This eBook will teach you how to get C-Files (paper and electronic) from the VA Regional Office.
How to Get your VA C-File


  • Topics

  • Forum Statistics

    • Total Topics
      60,327
    • Total Posts
      389,702
  • Topics

  • Posts

    • New Proposed VA Reg Vets Should Know About
      Vets: I appears that the VA is proposing legislation that would require a Vet to prove an incident occurred in service first before a C & P Exam can be granted? I guess this would save the VA a pile of money from limiting CP exams  but I can't help from thinking that trying to get the claims service connected would be much more difficult. I know that the MOAA and the other Veterans Advocacy Groups are proving position papers today and there is congressional testimony starting today at 2:15 PM EST Today. Rootbeer22
    • New Proposed VA Reg Vets Should Know About
      Vets: I appears that the VA is proposing legislation that would require a Vet to prove and incident occurred in service first before a C & P Exam can be granted? I guess this would save the VA a pile of money from limiting CP exams  but I can't help from thinking that trying to get the claims service connected would be much more difficult. I know that the MOAA and the other Veterans Advocacy Groups are proving position papers today and there is congressional testimony starting today at 2:15 PM EST Today. Rootbeer22
    • Finally got my 100% for Malignant melanoma
      Sorry for your health issues, but congrats on the great news. Wish you the best, and God Bless
    • TKR; Arthritis and in service fracture
      Back to Berta...    The 2005 decision which "pre supposed" NSC (and did not order a C and P exam), seems to be a legal violation.  In other words, its equally plausable that the in service fracture caused the arthritis, then the VA needs to order a C and P exam, and not just simply deny the claim and assume there is no nexus.  
    • Knee Condition
      I feel your pain on your knees. I am having new MRIs done in the next few weeks. I am SC for both knees at 10%, and what is crazy is the VA wants to replace my R Knee due to 2 MCL/ACL surgeries, yet I am only rated at 10%. Good luck and keep us posted. God Bless!!
    • My husband died in motorcycle accident
      That's what I thought too. I read somewhere that lawyers are permitted to charge between 20% - 33%. His name is Joseph R. Moore according to my research he has won many cases for widows but if someone here could confirm that for me that would be great. I did sign a privacy act waiver and sent it to Attig Steel Law. They said they will request the cfile first, but if I get the cfile before them I can send them a copy. Wondering if I should wait on them or not. 
    • TKR; Arthritis and in service fracture
      Buck     I looked in MY SMR's, and, there is evidence of the fracture in my SMR's.  As Berta pointed out, of course I need a nexus statement, but then isnt that what a C and P exam is for?   Isnt it true that if there is evidence of a in service event, but no nexus, isnt that mean that a  C and P exam is requested to determine a nexus?  
    • TKR; Arthritis and in service fracture
      Thank you for your responses. Berta posted: "I feel that, in fact, they did adjudicate the claim, and determined it was not SC, and that itself (NSC designation) is a denial." Yes, its a form of deemed denial, where they did not give a reasons and bases for denial, and did not mention a denial.  Its a Colvin violation for VA to fail to give a reasons and bases for denial.   Since it was not formallly adjucticated, as per 38 CFR 3.103, I would posit that the claim remains pending, that is, the one year appeal period is tolled as I never received notice of the decision: 3.103 Procedural due process and appellate rights. (a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3. (b) The right to notice— (1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.
    • Knee Condition
      I get my 10% for right knee. In all the C&P exams they have never talked to me about my pain although I tell them every time. All they ever talk about is range of motion.
    • CLAIM COMPLETE--Frm 80% to 100% Comb Rtg
      Congrats!...Why to hang in there dude

  • HadIt.com Veteran to Veteran providing FREE information and community to veterans since 1997.

    I am proud that I've been able to offer all that HadIt.com has for free for 19 years and continue to do so. HadIt.com does accept contributions to help with costs we also offer paid ad free subscriptions. None of the paid options are required. The forum, the website, news site and podcast are free and will remain so. If you choose to support the site with a contribution or a subscription it is appreciated but never required. If you choose to make a contribution or purchase an ad free subscription, you can do so here. 

shillnav

Totally Botched Total Knee Replacement - Help!

