Hornick: Do Section 1159 Protections Apply to Section 1151 Benefits?

Hornick: Does Section 1159 Apply to Section 1151 Benefits?

The decision in David L. Hornick v. Eric K. Shinkseki, Opinion Number 08-3221, decided August 20, 2010, involved Section 1151 compensation benefits and the application of Section 1159 when the VA seeks to sever the award.

Section 1151 offer benefits to veterans who suffer an injury (or aggravation of injury) as the result of hospitalization, and medical or surgical treatment at the VA. In 1991, the veteran in this case was sitting at the VA Medical Center when the bench he was sitting on broke which caused a low-back injury. In 1997, the veteran was awarded a 100% award for the low-back injury effective September 1994. In 2005, the RO proposed to sever the award based on clear and unmistakable error (CUE). The VA found the veteran was sitting outside the VA dental clinic when he was injured and that this did not fall within the requirement of an “examination or hospital care or treatment”.

The Board considered the application of section 1159 which states that “service connection for any disability … which has been in force for ten or more years shall not be severed … except upon a showing that the original grant of service connection was based on fraud.” But, the Board relied on General Counsel Precedent Opinion 13-96, which stated section 1159 protections did not extend to benefits under section 1151.

The Court considered the question of whether section 1159 protections extended to section 1151 benefits and determined based on a close reading of the law and regulations that “[n]othing in these statements indicates that the text of the statute as originally introduced, which suggests that the purpose of the statute was to protect the payment of compensation that veterans had come to rely upon, was revised to exclude beneficiaries of section 1151 compensation from the protection of section 1159.” Id. at *9.

This case is important for anyone who recieved 1151 benefits for 10 years and was then severed without a finding of fraud. It is highly likely that some veterans have a claim based on wrongfully severed of 1151 benefits.

Decided by Judges Greene, Hagel, and Moorman.