"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Monday, November 23, 2009

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.

Tuesday, November 17, 2009

Hearing Loss

The case of Edward E. Meedel v. Eric K. Shinseki, Opinion Number 08-1725, decided November 4, 2009, denied service-connection for bilateral hearing loss.

Hearing loss is determined by looking at 38 C.F.R. § 3.385, which provides:

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

Meedel did not meet the first prong as his auditory threshold was not 40 decibels or greater in the prescribed frequencies. Additionally, the Maryland CNC speech recognition test was not at issue in this case. Instead, Meedel argued that he met the second requirement, that at least three of the prescribed frequencies were 26 decibels or greater. Unfortunately, he only met the 26 decibel in the 3000 and 4000 frequencies. However, he exceeded the threshold by having a 30 and 35 decibel reading on his Right ear and 30 and 30 decibel reading on his Left ear.

Meedel attempted to argue that he could average his ear ratings and meet the 26 decibel threshold, essentially using the excess decibels (worse hearing at some frequencies) to pull up the decibel level for the other two frequencies (where he could hear better).

Meedel sought to rely on 38 C.F.R. § 4.85, which does allow averaging when the VA is rating a disability. However, the Court drew a distinction between 3.385, which establishes the existence of a hearing disability and 4.485, which is used to assign the disability rating for the hearing loss. The Court concluded that averaging is not allowed when establishing the existence of a hearing disability because that is the best interpretation of the plain language of the regulation and the Secretary’s interpretation is reasonable.

Decided by Chief Judge Greene, Judge Lance and Judge Davis.