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M21-1, Part IV, Subpart ii, Chapter 2, Section G – Benefits Under 38 U.S.C. 1151

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
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1.  General Information on Entitlement to Benefits Under 38 U.S.C. 1151


Introduction

This topic contains general information on entitlement to benefits under 38 U.S.C. 1151, including

Change Date

May 17, 2018

IV.ii.2.G.1.a.  Basic Criteria for Entitlement to Compensation Under 38 U.S.C. 1151

38 U.S.C. 1151 provides for the payment of compensation for additional disability or death that is proximately caused by

  • Department of Veterans Affairs (VA) hospital care, medical or surgical treatment, or examination associated with
    • an instance of fault on the part of VA in furnishing care, or
    • an event not reasonably foreseeable
  • participation in vocational rehabilitation training, or
  • participation in compensated work therapy (CWT).
Award compensation for qualifying additional disability or death under 38 U.S.C. 1151 in the same manner as if the disability or death is service-connected (SC).
Reference:  For more information on entitlement to compensation or Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. 1151, see

IV.ii.2.G.1.b.  Analysis of Claims Under 38 U.S.C. 1151

Claims for compensation under 38 U.S.C. 1151 require a five-part analysis.  The table below describes the facts that must be established in order to grant compensation under 38 U.S.C. 1151.
Element
Facts to be Established
References
1
Additional disability or death has occurred.
For more information on determining whether additional disability has occurred, see M21-1, Part IV, Subpart ii, 2.G.1.c.
2
Additional disability or death is not due to
  • willful misconduct, or
  • continuation or natural progression of disease or injury.
For more information on
3
Additional disability or death is caused by
  • VA care
  • participation in vocational rehabilitation, or
  • participation in CWT.
For more information on
4
If VA care is the cause of disability or death, the evidence must establish that
  • fault was involved, or
  • the injury or death resulted from an event not reasonably foreseeable.
For more information on
5
The circumstances and/or location in which the disability or death was incurred are covered under 38 U.S.C. 1151.
For more information on circumstances or locations in which disability or death is covered under 38 U.S.C. 1151for

IV.ii.2.G.1.c.  Determining Whether Additional Disability Exists Under 38 U.S.C. 1151

To determine whether a Veteran has incurred additional disability under 38 U.S.C. 1151, compare the Veteran’s condition immediately before the beginning of the VA medical care, training, or CWT program on which the claim is based to his/her condition afterwards.
Each body part should be compared separately.
Note:  Per VAOPGCPREC 1-1999, VA may pay compensation under 38 U.S.C. 1151 for psychiatric disability incurred or aggravated as a result of VA hospitalization, medical or surgical treatment, examination, or vocational rehabilitation.
Reference:  For more information on determining whether a Veteran has incurred additional disability, see 38 CFR 3.361(b).

IV.ii.2.G.1.d.  Definition:  Informed Consent

Informed consent generally means agreement by a patient, or in some cases a surrogate, to treatment or care after having been provided with information.  The informed consent process typically has the following main elements
  • a conversation between the provider and the patient and/or surrogate, covering matters such as
    • the health condition that is the impetus for the treatment
    • a description of the treatment
    • the expected benefit
    • the reasonably foreseeable associated risks
    • complications or side effects, and
    • alternatives including the anticipated results of not pursuing treatment
  • an opportunity for questions from the patient/surrogate
  • verbal expression by the patient/surrogate of understanding and permission or assent to proceed, and
  • documentation of the process and outcome.
Informed consent can be express or implied.
Notes:
  • In deciding if there was informed consent for 38 U.S.C. 1151 purposes, 38 CFR 3.361(d) only requires VA to determine whether health care providers substantially complied with 38 CFR 17.32.  Minor deviations that are immaterial under the facts of the case will not prevent a finding of informed consent.
  • In most cases, the informed consent process in 38 CFR 17.32 merely needs to be appropriately documented in the health record, although certain procedures require “signature consent” where consent and a signature are provided on a VA-authorized consent form.
  • PL 104-204, Section 422, amended the consent requirement, previously included in 38 CFR 3.358(c)(3), to include a requirement for informed consent as specified in 38 CFR 3.361(d)(1)(ii).
References:  For more information on

IV.ii.2.G.1.e.  Definition: Express Consent

Express consent is a type of informed consent that has been clearly stated either orally or in writing.

