A less well known but important provision in VA law provides relief if a veteran incurs a disability or dies as a result of VA health care, VA vocational rehabilitation, or the VA compensated work therapy (CWP) program. The provision is 38 USC § 1151, better known as Section 1151. A claim under Section 1151 is similar to a medical malpractice claim against the VA.
In order to file an 1151 claim, a veteran or claimant only has to write the VA indicating that he believes that a disability or death has occurred, essentially, as the result of an action of the VA. An important caveat is that a claimant is required to show “intent” to apply for 1151 benefits or VA disability benefits. Once this is done, the claims process should be triggered.
In order to prevail in an 1151 claim regarding the administration of medical care, the claimant has to prove: (1) that the disability or death was not the result of willful misconduct, and (2) the “proximate cause” was due to a VA medical provider’s carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or (3) that the outcome was not reasonably foreseeable. If the 1151 claim is due to vocational rehabilitation or the CWT program, then the rules are different and a claimant only has to prove proximate cause, but not negligence or fault. The VA has defined proximate cause to mean that the action or event must directly cause the disability or death, i.e. actual cause.
If a claimant is successful in the 1151 action, then the VA regulations mandate that the disability or death be treated in the same manner “as if” service-connected. Meaning, claims approved under Section 1151 entitle veterans or survivors to receive VA Disability Benefits or Dependency and Indemnity Compensation, as applicable.
In my experience, 1151 claims have been difficult to win because the standard of proof is pretty high in order for a claimant to prevail. Not surprisingly, the VA often contests these claims by asserting that its medical providers exercised proper judgment and provided adequate care, that the consequences of a medical procedure were foreseeable, or that the patient gave informed consent. Therefore, it goes without saying that the claimant will need an outside medical opinion to evaluate whether or not there was carelessness, negligence, lack of proper skill, etc. in the rendering of care.
As a final note, it is important to know that there are other remedies beyond a Section 1151 claim that may be available in VA malpractice situations, for example, filing suit under the Federal Tort Claims Act (FTCA). The intricacies of filing an FTCA claim are beyond the scope of this blog; however, it is important to have an awareness that alternative remedies exist, and to discuss all options with a knowledgeable advocate.
