VA Medical Care Made Me Worse. Can I Get Compensation? (1151 Claim)

VA medical care that leaves you with an added disability can be compensated under 38 U.S.C. § 1151, paid as if the disability were service connected. The care must have actually caused the added disability, and the cause must be VA fault (carelessness, negligence, lack of proper skill, error in judgment), treatment without your informed consent, or an event not reasonably foreseeable (38 C.F.R. § 3.361). An 1151 claim goes to VA as a disability claim; a Federal Tort Claims Act lawsuit is a separate route.

What an 1151 claim has to show

38 C.F.R. § 3.361 lays out the test:

1. 1An added disability. VA compares your condition immediately before the care began to your condition after it stopped (§ 3.361(b)). A disability you already had doesn't count unless the care made it worse.
2. 2Actual cause. The evidence must show the care, treatment, or exam resulted in the added disability (§ 3.361(c)(1)). Simply having had VA care beforehand isn't enough.
3. 3Proximate cause, one of these (§ 3.361(d)):

- Fault. VA failed to exercise the degree of care expected of a reasonable health care provider. - No informed consent. VA furnished the care without your informed consent. - An event not reasonably foreseeable. Something a reasonable health care provider would not have considered an ordinary risk of the treatment.

The statute also covers VA vocational rehabilitation and compensated work therapy programs, with their own rules (§ 3.361(d)(3)).

What doesn't count

• Natural progress of the condition. Care can't cause the continuance or natural progress of a disease or injury it was meant to treat, unless VA's failure to timely diagnose and properly treat it caused the continuance (§ 3.361(c)(2)).
• Not following medical instructions. Added disability caused by your failure to follow properly given medical instructions isn't caused by the care (§ 3.361(c)(3)).
• Known, ordinary risks you consented to. If a complication was a risk a reasonable provider would consider ordinary, and you gave informed consent, it generally doesn't qualify unless there was also fault.

The evidence that proves it

Most of the proof is in VA's own records:

• Treatment notes from before, during, and after the care, showing your condition at each point.
• The signed consent form and the note documenting what risks were discussed.
• Operative reports, procedure notes, and discharge summaries.
• Records of the follow-up care for the added disability.
• A medical opinion on causation and on fault or foreseeability, from a clinician who has reviewed the records. This is usually the decisive piece.
• Your own statement of what happened and what changed, and statements from people who saw it. Use VA Form 21-10210 (Lay/Witness Statement). See buddy statements.

Request your VA medical records early. See how to get your records.

How to file

File a disability claim on VA Form 21-526EZ or online at VA.gov, and say plainly that you are claiming compensation under 38 U.S.C. § 1151 for a disability caused by VA care, with the facility and dates. See VA Form 21-526EZ. An intent to file holds your start date while you gather records.

An 1151 claim vs. a Federal Tort Claims Act lawsuit

An 1151 claim is a VA benefits claim decided by VA. A tort claim under the Federal Tort Claims Act is a separate legal action against the government, with its own deadlines and process, and is a question for a lawyer. You can pursue both, but they interact: if you get a court judgment, settlement, or compromise for the same disability, 38 U.S.C. § 1151(b) stops 1151 payments until the benefits you would have received add up to the amount of that award. If you're considering a lawsuit, talk to a lawyer early, because the deadlines are separate from VA's.

Where we fit

VA Claim Commander can read your VA treatment notes, consent forms, and procedure records and lay out what happened in date order, with the page for each. It doesn't give the medical opinion on fault or foreseeability, and it can't advise on a lawsuit. A free VA-accredited Veterans Service Organization can help you file the 1151 claim. Find an accredited representative.

Frequently asked questions

What is a section 1151 claim?

It's a claim for VA compensation under 38 U.S.C. § 1151 for a disability caused by VA medical care, a VA exam, or certain VA programs. If granted, VA pays as if the disability were service connected.

Do I have to prove VA was negligent?

Not always. Under 38 C.F.R. § 3.361(d), you can show fault, such as negligence or an error in judgment, or that VA treated you without informed consent, or that the result was an event a reasonable health care provider wouldn't have considered an ordinary risk. In every case, the care must have actually caused the added disability.

What if I signed a consent form?

A signed consent form doesn't end the claim. If the complication was an ordinary risk you were told about and VA wasn't at fault, it generally won't qualify. But if VA was at fault, or the result wasn't a reasonably foreseeable risk, or the consent didn't meet VA's informed-consent requirements, it can still qualify.

Can I file an 1151 claim and sue VA at the same time?

You can pursue both, but if you get a judgment, settlement, or compromise for the same disability, 38 U.S.C. § 1151(b) stops 1151 payments until the withheld benefits equal that award. A lawsuit has its own deadlines, so talk to a lawyer about that route.

What evidence do I need for an 1151 claim?

Your VA treatment records from before and after the care, the consent form, procedure notes, and a medical opinion addressing whether the care caused the added disability and whether VA was at fault or the result wasn't reasonably foreseeable.