6 posts in this topic

I had a Total Knee Replacement in June 2011 at my local VA Hospital which is a 2 hr. ride from my home. After 4 days I was released, came home and started outpatient therapy at a local hospital. The nightmare for me began. I was seen at the VA 2 weeks later and told everything appeared normal. I was expecting pain and therapy hell, but into the 3rd week of therapy it didn’t start to diminish so I started to think something was wrong. After losing 15 lbs. , not able to eat, sleeping maybe 30 minutes a night, having intense pain this far out from surgery I became convinced that it wasn’t right. I seriously didn’t know if I would or could recover from this. Without eating or sleeping for an extended time I seriously wondered if this was going to kill me. The pain was nonstop and off the charts.

All that the therapists at this local hospital would tell me was that some progress quicker than others and that determined therapy was the key. At my next apt with the VA I saw one of the surgeons assistants. I told her of the weight loss, the sleep loss, the hell I’d been going thru and she immediately jumped up and went and got the surgeon. I believe that this assistant played a large role in my procedure due to her behavior at the hospital prior to and after my surgery and because of the terrified look she had when I told her of my condition. The surgeon came in, did a cortisone injection and it felt much better. I returned home.

I was seen at the VA again 2 weeks later. Another of the surgeon’s assistants saw me this time. He spent a total of 3 minutes with me and showed me the door. He grabbed my foot, pushed my leg towards me to check my range of motion and told me I was good to go. I asked him a second time about the pain that shoots down my leg and into my foot. Quote “A bad back can cause pain in the foot. You gotta bad back? You’re looking good man.” Showed me the door. I left there convinced with no doubt that something was wrong and they wished I’d just go away.

Finally, in Jan 2012 I went back, the same guy who gave me 3 minutes saw me again, I expected the same treatment. He was quite different, told me that my patella was displaced and my foot was angled too far outward because the prosthesis was inserted wrong. He arranged for me to see a contract surgeon who deals with troubled knee replacements.

When I saw the specialist he confirmed the implant was placed incorrectly, my foot was angled out too far; x-rays confirmed that patella was “maltracking.” Said it was pretty amazing that I was even able to walk. Also shook his head while looking at the x-rays and said “This shouldn’t have happened.” Also told me that with today’s technology in TKR that he rarely sees one put in like this. To take it out and do a total revision is the only solution. He arranged for the VA to provide a Fee Basis Approval to have a surgeon in my hometown perform the revision.

I got a top notch surgeon that’s going to perform the revision in a couple of weeks. He was quite disgusted and surprised when he saw my x-rays. Shoddy workmanship and stated this and much more. He’s told me that because parts of my leg surrounding the knee have been stretched out of place, and others have been pushed and crimped in ways that they shouldn’t be, that in addition to sawing out the prosthesis, drilling deeper holes and inserting a new one; he’ll also most likely have to repair some of the surround ligaments, etc., and said that he’s pretty sure that if he has to repair the ligaments in the way he thinks he will, I’ll end up with a knotted bulge on the inside of my knee.

I don’t care about the bulge. As of right now I can’t extend my lower leg. I have to pick it up with my hands and lay it out there. I can’t slip into a pair of shoes without using my hands to push my leg down. It twitches and jerks uncontrollably while in bed. Pain is constant. Can’t use stairs. Can’t squat. Pain in my lower leg and foot as well as my hip and lower back. Posture is not good. It’s affected most of my body in a bad way. Surgery was almost one year ago (minus 6 weeks) and it’s been hell, much worse than before the surgery.

I was approved for the 13 months 100% rating after the initial surgery. It will expire in August.

Should I reapply for another 13 months at 100% after this next surgery or wait until they call me in for an evaluation? I know it’s difficult to do but should I speak with an attorney regarding a lawsuit?? Should I file the form required (don’t have the form number in front of me) requesting a cash settlement??

