The Department of Veteran Affairs and the Privacy of Medical Professionals: A Breach of Trust?

05/03/2021
By The Honorable Edward Timperlake

As the first Assistant Secretary for Congressional and Public Affairs and then Public and Intergovernmental Affairs, I was honored to serve President Bush 41.

And little did I know as part of the President’s veteran’s team that our decision to break the legal log jam to service connect the adverse deadly health effects of Agent Orange would forty years late bring the full weight of the DVA to help me when I had a life threatening AO diagnosis.

I was also equally honored to be asked to stay for 90 days to help my friend and fellow Vietnam combat Marine, the late Secretary Jesse Brown, with his very successful leadership transition.

I was glad to see Secretary McDonough directly focus on being measured by DVA outcomes in their most important mission.

The new Secretary has the exact right emphasis on being a veteran’s advocate when he says:

‘We will judge ourselves by outcomes for veterans” New DVA Secretary Denis McDonough.“

My journey as a veteran’s advocate began in the summer of 1973 when flying the F-4 out of Nam Phong Thailand my career as a regular Marine Officer ended when I was medically evacuated for Hepatitis and eye damage first to the USAF Hospital at Clarke AFB Philippines, then Yokosuka Naval Hospital and finally Chelsea Naval Hospital Boston.

I did not realize that I had sustained sufficient lasting liver damage until at Chelsea Naval Hospital I was told in writing that my career as a regular Marine officer could end at any time because of liver damage.

Consequently, in 1975 after resigning my regular commission I asked the VA to review all my medical records from combat and make a service connected disability determination. I was awarded 10 % for “residual hepatitis manifested by abnormal hepatic profile.”

Both the Navy Doctors and examining VA Doctor told me as I get older my liver disease/damage might affect the quality of my life.

In 2009/2010 my brother who had been a Navy Doctor, now in private practice but had seen me in 1973 while he was attending Medical School, saw I was getting sick much like 73-74.  His field is pediatric orthopedic surgery so he said I should have the DVA medically check out my liver, and his statement is in my DVA records.

From 2009/2010 I went to the Washington VAMC where they ran a series of blood tests that only checked for Hepatitis A B and C. They also specifically put in my official VAMC medical record that they did not test for Hepatitis E, EBV or Yellow Fervor.

Because I was feeling sicker and weaker I asked the Roanoke RO Regional Benefit Office to review my condition for an additional percentage of disability.

Exercising my rights to a hearing I drove five hours to Roanoke to present my additional evidence and in the hearing specifically stressed that I had not been tested for Hepatitis E.

When Roanoke RO made a final service-connected compensation determination the hearing evidence in which i warned them about not in being tested for Hep E was not on their evidence list. This is very serious mistake and called “spoliation of evidence.”

The practical effect of my hearing not being in evidence was significant when Roanoke RO asked a DVA Doctor of Osteopathy to be an outside Medical reviewer.

His medical determination was: Patient never had hepatitis

And with that Roanoke RO voided my 1975 service connected claim for “residuals hepatitis.”

It took my private physician to submit lab work to VA proving I had  lasting markers in my blood for Hepatitis  E.

Thankfully, my personal physician proving I had had Hep E made Roanoke RO stop trying to remove my compensation, but I now wonder if any other Veterans have been adversely affected, because of where Hep E is found, for example not only in SEA but Africa.

This taken from my Doctor’s letter to DVA:

“As you know Hepatitis E is a type of what was previously labeled no-A non-B hepatitis.

This is a virus which is waterborne or enterically transmitted with its highest incidence being in Asia, Africa and Middle East, and Central America.

This could certainly be the explanation for the type of non-A non B hepatitis that the patient experienced while in military service.

Hepatitis E has been reported to cause chronic infection in certain situations.

To help all fellow veterans not go through what happened to me, especially with the stand-up of AFRICOM, I have spent years trying to have DVA medical teams add testing for Hep E to the protocols of testing for A,B and C.

It has been difficult

Finally, after four BVA remands since 2011 and thus a decade of collecting hard evidence, my medical/compensation case went in front of The Court of Veteran Appeals.

On February 10, 2020 I won the decision and then in harmony with the Judge’s decision I submitted two additional independent medical reports on my symptoms.

Enough was finally enough, but I was so wrong in thinking that.

In a document I received on April 29 2021, 445 days after the Courts decision and with zero consideration of my Court inspired end-game medical submissions Judge Clementi and Attorney J.E. Miller instead issued another remand.

Their 5th remand reaches back yet again for all records beginning in 1973-1975 and going forward.

Questions previously asked and answered and everything medical has already been entered in evidence.

Over a decade of providing medical documentation the 5th BVA remand shows abuse of process in that they are now deliberately misusing the BVA legal process to re- litigate  the Court’s  decision that they lost.

I am curious about why did Cheryl Mason Chair of BVA allow the remand team that had already had four attempts over a decade only to lose a court decision get another bite of the apple?

This is beyond me because it is now painfully obvious that in-spite of time honored legal requirements in Title 38 that “the benefit of the doubt goes to the veteran,”  the BVA legal team has turned adversarial.

Their BVA 5th remand was very clever because they easily tied up my appeal for several more years.

However, it is worse than that for all veterans if allowed to stand.

Judge Clementi and attorney Miller added a draconian legal requirement that is very, very, dangerous because it can affect all veterans if allowed to stand.

Judge Clementi initiated a legal data collection requirement that directly targeted an intrusive intimidating request directed against the privacy of the medical professionals treating me over ten plus years:

“Obtain and associate with the files CVs for all VA clinicians who have conducted VA examinations or provided medical opinions regarding the Veteran’s hepatitis residuals since 2009”

The new Secretary should be horrified that BVA lawyers have legally ordered mid-level government employees to collect and build dossiers on private and government physicians.

I have never ever heard of such outrageous overreach and I suspect neither has Congress or the AMA.

For three years, I was a Professional Staff member on the House Committee on Rules with oversight on DVA issues and this legally mandated dossier building by the government is truly fighting.

The code of judicial conduct requires a Judge to be faithful to the law and maintain professional competence in it.

Are you frigging kidding me with this immoral at a minimum and possibly illegal, remand requirement?

It is a dangerous legal harassment strategy that transcends my specific case.

In my decade long journey, I was told by a very senior DAV National Service Officer “they have ways to get you”

No truer words were ever spoken; the cliché about the DVA-deny, delay, death is very telling.

In many senior positions including being confirmed by the Senate as “The Honorable” and a proven non-partisan undaunted veteran’s advocate, I will keep readers of Defense.info appraised of any additional issues I find that adversely impact on the quality of DVA service to help my fellow veterans.

The record is the record and the truth is the truth.