Getting approved for VA disability benefits or healthcare is a great accomplishment. After all the paperwork, interviews, and medical exams finally getting your approval letter can feel like an incredible victory. Due to the massive VA backlog, many veterans struggle to get the help they need. For the veterans who do finally get scheduled for physical therapy or a much needed operation, the battle seems to be over.
After all, the approval stamp is on the forms and their name is on the doctor’s schedule, so now the healing can begin. Sadly, a new fight might be waiting around the corner for some veterans.
This means veterans who are getting treatment for an injury or disability can sometimes be further injured by the VA. When this happens veterans do have options for help.
The most common reaction to this situation is to file a section 1151 claim. The name of the claim comes from the section of law that allows veterans to file claims for injuries caused by VA treatment. This kind of claim allows veterans to automatically establish service connection for their injury. They have to follow VA claims process to claim.
There are a handful of benefits that are not available through section 1151 claims, even though they are provided for service-connected compensation.
• 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 allowance under 38 U.S.C. 1312(a)
• The special allowance under Public Law (PL)
• The Civilian Health and Medical Program of
• VA (CHAMPVA)
• SC burial allowance
• Loan guaranty benefits for a surviving spouse
The location of the cause of injury will determine how much proof is needed and what kind of proof is needed. However, no matter where the injury happened veterans must prove the injury would not have happened if the VA was not at fault.
Less proof is required if the injury happened at a vocational facility or a VA compensated work therapy (CWT) program than if the injury happened at a VA inpatient or outpatient clinics or hospitals. For injuries at a vocational facility or CWT, all that veterans need to prove is that the injury happened as a result of the training, in order to receive benefits.
Injuries at a clinic or hospital require the veteran to prove the VA caused the injury due to negligence, carelessness, lack of proper skill, error in judgment, other fault, or an event that could not have been reasonably expected to occur.
In most cases veterans will need to get a doctor’s opinion if medical malpractice is involved. It’s a good idea to get an opinion of a private doctor, instead of another VA doctor. Often the VA will claim since the veteran was already disabled they cannot prove the treatment made the injury worse. A private doctor may be able to set the record straight.
Proving negligence can be very hard, especially if surgery was involved. Almost any kind of surgery, no
matter how minor, has some risks associated with it. Before surgery, a waiver will be signed that acknowledges the risks of the surgery. This waiver removes a lot of liability from the doctor. However if a blatant error is made, such as leaving an instrument in the patient, there can still be grounds for a section 1151 claim.
These waivers just apply to errors that are reasonably expected to happen during the course of an operation.
The Hard Part
As we said, getting approved for section 1151 claims is extremely difficult. The reason it is so difficult is that vets have a long list of items to prove. First, that the VA showed some sort of negligence or made an error. Just like anyone else, the VA does not like to admit when it is wrong, which is why veterans need to have undeniable evidence.
Next, vets need to prove the injury would not have happened naturally if the VA had not made the error. This can be very difficult in a section 1151 claim because the VA will often argue that everyone heals differently and complications are expected to happen during the recovery process.
Once fault has been established, vets must show that the VA’s negligence actually caused an injury that qualifies for more benefits. Basically, the injury needs to be able to qualify for an increased disability rating or, if it’s a completely new injury, a new claim.
There’s no statute of limitations for filing section 1151 claims, but the sooner the better.
Filing section 1151 claims is a bit different than other claims because there’s no specific form vets need to fill out. Veterans can either write a letter to the VA or fill out a statement of case form.
Because section 1151 claims are so hard to win, the best way to apply is by working with a VA benefits attorney. The burden of proof is placed heavily on the veteran when filing a section 1151 claim. There is a lot of information that needs to be gathered and it needs to be gathered in the correct way.
What Happens Next
After the application is complete the VA will make their decision. Again,
Section 1151 claims are incredibly hard to win, so the claim may be denied. However, if the VA does approve a claim for further injury the VA will pay the veteran compensation benefits as if the disability was service connected.
Likewise, the VA will pay the veteran’s surviving spouse, children, or family, dependency and indemnity compensation (DIC) benefits as if the death was service-connected, if the VA finds the death was caused by a VA personnel’s malpractice or negligence.
If the claim is denied, which is very possible, veterans can appeal the decision. Veterans who choose to appeal are strongly advised to contact a lawyer who is experienced with VA appeals process.
Section 1151 benefits offer a valuable service to veterans who have been hurt or killed by the negligence of the VA. Despite the difficulty of winning a section 1151 claim, veterans should never hesitate to file a section 1151 claim. Jan Dils Attorneys at Law is ready to help veterans who are fighting for their right to fair compensation.