System Failure

One Man's Nightmarish Journey Through the Troubled VA

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October 6, 2014 | By: David S. Hilzenrath

Steven Massong

Steven Massong at his home in Las Vegas in September 2014.

Story by David Hilzenrath
_________________________________

Photos by Joe Newman

“This is a case where a patient went in for a simple vascular surgery on his left leg and came out with an amputated right foot and scrotum.”

That’s the way a Department of Veterans Affairs internal analysis describes what happened in 2005 to an Army veteran named Steven P. Massong at a VA hospital in California.

But that was just the beginning of this veteran’s ordeal. What started as a medical nightmare became a journey no less morbidly absurd as it wended its way through the VA bureaucracy, illuminating strains in the system that is responsible for helping veterans.

Massong’s story shows how hard it can be for a veteran to fight the VA, and how veterans’ claims for benefits can get stuck in an administrative loop. It shows how federal law limits malpractice suits against the VA, thereby insulating the Department from a source of accountability. It shows how the government has made broad and costly promises to people who served in the armed forces—not just those injured in combat—even as it has struggled to keep its commitments. And it shows how veterans caught up in the system can suffer.

Sent Back

Massong is one of hundreds of veterans who have contacted the Project On Government Oversight to tell of their experiences with the VA. Many told stories of exasperation and despair. His can be reported more thoroughly than most because it is extensively documented.

A piece of Massong’s story encapsulates his frustration. In May 2012, almost seven years after his surgical treatment went awry and following a series of legal setbacks, Massong’s quest for compensation from the VA brought him before the Board of Veterans’ Appeals. He finally had what was supposed to be the administrative equivalent of his day in court. But it did not turn out that way.

In reviewing the VA’s file on Massong, a judge for the appeals board noted that part of the record made no sense. A key VA document described the basis of Massong’s case as “alleged retention of foreign object, sponge, after colon surgery requiring additional surgery to remove foreign object.”

The trouble was, Massong did not undergo colon surgery, and as far as he knows no sponge was left inside him. It was as if the Department had confused him with someone else. “Unfortunately, such events are not the subject of the Veteran’s current claim before the Board,” VA administrative judge Kathleen K. Gallagher wrote in an October 2012 order.

Noting that documents were missing from the government’s file, the judge declined to decide the case. “Under the circumstances,” she wrote, “an attempt must be made to obtain those documents prior to a final adjudication of the Veteran’s current claim.”

When Massong contacted POGO in June, almost two years after the administrative judge had sent his case back to other VA offices with orders to sort out the mess, he was waiting for the Department to resolve his claim.

 “I fought all my life to get off of alcohol and drugs,” he said. “The VA . . . turned me back into a drug addict.”

In hours of interviews over the ensuing months, he said the wait was a strain. He said he was struggling to pay his bills and avoid being evicted from his Nevada home. At age 59, he said, he was for the most part confined to his bed and wheelchair. The stump of his foot remained severely sensitive to pressure, and the special boots the VA had issued and reissued didn’t fit, he said. The infections and amputations he experienced at the VA in 2005 ended his sex life when he was 50, he said, and left him dependent on prescription painkillers such as morphine to get through the day.

“I fought all my life to get off of alcohol and drugs,” he said. “The VA . . . turned me back into a drug addict.”

He said that, each night when he closed his eyes, he prayed—that he would die in his sleep.

“A man can only take so much pain.”

He was nonetheless confident that it was only a matter of time before he prevailed in his appeal. He did not anticipate the all-too-common turn his case would take next.

Volunteering for Vietnam

Massong enlisted in the Army in 1972, when he was 17. He said he wanted to go to Vietnam, where a half-brother he admired was serving. The Army assigned him to Fort Knox, Kentucky.

By the time he enlisted, Massong said, he had run away from home and had spent several months in jail for breaking into a drugstore. He said his time in the Army was brief and troubled. By his account, he was introduced to heroin by a sergeant back from the war, he saw one soldier kill another with a knife in a street fight, and he was raped by a law enforcement officer who threatened him if he did not comply.

“I remember slicing my wrists and eating a light bulb, trying to take myself out,” he said.

According to a VA document that Massong shared with POGO describing his military service, he suffered from psychological problems, was repeatedly absent without leave, slashed his wrists, and was honorably discharged after seven months in uniform.

He never made it to Vietnam.

“I’m no war hero; let’s get that clear,” he said.

With his seven months of stateside service, Massong gained comprehensive health care from the VA. He told POGO that he does not feel that he deserves it, but he wasn’t about to pass it up. And he has had extensive use for it. According to the internal analysis of his case, since the 1970s, he has been seen at more than 50 VA medical centers. Along with various maladies, there was surgery to reconstruct his face after it was smashed in a bar fight and treatment for several stab wounds received when he was assaulted, he said.

