VA Malpractice:

BVA Citation Nr: 0702835

The provisions of 38 U.S.C.A. section 1151 were amended, 
effective October 1, 1997, to include the requirement of 
fault, requiring that additional disability be the result of 
carelessness, negligence, lack of proper skill, error in 
judgment or similar fault on the part of VA in furnishing 
care, or an event not reasonably foreseeable. See 38 
U.S.C.A. § 1151 (West 2002 & Supp. 2005). As the veteran 
filed his claim after October 1, 1997, the Board will apply 
the regulations effective October 1, 1997. Under the 
provisions of 38 U.S.C.A. section 1151, if VA hospitalization 
or medical or surgical treatment results in additional 
disability or death that is not the result of the veteran's 
own willful misconduct or failure to follow instructions, 
compensation is awarded in the same manner as if the 
additional disability or death were service connected. See 
38 C.F.R. §§ 3.361, 3.800(a) (2006).
 
Although claims for 38 U.S.C.A. section 1151 benefits are not 
based upon actual service connection, there are similarities 
in their adjudication. Boeck v. Brown, 6 Vet. App. 14, 16-17 
(1993). A claim for 38 U.S.C.A. section 1151 benefits must 
be supported by medical evidence of a current disability and 
medical evidence that the current disability resulted from VA 
hospitalization, medical examination, or treatment. Current 
applicable regulation provides that where it is determined 
that there is additional disability resulting from a disease 
or injury or an aggravation of an existing disease or injury 
suffered as a result of hospitalization, medical or surgical 
treatment, or examination, compensation will be payable for 
such additional disability. 38 C.F.R. § 3.361 (2006).
 
38 C.F.R. section 3.361(b) states that 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. 
 
38 C.F.R. section 3.361(c) states that 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. Actual causation is 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. 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. 
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. 
 
38 C.F.R. section 3.361(d) states that 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. 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. 
 
In essence, a claimed disability is a qualifying additional 
disability if such disability was not the result of the 
veteran's willful misconduct and (1) the disability was 
caused by hospital care, medical or surgical treatment, or 
examination furnished the veteran under any law administered 
by the Secretary, and the proximate cause of the disability 
was due to either (A) carelessness, negligence, lack of 
proper skill, error in judgment, or similar instance of fault 
on the part of VA in furnishing the hospital care, medical or 
surgical treatment, or examination, or (B) an event not 
reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002 & Supp. 
2005).