1151?

[foreveryoung]

If you receive comp for a service connected disability, can you still file an 1151? Is there a time limit? How does this differ from a Tort claim?

Thanks

[Guest DON20906]

You're right under the new version of 1151. You now need to show fault, lack of informed consent or an event not reasonably foreseeable as proximate cause.

From 2005 VBM CD-ROM

Section 1151 requires that injury or death be proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” or by “an event not reasonably foreseeable” in VA’s furnishing of hospital care, medical treatment, surgical treatment, or examination.81 In other words, the statute requires either fault on the part of the VA (referred to in the statute as “carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault”) or an accident (referred to in the statute as “an event not reasonably foreseeable”). The prior version of the statute that was in effect prior to October 1, 1997, discussed in Section 4.3.2, did not require evidence of fault or accident for compensation to be allowed. (Both versions of the statute disallow compensation where disability or death resulted from the veteran’s willful misconduct.)82

The explicit fault or accident requirement makes Section 1151 claims more difficult to win than previously.83 Many claimants need to obtain a medical opinion on the question of fault in order to succeed. Under regulations that became effective September 2, 2004, most of these claims must meet certain causation requirements, i.e., show that VA care actually caused additional disability or death, and either establish that VA failed to exercise the degree of care expected of a reasonable health care provider or establish that VA furnished the care without informed consent.84 VA’s requirements are in line with civil medical malpractice standards, which typically require a showing of proximate cause and consider how a reasonable health care provider would have acted under the circumstances. The main difference between a civil medical malpractice case and a Section 1151 claim is that there is a lower standard of proof applicable to VA claims. The standard of proof in most civil cases, including medical malpractice, is the “preponderance of the evidence” standard. For VA claims the standard of proof is lower — the “benefit-of-the-doubt” — in order to prevail on any issue material to a claim a claimant need only show that the positive and negative evidence is in approximate balance.85

The following are requirements for a successful Section 1151 claim under the regulations effective September 2, 2004.

4.3.1.2 Requirement That VA Care or an Event Not Reasonably Foreseeable Be the “Proximate Cause” of Additional Disability or Death

4.3.1.2.1 VA Medical Care, Treatment or Examination and Proximate Cause

4.3.1.2.2 Events Not Reasonably Foreseeable and Proximate Cause

4.3.1.2.3 Training and Rehabilitation Services or CWT and Proximate Cause

The VA defines “proximate cause” as “the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.”88 Proximate cause, then, requires that that VA care be a direct cause of disability or death.

Footnotes

88. 38 C.F.R. § 3.361(d) (2005).

4.3.1.2.1 VA Medical Care, Treatment or Examination and Proximate Cause

In a case where it is alleged that VA medical care, treatment or examination proximately caused the disability or death there are two requirements under current regulations. First, “actual causation” must be shown. To establish actual causation the VA requires that the VA care result in the veteran’s additional disability or death. The fact that a veteran received VA care and now has an additional disability or died is not sufficient to establish causation.89 If the VA’s failure to timely diagnose or properly treat a condition causes the continuance or natural progress of a disease or injury, that may be the basis of Section 1151 benefits.90 Also, additional disability or death that results from a veteran’s failure to follow medical instructions would not be considered “caused” by VA care.91

In Loving v. Nicholson,92 a veteran claimed Section 1151 benefits for a knee condition that resulted when a ceiling grate fell on his knee during a VA examination. The Court held that the injury to the veteran’s knee was coincidental to the VA examination and was not caused by it. “Caused by” was defined as requiring the “existence of a logical sequence of cause and effect” showing that the VA examination or treatment was the reason for the disability.93

Where the basis of a Section 1151 claim was a sexual assault by a VA physician during examination or treatment at a VA facility, the VA General Counsel determined that the veteran could receive disability compensation if the actions that were alleged to have constituted the assault would fall within the ordinary meaning of the terms “medical treatment” or “examination,” (assuming all other statutory requirements were fulfilled).94 This GC opinion considered the earlier version of the statute and is discussed in further detail in Section 4.3.2.

