Here is another one of those “Can you believe this ?” decisions. It’s a Single Judge decision so we can’t use it for a precedent, but it sure does a wonderful job of illustrating what can happen to you in this system that was geared towards He who shall have borne the battle, his widow and his orphan child…
Carol Trusty, widow of Edward L. Trusty, filed a claim in May, 2005 after the demise of her Vietnam Veteran husband. She claimed DIC in that the VA had given him substandard care as envisioned under 38 USC § 1151. There was some evidence of this in his VA medical records, but the RO denied. They raced out and grabbed a VA “yes man” for an IME to state that he was really whistlin’ like a locomotive right up to about a week before he completed his bucket list. Well, not exactly- as Avis is wont to say. He’d been circling the drain with a possible drug reaction/interaction for almost a year and VA was giving him the pat on the back and the “it’s nothing to worry about.”chat.
In July of 06 they sent Carol the Dear John letter and said they’d really done all they could for him and how this whole unfortunate thing unfolded in such a short period of time that there was really nothing doctors could do for him. Again, all this discussion of his impending demise was focused entirely on a 7-day period prior to death and never addressed the salient facts in the file that showed this brewing like a hurricane off the Azores in the Atlantic (two months out).
The BVA essentially gave a rubber stamp to the RO’s version with their blessing. Big mistake. Carol rightly decided it was better to be pissed off than pissed on. She lawyered up and headed to Indiana Ave. NW for some real justice. She caught the ear of Judge Schoelen with her claims of a misdiagnosis and negligent treatment. The VASEC went NASDAQ and cried foul. Apparently, in his mind, she had never raised these issues on appeal and had no legal right to bring them up at this late stage. This is where having a good law dog or long eyelashes helps. The Judge had this to say about that argument:
Contrary to the Secretary’s assertion, the evidence of record reasonably raised the issue of whether the veteran’s death was caused by mistreatment by the Evansville Clinic. First, the record indicates that the appellant informed VA that the veteran was treated at the Marion VA hospital and the Evansville Clinic. Second,records from the Evansville Clinic show that the veteran received lab results indicative of a problem with his liver. Moreover, the veteran’s hospital discharge records from the Evansville Clinic show that the veteran received lab results indicative of a problem summary, which listed “liver failure” as a cause of death, noted that a workup was in progress as an outpatient for the veteran’s abnormal liver function tests. R. at 91. Although the veteran’s death certificate identifies the immediate cause of the veteran’s death as “cardiopulmonary failure,” the evidence clearly shows that in the days preceding death, the veteran was being assessed for probable liver cancer and the discharge summary notes that he was in liver failure. Given that the veteran was treated by the Evansville Clinic for liver problems in the months preceding his death and the evidence clearly suggests that the veteran was in liver failure at the time of his death, the Court finds that the issue of whether the veteran received proper treatment from the Evansville Clinic for his liver-related problems was reasonably raised by the record. Trusty v. Shinseki (2011)
So, kids, this little faery tale is more proof that its simply not over until the Judge sings. Carol will more than likely prevail on this because VA usually gets the message on these things when they boomerang. If she does come back, the VA will have had to do some extraordinary IME work to come up with a better “yes man” and a lot of money to elicit the magic incantation from him. They have too many fish to fry at the moment so this one will be catch and release.
I was saving the most egregious error for last (add the Dragnet-Badge 714 music here). During the inception of her claim, she sought the services of the VA Patient’s Advocate, someone she undoubtedly came in contact with when her husband was gravely ill. My wife elicited the services of one of these bobbleheads when it looked dicey for me in 09, too. When asked how to proceed, the Advocate pointedly omitted telling her (and my wife, too) of her option to sue the Government ( and VA) via the Federal Tort Claims Act (FTCA). This allows you to sue for malpractice. The statute of limitations is 2 (two)(deuce)(a pair of) (24 months) years from the date of the mistake. Not two years, 20 hours, 16 minutes and 31 seconds but two (2) years exactly. The Government doesn’t cut you any slack on that unless the two year anniversary occurs on a Sunday and then you get until midnight Monday to have it postmarked. And if you are lucky, one of your Vet friends will say “So you filed your SF 95, right?” before two years elapses.
Carol opted for the only thing she could get after this “justice” was dispensed. Her filing was for injuries suffered due to the 38 USC § 1151 statute which fortunately has no time restriction. She simply sought DIC for this and was unceremoniously rebuffed. Shakespeare decidedly had someone like Carol in mind when he opined about a woman dissed.
Carol will have her claim remanded back to the BVA and a whole new trial will be trotted out. This time they will have to take off the blinders, hire an IME who isn’t so myopic and truly address the medical facts. Odds are way better than even, maybe 4 to 1 that she will prevail. She’s probably 60-ish like all of us Vietnam leftovers and won’t put a hole in the financial bucket. DIC only pays about 1300/mo. and VA isn’t going to go to the floor over that. They thought they had her buffaloed until she bolted up to the Court like Asparagus in July . This time it isn’t worth the hassle. The cat’s out of the bag, so to speak.
Meet one tough cookie, ladies and gentlemen- Carol (NMI) Trusty. I’m willing to bet she has a concealed pistol permit, too.
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