VA's DRO admitted error occurred

[Vync]

In August 2020, I filed a HLR for heart attack and was just called by a DRO. The DRO indicated the decision was in error because it was based solely on the wrong condition (atrial fibrillation) and did not address the heart attack at all. They will go over everything, including the strong "more likely than not" IMO from my non-VA board certified doctor. They said they would try to grant based off of the evidence of record. Of course, if granted, I would get another heart C&P for rating purposed. Should know something within the next couple of weeks.

[Vync]

On 1/1/2021 at 9:27 AM, Buck52 said:

Vync let us know  if they grant you  for this?  not sure how they figure out the severity of this type condition?  so you might want to look up the criteria for this condition and make sure they don't low ball you..  I hope they grant you 60%  It's a statutory rating for the SMC s. being your 100%

Hey Buck,
I am waiting to get the decision letter from my VA rep tomorrow, but it looks like I was awarded 60% for myocardial infarction  (i.e. MI, or heart attack). The rating criteria grants a single temporary 100% rating for three months. I saw a small retro deposit hit the bank and I calculated it to match extra SMC-S for three months. The VA would not have issued a payment unless I solidly won. I honestly was not expecting any retro at all. I was just hoping the new SC would open the door for me to purchase VA's S-DVI life insurance.

I assume that after the three month period, they used my C&P and other records to grant 60% per the METS and EF criteria. I assume the VA will deem that temporary and schedule me for another exam at some point, but that might be moot because it would not result in a change to my combined rating. 

When I get the decision letter, I am very much looking forward to reading the rating narrative explaining the errors made in the prior decision. 

 

7006 Myocardial infarction:    
During and for three months following myocardial infarction, documented by laboratory tests    100
Thereafter:    
With history of documented myocardial infarction, resulting in:    
Chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent    100
More than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent    60
Workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray    30
Workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required    10

 

[GBArmy]

Vync Conrats! More imprortantly, a 60% rating is nothing to ignore; your symptoms are serious. Be sure to follow the heart doc's instructions. Take care, brother.

[Vync]

19 hours ago, GBArmy said:

Vync Conrats! More imprortantly, a 60% rating is nothing to ignore; your symptoms are serious. Be sure to follow the heart doc's instructions. Take care, brother.

You are correct. My employer had directed most employees to work from home since March 2020, so fortunately I have not had to endure the stresses of a daily commute to the office. Doing as well as can be expected otherwise. 

[Vync]

Since I won, now I am wondering if I should submit a tort claim... I just got the decision letter from my VSO granting a single 100% for three months following the heart attack and automatically inferred the SMC-S housebound for that time. After that, it changed to 60% based on the medical evidence. The letter does not state that this is temporary or that I should expect an exam in the future (probably because my existing ratings and P&T status)

Here is the key rationale from the decision letter. The VA even quoted my non-VA neuro specialist's rebuke of VA bungling.

Quote

A review of the July 20, 2020 VA medical opinion shows that the examiner opined on the wrong condition of atrial afibrillation. You submitted a medical opinion from Dr. {redacted} received July 17, 2020. She opined that the sumatriptan taken for your service connected headache condition, in conjunction with your hypertension, hyperlipidemia, and strong family history, more likely than not contributed to your myocardial infarction. The rationale stated that you indicated that your symptoms began less than one hour after administration of the sumatriptan injection. Contraindications for use of sumatriptan include history of coronary artery disease, cardiac arrhythmias, and history of stroke. All contraindications can be found on the FDA web site. This medication is generally used with significant caution in patients with your medical history. The physician also stated that she would not expect a cardiologist to necessarily know that this medication needed to be stopped. A review of the Veteran's VA treatment records shows that the VA neurology department advised you to stop taking this medication after your myocardial infarction. In addition, you submitted an emergency department record dated April 6, 2019, showing sumatriptan on the list of active medications.

