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GATHER 'ROUND, GIs, IT'S MAIL CALL TIME WITH JIM

STRICKLAND -- Veterans' Advocate Jim Strickland

answers questions from VA Watchdog readers.

 

 

Veterans' Advocate Jim Strickland provides regular columns for VA Watchdog dot Org.

If you would like to contact Jim about his columns, you can email him here...

The archive of Jim's articles is here...

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Question:

I recently received a copy of my Compensation and Pension examination. The examiner made the notation “There is no C-File to accompany this exam.” I don't think I got a good exam if the doctor didn't review my history. Should I ask that this exam be repeated?

Answer:

The C-File is often not forwarded to the examiner for a C & P exam. The system allows that the medical examination is only a piece of the puzzle. That C & P examiner doesn't make any decisions about your ultimate benefits award. In fact, except in rare cases, that examiner is only to report what they see of your physical or mental self during the moment they examine you and nothing else. The decision to award benefits is made by a “Rater” who will determine how much weight the C & P report is given. For example, the practitioner at a C & P exam may determine that you have lost (x) percentage of range of motion in your arms bilaterally. After that information is recorded, it's then up to a rater to decide if the available records indicate that this was a service connected injury or if there are any other statutory obligations that VA must consider. If you believe that there is information in your C-File that must be considered for a fair evaluation to be made, in your early filings you may request that the C & P examination be conducted to include a review of your C-File. If that request is denied, it will leave you better prepared for later appeal.

Question:

I was admitted to my VA Medical Center for a colonoscopy. When I arrived, the department seemed confused about what patient was supposed to go where. I was assigned to 3 different beds while getting ready and was assigned a different nurse each time. While I was having my procedure, I became intensely uncomfortable and I tried to tell them I was having chest pain. They kept telling me it would only be a few more minutes and that I should be quiet. I guess they decided that they couldn't finish getting all my polyps out and they put me in a recovery area. About all I remember is having chest pain. I woke up later in intensive care and I'm told I had a cardiac arrest. I stayed in the VA ICU for almost 2 weeks and was discharged home. Within a short time I was sick again and went to a civilian hospital where I soon had open heart surgery and they replaced one of my heart valves.I'm now told I have Congestive Heart Failure (CHF) and that my heart was severely damaged. I filed for compensation under 1151 but it was denied. I'm too sick to work. Now what do I do?

Answer:

The VA hospital system is usually the safest of places to be to receive health care. However, in any large system errors can and do happen. In this case, it seems that you received terrible care.

Since I originally received your email, you and I have exchanged a ton of information and documents. In my estimation the denial of a benefits award under 1151 was an error on the part of the VARO in that they did not have enough of the facts and information available to make a good decision. This is at least in part the fault of your representative. When you filed and asked for benefits, your representative didn't know the questions to ask or how to examine the supporting documentation of exactly what happened to you during what should have been a safe, routine procedure.

As we examined the documentation you sought out through the VA Hospital's Release of Information office, it became clear that errors were likely made in your care.

You were never counseled as to risks and benefits of the procedure and you never signed an Informed Consent to have the procedure. The record reflects that you received strong pain relieving drugs and sedatives intravenously before and during your procedure. This administration of medicines is formally known as Conscious Sedation (CS), and there are standards of care widely published regarding how to give CS, who can give CS and what medicines may be used. Further, there are minimal standards about how a patient receiving CS must have their heart rate, the rhythm of the heart and their breathing efficiency monitored.

Although you asked for documentation of credentials that would allow caregivers to have administered Conscious Sedation to you, no such credentialing has been forthcoming.

Apparently, you were not given any heart monitors or any testing to see that you were breathing well during your colonoscopy. Further, when you did finally have a full cardiac arrest, your attending physician had already left the area. Unknown at the time, the physician had left your procedure before it was finished and instructed a resident to finish up. Your physician was scheduled to give a talk and was late.

Finally, you were a patient known to have had heart problems as part of your medical history. You were not afforded a cardiologist's examination prior to your colonoscopy so that you could be “cleared” for the procedure.

