Section 1151 - Staph Infection: The VA cannot Hide Behind the Quality Assurance Program

Section 1151 – Staph Infection

Hiding behind the Quality Assurance Program

The case of Werner G. Hood v. Eric K. Shinseki, Opinion Number 07-2564, decided November 25, 2009, remanded a claim for compensation pursuant to 38 U.S.C. § 1151 which related residuals from a staph infection.

The veteran underwent bypass surgery at the VA Medical Center in Charleston, South Carolina and subsequently had to undergo another procedure to remove a staph infection near his surgical wound. The veteran reported that other bypass surgery patients also developed staph infection within days of his surgery and reported that he had been told that bacteria had been discovered in the ICU.

The veteran filed a claim for disabilities that began with the staph infection and the Regional Office denied the claim. The Board of Veteran Appeals remanded the case and required the VA under its duty to assist to attempt to determine if in fact hospital staff had reported to patients the presence of staphylococcus aureus. The Charleston VAMC refused to forward an existing report to the VA Appeals Management Center claiming statutes and regulations permit the release of a quality assurance review.

In lieu of the report, the VA sought an expert medical opinion that reported that it was impossible to know if the fact that multiple people developed a staph infection was a statistical aberration or a result of negligence.

Upon appeal, the veteran argued that (1) the Board erred by issuing a decision without the existing report conducted by the Charleston VAMC or (2) that the Court should make an in camera review of the report.

The Court rejected the possibility of an in camera review as its jurisdiction only includes that information that is part of the record before the Board of Veteran Appeals at the time of its decision.

Regarding the first issue, the Court determined that merely failing to obtain the report did not necessarily create a Stegall violation. The Court stated, “if the expert opinion that the Board relied upon in this case is sufficient to address the question of VA negligence, then the Board has substantially complied with its own remand order”. However, the Court determined the relied upon expert medical opinion was at best equivocal about negligence and as a result the case had to be remanded.

Then, recognizing the evidentiary development problems with the case, the Court went further and addressed the undisclosed report. The Court explained that Congress mandated a quality assurance program to monitor and evaluate VA health care. These documents might be confidential and privileged except for certain exceptions. The “might” be confidential distinction is based upon the fact that the facility director must in advance and in writing describe those quality assurance activities and the results thereof as privileged and confidential. Importantly, in this case, the veteran claimed that the undisclosed report was not described in advance and in writing as a part of the quality assurance program.

The Court seized on the apparent failure to label in advance and in writing the report a part of the quality assurance program to require upon remand that the BVA address this issue. The Court then also more fundamentally considered an exception to the privileged natured of any quality assurance work product which allowed its use within the VA. The Court noted that the BVA was a subset of the VA and, therefore, questioned why that alone did not justify the BVA looking at the report.

The result is that a veteran can now easily argue that the BVA cannot avoid looking at data resulting from a quality assurance program.

Decided by Chief Judge Greene, and Lance and Schoelen, Judges.

Duty to Assist

The case of Theodore J. Segars v. Eric K. Shinseki, Opinion Number 08-1449, decided November 20, 2009, considered the VA’s duty to assist by collecting records when the veteran could later find relevant records that the VA did not find and the Board did not consider.

In a far reaching ruling the Court considered whether a veteran’s brief may refer to documents that are not a part of the record in order to demonstrate that the VA did not fulfill its duty to assist. The case had an interesting procedural posture which was important to the outcome.

The veteran sought and was denied benefits for adenocarcinoma of the colon. The veteran filed an opposed motion to remand his appeal asserting that documents were found that showed the VA did not satisfy its duty to assist. Attached to the motion were those documents. The veteran argued the documents should have been included in the record prior to the Board decision and that the appeal should be remanded to the Board for readjudication with the documents. After a telephone conference involving the VA, veteran’s counsel, and a representative from the court, the motion to remand was withdrawn. Later, the veteran filed a brief which in part argued the VA did not fulfill its duty to assist by obtaining relevant records.

The documents in issue are two part. First, was a report from a pathologist that is referenced by a later statement given by the pathologist that was in the record. Second, the veteran noted that he was represented by another attorney on the date of the missing pathologist report in a matter related to the appealed claim and that the VA had a duty to contact the previous attorney to determine if any additional relevant records existed. Specifically, the veteran asserted that prior counsel had a deposition of a physician that would be relevant to the claim on appeal.

The Court limited itself to determining whether the veteran could include descriptions of the missing documents in its brief as part of his argument that the VA failed the duty to assist by not obtaining the documents. The Court had no problem allowing reference to the missing pathologist report but limited such references to information from the pathologist statement that was part of the record. However, the court refused any reference to the physician deposition on the grounds that the deposition was not referenced in any documents in the record.

The Court reasoned that while it was determining whether the VA satisfied its duty to assist, the content of the documents or even their existence is irrelevant to the question of whether the Secretary had a duty to assist in obtaining adequately identified relevant records. This harsh ruling was somewhat ameliorated by reference in a footnote that statute “clearly presumes that any document referred to in the record exists and places the burden on the Secretary to demonstrate otherwise.” Curiously, the Court goes on to say, “When the Secretary attempts to rebut the presumption, then the existence of documents not contained in the record may be relevant.”

