1151 Claim for DM 2

[jackjack37]

I submitted a claim to service connect my diabetes mellitus II because my doctor never diagnosed my diabetes. I found out I was diabetic when I went to an urgent care and they did lab work and found my blood glucose over 400, A1c 13.4. I was transported to a local hospital by ambulance and spent 2 days in ICU and another day on the regular floor. I was diagnosed with diabetic ketoacidosis with acute kidney injury on May 19, 2019.

I found note in my medical records where it said I was prediabetic on 9 Apr 2018, I don't remember ever having a conversation with my doctor telling me I was prediabetic. My A1c was 6.0 and blood glucose was 143. My A1c was never checked again in that whole year and I had blood glucose readings on 6/25/2018 (103), 10/10/2018 (186) and 3/20/2019 (285), I didn't know about these elevated numbers until I looked thru my records when I was filing my claim. My doctor never contacted me about them. I now know I was getting sick when I had the 285 reading. I had diabetes at this point. Let me also mention I had other risk factors: obesity, family history, age, race, inactive lifestyle, high blood pressure and high cholesterol all of which is documented in my records. She also has been my doctor for over 2 years at that point. I sent her a secure message complaining  I was losing weight and feeling dizzy, unsteady on my feet, pins/needles in my feet. She sent a message back saying it probably was because I was a picky eater (I told her this before) and that I was taking topiramate for headaches. 

My claim keeps getting denied. Is this a winnable claim? 

[Berta]

Yes this might well be a "winning" claim.

I proved my husband had undiagnosed and untreated DMII and that it contributed to his death.

I filed it a direct SC ( he was a Vietnam Vet and DMII is presumptive to Agent Orange) because I had l ready won FTCA/1151 (DIC)on a few of his other VA malpracticed  conditions, and could not file another DIC claim ( until Nehmer) . 

Please scan and attach the denial here, as we need to see the Evidence list, and their rationale for the denial.

Cover your C file #, name, address prior to scanning it.

Your "doctor"- I would suggest filing a FTCA claim but that depends on many factors ( explained in our FTCA forum here) and if your doctor is a federal contractor ,they are not technically a VA employee and FTCA does not apply to them.

I posted a link here searchable as to VA Providers,because VAMCs are full of them, and they are not liable under FTCA. 

VA; malpractice stats have been so high ( for decades s) that they hire these contractors so they (VA) cannot be sued if the contractor malpractices on a veteran.

I have been a VA claimant for over 2 decades and in this case -my DMII death claim) I obtained 3 IMO ( Independent medical opinions) to support the extensive evidence I had found in 6 years of VA health care my husband got, all of which revealed malpractice and even a VA attempt to cover that all up but they failed.

VA fights these claims aggressively.

You stated:

 "I sent her a secure message complaining  I was losing weight and feeling dizzy, unsteady on my feet, pins/needles in my feet. She sent a message back saying it probably was because I was a picky eater (I told her this before) and that I was taking topiramate for headaches. "

You might have peripheral neuropathy in your feet due to the DMII, and the headaches and dizzyness could be something more serious- caused by the high cholestrol- 

you seem very willing to go over your VA medical records.....that is great- and that is the way I found my husband had multiple misdiagnosed conditions, heart attack treated as sinus infection, HBP due to contraindicated meds, multiple transcient ischemias , mini strokes) and a full blown stroke, and a fatal heart attack. ( SC under Nehmer)

He had very high tryglycerides as well and this was a strong factor in my claim.

The VA's Endocrinologist gave ridiculous statements that denied the 1151 death claim at first- I knew more about DMII than she did-but they kep ignoring my medical evidence, and I was in military school  at that time and I patiently waiting for a BVA award..which I got.

We need more info and the scanned denial will help ( to include the evidence list)

 

What did the VA give you for the cholesterol problems?

A simple HB1AC test could have saved my husband's  life- ( maybe) or maybe they would just have continued the malpractice.)