IV.ii.2.G.1.f.  Definition: Implied Consent

Implied consent is a type of informed consent that may be inferred from the circumstances in the case.  38 CFR 17.32 permits practitioners to provide necessary medical care in emergency situations without the patient’s/surrogate’s express consent when
  • immediate medical care is necessary to preserve life or prevent serious impairment of the health of the patient or others
  • the patient is unable to consent, and
  • the practitioner determines that
    • the patient has no surrogate, or
    • waiting to obtain consent from the patient’s surrogate would increase the hazard to the life or health of the patient or others.

2.  Types of Services Covered Under 38 U.S.C. 1151


Introduction


Change Date

 May 17, 2018

IV.ii.2.G.2.a.  Type of VA Care Considered Under 38 USC 1151

For the purposes of 38 U.S.C. 1151, the types of VA care that can cause the disability or death include
  • hospital care
  • medical or surgical treatment, or
  • examination.
Refer to the table below for more information on these types of VA care.
Type of Care
Definition
References
Hospital care
The term hospital careencompasses, at a minimum, services unique to the hospitalization of patients. Whether there was hospital care for the purpose of 38 U.S.C. 1151depends on a variety of factors, including the
  • nature of services
  • degree of VA control over patient freedom
  • mental and physical condition of patients, and
  • foreseeability of potential harm.
For more information on
Medical or surgical treatment
The term treatment is defined as
  • the institution of measures or the giving of remedies designed to cure a disease,Stedman’s Medical Dictionary 1320 (3rd ed. 1972), or
  • the management and care of a patient for the purpose of combating disease or disorder.Dorland’s Illustrated Medical Dictionary 1736 (28th ed. 1994).
For the purpose of authorizing compensation under 38 U.S.C. 1151, the term medical or surgical treatment applies to disability caused by procedures or remedies administered by VA for the purposes of combating a disease or injury.
For more information on the definition of medical or surgical treatment see VAOPGCPREC 1-1999.
Examination
The term examination is defined as
  • any investigation made for the purpose of diagnosis,Stedman’s Medical Dictionary 440 (3d ed. 1972), or
  • inspection, palpitation, auscultation, percussion, or other means of investigation, especially for diagnosing disease.
For more information on the definition of examination see
Reference:  For more information on determining whether the circumstances and/or location of hospital, medical or surgical treatment, or examination is covered under 38 U.S.C. 1151, see M21-1, Part IV, Subpart ii, 2.G.2.c.

IV.ii.2.G.2.b.  Definition of Hospitalization under 38 CFR 3.358 vs. Hospital Care Under 38 CFR 3.361
PL 104-204, Section 422, changed the term hospitalization to hospital careeffective October 1, 1997.
  • Hospitalization, as included in 38 CFR 3.358(c), is not restricted to activities specifically related to care and treatment but encompasses the entire process of maintaining or lodging a patient during the period of hospitalization.
  • Hospital care, as included in 38 CFR 3.361(a)(2)(c), encompasses, at a minimum, services unique to the hospitalization of patients.  Whether there was hospital care for the purpose of 38 U.S.C. 1151 depends on a variety of factors, including the
    • nature of services
    • degree of VA control over patient freedom
    • mental and physical condition of patients, and
    • foreseeability of potential harm.
Reference:  For more information on the definition of and distinction between hospitalization and hospital care, see

IV.ii.2.G.2.c.  Circumstances for VA Care Covered Under 38 U.S.C. 1151

VA hospital care, medical or surgical treatment, or examination must be furnished to the Veteran
  • by a VA employee, and/or
  • in a VA facility.
Per 38 CFR 3.361, a VA employee is defined as an individual
  • who is appointed by the Department in the civil service under title 38 United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. 2105
  • who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law, and
  • whose day-to-day activities are subject to supervision by the Secretary of VA.
Per 38 CFR 3.361, a VA facility is a facility over which the Secretary of VA has direct jurisdiction.  The following activities are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. 1151
  • hospital care or medical services furnished under a contract made under38 U.S.C. 1703
  • nursing home care furnished under 38 U.S.C. 1720,
  • hospital care or medical services, including examination, provided under38 U.S.C. 8153 in a facility over which the Secretary does not have direct jurisdiction, or
  • domiciliary care, per Mangham v. Shinseki, 23 Vet.App. 284, 289 (2009).
Important:  For the purposes of compensation under 38 U.S.C. 1151, the disability or death must result from the medical treatment or examination itself and not from independent causes occurring coincidentally with the treatment or examination.
Exception:  In certain circumstances, compensation may be paid under 38 U.S.C. 1151 for additional disability incurred as a result of a medical procedure conducted by a non-VA employee in a non-VA facility as discussed in M21-1, Part IV, Subpart ii, 2.G.3.fh.
Reference:  For more information on determining whether disability or death results from independent causes occurring coincident with the treatment or examination, see VAOPGCPREC 1-1999.

