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13.8. Section 1151 Benefits- Injured by VA Care or Voc Rehab or Medical Treatment
Section 1151 Benefits or VA Malpractice Claims
VA can also award benefits for veterans who suffer injuries or death as the result of VA medical care or from a VA-funded vocational rehabilitation program. Authorized by Section 1151 of VA's governing statutes, an "1151 claim" is essentially a medical malpractice claim against VA. If an award is approved, the condition that resulted from the malpractice is considered by VA as if it had occurred during service and is rated the same way.
In many cases an 1151 claim is also a valid claim against the government under the Federal Tort Claims Act ("FTCA"). Claimants can file either an 1151 claim, a FTCA claim, or both. However, if a claimant obtains an award on an 1151 claim and later wins a FTCA claim, the 1151 award is offset by the amount received in the FTCA case (no double recovery). VetsFirst strongly recommends claimants to not file a FTCA claim on their own because a mistake can be costly. FTCA claims have very specific requirements and cannot be refiled. Claimants should consult an experienced attorney if considering a FTCA claim.
Pursuant to 38 U.S.C. section 1151, claimants who were injured by VA care or medical treatment may be entitled to compensation. Jackson v. Nicholson, 433 F.3d 822, 824 (Fed. Cir. 2005). Section 1151 provides that compensation shall be awarded for an additional disability or death "in the same manner as if such additional disability or death were service-connected." The additional disability or death is qualifying if:
- not the result of the veteran's willful misconduct and:
- the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary . . . and
- the proximate cause of the disability or death was
- carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or
- an event not reasonably foreseeable or
- the provision of training and rehabilitation services or participation in a compensated work therapy program.
38 U.S.C. § 1151(a). To be entitled to VA benefits, any additional disability must not be merely coincidental with VA medical treatment, but must stem from some fault in the care that was provided, including "carelessness, negligence, lack of proper skill, error in judgment, or some other similar instance of fault." 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1); Loving v. Nicholson, 19 Vet. App. 96, 100 (2005). Section 1151 does compensate for issues arising from care provided on a fee basis or by non-VA physicians working at VA facilities. 38 C.F.R. § 3.361(f).
To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (2) VA furnished the care, treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability. The event does not have to be "completely unforeseeable or unimaginable" but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R. § 3.361(d)(1).
"To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the . . . medical or surgical treatment . . . upon which the claim is based to the veterans condition after such . . . treatment." 38 C.F.R. § 3.361(b). An additional disability is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability. 38 C.F.R. § 3.361(c)(1). If an additional disability is caused by a veteran's failure to properly follow medical instructions, such a disability will not be considered to be caused by VA hospital care or medical treatment. 38 C.F.R. § 3.361(c)(3).
A Board determination regarding entitlement to compensation under section 1151 is a factual finding that this Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Look v. Derwinski, 2 Vet. App. 157, 161-62 (1992).