Do you have a good source of medical acronyms?

I used Merck because the VA used Merck when I filed my claim.

This is funny now but one of the obtacles I had to overcome.

I found a medical entry of DVD in the med recs- Merck said that meant Diabetic Vascular Disease. The VA endocrinologist said it meant the veteran "denies having  venereal disease".

What a crock- he had VD in Vietnam (treated incountry per his SMRs)and that was on all of his VA rating sheets.

I had to decifer a crossed out entry that i ignored when I filed FTCA.- a VA doctor had told him his problems were due to diabetes  but there was nothing more in the med recs on that,except the decifered entry which mentioned diabetes . The doctor , a Neurologist left the VA and it took me 8 months to find him in private practice. He remembered my husband and wrote a very brief email to me, that Dr Bash incorporated into his IMOs, after calling the doctor. asking him to put that email to me on his letterhead, which he did, and the BVA gave that brief neuro opinion as much weight as all of my other evidence.

 

 

 

 

 

 

 

 

 

 

[jackjack37]

Thank you for replying back so quickly. I already have a diagnosis for peripheral neuropathy documented in my records. I was only put on medicine for high cholesterol after my diabetes diagnosis. My primary care doctor put me on simvastatin. My doctor is from the VA. I never saw an endocrinologist at the VA. I also believe a simple follow-up HBA1c test could have saved me from ending up in the hospital. Can someone walk me thru the steps to link my denial letter to post.

 

[Berta]

Cover your C file, name address prior to scanning it.

Save the scan and go down to the "choose files" thingy at bottom of the reply area, your PC files should pop up and you should see the new scan under  jpg.,or doc  etc depending on how you saved it- I had to attach something below to see if I told you the best way to do it.

Recently I had to send many scans of Thanksgiving cards out for my church but instead of using jpg to save them I copied and pasted  and the scans into  in Word and from there I copied and pasted them into the emails I sent- so I guess both ways might work for you.

[Berta]

I forgot to add- diabetes does not kill anyone, it's complications do,if not properly treated.

My husband's complications from DMII were heart disease, multiple TIAs ( mini stokes,) a 100% P & T full blown stroke, visual problems, peripheral neuropathy, peripherial arterial disease, odd low body temperatures, oral  candidiasis, etc etc etc  and they all needed a strong link to his DMII.

I used the 1997 VA Diabetes Training letter but I think that is on the older hadit board. There shoud be a newer version somewhere here under a search.

[jackjack37]

Let me know if you are able to open.  

decision1.pdf  (Web view)

 

 

[Berta]

I cannot open the pdf. at all. 

The Web view asks me to sign into my personal Microsoft account but I have never needed to  use my Microsoft account to open an attachment here.

I think you are using the Cloud version for the pdf. 

I hope someone can help-

The pdf would let you also save it in Word, as a doc or doc X. Or you could copy and paste the pdf into Word and attach it as a document.

edited to add:

Cloud attachments are usually for email attachments and are used primarily for business accounts, and not recommended for personal email accounts.

But if you have the cloud providers ( Office 365 etc) as most of us have,  you could email the web attachment to yourself, open it and copy and paste it here.

 

 

 

 

 

 

 

Edited December 5, 2020 by Berta
added more (see edit history)

[Tbird]

On 12/3/2020 at 2:51 PM, jackjack37 said:

Let me know if you are able to open.  

decision1.pdf  (Web view)

 

 

try creating the pdf again its not working for us

[jackjack37]

https://documentcloud.adobe.com/link/review?uri=urn:aaid:scds:US:94b6875d-de49-41c6-a2a4-42d0a18be262