Massong said he spent time at VA facilities for a variety of other reasons. Seeking drugs. Seeking help getting off drugs. For food, shelter, and camaraderie. Some of the facilities, which he said were known as “resort VAs,” offered additional attractions: tennis courts, swimming pools, basketball courts, and bowling alleys. Through one of them, he recalls taking deep-sea fishing excursions.

“I went to the VAs mostly out of the need to be wanted,” he said.

When his medical misadventure began, the sometime-carnival worker was unemployed and living in a motor home, getting by on a VA pension of about $1,000 per month, according to VA records.

Steven Massong

Massong shows the result of his partial right-foot amputation.

Gangrene

On July 14, 2005, he checked into the VA hospital in Loma Linda, California, for surgery to relieve an arterial blockage in his lower left leg. He was found to be at low risk for the procedure, according to a VA document. But, after the bypass, his doctors could not detect a pulse in the femoral artery of his right leg. They searched for an obstruction and removed a clot from his right foot.

That night, while Massong was recovering from the operation, a nurse found that his right leg was cold. He was taken back to the operating room for more exploratory surgery. Doctors discovered that, during the bypass surgery, pieces from the arterial wall had broken off and traveled to his right foot, blocking blood vessels, a VA document says. The surgeries left him with extensive incisions not only to his left leg, but also to his groin and right leg.

Over the next several days, while in intensive care recovering from the second operation, the record says, he spiked a fever of 103 degrees, became delirious, and developed an abscess of the scrotum. The diagnosis: gangrene. In an emergency operation, half of his scrotum was removed.

In the days that followed, he remained delirious and so agitated that he was kept in restraints. He developed a potentially fatal drug-resistant infection known as MRSA.

Despite the delirium, Massong says he recalls being left in filth, and that the stench from his body was more than he could bear. He has alleged that the hospital staff did not want to clean his groin, contributing to the contamination of his incisions. A note that a nurse entered in the medical record on July 23, 2005, said his bed linen appeared unchanged and dirty. The record also notes that a family member complained about the conditions.

“Pt appears unkempt, linen with dried blood,” the nurse’s note says. It adds that a visitor “is also upset as to why the patient’s room is cluttered and his bed linen appears like it’s never been changed.” The note says the nurse apologized, “stating that it wasn’t my fault that the room and his linens are dirty.”

(Hospital-acquired infections are such a serious issue that they are tracked, and Massong is not the only VA patient to develop one. In fact, the VA’s most recently released color-coded data on hospital quality and safety measures show relatively high rates of certain “healthcare associated infections” at the Loma Linda hospital within the past year. From October 2013 through June 2014, the rate of ventilator-associated pneumonias at Loma Linda was in the red, at almost four times the VA’s national average. The rate of central-line associated bloodstream infections was coded orange, at almost three times the national average. The MRSA infection rate, though shown as being in the green, was almost triple the VA’s national average. The rate of hospital-acquired pressure ulcers, also known as bedsores—which can be highly dangerous and a sign of patient neglect—was in the green but more than double the VA’s national average.)

On July 25, 2005, 11 days after his bypass surgery, Massong’s right foot was found to have necrotizing fasciitis, a dreaded flesh-eating infection. Doctors performed an amputation at mid-foot.

To obtain consent for the procedure, the surgeon contacted Massong’s father in Ohio, records show. Before his bypass surgery, Massong had told the VA medical team not to contact any member of his family, an instruction noted in the medical record. He told POGO that he was trying to get away from his father when he joined the Army.

In the months after the amputation, there were three more operations on the stump of his right foot, a VA document says, including a procedure in which the foot was again found to be necrotic “and the protruding bones were resected using a sagittal saw.”

Suing for Malpractice

Massong said he searched for a lawyer to help him sue the VA for malpractice but found no takers. He concluded that the many he contacted didn’t want to take on the government and didn’t think his case was worth the effort.

Suing the VA for malpractice is not the same as suing a private institution. Before taking a malpractice claim against a VA hospital to court, veterans must pursue their case through an administrative channel. Attorney fees are limited and punitive damages are prohibited. As federal employees, VA doctors are shielded from personal liability.

In other respects, malpractice claims against the VA are governed by state law in the state where the injury occurred. In Massong’s case, that meant California law capped non-economic damages such as pain and suffering at $250,000.

With his tenth grade education and debilitating injury, Massong filed his own malpractice case. An internal VA document says it was “impossible to decipher the exact nature of the claim.” The VA sent him instructions, and in May 2007 he filed a proper claim supported by a 20-page handwritten account.

In September 2008, while he was in a fog of pain and prescription painkillers, Massong recalled, the phone rang. It was a lawyer for the VA offering him a deal. Without an attorney to advise him, Massong agreed on the spot to settle his case for $50,000.

