Don - A Little Help Please

[carlie]

Don,

Can you give me a URL to this please. Thanks,

carlie

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.

[Guest DON20906]

It's not on the internet, it's on the 2005 Veterans Benefits Manual CD ROM.

Heres the entire section:

4.3.2 Section 1151 Prior to 1997 Amendment

Prior to October 1, 1997, Section 1151 required that the VA pay compensation benefits to a veteran who, absent willful misconduct, suffered an injury or additional disability as the result of VA hospitalization,109 medical or surgical treatment, or examination or vocational rehabilitation. DIC benefits were similarly provided, in the case of a deceased veteran, for eligible survivors. The statute did not require that a claimant establish fault or accident by the VA.

The absence of a fault or accident requirement made the earlier version of Section 1151 considerably broader than the FTCA. However, even though the statute on its face did not require fault or accident, the VA’s regulations incorporated such a requirement. In a series of judicial decisions culminating in Gardner, courts concluded that proof of negligence was not required in a Section 1151 claim.110 As noted earlier, the Supreme Court decided Gardner in 1994. Effective October 1, 1997, the Congress essentially overturned Gardner, making the invalidated regulation the law.

Putting aside the issue of fault for a moment, the VA GC considered the meaning of the language “as the result of hospitalization, medical or surgical treatment” in the version of the law that existed prior to the October 1997 amendment. The GC held that, generally speaking, a disability resulting from a sexual assault by a VA physician who was treating the veteran at a VA outpatient clinic would not be covered under the earlier version of the law.111 The VA stated that “the disability must result from the medical treatment or examination itself and not from independent causes occurring coincident with the treatment or examination.” A sexual assault committed by a VA employee would constitute an independent and intervening occurrence. However, the VA allowed that if the actions or procedures alleged to have constituted an assault would be within the meaning of the terms “medical treatment” or “examination” then a resulting disability might be covered under Section 1151. VA also indicated that psychiatric disabilities were intended to be covered under the law in effect prior to October 1, 1997.112

In VA Gen. Coun. Prec. 5-2001, the GC considered whether a failure by the VA to diagnose or treat a disease or injury is covered under the version of Section 1151 in existence prior to October 1, 1997.113 The GC reasoned that a failure to diagnose or treat could be the basis for benefits because it was reasonable to conclude that Congress intended Section 1151 determinations to be governed by established common-law principles of causation developed in the context of medical malpractice claims. Under the common law, a failure to diagnose and/or treat an existing condition is viewed as the legal cause of disability that would have been prevented by proper treatment.114 The GC held that entitlement to Section 1151 benefits (under the older version of the law) would ordinarily require evidence that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and provided treatment; and (3) the veteran suffered disability or death that probably would have been avoided if proper diagnosis and treatment had been provided. The GC reasoned that even though the older version of the law did not require fault, in such circumstances the failure to exercise ordinary skill and care would be a necessary element of causation rather than a separate and additional element of entitlement. As noted in Section 4.3.1, the VA regulations applicable to current claims allow for benefits where VA’s failure to timely diagnose and treat caused the continuance or natural progress of a disease or injury.

Under the current version of Section 1151, contract hospital, medical, or nursing home care under 38 U.S.C.S. §§ 1703 or 1720 most likely could not result in Section 1151 benefits because the statute refers to actions by a VA employee or actions in a Department facility (not a contract facility).115 However, the pre-October 1997 version of Section 1151 simply stated that hospitalization or treatment “awarded under any of the laws administered by the [VA]” and resulting in additional disability or death entitled the claimant to Section 1151 benefits. Despite such broad language, the regulation applicable to claims received prior to October 1997 provides that a veteran receiving contract nursing home care may receive Section 1151 benefits only where a VA employee has committed an “independent” act or omission that caused injury.116 The regulation requiring an independent act by a VA employee where a veteran is injured by VA contract nursing home care may be invalid because the statute at that time did not distinguish between VA care and contract care.

Don,

Can you give me a URL to this please. Thanks,

carlie

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.

[carlie]

Don,

Thanks so much for using your time to help me out with that. I'm still confused as heck and will re-read the information 10 or 12 times and might be able to understand it.

Thanks again,

carlie

[Guest DON20906]

What exactly is your situation or question? I will try and parse the section and apply it. PM me if you'd rather.

Don,

Thanks so much for using your time to help me out with that. I'm still confused as heck and will re-read the information 10 or 12 times and might be able to understand it.

Thanks again,

carlie