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Should I File 38 U.s.c. 1151 Claim?



I am Gulf War Veteran with 10% service connection for my left knee and I had arthroscopic surgery on my left knee at a VA hospital. I'm just going to type a time line below about my situation. I filed for the convalescent benefit.

April 2, 2008-VA outpatient arthroscopic surgery on my left knee to remove some torn meniscus and cartilage from my knee. The two weeks following I did great with my recovery. This type of surgery the recovery time is about a month, so I thought I was doing great.

April 17, 2008- I had my stitches removed and my knee looked good. But the next day my knee started swelling and getting stiff and kept getting worse. So I decided to go the VA emergency room get some help. All they could do was give me a shot for pain and inflammation. They told me to come back Monday because the orthopedic is not available on weekends.

April 21, 2008- I'm back at the VA hospital to see the orthopedic. When I was in his office I could see the concern on his face, he immediately proceeded to draw fluid from my knee. After he drew the fluid out of my knee and he told me that I will have to be admitted to the hospital because of possible infection. So I was admitted and stayed in the hospital for 5 days getting antibiotics. During this stay the doctor also went surgically (arthroscopic) back in my knee to clean my knee joint.

April 25, 2008- Lab results for staph infection came back negative and I was released.

After I was released I was doing good(somewhat) with my recovery, but a knot of fluid was staying on my knee and wouldn't go away. So I talked to or saw the VA doctor at least 3 times in May complaining of the swelling and pain. He told me it was nothing to worry about and thats the your body is healing, so I trusted him.

So in the first couple weeks in June the problem still persisted. My family and I became very concerned something was very wrong. I went back to the VA doctor around June 10 or so, and talked to him. This time he had a answer for what was going wrong with my knee. He said that I have tear or hole in medial capsule in my knee. The hole is allowing fluid to escape out of my knee joint. He also suspected this problem 3 weeks earlier but failed to tell me about it. After told me all that great news, he told me the only way to repair the capsule is go back into my knee and stitch the capsule. You could imagine my reaction, my jaw hit the floor. I did not want another surgery (3RD one in less 3 months) from him. I told him I was getting an second opinion from another doctor. I also filed a complaint to the patient representative at the VA hospital about my treatment.

Well I have appointment with a private doctor this week. I hope it goes well.

Does anyone have any insight or advice about my situation? Should I file a 1151 or tort claim? Does this situation meet the criteria?

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It seems appearant that the problem pre-existed the first surgery, but the two surgeries actually made it worse. I would get the second opinion on the matter, and ask that doc if he thinks the surgery is what caused this problem, or made it worse. If that is the doc's opinion, then I would file a 1151 claim. Tort could have a larger settlement, but it would take a lot longer and be a major hassle. The 1151 claim would be handled at the VARO. Just my $.02.

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This could be negligence- if I were you I would get the second opinion and if the private doc says the surgery or anything else was botched-ask him to document that.

Section 1151 claims depend on bonafide proof of medical negligence and also a ratable disability that the negligence directly caused.

Get copies of your medical records from VA-the private doctor- if willing to state he found negligence -will want to see those records anyhow.

The VA doctor should have told you sooner what he suspected- the treatment at that point was inappropriate-to wait- what was he waiting for- things got worse-

I wouldntr advise a FTCA claim for this- if they did malpractice the Section 1151 will render a SC award for whatever ratabke disability they caused.

Often what appears to be downright negligence -isnt,or if it is the VA will try to overcome the medical error.

Still- a second opinion would be best bet here in my opinion.

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(Please read my original message on this topic for what started all this).Well I'm back home now. After seeing my private doctor on July 9th, I was admitted the same day to a private hospital to be treated for another possible knee infection because my knee was swelled and my fluid was very dark. I was in the hospital 8 days on antibiotics and I had two more surgeries to clean my knee (irrigation and debriements). At the conclusion of 8 days the doctors came to the conclusion that it wasn't an infection, but it was some type of reactive arthritis. Now I'm being treated for reactive arthritis and the defect in my medial capsule the VA mis diagnosed 2 months earlier.

In my opinion the VA mis-diagnosed me on two problems:

1. Medial Capsule defect (hole that didn't heal) Which is being treated properly now.

2. Reactive arthritis

If I would of stayed at the VA for care I would be in a lot worse condition now. I'm glad I got a second IMO. I'm positive the VA would of made things worse if I kept getting treatment from them. I'm on the road to recovery now. My VA REP filed for an increase in disability for my knee because of all the things going on with it. Is that alright?

I want to file a 1151 claim, is there enough negligence? or what direction I should proceed?

Does anyone have insight on how the VA views reactive arthritis as a disability? They tested me for everything that could cause reactive arthritis and all test came back negative. (I.E. Lyme disease, Lupus, Rheumatoid,etc) The knee infection at VA must of triggered the reactive arthritis.

Thanks for any help.....

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Your rep is on the ball for filing for reactive arthritis as secondary condition-

You can still file a Section 1151 too.

The VA will only grant one one basis-not both-

but you have two ways to go-

With probative medical evidence of the link, the VA can find just about anything as secondary to a SC condition.

Still that would involve whether the secondary condition is disabling at a ratable level.

If the outside doctor fully stated in their opinion all of this-(documented it ) that is good evidence for the Section 1151 claim.

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