Have You Been Injured by the VA?
If you are a veteran and have been injured as a result of VA medical care, you could be eligible for additional benefits by filing a Section 1151 VA claim.
This article will discuss a Section 1151 VA Claim and how veterans can file and win their claim. We will also review the evidence needed to prove your case and the statute of limitations for filing an 1151 VA Claim.
This type of claim is notoriously difficult to win, so making a solid case for yourself is important.
- Have You Been Injured by the VA?
- What is an 1151 VA Claim?
- Am I eligible for an 1151 claim?
- How to win an 1151 claim
- How can I prove the VA is at fault?
- What type of medical opinion is required for an 1151 claim?
- How to File a Section 1151 VA Claim
- Can someone please explain to me what 1151 denied means?
- What happens if my 1151 VA claim is denied?
- Is there a time limit for filing an 1151 claim?
- About the Author
What is an 1151 VA Claim?
A Section 151 claim is a type of VA claim filed by a veteran with an injury or illness resulting from negligence or malpractice during VA treatment. According to 38 USC § 1151, as a veteran, you’re eligible for benefits and compensation if you were harmed under VA care. This could be from VA treatment, hospitalization, examination, surgery, or training.
Am I eligible for an 1151 claim?
To be eligible for an 1151 VA claim, you must either have a new disability or a current disability that worsened due to VA care. A veteran’s family can also file an 1151 claim if a veteran dies because of negligent VA care.
So what exactly is VA care, and what types of VA care qualify? You can file an 1151 VA claim under several different circumstances.
If your disability worsened or a new one developed due to any of these types of VA care, you could be eligible for compensation. Care includes:
- Carelessness or negligence on the part of the VA or
- Medical or surgical treatment received from the VA or
- A health exam given by the VA or
- A vocational rehabilitation course taken through the VA (Chapter 31 benefits) or
- Compensated work therapy received from the VA
To be eligible for compensation, you must prove proximate cause.
What is “proximate cause”?
Under 38 U.S.C. § 1151, a veteran must show that the VA caused their disability or worsened it; this is also called proximate cause.
How to win an 1151 claim
You need to prove four things to win an 1151 VA claim:
- You have a new or worsened disability
- Your disability is not due to your own willful misconduct or the normal progression of another disability
- Your VA treatment, hospitalization, examination, surgery, or training caused your disability
- The VA is at fault or that your disability resulted from an event that wasn’t foreseeable (more on this below)
How can I prove the VA is at fault?
There are three different ways you can prove the VA is responsible under VA law:
- Negligence caused the disability or death
- Events not reasonably foreseeable caused the disability or death
- VA Vocational Rehabilitation Therapy caused the disability or death
To prove that VA was careless in their work and caused your additional disability or death, you must show that the hospital care, medical or surgical treatment, or examination caused the veteran’s disability (or death).
To meet this threshold, you must show that either the VA didn’t provide a reasonable level of care or they didn’t get informed consent.
The VA failed to provide the level of care that is expected of a reasonable health care provider.
Examples could include:
- Medication errors
- Diagnosis errors
- Surgical mistakes
- Birth injuries
The VA didn’t get informed consent before treating the veteran. This could be either from the veteran or an authorized representative (if there’s an approved VA power of attorney).
Informed consent must be in easy-to-understand language and includes the following main elements:
- The nature of the proposed procedure or treatment
- Expected benefits
- Reasonably foreseeable associated risks
- Complications or side effects
- Reasonable and available alternatives
- Anticipated results if nothing is done
- Explain if the treatment is unorthodox
Many high-risk procedures require a patient signature before they take place. Veterans must understand the possible risks associated with their procedure before agreeing to it to have informed consent (informed consent can be expressed or implied).
What if I’m not able to give my consent?
If you cannot consent, waiting would increase the hazard to your life, or you need immediate medical care to preserve your life; this is implied consent and counts instead of informed consent.
Example of no informed consent
One recent case example involves a veteran who died as a result of radiation therapy to treat Hodgkin’s disease. Unfortunately, the veteran ended up passing away from treatment complications even though it improved his Hodgkin’s lymphoma.
The veteran’s family filed an 1151 VA claim in 2019 and ended up winning the claim as the veteran had never signed a document indicating there was informed consent. Radiation treatments are dangerous, and the VA must inform veterans of the possible side effects. In this case, there was no evidence that this ever happened.
2. Events not reasonably foreseeable
The VA can also be held responsible if a veteran develops a disability that a reasonable health care provider would not have foreseen as a result of treatment.
In this case, the veteran must prove that their practitioner could not have predicted their disability.
Example of an event reasonably foreseeable
An example is a case from 2013, where a veteran underwent a graft surgery and, as a result, developed partial paralysis. The veteran filed an 1151 claim stating his paralysis was not a foreseeable event, but the VA doctor had discussed that the risk of paralysis was very low but still possible. The veteran appealed the first decision not to award benefits, but because a reasonable health care provider had foreseen this result, the appeal was also denied.