To summarize, you were given care that did not come up to minimal national standards for such a patient undergoing that procedure. Your physician abandoned you during the procedure, leaving your care to another who should have been directly supervised.

You have since appealed the denial of benefits under 1151 and your hearing has been held in front of a Decision Review Officer. This time you were able to present your evidence completely. You've reported to me that the DRO was interested and previously had not realized all that is implied here.

We now await that DRO decision and I've advised you that no matter what the outcome, you must seek assistance from an experienced attorney for any further action.

Question:

I am a retired Army MSG receiving 100% IU. I am 64 years old. I would like to know if I should apply for SSDI.

Answer:

Probably not.

Vets are eligible for both and there is no offset when both systems find you totally disabled and unable to work. The standards are different by a few degrees but often enough you'll get both.

However, SSDI is a payment equal to the amount you'll draw when you begin to receive your Social Security. If one is drawing SSDI, on the birthday that they elect to draw Social Security, that SSDI payment will quietly convert to one of Social Security. The wait time for an SSDI application to be completed is as much as 3 years around the country.

At age 64, I'd guess that the SSA folks would tell you to simply take your retirement now rather than attempting to receive SSDI. The retirement ages are now 62, 65 and 67 I believe. There are some variables depending on your birthday that you should talk with the SSA people about.

Question:

You seem pretty knowledgeable on VA matters, particularly those relating to cardiology. I currently am rated 80 percent disabled by VA due to a combination of asthma and dilated cardiomyopathy. I received that rating about four years ago. Since then -- in February 2006 -- I had a biventricular pacemaker and defibrillator (CRT-D) implanted due primarily a low ejection fraction. (I also have a left bundle block & had some V-tach episodes, although nothing "serious.") I am much improved now, with an ejection fraction of just under 50.

I have read the VA disability charts for defibrillators & I'm not sure I understand them. Does it mean that I would be considered 100 percent disabled because I have the defibrillator implanted or would I only receive the 100 percent if I continued to have sustained arrhythmias? If I automatically get the 100 percent, then I will probably file. Your wisdom is very much appreciated!

Answer:

Just taking what you've offered, I'd say you should qualify for 100% Individual Unemployability (IU). This is assuming that you are unemployed and likely to be unemployable because of your service connected disability...and I'm assuming your rating is service connected. Without all of the legalistic mumbo-jumbo of the 38 regs, you probably should consider taking one of two paths to get to 100%.

First, you can simply ask for an increase in your rating because your condition has become worse since your original filing. That seems entirely reasonable...your condition has come to the point of needing the mechanical-electrical implant to ward off "sudden death syndrome".

Second, you may elect to take the path of IU. The IU reg says that if you are above 60% or 70% rated due to a single (60%) or combo (70%) of conditions and you can't seek or hold gainful employment, you may be advanced to 100% because you are unemployable.

As you've no doubt learned, we live in a very strange world in VA disability but suffice it to say there is no difference between 100% and 100% IU. The only difference is that as a recipient of IU disability, one is limited in the amount of money one can work for and earn in a year.

Here are things to consider...

If you aren't working and if you are under age 60 or so, you should also apply for your Social Security Disability Insurance (SSDI) benefits if you have enough quarters to qualify. You may receive SSDI and VA disability at the same time with no offset.

Then, were I you, I'd probably write a simple application to raise my benefits and I'd write it to cover both bases and let VA choose how to slice and dice it.

I'd say;

"I'm now implanted with a defibrillator pacemaker, my condition has worsened and I believe I qualify for 100% schedular rating. In any case, I am sure I meet the standard for 100% IU as I am unemployable due to my SC condition. My condition is not ever going to get better and is permanent and totally disabling. I request (if you deem it necessary) both an immediate Compensation & Pension examination as well as a personal hearing."

You really don't need to get much more technical than that and you can write that out yourself, send it to your VARO via registered, return receipt mail and that sets the date of the increase when you get it.

There are a few tricks to writing that letter...I think I've covered most of that in the archives of my work for VA Watchdog.

Bottom line...you should file for an increase ASAP to get the date set and sweat the fine points later.

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Larry Scott  --