on for IHD, stroke, and HBP,

and subsequently for undiagnosed /untreated diabetes mellitus.( For that claim I spent over 5 thousand for IMOs) That claim was not under FTCA and my VARO still had not learned how to read.

It is difficult to determine if a claimant should get a costly IMO because they do not always support the claim.

But in this case, there could have been many other factors that led up to his death, to include his asthma treatment, and other situations, as well as the surgical procedure.

Maybe the anesthesia was the problem,if they used anesthesia instead of topical injections for pain.

Maybe they used Propanol and that contributed to his death, due to his asthma.

Maybe they gave him meds after the surgery that were contra- indicated by the meds he was already on.

Vync asked:

"The question here is was the veteran already SC for the heart?" A great question-mine too-

And also my question would be did he get regular EKGs and did they do an ECHO prior to the surgery?

The day my husband collapse at the VA ( where he worked) they rushed him to the ER and did a EKG. Then they diagnosed him with sinus infection and sent him home.

As soon as I read that ER certificate, and then found the EKG results about 3-4 pages later- I knew the VA had caused his death. But there was much more to my FTCA/1151 malpractice claim then that. For over 6 years the VA, many times, could have altered the course of his problems but they didn't.

My point there is that this veteran's medical records might reveal a lot more than anyone could imagine.

But that takes a real doctor to discover that. 

I will find out tomorrow if she can become the claimant for an Intent to file.

How soon prior to his death did the veteran file a ITF?

 

 

 

 

 

 

 

 

 

 

 

Edited January 9, 2020 by Berta (see edit history)

[ROMAD]

Thank you Berta, I will look for your answers tomorrow. The CVSO said since he never sent in the claim it is a no go. He said had he sent it she could continue it. Not sure I believe that but He is the expert (ha) I have his medical records but did not see an adverse anything. Also there is no EKG print out that I saw. I scanned in all his records 190 pages from july thru the follow up Dr. Appt. Berta, will the statement the Dr. made to the widow have any bearing on proving an event happened? he said it to two people so I would assume there should be some documentation. Also I did not see any details about the  anesthesia. The notes from the Anesthesiologist do not mention how much or anything. Is that normal? I don't want to see he get railroaded.  

[Berta]

I cannot understand why a VSO would not file a ITF. If there is no ITF filed, she has no way to file for accrued.

I assume the medical records contain a Drug Profile of all of the meds he was on.

The wife would probably know exactly what he was being prescribed. She might still have the pill bottles.

My husband had a medication error that I only discovered when the coroner asked me what meds he was on.

I still have those med bottles. They could have  killed another very elderly veteran because for 3 weeks they said he had already received his meds by mail-His meds, were in the meds by mail my husband got.Due to his 1151 stroke, his vision was impaired and all I did was check the meds with the PDR, to make sure they were what they were supposed to be.I never checked the bottle they came in nor the fact that the dosage had changed....because they were for a different veteran.

Can you get permission from the wife to scan and attach here his Drug Profile record?

"Berta, will the statement the Dr. made to the widow have any bearing on proving an event happened? he said it to two people so I would assume there should be some documentation. "

It could have a bearing but it seems the records you have are missing a lot of info-as this was a surgical procedure that should be documented in the record.

Medical Records- I knew something important was missing from my dead husband's medical records. It had no 

nexus to my original FTCA/1151 claim. But the director of my RO called me twice to get me to believe a false medical statement she made on one of my  more recent 1151 issues.

At that point I know I had to try to get what records they held back.

After a few weeks I got them. Something is still missing and I contacted the neuro who wrote them, with no response yet.

My point is the medical records might not be a complete copy.

If you can scan and attach the Drug Profile  or at least tell me what asthma meds or treatment (such as inhaler) he was on, I could research that as it could be a key to his demise.

You stated his asthma was service connected.

When my daughter was in the military she started to ask me to re open my claim.I didnt want to deal with them again. He position was that dad had exhibited symptoms of DMII and he was exposed to AO in Vietnam.

She was so insistent that finally I got out the stack of his medical records again and looked at them with DMII in mind.

I had overlooked one word in the autopsy heart slides thinking I knew what it meant- I was wrong, it was suggestive of DMII affect to his heart.Then one  crossed out entry, that I had overlooked before- I managed to blow it up and finally could read what they crossed out.That whole day came back to me, as one neuro had want to do a full work up for DMII-but the rest of the treatment team was busy trying to cover up the malpractice that another VAMC had done and they crossed out his diabetes entry.I knew my daughter was right and I filed the claim.But it also took a lot of work - and I won.

I had to learn what every single acronym meant in the med recs, and studied the Drug profile carefully and one med had contributed to his death. I also had to study Endocrinology.

No diagnosis of DMII ( except for the crossed out entry) and no treatment- the award was for Direct SC death which brought many ancillary benefits and was a death I could accept,because a wrongful death is hard to accept.

My point is I proved malpractice myself but I did miss that crossed out entry-8 years prior to the FTCA case.

I am not a doctor so I guess an IMO doctor would have found that entry long ago- but in those days I could not get an IMO doctor.

I am willing to look over the drug profile to see if I notice anything unusual, but then again this is what an IMO doctor should do.

 

 

 

 

 

 

 

 

 

 

[Berta]

Forgot to add....if the widow gives to permission to scan and attach the Drug Profile here, cover his name, C file #, etc prior to scanning it.And I would need to know the date of the surgery, as the dates of the meds should be on the profile record.

I am most concerned about any type of steroid based treatment or inhaler:

https://www.webmd.com/asthma/news/20060307/death-risk-warning-for-asthma-drugs

http://news.cornell.edu/stories/2006/06/common-asthma-inhaler-causing-deaths-researchers-assert

https://www.healthline.com/health/asthma/asthma-attack-death

There is plenty on the internet as to the risks of using certain inhalers for asthma, as well as many lawsuits.

If you cannot scan the drug profile could you tell me exactly what treatment he was getting for the asthma and the name of any med or inhaler he was using, that I assume was prescribed by the VA?

This widow succeeded in getting DIC for her husband's SC asthma was found to have contributed to his death:

"Thus, as the Board does not find that the opinion of the VA examiner is any more persuasive and probative than the opinion of Dr. Newhall, the Board concludes that the evidence is at least in equipoise as to whether the Veteran's service-connected asthma contributed to the cause of the Veteran's death, and that service connection for the cause of the Veteran's death is therefore warranted. ORDER Service connection for the cause of the Veteran's death is granted."

https://www.va.gov/vetapp10/files6/1047146.txt

She had a very strong IMO.

The case however is far different from the veteran in your situation.

 

 

 

Edited January 10, 2020 by Berta (see edit history)