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

In This Section

Introduction

• basic criteria for entitlement to compensation under 38 U.S.C. 1151
• analysis of claims under 38 U.S.C. 1151
• determining whether additional disability exists under 38 U.S.C. 1151, and
• definitions of
  • informed consent
  • express consent, and
  • implied consent.

Change Date

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

• 38 CFR 3.361 for claims filed on or after October 1, 1997, and
• for claims filed before October 1, 1997, see
  • 38 CFR 3.358, and
  • VAOPGCPREC 99-1990.

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

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

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

• 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.

• 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).

• VA’s informed consent procedures, see
  • 38 CFR 17.32
  • Halcomb v. Shinseki, 23 Vet.App. 234 (2009), and
  • McNair v. Shinseki, 25 Vet.App. 98 (2011)
• express consent, see M21-1, Part IV, Subpart ii, 2.G.1.e, and
• implied consent, see M21-1, Part IV, Subpart ii, 2.G.1.f.

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

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

• 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.

Introduction

Change Date

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

• hospital care
• medical or surgical treatment, or
• examination.

• 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.

• VAOPGCPREC 7-1997, and
• M21-1, Part IV, Subpart ii, 2.G.2.a.

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

• by a VA employee, and/or
• in a VA facility.

• 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.

• 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).

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

• 38 CFR 3.361(d)(3), and
• M21-1, Part IV, Subpart ii, 2.G.3.g.

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

• 38 CFR 3.361(d)(3), and
• M21-1, Part IV, Subpart ii, 2.G.3.g.

Introduction

Change Date

IV.ii.2.G.3.a.  Definition:  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.

• 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.

• proximate cause, see 38 CFR 3.361(d)
• considering disabilities resulting from VA facilities or arising due to other events occurring at the time of VA care, see
  • Mangham v. Shinseki, 23 Vet.App. 284, 289 (2009)
  • Bartlett v. Shinseki, 24 Vet.App. 328 (2011)
  • Viegas v. Shinseki, 705 F.3d 1374 (Fed.Cir. 2013)
  • Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005)
  • Sweitzer v. Brown, 5 Vet.App. 503 (1993), and
  • VAOPGCPREC 1-1999
• proximate cause associated with claims based on additional disability or death caused by provision of training and rehabilitation services or a CWT program, see M21-1, Part IV, Subpart ii, 2.G.3.g
• the fault requirement for proximate cause due to care provided by VA, seeM21-1, Part IV, Subpart ii, 2.G.3.c, and
• determinations pertaining to continuance or natural progression of a disease, see M21-1, Part IV, Subpart ii, 2.G.4.f.

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

• 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.

• the criteria for establishing fault, see
  • M21-1, Part IV, Subpart ii, 2.G.3.c, and
  • Mangham v. Shinseki, 23 Vet.App. 284, 289 (2009)
• determining whether an event was not reasonably foreseeable, see M21-1, Part IV, Subpart ii, 2.G.3.e, and
• the change in the threshold requirement for proximate cause effective October 1, 1997, see M21-1, Part IV, Subpart ii, 2.G.3.d.

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

• 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.

• 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.

• Gardner v. Derwinski, 1 Vet.App. 584 (1991), 513 U.S. 115(1994)
• PL 104-204, Section 422, and
• VAOPGCPREC 5-2001.

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

• 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.

• informed consent, see
  • 38 CFR 17.32
  • M21-1, Part IV, Subpart ii, 2.G.1.d, and
• determining the foreseeability of an event, see Schertz v. Shinseki, 25 Vet.App. 362 (2013).

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

• VA medical care actually caused the disability or death, and
• the disability or death was a foreseeable risk of VA negligent conduct.

• 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.

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

• 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.

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

• 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.

• VA medical care and the non-VA treatment, and
• the unforeseen event occurring during the non-VA treatment and the disability.

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

• 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.

• 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.

