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KARE 11 Investigates: Veteran gets new kidney after years of denial

In the wake of a KARE 11 investigation, a Native American Marine Corps veteran from Minnesota has received a kidney transplant the VA had denied him.

PITTSBURGH — At 6 o’clock Sunday morning, Frank Sherman awoke to the sound of a ringing phone.

“I got my call and they wanted me on a plane,” Frank said. “Right away!”

It was a call Frank has been hoping to receive for more than six years.

It meant the Minnesota veteran was getting a new kidney – and, hopefully, a new lease on life.

Frank quickly grabbed his bag, called family members and headed from his Cass Lake home to the Grand Rapids airport.

“They flew me in a small plane all the way from Grand Rapids, Minnesota to Pittsburgh,” Frank told KARE 11 from his hospital bed.

Credit: KARE
Frank Sherman is on the organ transplant list for a new kidney.

When the medical flight touched down, an ambulance was waiting to rush Frank to the Pittsburgh Veterans Hospital, one of the Department of Veterans Affairs official organ transplant centers.

“They got me all set up and got me ready for my kidney,” he said, his voice a mixture of exhaustion and joy.

For Marine Sgt. Frank Sherman – he’s quick to say “Once a Marine always a Marine” – getting this life saving transplant was a battle against racial bias and a bumbling bureaucracy.

Years of denials

A member of the Leech Lake Band of Ojibwe, Frank served in the Marine Corps from 1972 to 1976.

In June 2018, Frank and several of his caregivers asked KARE 11 to investigate why the VA was refusing to put the veteran on the organ transplant list – despite repeated recommendations from his doctors.

Credit: Lagoe, A.J.
Frank Sherma was stationed at Camp Lejeune while we was in the Marines. Credit: Sherman family

His VA records showed he had end stage renal disease likely caused by drinking contaminated water during his service at Camp Lejeune in N.C. 

“There is no valid reason for him not to be selected,” Dr. Mark Becker, Frank’s primary care physician at Cass Lake Hospital, wrote to the VA.

Frank’s private nephrologist concurred. “I think that Frank would make a good transplant candidate,” Dr. Jason Bydash told KARE 11.

A top VA doctor even seemed to agree.

The Minneapolis VA’s Chief of Nephrology referred to Frank in 2015 as an “average risk candidate for kidney transplant,” according to government records.

Still the VA denied him.

WATCH: KARE 11 Investigates: Marine veteran’s battle for kidney transplant

Neurocognitive deficits?

Records reviewed by KARE 11 indicated Frank was denied because the VA believed he was not mentally alert enough to follow medical instructions and take care of himself after a transplant.

When Senator Amy Klobuchar (D-MN) asked about Frank’s case in February 2018, Minneapolis VA Director Patrick Kelly cited a finding by the Pittsburgh VA Transplant Center: “Due to his limited functional status and vascular dementia with significant neurocognitive deficits, he is not an acceptable candidate.”

But Frank’s doctors strongly disagreed.

Dr. Bydash told KARE 11 he believed the VA had made a life-threatening mistake. 

“Frank, in my opinion, does not have significant neurocognitive deficits,” he said.

Credit: KARE
The VA refused to put Frank Sherman on the transplant list.

Frank’s primary care physician at Cass Lake Hospital agreed.  About the VA’s claim Frank had cognitive impairments, he wrote: “This is simply not true.”

Records show Frank did poorly on standard memory tests used to determine whether he could care for himself if he were to receive a transplant.

But Frank grew up on the reservation speaking Ojibwe and does not read well. And records reviewed by KARE 11 raised serious questions about the accuracy and fairness of the VA’s interpretation of the results.

Frank said he was asked to recall lists of words and names. But he said the test included words he did not know. 

In fact, KARE 11 discovered one of the VA’s own examiners had noted in a report that Frank “appeared unfamiliar with a number of items.” Citing the word "escalator" as an example, the examiner reported Frank said, “We don’t have those on the reservation.”

“And they think because you don’t know a word that’s a memory. It’s not a memory, it’s a word you don’t know,” Frank said.

Biased testing? 