IV.ii.2.G.2.d.  Vocational Rehabilitation Services Covered Under 38 U.S.C. 1151

Compensation will be paid for disability or death that is proximately caused by training and rehabilitation services provided as part of an approved rehabilitation program under 38 U.S.C. Chapter 31.
Note:  This includes training and rehabilitation services provided by VA under 38 U.S.C. 3115.
Reference:  For more information on establishing causation for disability or death incurred due to training and rehabilitation services, see

IV.ii.2.G.2.e.  CWT Services Covered Under 38 U.S.C. 1151

Compensation will be paid for disability or death that is proximately caused by participation in a CWT program under 38 U.S.C. 1718.
Note:  PL106-419 authorized the grant of compensation for disability or death proximately caused by participation in CWT effective November 1, 2000.
Reference:  For more information on establishing causation for disability or death incurred due to participation in a CWT program, see

3.  Establishing Causation Under 38 U.S.C. 1151


Introduction


Change Date

 May 17, 2018

IV.ii.2.G.3.a.  Definition:  Proximate Cause

Proximate cause
  • is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause, and
  • means a direct and sufficient relationship exists between an event or act and a result.
Important:  When considering whether proximate cause between an event and a subsequent disability or death exists, consider the following.
  • Evidence showing that a Veteran received VA medical care, treatment, or examination and that the Veteran has an additional disability or died does not establish proximate cause.
  • Although the word “proximate” may connote immediacy, and although proximate causation may be more clear when the result follows immediately from an act or event, immediacy is not a precondition to finding proximate cause.
  • A disability must result from medical treatment or examination itself and not from independent causes occurring coincident with the treatment or examination or from the process of reporting for the examination.
  • Causation may also be established when a disability arises as a result of VA’s installation and maintenance of the equipment necessary for such treatment to occur.
  • Benefits under 38 U.S.C. 1151 cannot be paid for continuance or natural progress of a disease or injury.
Note:  A showing of proximate cause is required for all benefits granted under 38 U.S.C. 1151.
References:  For more information on

IV.ii.2.G.3.b.  Establishing Proximate Cause Due VA Care for 1151 Claims

For a grant of compensation under 38 U.S.C. 1151, the evidence must show that the proximate cause of the disability or death resulting from VA hospital care, medical or surgical treatment, or examination was the result of
  • an instance of fault on the part of VA, such as
    • careless
    • negligence
    • lack of proper skill, or
    • error in judgment, or
  • an event not reasonably foreseeable.
Note:  The requirement for a showing of fault or that an event was not reasonably foreseeable applies only to claims received on or after October 1, 1997.
References:  For more information on

IV.ii.2.G.3.c.  Establishing Fault Associated With Proximate Cause in 1151 Claims

To establish that fault (including carelessness, negligence, lack of proper skill or error in judgment) on the part of VA in furnishing hospital care, medical or surgical treatment, or examination was the proximate cause of a Veteran’s disability or death, the evidence must show that VA
  • failed to exercise the degree of care that would have been expected of a reasonable health-care provider, or
  • furnished the care without the Veteran’s or Veteran’s representative’s informed consent.
Important:  A finding of fault is not required in claims for compensation under 38 U.S.C. 1151(a)(1)(B) based on event that was not reasonably foreseeable.
Reference:  For more information on informed consent, see M21-1, Part IV, Subpart ii, 2.G.1.d.

IV.ii.2.G.3.d.  Fault Requirement and 38 CFR 3.358 vs. 38 CFR 3.361
In the case of  Gardner v. Derwinski, 1 Vet.App. 584 (1991), 513 U.S. 115(1994), the US Supreme Court held that 38 U.S.C. 1151 imposed only a causation requirement and did not authorize VA to establish an additional requirement for a showing of fault.  PL 104-204, Section 422, amended the causation standard for claims under 38 U.S.C. 1151 to include a fault element.
  • Prior to October 1, 1997, a showing of VA fault or failure to exercise reasonable skill and care is not an element of establishing causation for entitlement to 38 U.S.C. 1151 benefits.  Statutory language imposed the requirement of a causal connection only between the injury or aggravation of an injury and hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation.  This standard of causation is discussed in 38 CFR 3.358.
  • On or after October 1, 1997, an additional fault element was added under38 CFR 3.361, requiring that the evidence show that additional disability or death was caused by either
    • an event not reasonably foreseeable, or
    • carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault.
Reference:  For more information on the revision of causation to include the addition of the fault requirement, see

