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Veteran Battles VA Over Unnecessary Surgery : Medicine: Both sides agree that bladder operation was not needed. Arthur Winters says he suffered complications that should boost his disability payments; VA says no way.


ALBUQUERQUE, N.M. — This much they agree on: A bladder operation that World War II veteran Arthur Winters had at the veterans hospital here was unnecessary and could have been avoided with a simple test that was not conducted.

After that, Winters and the Department of Veterans Affairs part company.

Winters contends the operation he had more than two decades ago led to a host of disabling medical problems, including severe urinary tract maladies and kidney disease that cost him an organ.

That, he says, entitles him to disability payments way beyond the monthly $284 he gets for an arm wound suffered during the war.

The VA contends that although the 1971 bladder operation was negligent, the surgery did not cause any residual problems, and Winters is not entitled to more money.

But Winters, 75, is tenacious. He's kept his case alive for years by appealing decisions rejecting his claims and by flooding the VA's regional office here with letters demanding full benefits, which would amount to about $1,800 a month.

"I hope they give in," he said of his fight for back benefits dating to 1971.

But the VA says rules are rules. It maintains that more money is simply not warranted under its regulations.

"Mr. Winters wouldn't believe you, but we don't bear him any ill will," said Tom Breen, adjudication officer for the VA's regional office.

Breen, who served in the Air Force during the Vietnam era, says his office found most of Winters' operations and procedures were necessary. That decision was upheld by the quasi-judicial Board of Veterans Appeals in Washington.

Winters' attorney, Vietnam veteran Jim McKay of Santa Fe, says Winters and dozens of other veterans are caught in a bureaucratic nightmare.

"As a matter of fundamental fairness, they are entitled to compensation," McKay said. "As far as I'm concerned, it's nothing more than administrative foot-dragging by the VA not to pay these veterans."

Winters, a German prisoner of war for two years, has a separate claim pending before the appeals board in Washington.

That claim contends that ailments he contracted while he was a POW--frozen feet, dysentery, malnutrition and arthritis, among others--still bother him and that he's entitled to more compensation as a result.

The regional office didn't buy the argument. The Board of Veterans Appeals is actively reviewing it, said Steve Cohn, executive assistant to the board's chairman.

Beyond that, Winters believes the VA wrongly diagnosed prostate cancer in 1971. He says he quit his job with the post office because he thought he was going to die. His action cost him thousands of dollars in lost wages.

"It was 1971, not 1994," Winters said. "I thought that was it."

Breen says medical documents point to a cancer mass that was successfully removed.

"Mr. Winters sometimes seems to indicate that he never had cancer and none of the surgery should have been performed," he said. "'That's not borne out. The documents show he did have cancer, the cancer was removed and it didn't come back."

Winters' case and others like his are caught in a legal limbo as the VA and veterans across the nation await the outcome of a case involving a Texas man who took on the agency after back surgery in 1986.

Fred P. Gardner contended that his back problems persisted after the operation, to the point where the muscles in his legs withered away. The VA regional office in Waco, Tex., concluded he was not entitled to benefits, a decision upheld by the Board of Veterans Appeals.

Gardner then appealed to the Court of Veterans Appeals, which was created by Congress in 1988 to oversee and review veterans' cases. The court disagreed with the earlier decisions, and the VA now has appealed to the U.S. Supreme Court. The high court has not yet agreed to hear the appeal.

Gardner's attorney cited a 1924 law that says if a veteran suffers an injury or an aggravation of a previous injury at a VA hospital, he is entitled to benefits as if the injury were service connected.

"The analysis is simple," said Gardner's attorney, J. Michael Hannon of Washington. "If you're a veteran and you go into a VA hospital, it's like walking back into the service."

Whether Gardner's case will have any bearing on Winters' remains to be seen. But while the case is pending there's a moratorium on malpractice claims.

The Gardner case would have major consequences for the VA if it's upheld, Hannon says. The agency would have to take a new look at numerous claims.

"The Court (of Veterans Appeals) told us the current regulations are not valid, but we don't have a clear picture of what we'll end up with," Breen said. "It's possible the Supreme Court could uphold the previous court decisions, we'd get new regulations and Mr. Winters might conceivably still not get any more than he's already gotten out of it.

"On the other hand, he could."

Meanwhile, a room in Winters' apartment near downtown Albuquerque remains full of file drawers packed with letters and documents.

"I could empty this room if they'd settle this," he said.

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