A note in Frank’s records stated, “Patient performance was scored on Caucasian norms due to lack of Native American norms available.”

Others notes by VA examiners stated that “cross-cultural factors … may have contributed to suppressed performance.”  One examiner concluded, “Results of the current evaluation may therefore potentially underestimate his true level of cognitive functioning.”

Credit: KARE
Frank Sherman, a Marine Corps veteran, has end stage renal disease.

Even so, the VA refused to put Frank on the transplant wait list.

“What does that say to you?” KARE 11 investigative reporter A.J. Lagoe asked Dr. Bydash.

“It says it’s a biased system,” Bydash responded. “Testing may pick up on certain defects erroneously - especially if it’s using language that they’re not familiar with.”

A pattern of problems

Frank’s case was part of a broader problem.

KARE 11’s “Distance, Delays and Denial” investigation – launched three years ago – has exposed deadly delays, prohibitive travel requirements, and inconsistent, overly restrictive eligibility criteria in the VA organ transplant program.

“How many patients do you think unnecessarily died?” VA whistleblower Jamie McBride was asked in 2016.

“Thousands,” he replied. McBride is the Manager of Solid Organ Transplants at the VA hospital in San Antonio, Texas.

WATCH: Distance, delays and denial: The VA organ transplant system

In early 2018, the head of a government watchdog agency accused the Department of Veterans Affairs of failing to properly address McBride’s complaints about systemic flaws that limit access to life-saving organ transplants for veterans nationwide.

In a letter to President Trump, Special Counsel Henry J. Kerner wrote, "Mr. McBride deserves praise for bringing forward the numerous barriers to life-saving organ transplants for veterans.”

WATCH: Federal agency hits VA for unfair barriers to organ transplant

Research by experts at the Cleveland Clinic and the University of Pennsylvania backed up much of what McBride disclosed. Veterans who rely on the VA for kidney transplants are less likely to actually receive a transplant - and more likely to die waiting - compared with other patients in need of the same surgery, according to findings released in November 2017 by Dr. Joshua Augustine of the Cleveland Clinic.

The reporting sparked Congress to write new legislation, and President Trump signed reform measures into law as part of the VA Mission Act in June 2018.

The intent of the law is to allow veterans to get transplants closer to home and give more control over whether they need a transplant to their primary care doctor. However, veteran’s advocates report they’re still experiencing problems getting VA management to sign contracts with local hospitals.

New testing and new hope

After KARE 11’s report raising questions about bias in Frank’s testing aired, the VA gave him a new evaluation. That testing suggested “largely stable cognitive and functional status.”

This time the VA examiner wrote, “current exam results do not support a diagnosis of Major Neurocognitive Disorder.”

Frank says he and his family knew all along there was nothing wrong with his memory. “But nobody seemed to want to listen to that,” he said.

In February 2019, the VA reconsidered its previous denial and reversed course. Frank says the VA’s decision to put him on the organ transplant list gave him new hope.

“I could hardly believe it,” Frank said after getting the good news.

RELATED: KARE 11 Investigates: Veteran wins transplant battle

Frank Sherman undergoes dialysis three times a week. Credit: Gary Knox, KARE 11

Being on the official transplant list, however, was not a guarantee Frank would get a kidney in time to save his life. Time was not on his side. The average life span of a patient on dialysis is just five years. Frank had been on dialysis since 2012.

“Now, at least they’re giving me a fair fighting chance,” he said at the time.

The transplant

That Sunday morning phone call set in motion the surgery that may change Frank’s life.

“The surgery went really, really good,” Frank said in a phone conversation with KARE 11 investigative reporter A.J. Lagoe. “Everything went right the way it was supposed to.”

“I’m feeling good,” he added. “So far, I’m feeling real good.”

Frank doesn’t know much about the person whose kidney he now has. He was only told it came from a deceased organ donor. Frank says he received one kidney, and another veteran received the other.

“I just thank the Lord for this,” he said as a nurse came to help him try to take his first walk down the hall.

If you have a suggestion for an investigation, or want to blow the whistle on fraud or government waste, email us at: investigations@kare11.com

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