IV.ii.2.G.3.e.  Determining When an Event Is Not Reasonably Foreseeable in 1151 Claims

An event is not reasonably foreseeable if it is not one of the risks that is or would be disclosed as a part of informed consent procedures.
  • The incident need not be completely unimaginable, but it must be one that a reasonable health care provider would not consider an ordinary risk of the treatment provided.
  • The correct standard for determining whether an event is reasonably foreseeable is what a reasonable health care provider would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures.
    • These consent procedures require the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided.
    • A treating physician’s subjective individual determination on foreseeability is not dispositive.
Important:  There is no requirement for a finding of fault in claims for compensation under 38 U.S.C. 1151(a)(1)(B) based on event that was not reasonably foreseeable.
References:  For more information on

IV.ii.2.G.3.f.  Establishing Fault Associated With Non-VA Care

A claim for compensation under 38 U.S.C. 1151(a)(1)(A) may be premised upon a finding of fault on the part of VA in the referral for care.
When a claim for compensation under 38 U.S.C. 1151(a)(1)(A) is predicated upon a referral from VA to a non-VA provider or medical facility or a VA recommendation regarding a procedure, the evidence must show that
  • VA medical care actually caused the disability or death, and
  • the disability or death was a foreseeable risk of VA negligent conduct.
When the claim is based upon a VA referral or recommendation, the following must be demonstrated to establish entitlement to disability compensation under 38 U.S.C. 1151(a)(1)(A):
  • VA referred the Veteran to a non-VA medical provider or recommended a procedure to the Veteran that was performed by a non-VA provider
  • VA’s referral or recommendation actually caused the disability or death (if it was not for the VA referral or recommendation, the Veteran would not have suffered disability or death), and
  • VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault was the proximate cause of the Veteran’s additional disability or death.
Reference:  For more information on claims for compensation under 38 U.S.C. 1151 based on non-VA care, see Ollis v. Shulkin, 857 F. 3d, 1338 (2017).

IV.ii.2.G.3.g.  Examples of 1151 Claims Associated With Fault in Referral for Non-VA Care

Example 1:  A Veteran is treated for chronic pain due to degenerative disc disease of the lumbar spine by VA.  The Veteran’s VA physician refers the Veteran to a private medical facility that specializes in spinal diseases and injuries for consideration of continuing conservative treatment or surgical intervention.  A private neurosurgeon performs a laminectomy and afterward, the Veteran has reduced mobility of lumbar spine with worsening radiculopathy of the lower extremities.
Outcome 1:  In this case, entitlement to disability compensation under 38 U.S.C. 1151(a)(1)(A) on the theory of referral would be precluded as VA was not careless, etc. in referring to a private medical facility, i.e., VA carelessness, negligence, lack of skill, etc. did not proximately case the Veteran’s disability.  The facility specialized in treatment of spinal conditions and the referral was for consideration of treatment options, to include surgery.  Although additional disability resulted from the procedure, the referral to the private facility was medically appropriate and not shown to be negligent.
Example 2:  Veteran is treated for irritable bowel syndrome by VA.  He presents to the VA medical center (VAMC) with complaints of right quadrant abdominal pain and is referred to a private local general practitioner by his VA physician.  The general physician examines the Veteran and sends him home with pain medications.  The pain becomes more severe over several days and the Veteran seeks medical attention at the nearest hospital’s emergency department.  Diagnostic testing shows a ruptured appendix that has perforated resulting in peritonitis and bowel obstruction.  A lengthy hospital stay is required, which successfully treats the peritonitis; however, resection of significant amount of large intestine, as well as small intestine, was required.  After discharge from the hospital, the Veteran’s symptoms consisted of frequent diarrhea, recurring pain, and constant fatigue.
Outcome 2:  In this case, entitlement to disability compensation under 38 U.S.C. 1151(a)(1)(A) on the theory of referral may be awarded as the evidentiary record reveals that:
  • but for the VA referral, the disability would not have occurred; and
  • VA was negligent in referring the Veteran to a general practitioner, rather than a gastroenterologist, in view of the history of the Veteran’s disability and presentation of symptoms, which resulted in additional disability to the Veteran.
Example 3:  Veteran is treated by VA for diabetes mellitus that has progressed to development of a gangrenous ulcer affecting much of his right foot.  The Veteran’s VA physician examines the Veteran and finds a gangrenous infection and believes that amputation is required to preclude further spreading of the infection in the extremity.  Such procedures are not conducted by the VAMC and the VA physician refers the Veteran to a local private surgeon for evaluation.  The surgeon evaluates the Veteran and determines that amputation of part of the right foot is required due to the gangrenous infection.  The Veteran agrees to undergo the procedure.  The surgery is performed and the surgeon amputates the left foot instead of the gangrenous right foot.
Outcome 3:  In this case, entitlement to disability compensation under 38 U.S.C. 1151(a)(1)(A) on the theory of referral would not be warranted.  Although the private surgeon was clearly negligent in amputating the wrong extremity, no negligence of similar instance of fault is demonstrated by VA’s referral to the surgeon.  The referral to the private surgeon was medically appropriate in view of the Veteran’s medical condition, prognosis, and clinically-determined requirement for amputation to treat a diabetic infection of a lower extremity, which was not available at the VA medical facility.