I think I finally figured it out. This is a higher level review decision. It really has me baffled but I knew this was going to be the result from the tone of the conversation of the informal conference call. She initially called to setup appointment and asked when would be a good time, I told her I am unemployed and my schedule is clear so she asked could we do it now. I should have scheduled for a later time because I wasn't prepared and she seemed to not want to listen anyway. I get the denial letter about 2 weeks later but it makes no sense as if they did not read my medical records at all. A little background info a note was put in my record on 9 April 2018 that I am prediabetic, she never told me. She states treatment plan is diet and exercise.  Blood Sugar is noted 143 A1c is 6.0 Cholesterol and LDL-CHOL is abnormal We don't discuss lab results at all I assume we talk about my diet and fitness is because I am overweight and I need to work on my overall fitness. Decision states that is appropriate treatment plan. Next appointment is 25 June 2018, Blood Sugar is 103, no A1c or cholesterol levels checked. Next appointment is 10 October 2018, Blood Sugar is 186, no A1c or cholesterol levels checked. We don't discuss my lab work. Next appointment is 20 March 2019, Blood Sugar is 285, no A1c or cholesterol checks done and no discussion about the numbers. I don't see the numbers until after May 2019 because I get sick, diabetic ketoacidosis and end up in local hospital for 4 days. I have a history of abnormal cholesterol levels but not on medication until after diabetes diagnosis. I did not have cholesterol or A1c checked for over a year at the VA. Decision does not address this whole year.

[Berta]

The pdf came out OK-

Section 1151 claims require medical proof of negligence

and also an additional ratable disability due to their negligence.

The peripheral neuropathy could be caused by the diabetes, if you succeed on a 1151 claim.

Did you send them the form they needed for the current private hospitalization records?

I am not a doctor but I do know that diabetic ketoacidosis is associated with Type One diabetes, and rarely with Type 2.( Diabetes Mellitus) so the VA might have diagnosed you incorrectly on the type of diabetes you have.

 

This is a successful Diabetes 1151 claim:

"Compensation under 38 U.S.C. § 1151 for diabetes mellitus type II with ketoacidosis is granted."  

https://www.va.gov/vetapp18/files1/1801048.txt

In part:

"A review of the record shows that the Veteran more likely than not developed diabetes with ketoacidosis as a side effect of medication prescribed to her by VA medical professionals.  In support of this conclusion, the Board defers to Dr. N's July 2017 findings.  The Board notes, however, that merely showing that the Veteran received treatment and that the Veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c)(1).  In this case, Dr. N found that the additional disability was not proximately caused by VA carelessness, negligence, lack of proper skill, error in judgement, or similar error in fault.  

However, Dr. N found that the severe form of side effect (diabetes with ketoacidosis) was not fully recognized during the time of the Veteran's treatment and therefore was not foreseeable.  The statute and regulation reflect that, if additional disability due to VA treatment is either caused by VA fault or the result of an event not reasonably foreseeable, entitlement to compensation under 38 U.S.C. § 1151 is warranted.  The meaning of the term "not reasonably foreseeable" is ambiguous and subject to multiple interpretations which is not otherwise clarified by legislative intent.  See Schertz v. Shinseki, 26 Vet. App. 362, 367-8 (2013).  The Court interpreted this phrase as encompassing VA compensation for events which are not reasonably foreseeable by a reasonable health care provider.  The opinion by Dr. N indicates that side effects suffered by the Veteran would not be foreseeable to a reasonable health care provider due to the rarity of the potential complication.  As such, based upon Dr. N findings that the Veteran's severe form of side effect was not fully recognized during the time of treatment and therefore was not foreseeable, the Board must find in favor of the claim.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  Nothing in Dr. N's statement reflects that diabetes mellitus with ketoacidosis was considered an ordinary risk during the time of the Veteran's treatment.  Rather, he stated that ketoacidosis is a very rare and extreme form of side of effect.  In sum, the Board concludes that the appellant suffered an additional disability from medication prescribed by VA medical professionals and that the proximate cause of the disability was not reasonably foreseeable.  38 U.S.C. § 1151; 38 C.F.R. § 3.361.  Accordingly, the claim is granted."