There are two separate methods available to meet the second requirement for establishing that VA medical care, treatment or examination proximately caused disability or death:

(1) Show that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider;95 or

(2) show that VA furnished the care without the veteran’s (or, in appropriate cases where the veteran lacks decision-making capacity, the veteran’s surrogate) informed consent.96 The VA determines whether there was informed consent by referencing 38 C.F.R. § 17.32, describing VA’s procedures for obtaining informed consent.97 Briefly, informed consent is defined as “freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment.”98 The practitioner must explain the treatment in understandable language and discuss the expected benefits, reasonably foreseeable associated risks, complications or side effects, reasonable and available alternatives, and anticipated results if no action is taken. There must be an opportunity to ask questions, to indicate comprehension of the information, and to grant permission freely without coercion.

4.3.1.2.2 Events Not Reasonably Foreseeable and Proximate Cause

VA determines whether an event was not reasonably foreseeable based on what a reasonable health care provider would have foreseen.99 The event does not need to be completely unforeseeable or unimaginable, but it must be one that a reasonable health care provider would not consider an ordinary risk of the treatment. Relevant to this issue is whether the event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures.

I thought the 1151, since the VA is aware of the statin criteria ,(and the standard medical community is too) would have more punch to it-

No-I am not an authorized VA claims person- but I help my local vet rep-I would write up the basic claim

but I gave him my local vet reps card - he could get the 21-526 there- my ink is low-

When I won my FTCA settlement, (wrongful death) I sent the VARO a copy of it , yet the VARO still denied my Section 1151 claim.

After the OGC in Wash called them , they awarded.

I had to prove, with medical evidence, that the VA caused my husband's additional disabilties and caused his death to win award under Section 1151.

The criteria for 38 USC 1151- on page 354 of the VBM 2005 edition states

that the injury,or death be proximately caused by "carelessness, negligence, lack of proper skill, or error in judgement or similiar instance of fault" or by any event not reasonably foreseeable.

Has this changed?

Counsel's VACO medical review declared that the veteran's care was indefensible and substandard.

I proved malpractice, as well as all of above except any event not reasoably foreseeable.That did not apply to my case.

[Berta]

You are right too Don-

as to it is

better for a vet to try to get something secondary to a SC condition- before attempting 1151 for any additional disability-the comp amount would be the same and could be a lot easier.

I was part of the stay when the Sec 1151 regs changed on Oct 1, 1997-due to Gardner V Brown.

[Guest DON20906]

Yeah, but you can't get service connection secondary to a condition that isn't service connected! The vet's DM is NSC, according to Berta.

You are right too Don-

as to it is

better for a vet to try to get something secondary to a SC condition- before attempting 1151 for any additional disability-the comp amount would be the same and could be a lot easier.

I was part of the stay when the Sec 1151 regs changed on Oct 1, 1997-due to Gardner V Brown.

[Guest DON20906]

Berta, Have you ever heard of the Law of Effect?

Yeah, but you can't get service connection secondary to a condition that isn't service connected! The vet's DM is NSC, according to Berta.

[Berta]

Yes- the WWII vet is NSC-no secondary-

foreveryoung - can you tell us what you get and what for?

If they gave you the additional rating as secondary instead of Sec 1151- that is OK with you isn't it?

[Berta]

Law of effect- yes- but I dont get the point-

and I am trying to understand the original question here from foreveryoung-

Don- this is something that bothers me- this WW II vet is 78 years old.

The only problem he appears to have is diabetes.

But one day when my kid was home from the mil- he stopped over and told her how he was part of the occupation of Japan and about some of the stuff he saw there. It was rough. Then he started to cry-

when he left my daughter asked me if he possibly had PTSD- and I am sure he might-but he deals with it-

his son in law had just got home after two tours in Iraq and really was exhibiting major signs of PTSD too-

(I was a VA volunteer in a PTSD combat Rap group years ago- but I am not a shrink or anything but I know the signs) so that vet too probably has PTSD-but these men will never file claims for PTSD.

There is such irony to that-I know there are many vets out there who never will file claims for PTSD or other stuff-and they should. But many wont.