IV.ii.2.G.3.h.  Establishing Proximate Cause for Non-VA Care and Unforeseeable Events

A claim for compensation under 38 U.S.C. 1151(a)(1)(B) may be premised upon a theory of referral from VA to a non-VA medical provider or facility involving an unforeseeable event.
When a claim for compensation is predicated upon a theory of referral from VA to a non-VA medical provider or facility involving an unforeseeable event, the evidence must show that
  • VA medical care (the referral) proximately caused the treatment or procedure by a non-VA medical provider during which the unforeseeable event occurred, and
  • the unforeseeable event caused the disability or death.
Important:  When a claim for benefits under 38 U.S.C. 1151 associated with care in a non-VA facility by a non-VA provider is premised upon a finding that an event was not reasonably foreseeable, the two components of the chain of causation do not require an element of fault by VA.  The two components required for the chain of causation in these non-VA care scenarios are proximate cause between both
  • VA medical care and the non-VA treatment, and
  • the unforeseen event occurring during the non-VA treatment and the disability.
Reference:  For more information on claims for compensation under 38 U.S.C. 1151 based on non-VA care, see Ollis v. Shulkin, 857 F. 3d, 1338 (2017).

IV.ii.2.G.3.i.  Establishing Proximate Cause Associated With CWT or Vocational Rehabilitation Services in 1151 Claims

To establish proximate cause of additional disability or death associated with the provision of training and rehabilitation services or a CWT program, the evidence must show
  • the Veteran was participating in an essential activity or function of the training, services, or CWT program
  • the training, services, or CWT was provided or authorized by VA, and
  • the Veteran’s participation in the essential activity or function proximately caused the disability or death.
Important:
  • It is not necessary that the evidence shows that VA approved the specific activity or function resulting in disability or death as long as the activity or function is generally accepted as being a necessary component of the training, services, or CWT program that VA provided or authorized.
  • Injuries sustained only as a result of pursuing vocational rehabilitation training to achieve employability are subject to compensation under 38 U.S.C. 1151.  Per VAOPGCPREC 14-1997, injuries sustained as a result of engaging in post-training employment are not subject to compensation under 38 U.S.C. 1151.
References:  For more information on

4.  Considering Specific Instances of Causation and Fault Under 38 U.S.C. 1151


Introduction

This topic contains information on considering specific instances of causation and fault, including 38 U.S.C. 1151 disability resulting from

Change Date

May 17, 2018

IV.ii.2.G.4.a.  1151 Disability Resulting From an Act of Omission

Entitlement to compensation under 38 U.S.C. 1151 may be based on acts of omission as well as acts of commission in providing hospital care, medical or surgical treatment, or examination.
  • An act of commission occurs when an action results in disability or death.
  • An act of omission under 38 U.S.C. 1151 occurs when VA fails to perform one of the following actions and additional disability or death results
    • timely diagnose or properly treat a disability, thereby causing increased disability or death, and/or
    • obtain informed consent from the Veteran or the Veteran’s representative prior to treatment.
References:  For more information on

IV.ii.2.G.4.b.   1151 Disability Resulting From Premature Discharge

Compensation may be payable under 38 U.S.C. 1151 when a physician determines that a patient should be discharged from a hospital after a period of treatment, but the patient claims that the discharge
  • was too early, and
  • led to a relapse and worsening of the disability.
Consider whether the timing of the discharge aggravated the disability beyond the level of natural progression.
Notes:
  • Development for medical records should include a request for a medical certificate indicating that the
    • Veteran’s condition at discharge was not stable, and
    • discharge was premature.
  • A medical opinion may be necessary in such a case.

