This is the final post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here. You can read the third entry by clicking here. You can read the fourth entry by clicking here. You can read the fifth entry by clicking here.

This post will discuss the final way to establish service-connection: “Connection due to injury caused by treatment in the VA healthcare system”.

This is a pretty straightforward issue. 38 U.S.C. 1151 states that if a veteran is injured because of VA hospitalization, treatment, rehab or therapy that is not the fault of the veteran, the injury is treated as service-connected. You will have to show fault, whether that fault is through negligence, lack of proper skill, carelessness, error in judgment, etc. To show fault, you will need a medical expert opinion. Medical experts can charge very high rates for their services. In addition, to prove an “1151 claim”, you will need to show:

1. Additional disability or death. The VA will compare your condition immediately prior to treatment to your condition immediately after treatment by the VA to determine the existence of an additional disability.
2. VA Hospital Care, Medical treatment, surgery, or examination. The term Hospital Care is narrow – prior to 1997, an 1151 claimant needed only show “hospitalization” which could have included anything that occurred general experience during the course of VA treatment. Now, the tighter showing of Hospital Care is necessary.
3. Proximate Cause. This is a legal term that establishes the “bridge” between the VA treatment and the additional disability. Proximate cause is a legal term, and the VA defines it as such: “the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.” Additionally, you will need to show “actual cause”. The good news is that the burden of proof for this element is the “balance of the evidence” – which lies somewhere between substantial evidence and preponderance of the evidence.

Most veterans we have talked to that have been injured by for the above reasons want to talk to us about suing the VA for medical malpractice? The answer is generally, yes. This type of lawsuit is permitted under the Federal Tort Claims Act (FTCA). The FTCA is a separate matter entirely, and will be the subject of a future post.

A section 1151 claim is a straightforward, but fact and law intensive, means to service-connect a disability. Often times, you will need the assistance or guidance of a Veteran Service Organization or a VA Benefits lawyer to help you establish the requisite degree of proof. If you would like to consult with legal counsel regarding your VA disability compensation or other VA benefits claim, contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

The Attig Law Firm represents U.S. Veterans who have been denied disability benefits for injuries that resulted from their military service. The Firm currently represents peace-time and war-time veterans of all branches of the military, at all levels of the claim process (VA Regional Office, Board of Veterans’ Appeals, and the Court of Appeals for Veterans’ Claims). Contact the Attig Law Firm if you would like to discuss your claim for disability benefits before the VA.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans.  The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.

It is very important that we note that each and every Veteran’s claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you.   In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case.

It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.  If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.

The Attig Law Firm, PLLC, represents Veterans in Texas, Arkansas, Oklahoma (and all around the nation) in their claims for disability compensationfrom the Department of Veterans Affairs.