And we have considerable info here as to how I succeeded in proving my dead husband had undiagnosed and untreated DMII and that it contributed to his death.

What I do not see here, is any ratable result from the diabetes you have, based on a lack of timely and proper treatment.

Those hospital records could possible change this.

When and where did you get the Peripheral Neuropathy diagnosis?

The PN could be claimed as secondary to the DMII.

But you will need a full reading of your entire medical records from the VA and from any private hospital or physician who has treated you, in an IME that conforms to the IMO IME criteria here at hadit.

IMO/IME can be very expense.My lay evidence was overwhelming but my RO would not read it.

I am sure my IMO fees would have been much higher, but I had done so much lay medical work, I made it easy for the IMO doctor to see the

step by step action the VA did not take, to properly diagnose and treat my husband.

I already have posted here how I did that-and it was a lot of work.

I already had succeed in 1151 and FTCA  with no lawyer and no IMO, but I knew the RO would prepare lousy C & P exams in order to deny the DMII claim-and I already received 1151 for my husband's wrongful death- this is why I filed the DMII claim as direct SC death due to AO.

 

 

 

[Berta]

There is nothing in the Evidence list regarding this:

"I don't see the numbers until after May 2019 because I get sick, diabetic ketoacidosis and end up in local hospital for 4 days."

If you advised the VA of this private record and used the proper form giving them permission to get it, they might have committed a CUE-

But I  understand that a HLR decisions cannot be cued- I will check into that-

If the VA was aware of those private hospital records they shoud have sent you this form:

https://www.vba.va.gov/pubs/forms/vba-21-4142-are.pdf

Did they and did you return the form with the info they needed?

but then again it is up to us claimants to provide the VA with as much evidence as we can, or tell them where they can obtain our private records.

Those private records involve a serious consequence of Diabetes.

What medication did VA give you for the diabetes?

You can use the form to help with your appeal. It might be too late to send it to the VARO.

 

 

Edited December 13, 2020 by Berta (see edit history)

[jackjack37]

Thank you for your help with this. It is great to have someone to ask questions. I sent the VA the medical records from the hospital when I was released because they needed it in order to pay hospital bill and transfer my prescription for insulin.  There's a copy in my medical records I can see it.

The hospital thought it was Type 1 also because of DKA and 30 lb weight loss but it turned out it wasn't.

 In all the research I have done it shows diabetes is a preventable disease and with proper treatment (lifestyle change cut the risk of developing diabetes 58%, metformin use 31%). My doctor didn't tell me for a whole year, I was prediabetic, that is where I feel the negligence is, if I would have known I would have done what needed to be done to lower my risks of my prediabetes progressing any further.  She should have taken action when she saw her prediabetic patient with blood sugar readings of 186 and 285.

The VA never treated me for diabetes prior to May 2019, because they did not diagnose me initially.

I was diagnosed with PN on 5 April 2019 at VA. According to the VA training letter criteria I was diabetic on 20 Mar 2019.

Don't they look at in these terms, If I did or did not have DMII when I started getting care at VA?  Favorable findings states you have been diagnosed with a disability, is this what that means?

Is it events not reasonably foreseeable or VA failed to exercise the degree of care that would be expected of a reasonable health care provider

[jackjack37]

Looking thru my medical records this is what it states in the notes from every visit so I don't feel she was taking time to update anything.

This is what the treatment plan was for a whole year

HM--anticipatory guidance provided towards healthy management lifestyle

Edited December 13, 2020 by jackjack37
grammer (see edit history)

[Berta]

"Thank you for your help with this. It is great to have someone to ask questions. I sent the VA the medical records from the hospital when I was released because they needed it in order to pay hospital bill and transfer my prescription for insulin.  There's a copy in my medical records I can see it."

So the VA did have that info.