IV.ii.2.G.4.c.  1151 Disability Resulting From Medication

Compensation is payable under 38 U.S.C. 1151 for any disability caused by medication that was prescribed by VA and taken or administered as prescribed, if the disability was directly due to
  • fault on the part of the VA, or
  • an incident that could not have been reasonably foreseen.
Example:  Compensation is payable under 38 U.S.C. 1151 if
  • VA prescribed a medication at ten times the proper dosage, and
  • additional permanent disability or death resulted from the erroneous prescription.

IV.ii.2.G.4.d.  1151 Disability Resulting From Error in Judgment

Error in judgment, as used in 38 U.S.C. 1151, refers to errors involving negligence and does not encompass reasonable decisions regarding diagnosis and treatment merely because they later prove to have been incorrect.

IV.ii.2.G.4.e.  1151 Disability Resulting From Failure to Follow Appropriate Standard of Care

Failure to follow the appropriate standard of care may equate to carelessness, negligence, lack of skill, or similar incidence of fault for the purpose of establishing entitlement to benefits under 38 U.S.C. 1151.

IV.ii.2.G.4.f.  1151 Disability Resulting From Failure to Diagnose or Treat

Compensation under 38 U.S.C. 1151 is not payable when a disability or death is the result of continuation or natural progression of a disease or injury.
Benefits under 38 U.S.C. 1151 are authorized where VA improperly fails to diagnose or provide treatment for a preexisting disease if it is determined that the Veteran’s disability is greater than it would have been with proper diagnosis and treatment.  A grant of benefits under this standard requires the following findings of fact.
  • VA failed to diagnose and/or treat a preexisting disease or injury.
  • A physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment.
    • Medical evidence is ordinarily required in order to establish that a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment.
    • As an exception, no additional specific medical evidence is required if the alleged failure to exercise ordinary skill and care is one which would be readily apparent to a layperson.
    • VA may assist claimants by obtaining a medical opinion on this issue when deemed necessary to adjudication of a claim, and
  • The Veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered.
Note:  Compensation for the continuation or natural progress of preexisting disease or injury due to VA’s failure to diagnose or treat a condition does not apply in the context of vocational rehabilitation training or CWT because vocational rehabilitation does not involve medical services.
Reference:  For more information on determining whether an injury is due to continuation or natural progression of a disease or injury for 38 U.S.C. 1151purposes, see

IV.ii.2.G.4.g.  1151 Disability Resulting From Veteran’s Failure to Follow Medical Instructions

In some cases, the evidence will show that, following VA treatment or surgery, the Veteran
  • failed to follow post-treatment medical instructions, and
  • incurred or aggravated a disability that would not have developed had he/she followed instructions.
In such cases, this failure may constitute an intercurrent cause, thereby precludingpayment of benefits under 38 U.S.C. 1151.

5.  Procedures For Considering a Claim for Benefits Under 38 U.S.C. 1151


Introduction

This topic contains information on procedural elements for processing a claim for benefits under 38 U.S.C.1151, including

Change Date

February 19, 2019

IV.ii.2.G.5.a.  Claims for Benefits under 38 U.S.C. 1151

There is no application form specific to claims for 38 U.S.C. 1151 compensation.  However, subject to the general policies and procedures applicable to claims, a request for benefits under 38 U.S.C. 1151, whether an initial claim or decision review request, must be submitted on the standardized claim form approved for acceptance of the equivalent SC benefit or decision review election.
Important:  Do not solicit a claim for 38 U.S.C. 1151 compensation where review of the evidence of record suggests or raises the possibility that the provisions of the statute may apply.
References:  For more information on

IV.ii.2.G.5.b.  Entitlement to 1151 Compensation vs. Service Connection

Although compensation or DIC is payable under 38 U.S.C. 1151 as if the additional disability or death were SC, the additional disability or death is not actually SC.

IV.ii.2.G.5.c.  Disability Secondary to an 1151 Disorder

Compensation is payable for disability that is secondary to a disability that has been granted under 38 U.S.C. 1151.
Reference:  For more information on payment of compensation for disabilities secondary to 1151 disabilities, see VAOPGCPREC 8-1997.

