Got This From The 1st Cav Assn's Publication "saber"

[Philip Rogers]

ALERT FOR VETERANS WHO HAVE BEEN INJURED AT A VA MEDICAL CENTER

If you were injured while waiting for treatment at a VA Hospital before Oct. 1, ‘97, and if you filed a claim, before Oct. 1, ‘97, under 38 USC 1151, for VA benefits to compensate you for your injury you should read what follows very carefully.

Most claims by veterans who were hurt, while waiting for treatment and who filed a claim before Oct. 1, ‘97, had their claim denied by the VA because the VA determined that the injury was unrelated to the treatment.

For some veterans the law has now changed in their favor because of the case of Jackson v. Nicholson, decided Dec. 30, ‘05 by the US Court of Appeals for the Federal Circuit..

Jackson who was verbally and physically assaulted by a patient while waiting for therapy had her claim rejected based on the determination by the VA and the Veterans Court that the assault was an "intervening cause" and was not the result of VA actions relying on SWEITZER v. BROWN, 5 Vet App 503,506 (1996).

SWEITZER had been injured by a patient in a wheel chair while reading an ad on a bulletin board after checking in at a VA Hospital. In his case the VA’s denial of the claim was upheld by the Court because the injury did not result from having "submitted to an exam".

In deciding that the VA was wrong in rejecting Jackson’s claim, the Federal Circuit said that the word "hospitalization" which is in the statute refers to one who is in the hospital and does not require that the injuries be caused by the actions of the VA.

What this means for veterans, is that a veteran who filed a claim, before Oct. 1, ‘97, for benefits resulting from an injury in the hospital, and who was denied, can reopen their claim because of clear and unmistakable error committed by the VA in denying the claim.