If you are a military veteran who became disabled because of something that happened while in the hands of the Veterans health care system or a VA training/rehab program, you may be entitled to disability benefits whether or not you bring a tort claim under the Federal Tort Claims Act. Title 38 U.S.C. Section 1151 allows the Department of Veterans Affairs to assign you a service-connected disability rating and pay monthly disability benefits (or a death benefit if this happened to a family member veteran who died because of the VA care). Under Section 1151, disability benefits may be paid for:
• Injuries received or worsened while receiving VA-sponsored medical treatment.
• Injuries received or worsened while pursuing a course of training or rehabilitation services under 38 U.S.C. Chapter 31 or participating in compensated work therapy under 38 U.S.C. 1718.
The basic idea of the law is that if you’re hurt or killed in connection with VA treatment, training or rehab, the law treats this injury as if you’re still on active military duty and had the same thing happen to you.
(This is an example of the law treating veterans actually better than active duty military, because any malpractice events or other injuries that happen to an active-duty person are eligible for disability pay but NOT any FTCA claim. Veterans can choose either or both the disability claim or the FTCA action.)
In order to meet the qualifications of 38 U.S.C. 1151, the cause of additional disability or death must be:
• carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or
• an event not reasonably foreseeable, or
• the provision of
– training and rehabilitation by VA or one of its service providers as part of an approved rehabilitation program under 38 U.S.C. Chapter 31, or
– a compensated work therapy program.
Example 1: “A Veteran was pursuing training under VA’s Chapter 31 Vocational Rehabilitation and Employment program. He was receiving on-the-job training as a car mechanic. During training, a jack slipped from a car and crushed his left foot. Disability compensation may be paid for his foot injury because the injury occurred while the Veteran was pursuing training under a VA Vocational Rehabilitation and Employment program.” – US Department of Veterans Affairs.
Example 2: A Veteran is admitted to a VA sponsored hospital for a routine tonsillectomy and suffers frhttps://www.benefits.va.gov/COMPENSATION/claims-special-1151.aspom a heart attack or stroke. Even if the tonsillectomy was performed non-negligently (meaning it adhered to the required standard of care owed to patients), because heart attack and stroke are not reasonably foreseeable complications from this procedure, compensation still may be paid under 38 U.S.C. 1151.
• Benefits awarded for disability get deducted from any FTCA judgment or settlement so that the government doesn’t pay twice for the same injury.
• The legal standard for such claims is EITHER negligence or merely “an event not reasonably foreseeable”. That means you don’t have to prove the VA facility violated any standards of medical care.
• This is an administrative process completely separate from an FTCA claim. If you believe you are eligible to receive benefits under Section 1151, you can apply online at: https://www.ebenefits.va.gov/ebenefits/about/feature?feature=disability-compensation