VA total knee replacement requires revision within first year

[Falcon-6]

50 yo relatively healthy/active vet here.  had a total knee replacement for SC knee at the VA hospital about 11 months ago. My recovery was very painful and atypically poor relative to others I know who’ve had one. The knee is actually more limiting now than it was before the surgery. The VA ortho said it’s nerve pain, not mechanical. I went to an outside ortho (at my expense) for a second opinion. He says it’s unacceptably misaligned, unstable, and requires revision. So I’m scheduled for revision with the outside ortho using private insurance. My question is, can I make a claim for the temp 100% going back to 4 months after the original surgery (about 7 months)? I think it should continue until 4 months past the next surgery since I’m technically not recovered. If yes, how do I do that?

[broncovet]

Whether or not your claim will succeed is dependent on medical experts opinions.  If your private doc alleges malpractice (and it sound's like he may well do that), then you can persue an 1151 claim which is medical malpractice, if you want to go that route.  Remember this, tho.  The military does not pay for pain and suffering, that is, that does not last.  So, lets say you had pain for a year and your knee surgery revision is successfull, an d you restore use to your knee.  

In this example, and, of course I dont know if it applies to you, if your knee is ultimaley restored, you are unlikley to get compensated for pain for that year.  Almost all of us had some considerable pain in the militayr.  We get pain for residuals of damages to our body or mind that remains long term, and its affect on employment in the future.  

My advice is to go ahead and apply for sc benefits for your knee if you have some good reasons how your knee problem is related to military service.  As an example if you jumped out of airplanes, those jumps are well known to damage knees.  So, apply for sc for knee problems from jumps from the military.  

Do that right away.  Its never gonna hurt to get sc for that.  

Then, after your private doc completes a revision, you can see if it makes sense to also apply for 1151, which is medical malpractice.  Service connect first, then 1151 later.  

There are time limits so dont delay.  Now, you should endeavor to find out the name of your va doc who malpracticed on you.  And, you need to find out for certain if he/whe was a va employee OR if he was a contractor for va and not employed by va.  malpractice by contractors and va employees are treated differently, and you need to find that out sooner as opposed to later.  

One of VA's favorites is to just "play along" with a veteran who alleges malpractice with a "va doc" and say nothing about the fact that doc did not work for va...until the statue of limitations expires and its too late for you to refile against the contractor.  Dont let them do that to you, by knowing and doing your homework to find out if your doc was acutally employed by va or was he contracted by va.  

[Rattler]

2 hours ago, Falcon-6 said:

50 yo relatively healthy/active vet here.  had a total knee replacement for SC knee at the VA hospital about 11 months ago. My recovery was very painful and atypically poor relative to others I know who’ve had one. The knee is actually more limiting now than it was before the surgery. The VA ortho said it was nerve pain, not mechanical. I went to an outside ortho (at my expense) for a second opinion. He says it’s unacceptably misaligned, unstable, and requires revision. So I’m scheduled for revision with the outside ortho using private insurance. My question is, can I make a claim for the temp 100% going back to 4 months after the original surgery (about 7 months)? I think it should continue until 4 months past the next surgery since I’m technically not recovered. If yes, how do I do that?

You stated that, "had a total knee replacement for SC knee at the VA hospital." At what percent did the VA give you for your knee? When I had mine in 2022 they gave me temp SMC at 100% for 4 months after surgery and 30% after that. If you can get your doc to writer an IMO and state. "It’s unacceptably misaligned, unstable, and requires revision." I would apply for 1151 claim. You can also ask for the temp SMC at 100% for the 11 months if you are within the time frame to do so.

[broncovet]

I agree with Rattler and should have mentioned what he did.  You can get temp 100 percent while you are recovering from surgery on SC conditions.  Good catch Rattler. 

[Falcon-6]

13 hours ago, Rattler said:

You stated that, "had a total knee replacement for SC knee at the VA hospital." At what percent did the VA give you for your knee? When I had mine in 2022 they gave me temp SMC at 100% for 4 months after surgery and 30% after that. If you can get your doc to writer an IMO and state. "It’s unacceptably misaligned, unstable, and requires revision." I would apply for 1151 claim. You can also ask for the temp SMC at 100% for the 11 months if you are within the time frame to do so.

Thanks. The knee was SC 10% before the TKR. Then I got temp 100% for 4 months right after the surgery. Then it was automatically increased to 30% due to the TKR. The temp 100% ended 7 months ago which is why I am hoping I can get the temp 100% reinstated starting then and going until 4 months past the revision. 
 

About the 1151 claim… can a VSO help me file that? I have no idea where to start. A VSO helped me file the run-of-the-mill claims.