IV.ii.2.G.5.d.  1151 Disability Based on Aggravation

Compensation for additional disability under 38 U.S.C. 1151 exists where there is a non-service-connected, pre-existing condition that has been aggravated by
  • VA hospital care, medical or surgical treatment, examination, or
  • participation in a course of vocational rehabilitation or a CWT program.
Use the table below to determine the appropriate evaluation to assign based on aggravation of a disability under 38 U.S.C. 1151.
Step
Action
1
Determine the disability percentage for current symptoms and findings based on applicable 38 CFR Part 4 criteria.
2
Determine the disability percentage prior to the treatment or examination, vocational rehabilitation, or participation in CWT that resulted in additional disability.
3
Subtract the percentage of disability reached in Step 2 from the percentage of disability reached in Step 1.
Notes:
  • If the percentage of disability in Step 1 is 100, do not subtract the percentage of disability in Step 2, even if it is also 100.
  • If a percentage of disability cannot be determined in Step 2, no subtraction may be made.
Reference:  For more information on aggravation of disabilities under 38 U.S.C. 1151, see VAOPGCPREC 4-2001.

IV.ii.2.G.5.e.  Paired Organs or Extremities and 38 U.S.C. 1151

Entitlement to compensation under 38 U.S.C. 1151 confers entitlement to compensation for paired organs or extremities under 38 U.S.C. 1160 if the criteria for entitlement are otherwise met.
Under 38 U.S.C. 1160, the evaluations of paired organs or extremities are combined as if both were SC, even if one of the paired organs or extremities is compensable “as if” SC under 38 U.S.C. 1151.
Reference:  For more information on special considerations for paired organs and extremities, see

IV.ii.2.G.5.f.  Obtaining Records in 1151 Claims

Ensure that the following evidence has been obtained prior to deciding a claim for benefits under 38 U.S.C. 1151:
  • records from a VA facility that provided hospital or other care alleged to have resulted in additional disability or death
  • records of vocational rehabilitation services documenting incurrence of disability or death
  • records of participation in CWT resulting in incurrence of disability or death, and/or
  • any non-VA records pertaining to treatment for the injury or death identified by the Veteran or claimant, as directed in M21-1, Part I, 1.C andM21-1, Part III, Subpart iii, 1.C.
Reference: For additional information on development required, including requests for VA records, for claims under 38 U.S.C. 1151, see M21-1, Part IV, Subpart ii, 1.A.2.

IV.ii.2.G.5.g.  Requesting Medical Opinions in 1151 Claims

To clarify whether the care, treatment, or examination at issue resulted in additional disability or death, it may be necessary to obtain
  • a medical opinion, as discussed in M21-1, Part III, Subpart iv, 3.A.7.g
  • independent medical evidence, such as
    • a medical statement provided by a regional office rating specialist who is a qualified medical professional, such as a physician, physician’s assistant, or registered nurse, and not a signatory to the rating, or
    • information from a medical treatise, such as The Merck Manual of Diagnosis and Therapy, Cecil Textbook of Medicine, orPhysician’s Desk Reference (PDR), and/or
  • an independent medical opinion under 38 CFR 3.328, but only when warranted by the medical complexity or controversy involved in the case.
The threshold for requesting an examination and/or opinion in a claim under 38 U.S.C. 1151 for a disability resulting from VA care is the same threshold as applies to regular claims for SC compensation benefits as described in 38 CFR 3.159(c)(4).  Request an examination or medical opinion if the evidence of record does not contain sufficient competent medical evidence to decide the claim but
  • contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, and
  • establishes that the claimed additional disability may be causally associated with VA hospital care, medical or surgical treatment, or examination.
Important:  As discussed in McLendon v. Nicholson, 20 Vet.App. 79 (2006), the threshold for providing a VA examination must be low.  Do not require that the evidence of record prove a nexus between the asserted injury or event and the current disability or competent medical evidence of fault before providing the Veteran with a VA examination or opinion.
References:  For more information on

IV.ii.2.G.5.h.  Obtaining an Advisory Opinion for 1151 Claims

Submit unusually difficult cases involving claims for compensation under 38 U.S.C. 1151 to the Director of Compensation Service (211B) for an advisory opinion.
Reference:  For more information on Compensation Service guidance and advisory opinions, see M21-1, Part III, Subpart vi, 1.A.

6.  Preparing a Rating Decision Under 38 U.S.C. 1151


Introduction

This topic contains information on preparing a rating decision involving a claim for benefits under 38 U.S.C.1151, including

Change Date

February 19, 2019

IV.ii.2.G.6.a.  Considering Direct and Presumptive SC in 1151 Claims

Do not put direct or presumptive service connection (SC) at issue if the only issue raised is compensation under 38 U.S.C. 1151 and the disability is clearly one that arose many years after service or coincident with treatment.
Note:  Undertake development and consider awarding SC on a presumptive basis if the disability in question arose within the applicable presumptive period following release from active duty.

