**§3.361 Benefits under 38 U.S.C. 1151(a) for additional disability or
death due to hospital**

> **care, medical or surgical treatment, examination, training and
> rehabilitation services, or compensated work therapy program.**

\(a\) *Claims subject to this section*.

\(1\) *General*. Except as provided in paragraph (2), this section
applies to claims received by VA on or after October 1, 1997. This
includes original claims and claims to reopen or otherwise readjudicate
a previous claim for benefits under 38 U.S.C. 1151 or its predecessors.
The effective date of benefits is subject to the provisions of
§3.400(i). For claims received by VA before October 1, 1997, see §3.358.

\(2\) *Compensated Work Therapy*. With respect to claims alleging
disability or death due to compensated work therapy, this section
applies to claims that were pending before VA on November 1, 2000, or
that were received by VA after that date. The effective date of benefits
is subject to the provisions of §§3.114(a) and 3.400(i), and shall not
be earlier than November 1, 2000.

\(b\) *Determining whether a veteran has an additional disability*. To
determine whether a veteran has an additional disability, VA compares
the veteran's condition immediately before the beginning of the hospital
care, medical or surgical treatment, examination, training and
rehabilitation services, or compensated work therapy (CWT) program upon
which the claim is based to the veteran's condition after such care,
treatment, examination, services, or program has stopped. VA considers
each involved body part or system separately.

\(c\) *Establishing the cause of additional disability or death*. Claims
based on additional disability or death due to hospital care, medical or
surgical treatment, or examination must meet the causation requirements
of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims
based on additional disability or death due to training and
rehabilitation services or compensated work therapy program must meet
the causation requirements of paragraph (d)(3) of this section.

\(1\) *Actual causation required*. To establish causation, the evidence
must show that the hospital care, medical or surgical treatment, or
examination resulted in the veteran's additional disability or death.
Merely showing that a veteran received care, treatment, or examination
and that the veteran has an additional disability or died does not
establish cause.

\(2\) *Continuance or natural progress of a disease or injury*. Hospital
care, medical or surgical treatment, or examination cannot cause the
continuance or natural progress of a disease or injury for which the
care, treatment, or examination was furnished unless VA's failure to
timely diagnose and properly treat the disease or injury proximately
caused the continuance or natural progress. The provision of training
and rehabilitation services or CWT program cannot cause the continuance
or natural progress of a disease or injury for which the services were
provided.

\(3\) *Veteran's failure to follow medical instructions*. Additional
disability or death caused by a veteran's failure to follow properly
given medical instructions is not caused by hospital care, medical or
surgical treatment, or examination.

\(d\) *Establishing the proximate cause of additional disability or
death*. The proximate cause of disability or death is the action or
event that directly caused the disability or death, as distinguished
from a remote contributing cause.

\(1\) *Care, treatment, or examination*. To establish that carelessness,
negligence, lack of proper skill, error in judgment, or similar instance
of fault on VA's part in furnishing hospital care, medical or surgical
treatment, or examination proximately caused a veteran's additional
disability or death, it must be shown that the hospital care, medical or
surgical treatment, or examination caused the veteran's additional
disability or death (as explained in paragraph (c) of this section); and

\(i\) VA failed to exercise the degree of care that would be expected of
a reasonable health care provider; or

\(ii\) VA furnished the hospital care, medical or surgical treatment, or
examination without the veteran's or, in appropriate cases, the
veteran's representative's informed consent. To determine whether there
was informed consent, VA will consider whether the health care providers
substantially complied with the requirements of §17.32 of this chapter.
Minor deviations from the requirements of §17.32 of this chapter that
are immaterial under the circumstances of a case will not defeat a
finding of informed consent. Consent may be express (i.e., given orally
or in writing) or implied under the circumstances specified in §17.32(b)
of this chapter, as in emergency situations.

\(2\) *Events not reasonably foreseeable*. Whether the proximate cause
of a veteran's additional disability or death was an event not
reasonably foreseeable is in each claim to be determined based on what a
reasonable health care provider would have foreseen. The event need not
be completely unforeseeable or unimaginable but must be one that a
reasonable health care provider would not have considered to be an
ordinary risk of the treatment provided. In determining whether an event
was reasonably foreseeable, VA will consider whether the risk of that
event was the type of risk that a reasonable health care provider would
have disclosed in connection with the informed consent procedures of
§17.32 of this chapter.

\(3\) *Training and rehabilitation services or compensated work therapy
program*. To establish that the provision of training and rehabilitation
services or a CWT program proximately caused a veteran's additional
disability or death, it must be shown that the veteran's participation
in an essential activity or function of the training, services, or CWT
program provided or authorized by VA proximately caused the disability
or death. The veteran must have been participating in such training,
services, or CWT program provided or authorized by VA as part of an
approved rehabilitation program under 38 U.S.C. chapter 31 or as part of
a CWT program under 38 U.S.C. 1718. It need not be shown that VA
approved that specific activity or function, as long as the activity or
function is generally accepted as being a necessary component of the
training, services, or CWT program that VA provided or authorized.

\(e\) *Department employees and facilities*.

\(1\) *A Department employee is an individual*:

> \(i\) Who is appointed by the Department in the civil service under
> title 38, United States Code, or title 5, United States Code, as an
> employee as defined in 5 U.S.C. 2105;
>
> \(ii\) Who is engaged in furnishing hospital care, medical or surgical
> treatment, or examinations under authority of law; and
>
> \(iii\) Whose day-to-day activities are subject to supervision by the
> Secretary of Veterans Affairs.

\(2\) *A Department facility* is a facility over which the Secretary of
Veterans Affairs has direct jurisdiction.

\(f\) *Activities that are not hospital care, medical or surgical
treatment, or examination furnished by a Department employee or in a
Department facility*. The following are not hospital care, medical or
surgical treatment, or examination furnished by a Department employee or
in a Department facility within the meaning of 38 U.S.C. 1151(a):

> \(1\) Hospital care or medical services furnished under a contract
> made under 38 U.S.C. 1703.
>
> \(2\) Nursing home care furnished under 38 U.S.C. 1720.
>
> \(3\) Hospital care or medical services, including examination,
> provided under 38 U.S.C. 8153 in a facility over which the Secretary
> does not have direct jurisdiction.

\(g\) *Benefits payable under 38 U.S.C. 1151 for a veteran's death*.

\(1\) *Death before January 1, 1957*. The benefit payable under 38
U.S.C. 1151(a) to an eligible survivor for a veteran's death occurring
before January 1, 1957, is death compensation. See §§3.5(b)(2) and 3.702
for the right to elect dependency and indemnity compensation.

\(2\) *Death after December 31, 1956*. The benefit payable under 38
U.S.C. 1151(a) to an eligible survivor for a veteran's death occurring
after December 31, 1956, is dependency and indemnity compensation.
(Authority: 38 U.S.C. 1151)

\[69 FR 46433, Aug. 3, 2004\]

**Supplement *Highlights* reference**: 63(1).