"Don't they look at in these terms, If I did or did not have DMII when I started getting care at VA?  Favorable findings states you have been diagnosed with a disability, is this what that means?"

It just means you have a diagnosed disability.

" 3/20/2019 (285), I didn't know about these elevated numbers until I looked thru my records when I was filing my claim. My doctor never contacted me about them. I now know I was getting sick when I had the 285 reading. I had diabetes at this point. "

After 3/30/2019 you were hopitalized  and VA paid the bill-

what steps did the VA take after 3/19/2020, in any regular check up etc, to treat the diagnosed diabetes?What medication did they put you on?

 "She should have taken action when she saw her prediabetic patient with blood sugar readings of 186 and 285."

Of course she should have but 1151 is based on what ratable disability you have as a consequence of her failure to treat you properly?

I edited this to add something important---

VA could say you would have gotten diabetes anyhow- and then added family history, weight, etc etc etc, however they cannot get out of this:

"I was diagnosed with diabetic ketoacidosis with acute kidney injury on May 19, 2019."

Can you clarify that:

acute kidney injury? That might well be the strongest ratable disability that VA could have prevented sooner with proper medical care.

Personally I would have filed this claim differently, claiming under 1151, the diabetic ketoacidosis with acute kidney injury and also peripheral neuropathy as due to the negligently treated diabetes prior to the May 19,2019  hospitalization.

When did you file this claim?

Is the doctor ,who was treating you ,aware that you had the hospitalization?

What options are included with your decision?

Can you use the Adobe acrobat to let us see the redacted  hospital discharge info?

 

 

 

 

 

Edited December 13, 2020 by Berta
added more (see edit history)

[Berta]

These are two well known medical sources:

"Conclusions

Acute kidney injury is frequently associated with severe diabetic ketoacidosis on admission in ICU. Most of the time, this AKI is transient and characterised by a volume-responsiveness to fluid infusion used in DKA treatment. Age, blood glucose and serum protein are associated to the occurrence of AKI on ICU admission."

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4206473/

 

"Abstract

Acute renal failure (ARF) is a rare but potentially fatal complication of diabetic ketoacidosis (DKA). Early recognition and aggressive treatment of ARF during DKA may im-prove the prognosis of these patients. We present a case report of a 12 year old female admitted to the hospital with severe DKA as the 1s t manifestation of her diabetes mellitus. She presented with severe metabolic acidosis, hypophosphatemia, and oliguric ARF. In addition, rhabdomyolysis was noted during the course of DKA which probably contributed to the ARF. Management of DKA and renal replacement therapy resulted in quick recovery of renal function. We suggest that early initiation of renal replacement therapy for patients with DKA developing ARF may improve the potentially poor outcome of patients with ARF associated with DKA."

https://pubmed.ncbi.nlm.nih.gov/19736483/

Kidney and Renal mean the same thing- obviously there is conflict between the above abstracts but these cases depend on individual patients.

Acute usually means this is often a transcient situation that could improve in time.

But as above states it can lead to kidney failure.

This is why you will need an independent medical opinion, conforming to the IMO/IME criteria here at hadit.

I am not a doctor and an IMO doctor, because they charge a fee, will give your medical records ( they need all of them) probably the best medical review they will ever get.

If I were you I would try to find a good Endocrinologist and there are IMO/IME doctors listed here under a search-I ported this info about 2 weeks ago-so maybe it wont be hard to find.

I was going to ask you what your Blood chem readings for for your potassium-that reading, if too low, would also give your 1151 claim a valid standing.

I studied every single Blood chem report the VA ever gave my husband, and every single entry, acronym, MRI, Ct scan, etc etc ..to be sure I was spending my IMO money on a good investment. And it was a good investment and was the most important claim I had.

As I mentioned here before I used his Driver's license, and even his dental records to prove he had DMII that the VA never diagnosed or treated.I even proved a motive for th malpractice ( which 1151ers do not need to prove,) and I also proved a cover up that occurred in one of the VAMCs that treated him.That is -a cover up that they failed on- the evidence was right in his med recs, handwritten , hard to read at first, but I managed to decifer it.

