Receive Faulty VA Healthcare? File a VA 1151 Claim. What You Need to Know

Filling out a 1551 VA Claim form

In the middle of 2023, the VA published a report claiming  that “VA health care is consistently as good as—or better than—non-VA health care.” The report relied on data from the Journal of General Internal Medicine and the Journal of the American College of Surgeons, based on about 50 different studies analyzing both surgical and non-surgical settings.

VA healthcare is widely considered top of the line. Statistically, 90% of Veterans trust the opinions and treatment they receive from VA healthcare professionals entirely.

However, mistakes happen wherever humans work. And, unfortunately, VA healthcare is no exception. Cases where Veterans get injured or even die because of a medical error made by VA healthcare personnel happen nationwide.

The Section 1151 VA Claim is designed precisely for such unfortunate cases. If you are a Veteran who was injured or suffered in any way through the fault of VA health care, filing the Section 1151 VA Claim may make you eligible for additional VA benefits.

As for now, there is no special form for filing the 1151 VA Claim. Veterans use the standard VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits. However, in this case you will need to mark that you are filing for benefits under Section 1151 and point that your added disability happened because of VA medical care or a VA program.

VCU has experience helping Veterans and their families seek and claim all sorts of VA benefits they are entitled to. And we know better than anyone that some claims are notoriously hard to win. While the Section 1151 VA Claim is considered one such case, we know that making a solid case, collecting all the relevant evidence, and submitting it properly is always the key to success when it comes to claiming your VA benefits.

In this Blog, we’ll discuss what need to know about the Section 1151 VA Claim: 

  • Eligibility for additional compensation
  • Evidence that will help prove your case
  • Things to consider before filing your claim

The 1151 VA Claim Explained

The Code of Federal Regulations (CFR) contains paragraph 38 U.S.C. 1151(a), which allows Veterans and their families to receive special benefits in case of “additional disability or death” caused by the act or omission of VA medical care.

Section 1151 Claim may apply in the following cases:

  • Medical errors 
    Injuries and disabilities caused directly by surgical or non-surgical VA medical treatment
  • Misdiagnosis or delayed diagnosis
    Consequences of a false or delayed diagnosis
  • Medication errors
    Adverse effects or complications due to incorrect medication prescribed by VA healthcare providers.
  • Negligent treatment
    Injury or disability caused by carelessness or negligence on the part of the VA during medical care, which include birth injuries
  • Delays in care 
    Aggravation of disability or complications caused by late medical care or treatment from the VA.
  • Injuries during VA examinations
    The harm caused during a medical examination conducted by VA medical personnel.

When it comes to claiming additional VA benefits through Section 1151, you should keep in mind the concept of Proximate Cause. It means that to win your case, you will need to provide irrefutable evidence that VA medical care was exactly the reason that caused your new disability or worsened the one you already had.

To make it easier to understand and follow, here are the 4 essential components of a successful 1151 VA Claim: 

  1. You have a new disability or your previously-existing disability aggravated after VA medical care.
  2. Your current condition is not a result of a natural course of events, in case you already had a disability, and it was not caused by your actions.
  3. You underwent treatment, hospitalization, examination, surgery, etc. from VA.
  4. Your disability occurred or worsened after VA medical care and/or you were not fully informed about possible side effects or complications.
    Now let’s see how you find and collect the necessary evidence.

How to Plead Your Case in an 1151 VA Claim

There is much evidence you can collect to prove that the VA is at fault in a Section 1151 Claim. Here are some essential documents that will help you plead your case:

  • Medical records
    Collect all available documentation of the treatment or care that you received. Don`t forget medication prescriptions and all notes regarding complications or adverse effects. Also, don’t forget to request your C-File, the folder that contains all claims that the you have filed since you were discharged from service.
  • Documentation of errors
    Make sure to document all mistakes made by VA healthcare providers. Notes about medication and dosage errors, surgical complications, or misdiagnoses are crucial evidence for your claim. 
  • Expert opinions
    Consider seeking opinions from medical experts who can review your case and provide an assessment of whether the injury or disability was caused by the VA’s negligence or medical error. That opinion should come from an objective source, i.e. a doctor outside the VA healthcare system, and contain a thorough analysis that will stand up in court.
  • Additional VA medical examinations 
    It is a good idea to undergo an additional VA medical examination to assess the extent of your injuries or disabilities and determine their relationship to the previously received VA medical care.
  • Witness statements
    If someone was present during the event that caused your injury or disability or observed you throughout treatment that led to your current condition, make sure to collect their statements as well. 
  • Qualified assistance
    It is always best to have a qualified professional by your side. People who have experience with presenting VA disability claims will help you filter irrelevant documents and focus on essential evidence, navigate the claims process, and even advocate on your behalf.

The good news is that there is more than one way to prove that the VA is fully responsible for your additional disability. Collecting the evidence, as we mentioned above and consulting a professional can help you easily prove one of the following scenarios:

Neglect on the part of VA

You or your family can prove that your additional disability or even death was a direct result of the carelessness or negligence of the VA medical personnel during your examination, treatment, or hospital care.

No informed consent

Another option is to claim that you or your legal representatives did not give the VA medical personnel informed consent before the procedure. It can be relevant in cases where the VA does not fully explain the nature and expected outcomes of the treatment, fails to inform about available alternatives, possible risks, and side effects.

However, if you were unconscious at some point and could not give your consent and there were no available legal representatives, medical personnel can conduct a any procedure if it is necessary in order to preserve your life. This scenario is called “implied consent” and counts as an informed one. 

VA vocational rehabilitation and Compensated Work Therapy (CWT) trauma

If you already have physical or mental service-connected disabilities, you may be eligible for the VA vocational rehabilitation program, or CWT.

These projects help Veterans with disabilities find sustainable employment and establish their civilian lives. However, if you happen to have a workplace accident while participating at one of the programs, you can be eligible for the benefits provided by the Section 1151 VA Claim.

Not reasonably foreseeable events

In some cases, the outcomes and side effects of a treatment or medication cannot be predicted for some reason. 

For example, a VA doctor may prescribe you a medicine without knowing that it can cause certain adverse side effects, or surgery may lead to unexpected complications because of another underlying condition that was not diagnosed before.

Such cases are called “events not reasonably foreseeable” and can also make you eligible for VA Benefits under Section 1151 VA Claim.

Final thoughts

Technically there is no time limit for filing the 1151 VA Claim. Also, if your claim is denied for some reason, you can always appeal the Section 1151 like any other VA Disability Claim.

However, practice shows that the earlier you give it a go, the easier it will be to collect relevant evidence and claim what is rightfully yours.Our team is here to help you build a solid case and guide you through the process of seeking and claiming your VA disability benefits in any scenario. Make sure to book your FREE 30-minute call with one of our Veterans Specialists today!

Leave a Comment

Your email address will not be published. Required fields are marked *