How a 38 USC 1151 Claim Works
A 38 USC 1151 claim pays compensation when VA care causes an added disability. The care can be VA hospital care, medical or surgical treatment, an examination, training, or compensated work therapy. If the VA grants the claim, it pays the disability as if it were service-connected. This page explains the legal standard under 38 CFR 3.361 and how a 1151 claim differs from a lawsuit against the VA.
What a 1151 Claim Is
A 38 USC 1151 claim pays compensation for an added disability that VA care caused. The rule that runs it is 38 CFR 3.361. The law covers disability caused by:
- VA hospital care: care given in a VA hospital.
- Medical or surgical treatment: treatment the VA gives you.
- Examination: an exam the VA gives you.
- Training: a VA training program such as vocational rehabilitation.
- Compensated work therapy: a VA compensated work therapy program.
If the VA grants a 1151 claim, it pays compensation for the added disability as if it were service-connected. This holds even though the disability did not come from active service.
Authority: 38 CFR 3.361 (law.cornell.edu/cfr/text/38/3.361); 38 USC 1151 (law.cornell.edu/uscode/text/38/1151).
The Additional Disability Requirement
A 1151 claim starts with an added disability. To see whether one exists, the VA compares your condition right before the care to your condition after the care has stopped. The difference between those two points is the added disability.
One point drives this standard. Getting care and later having a disability does not by itself prove the care caused the disability. The comparison is the start. A 1151 claim also needs proof of proximate cause. The next section explains it.
Authority: 38 CFR 3.361 (law.cornell.edu/cfr/text/38/3.361).
Two Ways to Show Proximate Cause
Beyond an added disability, a 1151 claim needs proof that the VA care was the proximate cause of that disability. Under 38 CFR 3.361, there are two separate paths. Either one can meet the proximate-cause requirement.
Path 1: VA fault or lack of consent
You meet this path when the VA failed to use the degree of care a reasonable health care provider would use. The rule calls this carelessness, negligence, lack of proper skill, or error in judgment.
You also meet this path when the VA gave the care without your informed consent.
Path 2: An event not reasonably foreseeable
You meet this path when the added disability came from an event that was not reasonably foreseeable. The VA judges foreseeability by what a reasonable health care provider would have foreseen.
The event need not be unimaginable. But it is not an ordinary risk that a reasonable provider would disclose when getting informed consent.
Authority: 38 CFR 3.361 (law.cornell.edu/cfr/text/38/3.361).
1151 vs a Federal Tort Claims Act Lawsuit
A 38 USC 1151 claim is not the same as suing the VA. A 1151 claim is a VA administrative compensation claim. VA raters decide it. A Federal Tort Claims Act (FTCA) suit is a separate medical-malpractice lawsuit. A federal court decides it, under different standards and remedies. Both can apply to the same injury.
| 38 USC 1151 claim | FTCA lawsuit | |
|---|---|---|
| Decided by | VA raters, through the VA claims process. | A federal court, through a lawsuit. |
| Standard | The 38 CFR 3.361 standard: added disability plus VA fault, lack of consent, or an event not reasonably foreseeable. | Federal-court medical-malpractice standards. They differ from the VA standard. |
| Remedy | Monthly VA compensation, paid as if the disability were service-connected. | A court judgment or settlement, decided under federal-court rules. |
The two run on different tracks. The same injury can give rise to both. The VA and the court decide them separately.
Authority: 38 USC 1151 (law.cornell.edu/uscode/text/38/1151); 38 CFR 3.361 (law.cornell.edu/cfr/text/38/3.361).
Evidence a 1151 Claim Relies On
A 1151 claim rests on a before-and-after comparison plus proximate cause. The record it relies on often includes:
- Medical evidence of the condition before and after the care: records that show your condition right before the care and after the care has stopped.
- The records of the care episode: the VA treatment, surgical, examination, training, or work-therapy records for the care at issue.
- Informed-consent documents: the consent forms and related records for the care.
- A medical opinion on fault or foreseeability: an opinion that speaks to whether the care met the expected degree of care, whether the VA got consent, or whether the event was reasonably foreseeable.
How the VA claim types compare
This chart shows what each VA claim type is for and how it differs from the others. It does not tell you which one to file. For help with your own claim, work with a free VA-accredited representative.
| Claim type | Use it when | Form | What makes it different |
|---|---|---|---|
| What you are claiming (the purpose) | |||
| Initial | You claim a condition the VA has not decided before. | VA Form 21-526EZ | You prove three elements: a current diagnosis, an in-service event, and a nexus that links them. |
| Increase | A condition the VA already granted has gotten worse. | VA Form 21-526EZ | You ask for a higher rating on a condition you already won. |
| Secondary | A service-connected condition caused or worsened a new one. | VA Form 21-526EZ | You need a medical nexus that links the new condition to the service-connected one (38 CFR 3.310). |
| 1151 You are here | VA medical care caused an added disability. | VA Form 21-526EZ | You show VA fault or an event that was not reasonably foreseeable. If granted, the VA pays it as if it were service-connected. |
| How the VA develops your claim (the path) | |||
| Standard | You want the VA to gather your records for you. | Same 526EZ claim, no separate form | The VA gathers evidence under its Duty to Assist. This is the default path and it takes longer. |
| Fully Developed | You already hold all of your evidence. | Same 526EZ claim, no separate form | You submit everything up front and certify there is no more. The VA still pulls federal records. It moves faster. |
The top group is what you claim. The bottom group is how the VA develops it. All four claim purposes use the same form, VA Form 21-526EZ. Every claim has one purpose and one development path. An initial claim, for example, is filed as either a Standard or a Fully Developed claim.
Common Questions
Is a 1151 claim the same as suing the VA?
No. A 38 USC 1151 claim is a VA administrative compensation claim. VA raters decide it. A Federal Tort Claims Act (FTCA) lawsuit is a separate medical-malpractice case. A federal court decides it, under different standards and remedies. The two run on different tracks. Both can apply to the same injury.
Do I have to prove negligence?
Negligence is one of two paths to proximate cause. It is not the only one. Under 38 CFR 3.361, the first path is VA fault (carelessness, negligence, lack of proper skill, or error in judgment) or care given without informed consent. The second path is an event that was not reasonably foreseeable. Either path can meet the proximate-cause requirement.
If granted, how is a 1151 disability paid?
If the VA grants a 1151 claim, it pays compensation for the added disability as if it were service-connected. This holds even though the disability did not come from active service.
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