This is a decision you need to make at some point-the doctor obviously screwed up-but VA will do all they can and even lie,as they did in my case,  in order to get out of 1151s.

 

[Berta]

to add-

you stated this was the treatment plan:

"- HM--anticipatory guidance provided towards healthy management lifestyle"

Is the VA writing and fulfilling your insulin prescriptions?

Although the VA can use risk factors against claims ( they will if they can)

you had enough risk factors I assume they were well aware of,  enough to keep an eye,medically,  on your glucose readings.

 

 

 

[Berta]

I changed my mind as I do not believe the discharge certificate will help - this claim  would need a full review of the hospitalization record by an IMO/IME doctor.

topiramate- I suggest you google this medication because it is prescribed for headaches, PN, and many disabilities but also affects glucose levels.

 

These are doctors willing to prepare IMO/IMEs, 

and you might be able to find an Endocrinologist who would prepare an IMO/IME for you, if you google Endocrinologists in your state.

The IMO/IME criteria is here:

Some doctors would want to do an  in person exam- IME  (Independent Medical Examination)

Edited December 14, 2020 by Berta
added more (see edit history)

[jackjack37]

I took another look at my medical records and I do not see the discharge summary from the hospital so that's probably why it's not listed in evidence but I know I sent copy to VA because they needed it to transfer prescription and pay bill

I was hospitalized in May 2019, I was not on any type of medication up until that point

In June 2019, I started seeing PC pharmacist once a month and he added metformin to my insulin and my primary care added simvastatin. I stopped seeing him in January 2020. I have not had my A1c checked in over a year and cholesterol checked since July 2019

I filed November 2019, Can't I still file the way you suggested?

Yes she is aware she is still my doctor

Discharge Summary 05-20-2019-Copy.pdf

My potassium was low I was given it in hospital and on potassium supplements currently

Yes they do provide my insulin but there was an issue at first because the type they started me on in the hospital was restricted so it had to be approved by the VA

Yes high blood pressure, high cholesterol, family history, age, race, obesity, inactivity She was my doctor that had been treating me for over 2 years and everything was documented in medical records. I also have a history of problems with kidney function that she is aware of.Discharge Summary 05-20-2019-Copy.pdf

[Berta]

"Can't I still file the way you suggested?"

You could but you might lose the earliest effective date for any potential retroactive 1151 award.

I strongly suggest that you obtain an IMO/IME- and if it reveals negligence, and if you get this IMO/IME prior to two years after  the date of the formal DMII diagnosis-( I assume your state has a two year Statute of Limits but it might only be one year,) up in 2021, that you file for whatever the IMO/IME doctor finds, as caused by their negligence.

The doctor would make a strong rationale for their opinion, citing the medical records as well as the most recent abstracts and medical literature to bolster your claim.

You could also file, at the same time, a FTCA claim.

A good Endocrinologist might find that the kidney problem, HBP, etc are all related to the DMII.

From what I see here the PN definitely is, but then again I am not an Endocrinologist.

Also they could find out if the meds you took prior to the diagnosis, are contraindicated by other meds that VA gave you.

." I have not had my A1c checked in over a year and cholesterol checked since July 2019"

That is very concerning. But with the Covid I guess your VA isn;t making annual appointments...?

 

 

 

 

 

[jackjack37]

My HBP was diagnosed well before diabetes

I asked that question specifically about insulin because I was taking so many different medicines

I have been to the VA for several different procedures so there is no reason including appointment with primary care for not being sent to lab while I was there. I think the issue is the PC Pharmacist is the one who does the diabetes counseling and I have not seen him since January of this year. Good thing I have my diabetes under good control, but no excuse on the cholesterol, it was abnormal in July 2019.