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jmack

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Someone help me understand this. I am 50% SC for MDD secondary to DMII and a host of other SC'ed medical conditions totalling about 14. At my last C&P exam the Dr. noted that my social adaptability and interactions with others appears to be considerably to severely impaired, as well as my ability to maintain employment and perform job duties in a reliable, flexible and efficient manner. Why was ask for an addendum from the examiner? She states that there was no change to my diagnosis! I am 100% P&T with one condition rated at 60% for a failed knee replacement.

1. Should I appeal for 100% for MDD since as stated I can't work

2. Can I claim loss of use of my knee

3. What about A&A if I am successful if I am successful on winning an appeal?

Need some guidance here. Be advised that I need extra time to understand some of the responses if there are any, so be patient with me. I have had this info since June 2011.

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I sure wouldn't appeal the 100%. The VA might be considering you for a & a OR Housebound SMC ( the SMC S award).

In your 100% decision they should have considered you for these awards.I assume they did and did not grant them.

Maybe medical evidence since then warranted them to reconsider A & A or HB.

Can you scan and attach here (cover the personal stuff) that decision for us? They might have committed a CUE.

Failed knee replacement?

Was the 60% awarded under 1151 or due to aggravation of an SC condition?

Did you receive any temp convalescence comp?

--------------------------------------------------

This veteran received 12 months of convalescense compensation as well as was increased to 80% SC for failed knee replacement due to surgery from the VA.

http://www.va.gov/vetapp95/files2/9509218.TXT

A very interesting case.

This veteran won under Section 1151 for VA's negligence in a failed knee replacement:

THE ISSUES

Entitlement to compensation benefits for a total left knee

replacement pursuant to the provisions of 38 U.S.C.A. § 1151

(West 2002).

ORDER

Entitlement to compensation benefits pursuant to the

provisions of 38 U.S.C.A. § 1151 for a total left knee

replacement is granted.

http://www.va.gov/vetapp04/Files2/0413656.txt

In cases like this-if the veteran had service connection established for the initial knee problem-they can request secondary SC for the “aggravation” of the SC due to the failed replacement.(if performed by the VA)

They also can file under Section 1151.

Vets with a NSC disability that caused a VA induced failed knee replacement have only the Section 1151 claim opinion.

But either of these vets could also file a FTCA tort for malpractice if they are within the 2 year Statute of FTCA Limits.

I have explained these types of claims (FTCA and 1151 claims) in our FTCA forum here at hadit and also why sometimes a 1151 is better then filing a tort and vice versa.

I filed both and succeeded in both FTCA and 1151 so sometimes filing both ways is very advantageous.But not always the best thing to do.I covered that info in the FTCA forum.

Both 1151 and FTCA relies on documented medical evidence of malpractice. Sometimes the malpractice is hard to find in the med recs and sometimes it is quite obvious.

I saw similar failed knee replacement claims under 1151 at BVA that were denied.

These claims these days usually require an independent medical opinion because VA fights them aggressively as they can end up costing the VA PLENTY of cash.

It sounds like you did well on getting that 60% but I wonder if that too is being consider for a potential higher rating-

but I think they are probably focusing on A & A or Housebound here.

Do you have a vet rep?

Edited by Berta
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I sure wouldn't appeal the 100%. The VA might be considering you for a & a OR Housebound SMC ( the SMC S award).

In your 100% decision they should have considered you for these awards.I assume they did and did not grant them.

Maybe medical evidence since then warranted them to reconsider A & A or HB.

Can you scan and attach here (cover the personal stuff) that decision for us? They might have committed a CUE.

Failed knee replacement?

Was the 60% awarded under 1151 or due to aggravation of an SC condition?

Did you receive any temp convalescence comp?

--------------------------------------------------

This veteran received 12 months of convalescense compensation as well as was increased to 80% SC for failed knee replacement due to surgery from the VA.

http://www.va.gov/ve...es2/9509218.TXT

A very interesting case.

This veteran won under Section 1151 for VA's negligence in a failed knee replacement:

THE ISSUES

Entitlement to compensation benefits for a total left knee

replacement pursuant to the provisions of 38 U.S.C.A. § 1151

(West 2002).

ORDER

Entitlement to compensation benefits pursuant to the

provisions of 38 U.S.C.A. § 1151 for a total left knee

replacement is granted.

http://www.va.gov/ve...es2/0413656.txt

In cases like this-if the veteran had service connection established for the initial knee problem-they can request secondary SC for the "aggravation" of the SC due to the failed replacement.(if performed by the VA)

They also can file under Section 1151.

Vets with a NSC disability that caused a VA induced failed knee replacement have only the Section 1151 claim opinion.

But either of these vets could also file a FTCA tort for malpractice if they are within the 2 year Statute of FTCA Limits.

I have explained these types of claims (FTCA and 1151 claims) in our FTCA forum here at hadit and also why sometimes a 1151 is better then filing a tort and vice versa.

I filed both and succeeded in both FTCA and 1151 so sometimes filing both ways is very advantageous.But not always the best thing to do.I covered that info in the FTCA forum.

Both 1151 and FTCA relies on documented medical evidence of malpractice. Sometimes the malpractice is hard to find in the med recs and sometimes it is quite obvious.

I saw similar failed knee replacement claims under 1151 at BVA that were denied.

These claims these days usually require an independent medical opinion because VA fights them aggressively as they can end up costing the VA PLENTY of cash.

It sounds like you did well on getting that 60% but I wonder if that too is being consider for a potential higher rating-

but I think they are probably focusing on A & A or Housebound here.

Do you have a vet rep?

Berta,

I hope that I was clear and did not mislead you, if so please forgive me please. I was awarded 100% P&T in 2006. I am currently rated at 50% for MDD. This year I requested an "increase" due to the depression worsening. I was hoping for an increase of 100% for the depression which would qualify me for A&A since I am 60% SC for my knee. I am not as good at explaining this sometimes as I used to be, so bear with me.

The question is, should I appeal the decision of "no change to current condition"? It just sounds fishy to me that before they made a decision they sent my claim back to the examiner for an addendum.

The VA did not perform the surgery on my knee however after the convalescent period the C&P examiner noted that it needed revision surgery. So I went from 10% to 60%. I was already 100% P&T before the TKR.

I wish that I knew how to scan the documents, it probably would take me longer to scan than it would if the mail delivered it :smile:. And I only can fax to local numbers because we have no long distant on the phone.

What exactly is an 1151? And I was using DAV but they are so discouraging around here, so now I trying to just figure out what to do. I think that the VA is cheating me. I don't trust the VA to help me nor myself in going at this alone. But I am sick and often on a rollercoaster of emotions. I hope that I am even typing all this in the right place so that you can see it.:smile:

Again thank you for responding to :smile: my post.

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