d. Type of VA Care Considered Under 38 USC 1151 For the purposes of , the types of VA care that can cause the disability or death include hospital care medical or surgical treatment, or examination. Refer to the table below for more information on these types of VA care. Type of Care Definition References Hospital care The term hospital care encompasses, at a minimum, services unique to the hospitalization of patients. Whether there was hospital care for the purpose of depends on a variety of factors, including the nature of services degree of VA control over patient freedom mental and physical condition of patients, and foreseeability of potential harm. For more information on the definition of hospital care, see , 24 Vet. App. 328 (2011) , 705 F.3d 1374 (Fed.Cir. 2013) , 23 Vet.App. 284, 289 (2009), and , and the difference between hospitalization under and hospital care under , see M21-1, Part IV, Subpart ii, 2.G.1.r. Medical or surgical treatment The term treatment is defined as the institution of measures or the giving of remedies designed to cure a disease, Stedman’s Medical Dictionary 1320 (3rd ed. 1972), or the management and care of a patient for the purpose of combating disease or disorder. Dorland’s Illustrated Medical Dictionary 1736 (28th ed. 1994). For the purpose of authorizing compensation For more information on the definition of medical or surgical treatment see .
hospital care or medical services, including examination, provided under in a facility over which the Secretary does not have direct jurisdiction, or domiciliary care, per , 23 Vet.App. 284, 289 (2009). Important: For the purposes of compensation under , the disability or death must result from the medical treatment or examination itself and not from independent causes occurring coincidentally with the treatment or examination. Note: Disability compensation may not be paid under for additional disability incurred as a result of a medical procedure conducted by a non-VA employee in a non-VA facility even if a VA physician had provided advice or recommendation concerning such procedure to the Veteran. See 2015 WL 6507830 (Oct. 15, 2015). Reference: For more information on determining whether disability or death results from independent causes occurring coincident with the treatment or examination, see . f. Vocational Rehabilitation Services Covered Under 38 U.S.C. 1151 Compensation will be paid for disability or death that is proximately caused by training and rehabilitation services provided as part of an approved rehabilitation program under . Note: This includes training and rehabilitation services provided by VA under . Reference: For more information on establishing causation for disability or death incurred due to training and rehabilitation services, see , and M21-1, Part IV, Subpart ii, 2.G.1.o. g. CWT Services Covered Under 38 U.S.C. 1151 Compensation will be paid for disability or death that is proximately caused by participation in a CWT program under . Note: PL 106-419 authorized the grant of compensation for disability or death proximately caused by participation in CWT effective November 1, 2000. Reference: For more information on establishing causation for disability or death incurred due to participation in a CWT program, see , and M21-1, Part IV, Subpart ii, 2.G.1.o. h. Definition: Proximate Cause Proximate cause is the action or event that directly caused the disability or death, as
a. 1151 Disability Resulting From an Act of Omission Entitlement to compensation under may be based on acts of omission as well as acts of commission in providing hospital care, medical or surgical treatment, or examination. An act of commission occurs when an action results in disability or death. An act of omission under occurs when VA fails to perform one of the following actions and additional disability or death results: timely diagnose or properly treat a disability, thereby causing increased disability or death, and/or obtain informed consent from the Veteran or the Veteran’s representative prior to treatment. References: For more information on failure-to-diagnose claims under , see , 607 F.3d 809-817 (2010) acts of omission, see informed consent, see M21-1, Part IV, Subpart ii, 2.G.1.k, and , and the natural progression of a disease or injury, see , and M21-1, Part IV, Subpart ii, 2.G.1.o. b. 1151 Disability Resulting From Premature Discharge Compensation may be payable under when a physician determines that a patient should be discharged from a hospital after a period of treatment, but the patient claims that the discharge was too early, and led to a relapse and worsening of the disability. Consider whether the timing of the discharge aggravated the disability beyond the level of natural progression. Notes: Development for medical records should include a request for a medical certificate indicating that the Veteran’s condition at discharge was not stable, and discharge was premature. A medical opinion may be necessary in such a case.
4. Preparing a Rating Decision Under 38 U.S.C. 1151 Introduction This topic contains information on preparing a rating decision involving a claim for benefits under 38 U.S.C.1151, including considering direct and presumptive SC in 1151 claims preparing the rating decision for 1151 grants preparing the rating decision for 1151 denials assigning an effective date for 1151 compensation combining the disability ratings of qualifying 1151 disabilities and SC disabilities possible eligibility for ancillary benefits based on qualifying 1151 disability, and ancillary benefits not available by reason of a qualifying 1151 disability. Change Date May 14, 2015 a. Considering Direct and Presumptive SC in 1151 Claims Do not put direct or presumptive service connection (SC) at issue if the only issue raised is compensation under and the disability is clearly one that arose many years after service or coincident with treatment. Note: Undertake development and consider awarding SC on a presumptive basis if the disability in question arose within the applicable presumptive period following release from active duty. b. Preparing the Rating Decision for 1151 Grants System-generated text is legally adequate for most grants of benefits under . Grants of compensation under can be completed in short form rating narrative format. No additional text is necessary for the automated decision letter (ADL) document when ADL procedures can be used. Supplement the rating narrative language with a brief discussion of the event that resulted in additional injury or death. Important: Although the regulatory standard for a finding of fault lists carelessness, negligence, lack of proper skill [and] error in judgment as falling under the umbrella of fault-related fact patterns, avoid using words like negligence or malpractice, particularly if those words do not appear verbatim in the evidence of record, as use of those terms may result in unintended impacts on associated tort claims. References: For more information on