After the heart attack, @Bertawarned me about the dangers of sumatriptan and I followed up with the VA. The VA pharmacy referred me to the VA cardiology clinic who told me I could continue taking it. I went through the VAMC patient advocate and asked them to review if sumatriptan was responsible for the heart attack. The cardiology chief just blew it off. He said he looked at my records, quoted statistical studies, and felt it was probably so rare that it was not related. Cardiology said they could not tell me to stop taking it because it was not provided by them. I then followed up with the VA neurology clinic. After providing a detailed back and forth explanation, they finally advised me to discontinue it. I have a fair amount of this on secure messaging. My question now is should I submit a tort claim? I'm still within the 2 year window to file it.

 

Edited January 11, 2021 by Vync

[Berta]

You would have to prove that before the medication was stopped, the sumatriptin caused the heart attack and /or any other disability you did not have ,before taking it.

These links are from 2015 but might help:

https://www.avvo.com/legal-answers/is-there-any-imitrex--sumatriptan--lawsuit-going-o-2130361.html

 

http://members.injuryboard.org/

 

As you know one of my husband's misdiagnosed disabilities was AO IHD.

VA also misdiagnosed his HBP, his DMII, and his 1151 stroke.

 

Everything I now about FTCA is in our FTCA forum here.

 

The evidence is the same under 1151 claims as well:

 

Documented medical proof of malpractice and

documented medical proof of additional disability ( or death) directly due to the malpractice.

 

You will need a strong IMO/IME to support the FTCA claim and also I advise anyone with any FTCA potential to get a malpractice lawyer to help them.

 

There are malpractice lawyers on the net who handle FTCAs, and also there are many forensic IMO/IME doctors.

 

I won my FTCA case without that type of help-

but it was very time consuming to study every acronym and medical entry in my husband's VA medical records. 

 

However, within months after getting my SF 95 the VA regional counsel here in NY wanted to settle with me. I already told what happened after that-he disappeared, the Peerreview doctor who agreed with my charges disappeared and also the 6 age report disappeared---so I had to then contact the OGC in DC. That added more time for a proper resolve.

Filed SF 95 FTCA in I believe January 1995, awarded in mid 1997.

Which was actually much faster than many other VA issues I had.

 

If you have a strong IMO/ME conforming to the proper criteria here at hadit, you should have no problem finding a malpractice lawyer.

 

Once you file the SF 95 ( there is a template here for that and article I did on how to fill it out,) that will get you into the SOL- but I suggest checking the SOL Statute of Limits, in your state, as some have different SOLs for FTCA.

 

But it is far better to acquire a lawyer to fill out the SF 95.

 

I had no problem, going  pro se, with the VA General Counsel's office. I love lawyers and OGC lawyers know 38 USC in and out.

Lawyers also love evidence and I had plenty of that.

 

My point is you have the right to handle FTCA yourself- but it takes a LOT of time, if you dont have a legal or medical background.

 

The only info I had on FTCA in 1995 was in the VBM by NVLSP  and was very limited even in their most recent VBM, as they advise getting a lawyer for FTCA issues. (internet was limited then) and also I had to make  multiple trips to the closest law libraries, and read many medical journals and treatises.

 

BTW one of the VA meds was determined to have contributed to my husband's death.

 

It was VA- prescribed sudafed.I proved he had no medical cause for the sudafed prescription at all , he was advised to take it 3 or 4 times a day , for 6 years.and it had contraindicated the HBP med he was on.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Berta]

https://www.va.gov/OGC/docs/SF-95.pdf

I cant find the article I did here-

The charges ( # 8 must be carefully worded)

The witness questions are usually regarding, if a VA van or bus hits a veteran  or a civilian employee and causes them injury.

However I listed as "witnesses' all of the doctors ( in two VAMCS) who malpracticed on my husband,

to include those VA doctors who perpetrated a cover up at the Syracuse VAMC.

They certainly did not succeed- but would have, if I did not file the FTCA claim with significant evidence.