38 U.S.C. § 1151: Disability Resulting from VA Treatment

38 U.S.C. § 1151: Disability Resulting from VA Treatment

The case of Johnnie R. Mangham v. Eric K. Shinseki, Opinion Number 07-1338, decided November 16, 2009, denied a claim for compensation pursuant to 38 U.S.C. § 1151.

38 U.S.C. § 1151, provides for compensation for injuries or death caused by the VA when it is giving hospital care, medical or surgical treatment or similar instances of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination … or an event not reasonably foreseeable.

Section 1151 typically comes into play when a veteran receiving medical care from the VA is harmed by that care. However, this case involves a much more dramatic set of facts. Mr. Mangham was being treated in the Temple Domiciliary for health “maintenance” prior to having a femoral surgery. While eating lunch at the cafeteria, another domiciliary resident opened fire on fellow residents and killed one. Mr. Mangham subsequently claimed mental distress after witnessing the shooting.

The Court rejected Mr. Mangham’s argument that the domicile care was a form of care covered by section 1151. Instead, the Court held that disabilities incurred merely coincidentally with VA treatment are not covered and instead the VA treatment must be the “actual cause” of the disability. They reasoned that the mental distress was coincidental to residing at a VA domiciliary and the injury was not caused by the actual provision of hospital care, medical or surgical treatment, or examination at the VA domiciliary.

The Court did recognize that prior to 1996 the claim would have been allowed because that version of section 1151 did not require a veteran to demonstrate that the alleged injury resulted from an overt act by the VA. The Court also recognized that Jackson v. Nicholson, 433 F.3d 822 (Fed. Cir. 2005), was factually almost identical and granted disability but explained that a 1996 Amendment to the law changed the result. It explained that “[i]n the 1996 amendments, Congress repudiated the notion that a coincidental event occurring during ‘hospitalization’ could lead to recovery under section 1151, purposefully replacing that word with ‘hospital care’.”

Therefore, this case is further articulation of the Court's earlier ruling that a veteran who is injured or dies while receiving VA treatment from a cause that is merely coincidental with the VA treatment will likely fail with a VA disability claim. Importantly, this ruling does not mean the veteran is without any recourse; instead, the veteran may still rely on the Federal Torts Claims Act.

Still, I would not be surprised to see this opinion appealed to the Court of Appeals for a more definite statement regarding the meaning of "hospital care" and what is coincidental to VA treatment as opposed to being a part of VA treatment.

Decided by Kasold, Moorman, and Lance, Judges.