This statement is curious because a central point of the Court’s decision is that its scope is limited by statute to “the record of proceedings before the Secretary and the Board”.

Additionally, the Court also worked hard to limit its need to make a far reaching decision by noting that the missing pathologist report was referenced by another report. In short, the Court determined that in this case they could simply use the references in the record to one of the “missing” pieces of evidence to consider whether the duty to assist was fulfilled. However, while doing so, the Court appears to have actually gone further and shut off any further reference to non-record materials in the future.

The case leaves questions and practical difficulties for veterans and attorneys who discover too late that the VA dropped the ball in searching for documents and records. If you can somehow relate the missing records back to something in the record, you have a chance, otherwise, the VA gets to make a mistake and enjoy the fruits of that mistake.

Perhaps one argument that could be advanced is to use the Court’s language. Perhaps the materials, records, or documents are before the “Secretary” and not the “Board”. If the materials were in the Secretary’s embrace (in a medical file somewhere in a VA hospital) would that mean that the Court could consider it when addressing whether the VA fulfilled its duty to assist? A question that will no doubt come one day.

Decided by Hagel, Lance, and Schoelen, Judges.

38 U.S.C. § 1151: Disability Resulting from VA Treatment

38 U.S.C. § 1151: Disability Resulting from VA Treatment

The case of Johnnie R. Mangham v. Eric K. Shinseki, Opinion Number 07-1338, decided November 16, 2009, denied a claim for compensation pursuant to 38 U.S.C. § 1151.

38 U.S.C. § 1151, provides for compensation for injuries or death caused by the VA when it is giving hospital care, medical or surgical treatment or similar instances of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination … or an event not reasonably foreseeable.

Section 1151 typically comes into play when a veteran receiving medical care from the VA is harmed by that care. However, this case involves a much more dramatic set of facts. Mr. Mangham was being treated in the Temple Domiciliary for health “maintenance” prior to having a femoral surgery. While eating lunch at the cafeteria, another domiciliary resident opened fire on fellow residents and killed one. Mr. Mangham subsequently claimed mental distress after witnessing the shooting.

The Court rejected Mr. Mangham’s argument that the domicile care was a form of care covered by section 1151. Instead, the Court held that disabilities incurred merely coincidentally with VA treatment are not covered and instead the VA treatment must be the “actual cause” of the disability. They reasoned that the mental distress was coincidental to residing at a VA domiciliary and the injury was not caused by the actual provision of hospital care, medical or surgical treatment, or examination at the VA domiciliary.

The Court did recognize that prior to 1996 the claim would have been allowed because that version of section 1151 did not require a veteran to demonstrate that the alleged injury resulted from an overt act by the VA. The Court also recognized that Jackson v. Nicholson, 433 F.3d 822 (Fed. Cir. 2005), was factually almost identical and granted disability but explained that a 1996 Amendment to the law changed the result. It explained that “[i]n the 1996 amendments, Congress repudiated the notion that a coincidental event occurring during ‘hospitalization’ could lead to recovery under section 1151, purposefully replacing that word with ‘hospital care’.”

Therefore, this case is further articulation of the Court's earlier ruling that a veteran who is injured or dies while receiving VA treatment from a cause that is merely coincidental with the VA treatment will likely fail with a VA disability claim. Importantly, this ruling does not mean the veteran is without any recourse; instead, the veteran may still rely on the Federal Torts Claims Act.

Still, I would not be surprised to see this opinion appealed to the Court of Appeals for a more definite statement regarding the meaning of "hospital care" and what is coincidental to VA treatment as opposed to being a part of VA treatment.

Decided by Kasold, Moorman, and Lance, Judges.

Hearing Loss

The case of Edward E. Meedel v. Eric K. Shinseki, Opinion Number 08-1725, decided November 4, 2009, denied service-connection for bilateral hearing loss.

Hearing loss is determined by looking at 38 C.F.R. § 3.385, which provides:

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

Meedel did not meet the first prong as his auditory threshold was not 40 decibels or greater in the prescribed frequencies. Additionally, the Maryland CNC speech recognition test was not at issue in this case. Instead, Meedel argued that he met the second requirement, that at least three of the prescribed frequencies were 26 decibels or greater. Unfortunately, he only met the 26 decibel in the 3000 and 4000 frequencies. However, he exceeded the threshold by having a 30 and 35 decibel reading on his Right ear and 30 and 30 decibel reading on his Left ear.

Meedel attempted to argue that he could average his ear ratings and meet the 26 decibel threshold, essentially using the excess decibels (worse hearing at some frequencies) to pull up the decibel level for the other two frequencies (where he could hear better).

Meedel sought to rely on 38 C.F.R. § 4.85, which does allow averaging when the VA is rating a disability. However, the Court drew a distinction between 3.385, which establishes the existence of a hearing disability and 4.485, which is used to assign the disability rating for the hearing loss. The Court concluded that averaging is not allowed when establishing the existence of a hearing disability because that is the best interpretation of the plain language of the regulation and the Secretary’s interpretation is reasonable.