• the definition of proximate cause, see M21-1, Part IV, Subpart ii, 2.G.3.a
• vocational rehabilitation services covered under 38 U.S.C. 1151, see M21-1, Part IV, Subpart ii, 2.G.2.d, and
• CWT services covered under 38 U.S.C. 1151, see M21-1, Part IV, Subpart ii, 2.G.2.e.

Introduction

• an act of omission
• premature discharge
• medication
• error in judgment
• failure to follow the established standard of care
• failure to diagnose or treat, and
• Veteran’s failure to follow medical instructions.

Change Date

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

• 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.

• failure-to-diagnose claims under 38 U.S.C. 1151, see Roberson (C.) v. Shinseki, 607 F.3d 809-817 (2010)
• acts of omission, see VAOPGCPREC 5-2001
• informed consent, see
  • M21-1, Part IV, Subpart ii, 2.G.1.d, and
  • 38 CFR 17.32, and
• the natural progression of a disease or injury, see
  • 38 CFR 3.361(c)(2), and
  • M21-1, Part IV, Subpart ii, 2.G.4.f.

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

• was too early, and
• led to a relapse and worsening of the disability.

• 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

• fault on the part of the VA, or
• an incident that could not have been reasonably foreseen.

• 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

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

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

• 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.

• Roberson (C.) v. Shinseki, 607 F.3d 809-817 (2010), and
• VAOPGCPREC 5-2001.

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

• failed to follow post-treatment medical instructions, and
• incurred or aggravated a disability that would not have developed had he/she followed instructions.

Introduction

• claims for benefits under 38 U.S.C. 1151
• entitlement to 1151 compensation vs. service connection
• disability secondary to an 1151 disorder
• 1151 disability based on aggravation
• paired organs or extremities and 38 U.S.C. 1151
• obtaining records in 1151 claims
• requesting medical opinions in 1151 claims, and
• obtaining an advisory opinion for 1151 claims.

Change Date

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

• soliciting claims based on evidence of record, see M21-1, Part III, Subpart iv, 6.B.5.a
• claims for benefits under 38 U.S.C. 1151, see 38 CFR 3.154, and
• form requirements for claims, see M21-1, Part III, Subpart ii, 2.B.1.a-b.

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

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

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

• VA hospital care, medical or surgical treatment, examination, or
• participation in a course of vocational rehabilitation or a CWT program.

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

• M21-1, Part IV, Subpart ii, 3.C.1, and
• VAOPGCPREC 73-1990.

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

• 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.

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

• 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.

• 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.

• obtaining independent medical opinions under 38 CFR 3.328, see M21-1, Part III, Subpart iv, 3.F.6
• requesting medical opinions for claims under  38 U.S.C. 1151, see M21-1, Part III, Subpart iv, 3.A.7.g
• the legal standard for determining whether to schedule an examination or opinion in connection with a 38 U.S.C. 1151 claim, see Trafter v. Shinseki, 26 Vet.App. 267 (2013), and
• the use of medical treatise information for the purpose of establishing nexus or causation, see Sacks v. West, 11 Vet.App. 314 (1998).

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

Introduction

• considering direct and presumptive SC in 1151 claims
• preparing the rating decision for
  • 1151 grants, and
  • 1151 denials
• assigning an effective date for 1151 compensation
• combining the disability ratings of qualifying 1151 disabilities and SC disabilities
• possible eligibility for ancillary benefits based on qualifying 1151 disability, and
• ancillary benefits not available by reason of a qualifying 1151 disability.

Change Date

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

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

• explains the basis for denial of benefits under 38 U.S.C. 1151, and
• satisfies the narrative decision element requirements communicated inM21-1, Part III, Subpart iv, 6.C.5.a.

• 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

• long-form rating narrative format, see M21-1, Part III, Subpart iv, 6.C.7, and
• evaluating medical evidence for a rating decision, see M21-1, Part III, Subpart iv, 5.A.3.

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

• 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.

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

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

• a clothing allowance
• specially adapted housing benefits, including a special housing adaptation award, and
• automobile or adaptive equipment benefits.

• M21-1, Part IX, Subpart i, and
• M21-1, Part III, Subpart iv, 6.B.2.a and b.

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

• 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.