Nerve Cut During Operation

[SFCMoore]

In 2007 I had a TKR. In 2009 I had a revision of the knee replacement. As luck – or un-luck- would have it a nerve was cut below the kneecap. It went unnoticed and now 11 months later and several doctor visits it is verified that the nerve is cut. The chances of repair are slim and I have a upcoming appointment to see what is next. The nerve, when pressed, tells the leg to give out and it is very painful and to say the least upsetting. I am 90% s/c and with the knee operation I am 100% temp until August. I will revert back to 90%. The question is should this be secondary to the knee or a individual claim. I did some looking and came up with this “Under 38 C.F.R. § 4.124a, Code 8521, disability ratings of 10 percent, 20 percent and 30 percent are assigned for incomplete paralysis of the external popliteal nerve (common peroneal) which is mild, moderate or severe in degree,respectively. A 40 percent rating is warranted for complete paralysis.” Does this sound right? If not what would someone out there recommend? The knee is no good when weight is applied though without weight bearing I have total motion. The CFR states that "The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2009)". Can this somehow be increased to 60%?

[alphahec]

I think your supposed to be rated for the knee to a max of 60% (after the Temp. 100% period) after a Total Knee Replacement, also the cut nerve must be rated secondary to you knee condition, so send that claim as soon as possible.

Edited June 17, 2010 by alphahec

[carlie]

SFC,

Was the TKR you had in 2007 with surgical revision in 2009, on a knee that you were already rated as service connected for ?

Was the 2009 surgery done at a VAMC or subbed out under fee basis ?

There are a few different ways you can go:

File a claim with VA as secondary (additional residual disability) to something already SC'd -

File an 1151 claim with VA for additional residual disability

and/or

File a Federal Tort Claim for additional residual disability

[SFCMoore]

SFC,

Was the TKR you had in 2007 with surgical revision in 2009, on a knee that you were already rated as service connected for ?

Was the 2009 surgery done at a VAMC or subbed out under fee basis ?

There are a few different ways you can go:

File a claim with VA as secondary (additional residual disability) to something already SC'd -

File an 1151 claim with VA for additional residual disability

and/or

File a Federal Tort Claim for additional residual disability

[SFCMoore]

Both knees were done by a civ dr. After retiring I went under US Family Health Plan (TRICARE) and use a Primary Care Civ Dr. It works great and I go to a civ hospital. I am not a fan of the VA hospital. Yes it was done on the same knee that was SC. I suppose it may also be rated max 60% after 13 months due to weakness, pain and giving out. What do you think? I will be filing the claim after I see the nero-nerve dr. Also I am having my left knee taken care of due to right knee giving out as well as SC for DDJ of the back, SC, causing my knees to be problematic. thanks for your help. Let me know what further ideas you have now with the new information.

[carlie]

Both knees were done by a civ dr.

SFC,

Since both knees were done by a private doctor and not VA, then an 1151 claim

would not be applicable.

Probably a claim for secondary is really the best way to go.

Other's will chime in.

[SLEDGE]

If the nerve was severed by a private sector doctor while you were on active duty,

this could be an interesting case.

Usually, the VA hates to even treat something that originated outside the military healthcare system.

If you were not on active duty when the nerve was severed, being retired or simply separated from active service, they 'may' decide to leave the disability percentage where it started at.

Whoever caused the problem is the responsible party.

However, getting 100 percent while recovering would seem to indicate that the VA was ok with having it done outside the VA.

Even if it got worse, I'm interested to know how the VA will handle this.

Please proceed with the claim.

sledge