Decided by Chief Judge Greene, Judge Lance and Judge Davis.

Helping a Warrior: An Introduction to Veteran Benefits Law

(A version of this article appeared in the Summer 2009 South Carolina Young Lawyers magazine)

On Tuesday, March 24, the YLD teamed up with the University of Detroit Mercy School of Law’s Project SALUTE program to host a CLE on veterans’ benefits law. In exchange for agreeing to accept a pro bono case, attorneys were trained to help disabled military veterans navigate an often complex and almost always long process toward a disability award and monthly benefits. Monthly benefits offer many veterans the lifeline they need during difficult times and for a single veteran without dependent children can range from $115 to $2,471 based on the severity of the disability as determined by a schedule of injuries.

Most of us are aware of hospitals run by the Department of Veteran Affairs, but the VA also has a Veteran Benefits Administration. Most veterans that can show a current disability connected to time in the military can receive disability benefits. Surprisingly, the requirement of a current disability does not need to be something as dramatic as resulting from a combat wound. Instead, it can be anything from arthritis caused by a broken ankle sustained in the service to a chronic disease, such as hypertension, that first manifested itself during the veteran’s time in the service. The requirement is merely that the injury or condition has to have started during service or been caused by an injury during service.

One of the major issues in establishing a disability rating is demonstrating a medical nexus between the injury and the veteran’s time in the service. Taking our example of arthritis from a broken ankle, a veteran could show that the arthritis was linked to the broken ankle by obtaining a statement from a physician that the arthritis was caused by the broken ankle. Importantly, the standard for physician testimony is not the familiar “reasonable degree of medical certainty” but a less onerous “more likely as not” standard. However, obtaining this medical nexus statement from a physician is frequently a hurdle for a veteran who does not have the funds to seek out a private physician because VA physicians might not include such a statement in their examination report. For instance, when a veteran seeks disability for Post-Traumatic Stress Disorder (PTSD), the VA physician will frequently refuse to diagnose with PTSD and instead find non-specific anxiety.

Another difficulty for the veteran is that the process is non-adversarial and attorneys can not be paid by the veteran to help until later stages in the process. The result is that many veterans are unrepresented and do not “adequately” prove their claim to VA agency tribunal that some view as hostile to many veteran claims.

A veteran starts the process by making a claim of disability to the VA. Interestingly, there is no time bar or equivalent to a statute of limitation. After a claim as been made, the VA has a duty to assist the veteran in developing his claim by doing such things as requesting past medical records and ordering a compensation and pension medical examination which is conducted by VA physicians. A VA regional office (VARO) employee will make an initial decision and award or deny a disability rating. A veteran who is dissatisfied with this decision may appeal to the Board of Veteran Appeals (BVA) which is still an agency tribunal. It is at this time the veteran may first have paid counsel who will appear with the veteran at an informal hearing. The VA requires attorneys to be accredited. This is free and done by completing a relatively simple VA form 21a.[1] I should note that despite the prohibition on payment, many attorneys do work on a pro bono basis before this point and can significantly improve a veteran’s chance of being awarded a disability rating.

After the BVA makes its decision, the veteran may for the first time appeal to a non-agency tribunal, the Court of Appeals for Veteran Claims (CAVC). Cases before the CAVC are similar to other appellate courts in that they are decided on a record produced below and on briefs written by the parties. From 1995 to 2007, 75.8% of the cases before the CAVC were reversed or remanded in favor of the veteran.[2] Appeals from the CAVC are heard by the Court of Appeals for the Federal Circuit and then the U.S. Supreme Court.

Beginning at the CAVC level, attorneys for prevailing veterans can receive substantial hourly rates under the Equal Access to Justice Act (EAJA). The rate is fixed by a formula and varies but is approximately $165 an hour at present. Otherwise, paid attorneys who become involved to develop and present the claim before the BVA typically receive 20% of any past due benefits. For instance, a veteran claiming a disability who files in March 2009 and is granted a rating in April 2011 will have over 2 years of past due benefits owed to them by the VA. An attorney charging 20% of the past due benefits can receive a check directly from the VA for those amounts. An attorney can charge more than 20% as long as it is “reasonable”; however, if charging more, they will not be paid directly by the VA.

South Carolina currently has 413,000 veterans[3] and few private attorneys devoting a significant portion of their practice to veterans’ benefits law.

The lesson from the CLE was that an attorney can achieve results that seem amazing to oftentimes frustrated veterans. Along the way, the attorney might also find joy in helping the forgotten and needy.

The above is merely intended as an introduction to veterans’ benefits law. If you want more information, the following links are helpful:

http://www.vetapp.uscourts.gov/

http://www.vetsprobono.org/

http://www.vetadvocates.com/

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[1] Found at http://www.va.gov/OGC/docs/Accred/VA21a.pdf

[2] Stichman, Barton F. and Ronald B. Abrams, Eds., Veteran Benefits Manual 5 (2008).

[3] http://www.govoepp.state.sc.us/va/mission.html (checked March 25, 2009).