3. VA Vocational Rehabilitation or Compensated Work Therapy
VA vocational rehabilitation (or Chapter 31 benefits) is a program that helps veterans with service-connected disabilities find and maintain civilian employment.
If you develop a disability due to working for a VA-funded vocational rehabilitation, you could be eligible for 1151 related benefits. The VA will look at the time and place where the injury occurred to make sure that the program caused your disability.
Compensated Work Therapy (CWT) is a VA-run program that matches veterans with mental health or physical disabilities with local businesses. Veterans can either be directly hired by businesses or enter a transitional program where they are paid directly by the VA.
If you developed another disability due to working under VA compensated CWT, you could be eligible for 1151 related benefits for that disability.
What type of medical opinion is required for an 1151 claim?
To win an 1151 VA claim, you need a medical opinion from an objective source that proves two things. We refer to these opinions as a medical nexus. A well-written nexus letter is essential to help you prove your case and win your claim.
The medical opinion must come from a doctor outside the VA healthcare system.
The nexus must prove that your disability was caused by your VA treatment AND also resulted from the VA’s negligence. Your nexus is a medical opinion that links your disability with the VA-related cause.
This nexus must be clear and confirm that your disability results directly from VA care. The author must include an analysis that can stand up in court.
To prove your case and provide a thorough analysis, the doctor must show that they are fully aware of your relevant medical history for the case. We recommend ensuring the doctor has a copy of your entire VA claims file and other relevant medical records.
Note: you can request a copy of your VA claims file (C-File) by contacting your local regional office and completing VA Form 3288.
Your nexus is significant because it’s your chance to prove to the VA that your disability was “at least as likely as not” caused by the VA. This is based on the VA’s benefit-of-the-doubt guidance. According to VA law, a “tie” between the VA and the veteran must award in favor of the veteran.
Finding a competent and credible doctor who understands the VA system and can write a well-connected nexus will significantly improve your chances of winning your 1151 VA claim.
How to File a Section 1151 VA Claim
To file a VA claim, complete VA Form 21-526, Application for Disability Compensation and Related Benefits. This is the standard form used to apply for VA disability benefits.
You’ll want to include on the form that you’re filing for benefits under Section 1151. Make sure to include all of your related evidence when making an 1151 claim, including your nexus letter.
Read our post on how to file a VA claim to learn more.
Can someone please explain to me what 1151 denied means?
If you’re notified that you’ve been denied benefits for a disability related to Section 1151, this means that the VA is not taking responsibility for causing your disability.
For instance, if you check va.gov and see that you’ve been denied a traumatic brain injury claim related to 1151, the VA has determined they don’t owe you benefits for causing your TBI.
If you believe the VA did cause your TBI, you can read the VA’s rationale in the decision letter that you should receive within two weeks of the VA decision. You can use this rationale to file an appeal.
What happens if my 1151 VA claim is denied?
If you’ve filed an 1151 VA claim and been denied, don’t give up! All veterans deserve compensation for service-connected disabilities, but this is even more true if you were injured while under the care of the VA.
You have three different options when it comes to appealing a Section 1151 VA claim:
For most veterans, we recommend appealing with a supplemental claim request using VA Form 20-0995. For this type of appeal, you will need to provide new evidence to support your claim. This type of appeal is usually processed the quickest, but you must appeal within one year of the date of your denial.
Your next step is to appeal the decision. At VA Claims Insider, our team of experienced coaches can help you win your 1151 VA claim!
Is there a time limit for filing an 1151 claim?
No, there is no 1151 claim time limit. You can file an 1151 VA claim at any time. However, it usually benefits veterans to file early. The VA will often backdate benefits Section 1151 claims to the date of the disability if the claim is filed within one year of the disability.
About the Author
Brian Reese is one of the top VA disability benefits experts in the world and bestselling author of You Deserve It: The Definitive Guide to Getting the Veteran Benefits You’ve Earned (Second Edition).
Brian’s frustration with the VA claim process led him to create VA Claims Insider, which provides disabled veterans with tips, strategies, and lessons learned to win their VA disability compensation claim, faster, even if they’ve already filed, been denied, gave up, or don’t know where to start.
As the founder of VA Claims Insider and CEO of Military Disability Made Easy, he has helped serve more than 10 million military members and veterans since 2013 through free online educational resources.
He is a former active duty Air Force officer with extensive experience leading hundreds of individuals and multi-functional teams in challenging international environments, including a combat tour to Afghanistan in 2011 supporting Operation ENDURING FREEDOM.
Brian is a Distinguished Graduate of Management from the United States Air Force Academy, Colorado Springs, CO, and he holds an MBA from Oklahoma State University’s Spears School of Business, Stillwater, OK, where he was a National Honor Scholar (Top 1% of Graduate School class).