He came to regret not negotiating for more. But, in his pursuit of compensation, it wasn’t the end of the line. In addition to the malpractice settlement, Massong was potentially eligible for disability benefits. Under federal law, veterans injured by surgery or other treatment provided by the VA can receive monthly disability checks as if the injury was connected to their military service. Malpractice settlements and disability benefits often go together.

Massong applied for disability payments in 2006 based on his amputations and in 2007 claiming depression related to his medical ordeal. He was repeatedly rejected. The VA recounted its reasons in a January 2014 letter. “Your claim was previously denied because the evidence of record shows your right leg disability . . . did not worsen due to VA Care but due to natural progression,” the VA said.

The VA rejected his claim for depression on two grounds: First, he had a history of psychological problems, and, second, if the foot amputation did not qualify, being depressed about the foot amputation couldn’t qualify, either.

The explanations left Massong incredulous.

“Who wouldn’t be depressed if they woke up and found their foot was gone and their nuts were cut off?” he asked.

Steven Massong

Benefits Denied

It was Massong’s effort to reverse the verdict on his amputations that brought him before the Board of Veterans’ Appeals in 2012. (He said he has lost track of his claim for depression.) But the VA’s missing and mixed-up records—including the mistaken reference to a sponge left in his body during colon surgery—delayed a resolution.

The judge at the appeals board sent the case back to other offices in the VA—a regional office and a unit called the Appeals Management Center—to find the missing records and review the claim, and she ordered that the matter be handled “in an expeditious manner.”

Even as the VA judge faulted the Department for mixing up the basic facts of Massong’s case, she made a similar error. The judge directed the two offices to “readjudicate the Veteran’s claim for compensation benefits . . . for residuals of a left hip/femur fracture, to include residuals of a left hip hemiarthroplasty . . . on October 30, 2003.”

Massong, whose ill-fated surgery was in 2005, had neither a left hip/femur fracture nor a hemiarthroplasty procedure to repair the joint.

In March 2013, the Appeals Management Center declared that efforts to locate at least some of the missing documents “have been exhausted and further attempts would be futile.”

Two months later, it readjudicated Massong’s disability claim.

As the record shows, Massong was living a version of Groundhog Day: the Appeals Management Center turned him down on the basis of the same flawed document that had helped derail his earlier appeal, the one that had nothing to do with him. Asserting erroneously that his case against the VA involved “alleged retention of foreign object, sponge, after colon surgery,” the Appeals Management Center declared that allegations about a sponge and colon surgery served as no proof that the VA botched his vascular surgery.

“In the absence of evidence of wrongdoing or negligence, compensation . . . is denied.”

Caught in a Loop

Massong ultimately found a lawyer to represent him. Citing the veteran’s “severe financial hardship,” the lawyer, Seth Director, petitioned the appeals board to move his case toward the front of the queue.

But, when it comes to VA appeals, reaching the finish line and actually crossing it are two very different things. The line has a tendency to recede.

Almost half of the decisions rendered by the Board of Veterans’ Appeals yield neither a victory nor a defeat for the veteran, but rather the prospect of many more months in limbo. The Board’s most recent annual report says that, in 46 percent of the appeals the Board addressed in fiscal year 2012, it remanded the case—in other words, sent it back to one of the VA offices whence it came. According to the American Legion, a major veterans’ organization, cases are remanded when the VA has improperly prepared them for Board consideration and additional work is required.

 “Many of these claims have been remanded on multiple occasions—this is commonly referred to as the ‘perpetual remand cycle.’"

“Many of these claims have been remanded on multiple occasions—this is commonly referred to as the ‘perpetual remand cycle’ and results in months, and even years passing before these claims receive their final adjudication,” Zachary Hearn of the American Legion said in recent testimony to Congress.

As of September 20, 2014, remanded cases had been sitting at the Appeals Management Center an average of 145 days, according to VA data. Remands pending at regional VA offices had been sitting there an average of 551 days.

The remands add to what is already a typically lengthy process: At just some of the earlier stages, those for which the VA posts weekly data, appeals in the pipeline as of September 20 had been pending an average of more than 1,000 days.

Veterans whose claims are denied at the Board of Veterans’ Appeals have the right to take their case out of the VA to a special federal court. But those whose cases are remanded remain stuck in the VA’s administrative system.

There, they have ample company. Currently, there are about 280,000 veterans in the appeals pipeline.

"Sconectomy"

The result of Massong’s appeal appeared to hinge on a basic question: Was the VA to blame for the mutilations he had suffered?

Massong argued that the VA had already admitted as much. A letter from the Regional Counsel’s office to the Loma Linda hospital explaining the $50,000 settlement of Massong’s malpractice claim includes the following language:

Description of the acts or omissions and injuries or illnesses upon which the action was based: Initial surgery of arteriotomy was improperly preformed [sic] and scrotal wound was not properly cleaned causing infection and need for a partial sconectomy (mid foot amputation).