IV.ii.2.G.6.b.  Preparing the Rating Decision for 1151 Grants

Grants of compensation under 38 U.S.C. 1151 may be completed in short-form rating narrative format.  System-generated text is legally adequate for most grants of benefits under 38 U.S.C. 1151, provided it sufficiently satisfies the narrative decision element requirements communicated in M21-1, Part III, Subpart iv, 6.C.5.a.
Supplement the rating decision narrative language with a brief discussion of the event that resulted in additional injury or death.
Important:  Although the regulatory standard for a finding of fault listscarelessness, negligence, lack of proper skill [and] error in judgment as falling under the umbrella of fault-related fact patterns, avoid using words like negligenceor malpractice, particularly if those words do not appear verbatim in the evidence of record, as use of those terms may result in unintended impacts on associated tort claims.
Reference:  For more information on rating decisions completed in short-form rating narrative format, see M21-1, Part III, Subpart iv, 6.C.6.

IV.ii.2.G.6.c.  Preparing the Rating Decision for 1151 Denials
Denials of compensation under 38 U.S.C. 1151 must be completed in long-form rating narrative format.  Supplement system-generated text with text that adequately
Specifically, in the rating decision narrative, include a more thorough discussion of the basis for the denial and facts of the case, with particular attention to all the following which apply:
  • the event claimed to have resulted in additional disability or death
  • all relevant medical opinions to include a discussion of
    • whether causation is shown
    • whether, if the claim is based on VA care,
      • fault is indicated, or
      • an event not reasonably foreseeable occurred, and
  • all relevant findings of fact such as
    • whether the care was in a VA facility
    • whether the care was provided by a VA employee, and/or
    • whether the training was a type of covered vocational rehabilitation or CWT activity.

Important:  Avoid statements that are uncorroborated or speculative.  Cite the evidence and rationale upon which the conclusion is based.

References:  For more information on


IV.ii.2.G.6.d.  Assigning an Effective Date for 1151 Compensation

Under 38 U.S.C. 1151, the effective date of entitlement to
  • compensation is either the
    • date of the injury or aggravation, if the claim is received within one year of the incident, or
    • date of receipt of the claim, and
  • DIC is either the
    • first day of the month in which the Veteran’s death occurred, if a claim is received within one year following the date of death, or
    • date of receipt of the claim.
Reference:  For more information on determining effective dates under 38 U.S.C. 1151, see 38 CFR 3.400(i).

IV.ii.2.G.6.e.  Combining the Disability Ratings of Qualifying 1151 Disabilities and SC Disabilities

Combine the disability rating(s) assigned to disabilities for which compensation is payable under 38 U.S.C. 1151 with the disability ratings assigned to SC disabilities, as if the former were SC.
If two or more disabilities (at least one being a qualifying disability under 38 U.S.C. 1151) are rated zero percent disabling but interfere with the Veteran’s employability, the assignment of a 10-percent disability rating under 38 CFR 3.324is acceptable.
Note:  38 U.S.C. 1151 disabilities may serve as the basis of an individual unemployability award.

IV.ii.2.G.6.f.  Possible Eligibility for Ancillary Benefits Based on Qualifying 1151 Disability

A Veteran with a qualifying disability under 38 U.S.C. 1151 may also be eligible for
  • a clothing allowance
  • specially adapted housing benefits, including a special housing adaptation award, and
  • automobile or adaptive equipment benefits.
Reference:  For more information on ancillary benefits, see

IV.ii.2.G.6.g.  Ancillary Benefits Not Available by Reason of a Qualifying 1151 Disability

The following ancillary benefits are not available by reason of a qualifying disability under 38 U.S.C. 1151:
  • Service Disabled Veteran (RH) Insurance
  • waiver of the loan guaranty funding fee
  • 38 U.S.C. Chapter 31 education benefits
  • 38 U.S.C. Chapter 35 education benefits
  • the 10-point Civil Service Preference
  • the special allowances under 38 U.S.C. 1312(a) and PL 87-377, Section 156, Restored Entitlement Program for Survivors (REPS)
  • the Civilian Health and Medical Program of VA (CHAMPVA), and
  • loan guaranty benefits for a surviving spouse.
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