Introduction

We’re here today to try and inform as many veterans as we can. We’re here with Dr. Bash. Welcome, Radio Land, TV Land, and YouTube viewers and listeners. This is Dr. Craig Bash. I’ve been doing Veterans Medical Opinions for 30 years, and I have dozens and dozens of these radio shows, which we’re going to publish on this YouTube channel. So thank you for listening, and here we go.

Discussion on Case Study

Another discussion we had was about a case from a long time ago, back in 2013. In that instance, the VA tried to deny Mr. Gas 1151 compensation, saying that the disability was not directly caused by his VA treatment or care. The court said yes, it was, because the VA facility had a duty to maintain the equipment they were using for his care. Due to the equipment failure, he was injured. In that way, the court related it to the case. In that case, it was a grab bar. We’ve all seen in restrooms how they have a grab bar on the wall. The patient, a paralyzed patient, uses that to lift himself to and from the wheelchair. That grab bar came loose from the wall and fell, causing injuries.

Importance of Equipment Maintenance

Dr. Bash: Let’s talk about grab bars. As a wheelchair user, I haven’t been in a handicap bathroom in the last six months that didn’t have a loose grab bar on the wall. Those grab bars are crucial for heavy patients. I’ve visited some facilities and restaurants, and just testing them myself a little bit, I found it could be an accident waiting to happen. We actually had one member of PVA who, wherever he went, would always make a point of checking those. If they were loose, he’d rip them out of the wall because he didn’t want anybody hurt. Many go running and complaining, but he just said, “Look, you can’t…”

Bill: One of the worst problems with that turned out to be unknowledgeable people using molly bolts and mounting them in plaster or drywall instead of anchoring them in the stud.

Dr. Bash: We had one of our paralyzed guys who fell out of the back of a van years ago because the lift wasn’t good quality, and he ended up with a head injury. All that equipment maintenance is a big deal and a risk for 1151 claims.

Preparing for Compensation Claims

Bill: If anyone does find themselves in need of seeking compensation for a disability incurred as a result of VA care, I hope they will be very careful with the preparation of that case because this is a complicated matter with a lot of legal questions. Was the informed consent adequate? Did it embrace this? What would be a reasonably foreseeable event following this procedure? Those kinds of questions. There’s a lot of case law out there on it. You’re going to have to have the right kind of guidance to be able to wiggle your way through these caverns.

Dr. Bash: One of the universal truths is that those can be large rewards, and they get very highly scrutinized.

Bill: Yes, and this does include psychiatric problems too.

Lithium Case Example

Dr. Bash: What was that one case we lost years ago about a side effect of lithium?

Bill: Yes, I recall that case. You were very generous, and thank you very much for trying to do that gratuitously for that widow. We didn’t prevail, but we definitely had a good case thanks to your donation of your generous time. It was kind of you to do that. I was never satisfied with the fairness of the process in that particular case. VA was relying on medical opinion from a physician at the facility against whom the 1151 claim was being filed. This individual was staunchly defending the honor and integrity of the facility, and that was his primary purpose. It didn’t seem to me that the position he was placed in nor the opinions he authored were a result of a fair and impartial process. I was never satisfied about that.

Dr. Bash: Couldn’t you appeal the fact that they used the same facility? Why didn’t they go to a third party or even a different state for an independent medical expert?

Bill: The board had that authority as well. I was satisfied that the evidence we had at that time was sufficient to grant the benefit, so I encouraged the board to grant it, but instead, they didn’t.

Informed Consent and Foreseeable Events

Dr. Bash: We went around with three opinions from me and three opinions from some other sources, right?

Bill: Yes, they did have two different sources, both from the same facility. One person in particular wrote two opinions, in essence blaming the veteran for dying.

Dr. Bash: Blaming the veteran, huh? I wasn’t happy about that case, to say the least.

Bill: The widow did not want to pursue it beyond that point. I did contact the family indirectly through the service officer to suggest arguing before the court, but they didn’t want to do that.

Paired Organs and Extremities

Dr. Bash: Medication overdose or medication cases seem to be common.

Bill: We were discussing paired organs and extremities a bit earlier. If you are compensated under Section 1160 for paired extremities and it results in death, Dependency and Indemnity Compensation (DIC) and Dependent Educational Assistance could be awarded. However, you would not be entitled to specially adapted housing on that alone, though you may have other bases for finding it. There is a provision for specially adapted housing with the loss of use of one extremity and another disease that impairs ambulation.

Dr. Bash: I still have a question about the kidneys. Suppose you lose one kidney and then, a year later, you need dialysis treatments because the other kidney isn’t functioning well enough. Would that be considered the loss of use of both organs?

Bill: Yes, the manual at M21-1, Part IV, Ratings, I-2-K-1-C, also states that the loss of use of one kidney due to a service-connected disability and the involvement of the other kidney due to a non-service-connected disability is sufficient to evaluate it for both.

Dr. Bash: I know a veteran who lost one of his kidneys and recently had other issues. He was wondering if he had to have dialysis, how that would come into play.

Bill: Absolutely, that’s a valid concern. The rating schedule and provisions do account for that.

Special Monthly Compensation and Temporary Loss

Bill: Regarding special monthly compensation (SMC), a loss of use must be permanent to be paid. However, the VA’s General Council did come out with a precedent opinion in the 90s saying that you can award the housebound rate temporarily for convalescence awards at 100%, and if you have other disabilities at 60%, you can get temporary SMC-S. This sort of threw a monkey wrench into the thing, suggesting that if SMC-S can be temporary, why not SMC-L?

Dr. Bash: What if you have Parkinson’s affecting one arm worse than the other, and you can only use one arm?

Bill: In the case of a hand, loss of use is determined by the ability of the hand to participate meaningfully in grasping or manipulation. For a foot, it’s about whether the foot participates in balance and propulsion.

Dr. Bash: Can you give an example for better understanding?

Bill: Picture two of your patients walking down the hall. One has a severe arthritic condition or neurological impairment, sort of limping along, and the other is walking optimally on his new prosthesis. That gives you a hint of the difference.

Thank you all for listening. That ends this show, and now I’m going to zoom off.