Should I file on the pain in the foot, hip, and back?? Should I file a claim after this next surgery regarding ligaments, etc., that the new surgeon most likely will have to repair??

I have a thousand questions going thru my mind and am very confused about what to do. Any advice, any help, any feedback would be appreciated more than you know.

Thanks Very Much

Share this post


Link to post
Share on other sites




I was approved for the 13 months 100% rating after the initial surgery. It will expire in August.

Should I reapply for another 13 months at 100% after this next surgery or wait until they call me in for an evaluation?

No don't wait for the evaluation, get all necessary paperwork ready and once you have the surgery mail off the claim.

I know it’s difficult to do but should I speak with an attorney regarding a lawsuit??

Yes you should find a lawyer, TORT claims are hard to prove ( I know I had one) but is sounds like you have a good one.

Should I file the form required (don’t have the form number in front of me) requesting a cash settlement??

I don't know of such a form, regardless unless you win a tort claim you will not get a cash settlement.

Should I file on the pain in the foot, hip, and back?? Should I file a claim after this next surgery regarding ligaments, etc., that the new surgeon most likely will have to repair??

Yes, but you need to file it as an 1151 claim, if approved, it will compensated just as if if were a direct service connected claim.

I have a thousand questions going thru my mind and am very confused about what to do. Any advice, any help, any feedback would be appreciated more than you know.

ADDED: If you win a tort claim, you will not receive va compensation unless the compensation is at a higher rate than the tort claim.

Edited by Teac

Share this post


Link to post
Share on other sites

My personal opinion would be to find an atty specialing in VA medical malpractice. I'd get copies of all surgical and medical reports, all x-rays and anything that pertains to this surgery. Documents & x-rays tend to get lost or misplaced, so I would do this immediately. You should also get the records from the Rehab people at your local hospital, too!

jmo

pr

Share this post


Link to post
Share on other sites

"I got a top notch surgeon that’s going to perform the revision in a couple of weeks"

See if he will give you an IMO after the surgery is done, documenting the level of negligence the VA caused.

There is info at hadit for that type of IMO.

Get copies of all records as Philip said and do NOT tell VA you need your VA medical Recs and C file for any potential claims or action regarding any medical screw ups because that is when the stuff starts to 'disappear'

AsTeac said:

"Yes you should find a lawyer, TORT claims are hard to prove ( I know I had one) but is sounds like you have a good one. "

I won a tort claim too. The form you mean is the SF 95. There is a pdf. SF 95 form here at hadit.

We have considerable info on FTCA claims as well as Section 1151 claims in our FTCA form here.

I gave info on how that form is to be prepared but my advise is to get a malpractice lawyer to do it.

During my settlement proceedings the US VA attorney and I kibbitized a lot about tort (FTCA claims) since the VA had lost at that point and he mentioned how unrepresented claimants have made errors in SF 95 forms that cause those claims to be denied right off the bat.

The VA accepted my SF 95 with no problems and I posted here at hadit how I filled it out but I studied as much as I could on FTCA law before I sent it in.

What my form regarded was wrongful death so in that respect it was different than most SF 95s are but the info in the FTCA forum shows what the VA needs.

Edited by Berta

Share this post


Link to post
Share on other sites

Need to add- you can file a Section 1151 claim as well as a FTCA claim.

These claims however are handled independent of each other by VA-

Regional and/or General Counsel VA will handle the tort, your VA Regional office will handle the 1151 claim.

You submit the same evidence however to both VA counsel and also to the VARO.

The FTCA offset info is also explained in the FTCA/1151 forum here.

The level of disability due to VA malpractice is what the VA rates for the 1151 claim.

Any potential settlement under FTCA is negotiated by your lawyer with the VA.

Share this post


Link to post
Share on other sites

If the knee was SC'd I believe comp for it should be increased to the minimum

of 30 % for TKR.

Post-TKR, and after convalescence comp should assign at least the 30 percent [minimum scheduler] rating under Code 5055 (for TKR).

JMHO

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!


Register a new account

Sign in

Already have an account? Sign in here.


Sign In Now