A veteran injured in a VA hospital or other facility can either pursue disability compensation through the Department of Veterans Affairs (VA) and/or file an administrative claim for damages under the Federal Torts Claims Act (FTCA). If you file and win both claims, however, the disability benefits will be offset by the FTCA damages awarded. This article will cover how to get disability compensation through the VA for injuries that are caused by the VA. If you want to file an FTCA claim, you'll need to consult with a disability attorney.
Disability compensation available to veterans injured at VA facilities is commonly referred to as “Section 1151” benefits. Section 1151 is a reference to the section of veterans law (Title 38 of the United States Code) that covers compensation for these injuries. Under this law, for purposes of awarding compensation, VA will consider injuries at VA facilities as "service-connected."
If a veteran is receiving treatment from a VA facility for a service-connected disability, and the treatment makes that disability worse or creates a secondary condition, the veteran does not have to file a Section 1151 claim. Instead, the veteran can simply request an increase in compensation benefits or make a new claim for the secondary condition under normal disability compensation procedures.
In most cases, to obtain compensation, a veteran must be able to show that the injury would not have occurred but for the accident or fault on the part of the VA.
Injuries (or deaths) caused at vocational facilities or VA compensated work therapy (CWT) programs require less proof that those occurring at a VA inpatient or outpatient clinic or hospital. All that is required for these injuries is to show that the VA training, rehabilitation services, or CWT caused the injury.
For claims relating to hospital care, medical treatment, surgery, or a medical exam, a veteran must prove that the VA caused the injury or death through:
If a medical error was made, it will be essential to get a medical opinion from a private physician, if you can afford it. This doctor can review your medical records and make an independent assessment of whether medical malpractice was involved.
The VA will often argue that you don't deserve compensation because you were already disabled and you don't have proof that the VA doctor or facility made your condition worse. This is why it is so important to get an opinion from a non-VA doctor whenever possible.
Unless you can prove a clear cut case of negligence (failure to exercise reasonable care) and that the VA failed to provide informed consent of the risks involved, these claims are difficult to win. (In the case of surgery, major surgeries often have complex risks involved, and doctors performing high-risk operations cannot assure satisfactory results. A veteran who consented to those risks and then suffers one of the dire consequences likely has no claim, even though he or she may feel there was malpractice.)
The VA will review the evidence that supports your claim and the evidence that hurts your claim. All of this evidence will be viewed in the light of giving you the benefit of the doubt. But it is still a hard hurdle to prove that, if it were not for the VA's negligence, you would not have suffered the injury.
You have to prove not only that the VA was at fault in some way, but also that whatever the VA did wrong actually caused your injury or disability. Then, you have to show that the VA didn't exercise reasonable care in providing services to you or prove that the injury resulted from an event you could not have reasonable expected to occur in the course of receiving services.
Note that benefits will not be paid under Section 1151 to a veteran whose willful misconduct led to the injury or death. Likewise, no benefits will be paid unless the health care was being provided in a VA facility or by a VA employee.
There is no specific form to use to apply for Section 1151 benefits, so you can either write the VA a letter or use the VA form called Statement of the Case, which you can find at www.va.gov/forms. There is no statute of limitations on disability compensation claims, so even if your injury occurred a long time ago, you can still apply.
As Section 1151 claims are notoriously difficult to win, you may want help from a disability attorney.