This VA message raises disturbing questions about the
integrity of medical compensation and pension examinations by QTC medical
officials who examined veterans at the direction of the Winston Salem Regional
Office of the U.S. Department of Veterans Affairs. Both Dr. Green and Mr. Blake
were officials of the Adjudication Division of the Regional Office at the time
of the email.
Perhaps as a result of this message, the QTC physician
named above (Dr. Stabler) issued an "Addendum" to his original report. The
addendum-change was even less favorable to the veteran than the original QTC
medical report. The claim was subsequently denied.
To read the first QTC exam by Dr.
Stabler issued on December 27, 2001 (before the email above), see:
Note the attached QTC x-ray report
dated 12/27/2001 available to both Dr. Stabler and Dr. Green. This veteran
previous suffered two fractures of the right fibula and another of the right
tibia requiring metal be surgically inserted and later surgically removed. The
right knee x-ray showed moderate posttraumatic arthritic changes with mild
patellar chondromalicia. In spite of this objective x-ray evidence, Dr. Stabler
concluded that the veteran had "no disability" of the right knee.
After the Dr. Green email, Dr. Stabler
issued an addendum medical report dated February 6, 2002. To read that document,
see:
Apparently to satisfy Dr. Green, Dr.
Stabler then advanced an opinion that if the veteran had anything wrong with his
knee, it was "due to volition rather than mechanical inability". Dr. Stabler
appeared to imply that the veteran's right knee problems were "faked" by the
veteran in spite of the x-ray report of
moderate posttraumatic arthritic changes
with mild patellar chondromalicia
that were in close
proximity to the three fractures of the right leg.
There may an appearance that Dr. Green used Mr. Blake as a
clandestine communication means to influence the QTC physician to tamper with
the original evidence so that the veteran's claim could be denied. Because Dr.
Green and Mr. Blake worked at the Adjudication Office of the Winston Salem
Regional Office, they were agents of the U.S. Government with a statutory
obligation of duty to assist the veteran with his or her claim in accord with Manio v.
Derwinski, 1 Vet. App. 140, 144 (1991) ("Rather than defending against the claims of veterans, the Secretary has a statutory duty to assist claimants during the course of the ex parte and non-adversarial claims resolution process at the regional office and before the
BVA.").
Is Dr. Green's communication so potentially biased as to
obstruct justice for the veteran and his counsel, as to tamper with witnesses
without knowledge of the veteran, or as to conspire with others to sabotage the
veteran's claim? Were the veteran's civil rights violated under 42 United States
Code 1983? Dr. Green was not just a physician, but she was a
"judicial" and adjudication official working for the Regional Office
and acting under color of law for the purpose of assisting the veteran with
non-adversarial evidence to insure fundamental fairness as follows:
"Information in VA records which are used by the Department in making any determination about any individual will be maintained with such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination."
Cited from VA Adjudication Manual M-1 at section 9.15.
In this case, the veteran was never informed of the Dr.
Green communication with Mr. Blake and its detrimental effect on the veteran's
claim until someone within the RO revealed this "hidden" information
in 2003 to the veteran.
The courts have held that procedural fairness in an administrative proceeding generally requires an adequate opportunity to know the evidence to be relied upon and to rebut it. See
Wirtz v. Baldor Elec. Co., 337 F.2d 518, 528 (D.C. Cir. 1963).
"We caution, however, that the permanent removal of documents from a claims file without notice to the claimant
may raise concerns regarding procedural fairness, particularly in view of the possibility that such documents, including BMAO's, may be favorable to the claimant in some instances. Accordingly, if the Board considers it appropriate to permanently remove documents from claims files, we recommend that procedures be established to ensure that claimants are given adequate notice of such removal, and to ensure that documents which are favorable to the claimant or are otherwise relevant to the Board's decision are not removed from the claims file."
VAOPGCPREC 14-98
On January 16, 2004, the
Adjudication Official at the Winston Salem Regional Office responded to this
ethical issue with the following letter:
Interestingly, the RO
officials did not voluntarily refer the matter to any investigative agency such
as the VA Inspector General and took the position that the e-mail was
"evidently" an effort ("possible to assume") by Dr. Green to
"increase" the veteran's rating (See paragraph 4 at page 2 of the
letter above).
ADVICE TO
VETERANS: Veterans who are medically examined by
QTC officials or physicians need to be alert to any "addendums" issued
by the QTC officials after an initial examination. The veteran should seek all
communication (written or otherwise) between the RO officials and the QTC
examiners - such as the email above.
A GUIDE FOR VETERANS FACING QTC
EXAMS:
1.
Make certain that you write down the full name of the physician who examines
you. If the examiner is not a physician, make certain you know the examiner’s
credentials.
2. Try to obtain a business card from the examiner.
3. One valid way to accomplish obtaining the examiner's business card and
credentials is to suggest to the examiner that you trust
the examiner, and that you would like to consult him about your own medical
condition independent of the QTC exam. This tactic may cause the examiner not
to be suspicious about your inquiry of his or her identity.
4. Try to find out if the examiner is Board certified in any
medical field or has any specialty for which he is recognized or licensed.
5.
Write out the text of what you need to tell the physician about your disability
and your medical condition. It is very important that you get across all
symptoms of your disability to the examiner. Even better, you should write out
the symptoms you have and give a copy of those symptoms to the examiner at the
QTC examination. Be certain to keep a copy. Use the forms at:
Veteran's forms to prove
service connected disability (PDF
format)
6. Fill out one of the medical care questionnaires named
"Medical Care Questionnaire to be completed by client" immediately after the
exam. See:
Veteran's medical visit report
for self use or submission to VA
(PDF format)
7. Take notes during the exam as to what tests are being
performed. Physicians will usually tell you the name of the device or test used
in an exam.
8. Be certain to note the time (and date) the exam actually
began and the time that the exam ended.
9. Ask the examiner if the examiner has a copy of your claims
folder (C-File) from the Department of Veterans’ Affairs. The Department of
Veterans’ Affairs always gives preference to the VA physician or QTC physician
because the VA will claim that the VA or QTC physician actually read your claims
folder before the examination. The physician will not let you examine or read
the claims folder, but it is appropriate to ask the physician if he has a copy
of the claims folder and if he will show you the folder itself so that you can
be confident that your name is on the file. Please note how thick the file is.
The purpose of this information is to gather evidence about whether the
examining QTC physician actually read or examined your file before the
examination. To obtain C-File, see:
Veteran's form to obtain
C-File (PDF format)
10. Please give the physician a list of your medications, your
jobs in the past fifteen years, and a pain questionnaire to place in your
Veteran’s claims folder (C-File). Please use these documents as an opportunity
rather than a burden so that you can enhance your chances of the QTC physician
actually knowing your condition, your medications, your symptoms, whether you
work or not, and any abnormal sensations such as pain. These forms can be
printed at:
Veteran's forms to prove
service connected disability (PDF
format)
visitors since November 16, 2003
