1151 Claims – What Is It & How Do I file?

While the VA offers medical treatment, support programs, and disability pay to veterans who are injured or disabled while in active service, it may also be held accountable for further harm inflicted upon veterans directly under its care. Veterans who suffer further injury, disability, or death while under VA medical care or rehabilitative programs and services may qualify for additional service-connected disability compensation as defined by 38 U.S. Code § 1151. If you, as a veteran, veteran’s spouse or dependent, have a strong claim and supporting evidence that points to VA medical malpractice or negligence being directly responsible for further injury or disability, an 1151 claim is the most direct way to pursue additional compensation.

What is a Section 1151 Claim

As defined by 38 U.S. Code § 1151, this claim amounts to compensation to be “awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected.” Therefore, should you qualify, your compensation is rewarded in the same way as your VA disability pay: a payable monthly benefit. Highly important to this section is that the disability or death cannot be the “result of the veteran’s willful misconduct”, and must instead be the direct result of one of the following proximate causes while under hospital care, medical or surgical treatment, or examination:

• Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination
• an event not reasonably foreseeable
• by the provision of training and rehabilitation services (…)
• as part of an approved rehabilitation program or in a compensated work therapy (CWT) program.

How to Make Your 1151 Claim

If you believe you qualify for additional compensation, you must start by filing a claim the same way you file for your initial VA disability pay, by submitting VA Form 21-526, while specifying that your new claim is to seek benefits under Section 1151. Supporting evidence also must be provided showing direct causation from VA medical care or VA programs to your current disability.

Should there be a strong case for compensation as a result of a veteran’s death, the veteran’s surviving spouse or dependents may file the Section 1151 claim.

Section 1151 Vs. Federal Tort Claims

Veterans exploring compensation under Section 1151 may also come across federal tort claims as another avenue for seeking relief. Rather than taking the straightforward approach by which an 1151 claim seeks additional monthly compensation, a federal tort takes the form of a lawsuit against the VA for harm caused by negligence on the part of a VA employee or person acting on the VA’s behalf. It could, for instance, cover injuries caused by either a negligent doctor or a janitor failing to mark a recently mopped floor.

Federal torts offers a broader scope by which to seek compensation, but they require much more evidence, are verifiably harder to win, and result in a lump sum payout should you win. One may be worth pursuing, but if you are entitled to monthly compensation as a direct result of the proximate causes listed above, a Section 1151 claim is still your first, and best, option.

Assistance for Filing a Claim

Section 1151 claims are especially difficult to get approved. If you plan to file your first 1151 claim, or have been rejected and plan to appeal, hiring a skilled attorney who specializes in VA disability can ensure that you are making the best possible, well-supported claim. VA Disability Group PLLC is ready to take on your claim to get you the compensation you qualify for. Contact us online or call us at 1-844-VET-LAWS to request a consultation now.