Stevenson: Unhealed Wounds and Section 1151

Stevenson v. McDonough, Case Number 20-4870, decided October 4, 2022 discusses an unhealed wound and the availability of a Section 1151 claim.

Section 1151 basically creates a VA disability compensation option for VA medical malpractice.  It provides compensation for “additional disability resulting from VA medical treatment.”  The question in this case was whether additional disability requires persistence of a disability for a particular time period.  The court determined “that under section 1151 "additional disability" need not persist for any particular time period, and that additional disability that resolves during the pendency of a claim for section 1151 benefits does not foreclose entitlement to section 1151 compensation so long as the other requirements for entitlement under that section are met.”  Id. at *2.

The veteran developed acute gall bladder inflammation and underwent an emergency gall bladder removal.  The veteran developed pain at the incision site.  The painful scar was treated with trigger point injections and ablation.  The wound ultimately reopened and developed MRSA.

The veteran filed a Section 1151 claim and during the course of the claim the wound healed with treatment.  The VA acknowledged a reopened wound was a known complication especially in a veteran with diabetes.  The veteran essentially sought compensation for the period the wound was open and as it required home health nursing care and pain and suffering.  The RO and Board determined there was no additional disability and essentially relied on the fact the wound did heal with time.

The Court focused on the plain meaning of the term “additional disability” and determined “the plain meaning of "additional disability" as used in section 1151 is "more" or "added" "functional impairment in earning capacity." No language in section 1151 pertains to the duration of the "more" or "added" functional impairment in earning capacity.”  Id. at *8.  As a result, the Court remanded the claim for further development as the Board erred in failing to consider the open wound as demonstrating additional disability under section 1151 during the pendency of the claim.

This decision is a helpful expansion of the understanding of a Section 1151 claim.

Decision by Chief Judge Bartley and joined in by Judges Toth and Laurer.

To know more about whether Thomas Andrews can help you, please visit my website.