To be sure, that description is less than accurate. As reflected elsewhere in the record, the surgery to address the gangrene in his groin was a partial scrotectomy, not a partial “sconectomy.” The amputation of his foot was a separate procedure.

But, beyond the plain language of that document, Massong argued that the $50,000 settlement was effectively an acknowledgement of fault on the part of the VA.

A former VA lawyer who analyzed Massong’s malpractice claim for the government and authored the internal analysis discussed earlier expressed a similar view. “We would never pay on a meritless claim,” the former VA lawyer, Rita Sabina Mandosa, told the Project On Government Oversight. Based on the malpractice settlement, Mandosa said, Massong should be granted the monthly benefits.

“If he’s still fighting that issue and they’re not giving him” a monthly benefit payment, “that’s wrong. He should be receiving that,” Mandosa, now retired and living in Massachusetts, told POGO in September.

POGO sought interviews and comment for this report from multiple offices within the Department of Veterans Affairs. We sent a list of questions to the Department’s public affairs office in Washington. As requested by an agency spokesman, we also provided a signed release from Massong authorizing the VA to answer any and all questions POGO asked about him. We received no response.

The question of VA liability in Massong’s case was the subject of the internal 2008 report that Mandosa authored prior to the settlement analyzing the strengths and weaknesses of the government’s position. Never meant for public release, the report said it was intended for the exclusive use of government attorneys “in defense of this litigation.”

Unlike other documents at issue in Massong’s remands, this one wasn’t lost. Massong’s lawyer was able to obtain a copy of it though the Freedom of Information Act.

Citing the assessments of VA medical experts, the report offered a mixed message. For example, it said the care the patient received for his infections was appropriate. But it also said: “It is not clear from the medical record if all of the CDC [Centers for Disease Control] recommendations for the prevention of surgical site infections were met.”

The report identified “weaknesses” in the government’s defense “which could defeat it at trial.” It said the type of surgery performed on Massong’s left leg was a relatively uncommon choice associated with higher morbidity. It said the problem occurred when the surgeon placed a clamp on Massong’s aorta, causing pieces of the aorta wall to break off and travel to the right leg, and it said that action could have been averted with the use of a pre-operative scan. It said the patient “will have lifelong pain.”

The report found “no clearly negligent act” on the part of the VA. However, it warned what might happen if the malpractice claim ever reached a court. It concluded that, in the case of the patient who went in for surgery on his left leg and came out missing much of his right foot and scrotum, a judge might apply a simpler legal standard: Res Ipsa Loquitor.

Translation: The thing speaks for itself.

Judgment

On the morning of Thursday, September 25, 2014, with his white toy poodle Holly in his lap, Massong logged onto a VA Web site to check the status of his appeal. It was a ritual he had performed daily for years. This time, the screen informed him that a decision was in the mail.

Desperate to learn what the appeals board had decided, Massong called a toll-free line at the VA. He was told that his case had been remanded. Again. “For further development.”

“Same as last time,” he related in a tearful call to POGO. “What more development do they need? I mean, my God.”

He wondered: To avoid paying him, was the VA waiting for him to die?

Though he didn’t know it at the time—the written decision would take days to reach him—the judge had remanded the case for essentially the same reasons she had remanded it two years earlier. In almost identical language, she ordered the Regional Office to track down missing records she had demanded it locate the first time—“any and all litigation and/or discovery documents pertaining to the settlement” of the malpractice claim. This time, the judge put the words “any and all” in bold italics, Massong noted. The judge also spelled out that the Regional Office should ask the Regional Counsel in Los Angeles for two expert medical opinions it had cited.

Even without the details of the decision, Massong anticipated what it might mean.

That night, as the prospect of another long wait sank in and hope deserted him, he sent a message to POGO reflecting on his journey.

I DON'T KNOW WHY i AM WRITING THIS EMAIL BUT I HAVE A INNER FEELING OF EMPTYNESS THAT i HAVE NEVER FELT BEFORE THIS DAY. TODAY I REALIZE MY LIFE IS POINTLESS THERE IS NO FUTURE FOR ME OR A GUY LIKE ME . . . .

I AM SORRY BUT I WANT YOU TO KNOW I WASN'T THE BEST KID OR MAN EVER BORN BUT I DID LEARN FROM MY MISTAKES AND I DID GROW UP OVER THE LAST DECADE . . . .

FOR A PERSON WHO WAS ALWAYS ON THE GO TO BE BEDRIDDEN SUCKS BUT I FEAR SUICIDE AND THINK EVERYDAY WHERE WOULD I BE WITHOUT MY FAITH.

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