I really appreciate you sharing your time and knowledge.

[Falcon-6]

14 hours ago, broncovet said:

Whether or not your claim will succeed is dependent on medical experts opinions.  If your private doc alleges malpractice (and it sound's like he may well do that), then you can persue an 1151 claim which is medical malpractice, if you want to go that route.  Remember this, tho.  The military does not pay for pain and suffering, that is, that does not last.  So, lets say you had pain for a year and your knee surgery revision is successfull, an d you restore use to your knee.  

In this example, and, of course I dont know if it applies to you, if your knee is ultimaley restored, you are unlikley to get compensated for pain for that year.  Almost all of us had some considerable pain in the militayr.  We get pain for residuals of damages to our body or mind that remains long term, and its affect on employment in the future.  

My advice is to go ahead and apply for sc benefits for your knee if you have some good reasons how your knee problem is related to military service.  As an example if you jumped out of airplanes, those jumps are well known to damage knees.  So, apply for sc for knee problems from jumps from the military.  

Do that right away.  Its never gonna hurt to get sc for that.  

Then, after your private doc completes a revision, you can see if it makes sense to also apply for 1151, which is medical malpractice.  Service connect first, then 1151 later.  

There are time limits so dont delay.  Now, you should endeavor to find out the name of your va doc who malpracticed on you.  And, you need to find out for certain if he/whe was a va employee OR if he was a contractor for va and not employed by va.  malpractice by contractors and va employees are treated differently, and you need to find that out sooner as opposed to later.  

One of VA's favorites is to just "play along" with a veteran who alleges malpractice with a "va doc" and say nothing about the fact that doc did not work for va...until the statue of limitations expires and its too late for you to refile against the contractor.  Dont let them do that to you, by knowing and doing your homework to find out if your doc was acutally employed by va or was he contracted by va.  

Thank you. The surgery was just shy of a year ago (last June). The private doc confirmed the knee implant was misaligned by the surgeon (no evidence of post-surgical trauma). The knee was already 10% SC prior to the surgery and increased to 30% after the 4 months of temp 100%. 

As for the doctor, I don’t know if he was a contractor or F/T VA employee. His office and the surgery was performed at the VA hospital. 
 

My concern is if I 1151 the VA doc (assuming he isn’t a contractor), it will scare the private surgeon off. He is booked out seven months so the revision is scheduled for December. If he thinks I’m suing everybody, he might drop me as a patient and I really need this fixed. My knee is less functional than it was when it was bone-on-bone before the surgery. Is that fear warranted?

 

Also, any idea what the SOL is for the 1151? The SOL for civilian malpractice in South Carolina (my home) is 2 years from when you should reasonably have known there was probably malpractice. 
 

Thanks for sharing your knowledge and time.

[broncovet]

My advice is to file right away for the temp 100 percent mentioned byRattler, first: (That is, the temp convalescent 100 percent)

Then, after you fully review the records for revision surgery, file the 1151 here:

https://www.va.gov/disability/eligibility/special-claims/1151-claims-title-38/#:~:text=You can file a claim,get%2C or keep a job.   You will probably need an attorney for your 1151.  I doubt a VSO will be much help.  

SInce your knee was SC, I dont think you need to worry about whether the doc was a contractor or VA employee with the 1151.  There is another class of actions I think is called a Tort, and you would need an attorney for that, too.  

I do agree you should "tread lightly" when suing the VA.  Personally, I have never done it, BUT, I had to have TWO revision surgeries to my hernia repair done at VA, so Im considering some of the same things you are.  

My private practice hernia repair will be done on MONDAY, June 10.  It was done in community care where the same surgeon who did my surgery at VA referred me to private practice surgeon.  She said that I needed a revision surgeon who does robotic surgery, and VA does not have that.  

I am not sc for issues of my knee which required surgery, but am 100 percent.  

This is new ground for both of us (filing 1151 against va) and I have yet to decide if I will do same.  As of right now, I tend toward not filing against VA in my case.  My wife is a retired RN, and indicates that often hernias need revision surgery.  For me, "if" I get a good outcome from the revision surgery, I will not likely file an 1151.  

The way I see it is this.  While I did experience some pain, I know that VA does not really compensate Vets for "pain" which gets better over time, that is acute pain.  But chronic pain, that lasts over a long period, is different.  So if the revision surgery fixes my problem and I no longer have hernia symptoms, well, Im good.  But if it does not, and Im "damaged" by this, then I will likely go after them, mostly because I dont want doctors malpracticing on other Veterans because they got away with malpracticing on me.  

Edited June 8 by broncovet