1151 Claim (Tort)

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Compensation for disabilities caused, disabilities made worse, or death as a result of the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department of Veterans affairs in furnishing the hospital care, medical or surgical treatment, or examination, or caused by participation in a compensated work therapy program, such as Veteran Readiness and Employment.

IMPORTANT NOTES:

  • If you were previously denied service-connection for a condition and are now claiming that condition under 1151 (or vice versa), do NOT file an Appeal! As a claim under 1151 is NOT a claim for service-connection!

    • However, if you were denied under 1151 and are again filing under 1151 for the condition, you WOULD need to file an appeal!

  • Grants under 1151 do NOT establish service-connection! Grants instead establish compensation as if the condition was service-connected.

  • If you are awarded a judgment against the United States (VA) in a civil action (Federal Tort Claim) due to the VA causing a disability NO disability benefits will be paid out until the amount paid out to the Veteran via the judgement equals out!

Winning a Claim

In order to win the claim the Veteran's claim needs to contain the following 3 elements:

  1. An event that meets the below criteria.

  2. Disability or death that began or was made worse after element 1 occurred.

  3. A Nexus letter/independent medical opinion that finds element 1 caused element 2.

There is no special or separate form to file a 1151 claim. The Veteran simply needs to identify it as being a 1151 claim when filing their Claim.

To assist the VA in obtaining relevant records you need to identify:

  • Where the event occurred in;

  • Approximately when the event occurred; and

  • Explain how the provider messed up.

IMPORTANT NOTE:

  • If a grant is based on aggravation then the condition will be evaluated under the formulation shown HERE in the pre-service example.

Detailed Explanation of Criteria

Compensation can be paid for disabilities that result from, are aggravated beyond their natural progression, or cause death due to:

  • Acts of omission;

    • Failure to obtain INFORMED consent PRIOR to treatment;

    • Failure to provide a timely diagnosis or treatment for a disability.

  • Compensated work therapy program, such as Veteran Readiness and Employment;

    • Disability or death caused by direct participation in the program.

      • Meaning if you get hurt/sick while just being in a program (at large), is NOT enough! The disability MUST be a result of doing something required to complete the program. So for instance getting hurt due to falling down the stairs at home while you are in a program would NOT be covered.

  • Error in judgment;

    • Errors involving negligence. This does NOT include errors that are the result of a misdiagnosis/treatment that are later found to be incorrect. Meaning, doctors are human and medicine is not always an exact science so not every error is due to negligence!

  • Examinations;

  • Failure to diagnose or treat;

    • A determination that a physician exercising proper skill and care required by their profession would have reasonably been able to diagnose the condition and provide treatment. The VA WILL get a third party to provide a medical opinion on this matter if necessary.

      • This failure MUST have resulted in disability or death that would have probably been avoided had a proper diagnosis and treatment been given.

  • Failure to follow the established standard of care;

    • When the standard of care is not followed due to things like carelessness, negligence, lack of skill, etc.

  • Medication;

    • Disability caused by the prescribing of the wrong dosage/medication.

  • Premature discharge.

    • Disability was caused by or aggravated beyond its natural progression due to being released too soon.

IMPORTANT NOTES:

  • If a disability is due to another patient (non-staff) while NOT under care/examination, the disability is NOT eligible for compensation under 1151!

  • If a disability is the result of the Veteran failing to follow medical instructions and this conclusion can be reasonably supported then a DENIAL is warranted!

  • If a disability or death is found to be the typical or natural progression of a disease of injury then compensation CANNOT be awarded.

  • Disabilities that are the result of reasonable care/treatment outcomes are NOT eligible for compensation (these are typically spelled out before consent for treatment is given).

Ancillary Benefits (Additional Benefits)

Veterans who are granted compensation under 1151 may be eligible for additional benefits such as:

Forbidden Ancillary Benefits

The following benefits CANNOT be based on any disabilities which have been granted via 1151! If the Veteran establishes eligibility for these benefits outside of 1151 grants then they will get them!

  • 10-point Civil Service Preference

  • Life insurance (cannot apply based on a grant of 1151);

  • CHAMPVA

  • Chapter 31 education benefits;

  • Chapter 35 (DEA) benefits;

  • Loan guaranty (surviving spouses)

  • Waiver of loan guaranty fee

Frequently Asked Questions

  • 1151 claims cover:

    • Aggravation of pre-existing conditions;

    • New disabilities; and

    • Deaths.

    Caused by VA care and compensated work therapy program (in the circumstances mentioned above).

    • Agreement by the Veteran or their surrogate about a treatment AFTER information about the treatment has been provided to the veteran and they have been given the opportunity to ask questions.

    IMPORTANT NOTE:

    • If there is an EMERGENCY situation in which consent CANNOT be obtained due to immediate care needs, then consent does NOT need to be obtained!

      • You arrive in the ER and cannot respond by speech or other means. And waiting for any possible surrogate to response would likely result in death or permanent/worsening disability.

  • It depends…

    • YES if:

      • The VA referred you to a non-VA facility who conducted the referred procedure;

      • If not for the VA referral the Veteran would not have suffered disability/death; AND

      • VAs carelessness, negligence, lack of proper skill, error in judgement, resulted in disability/death.

    • Yes, you can claim conditions that developed or were aggravated by your 1151 granted condition.