Veteranclaims’s Blog

January 31, 2013

Vegas v. Shinseki, No. 2012-7075 (Decided: January 31, 2013); Causation Requirement Set Forth in Section 1151(a)(1)

Excerpts from decision below:
We do not find either the government’s or Viegas’ interpretation of the phrase “caused by” in section 1151(a)(1) wholly satisfactory. Contrary to the government’s assertions, nothing in the statutory text requires that a veteran’s injury must be “directly” caused by the “actual” medical care provided by VA personnel.
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section 1151 contains not “so much as a word about” direct causation. There is simply nothing in the plain language of the statute which requires that an
injury be “directly” caused by the medical care provided by VA personnel. Instead, the statute requires only a “causal connection,” Gardner, 513 U.S. at 119, between the injuries sustained by the veteran and the hospital care or medical treatment provided by the VA.

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“If, for example, a veteran who was suffering from an infection visited a VA medical facility and obtained an antibiotic, his “medical treatment” would
presumably include not only the actions of the VA physician who prescribed the antibiotic but also the drug itself.

Thus, while the medical treatment provided by the VA typically includes “direct involvement with VA staff,” id.,
VIEGAS v. SHINSEKI 13

this does not mean that it does not also include the medications and equipment necessary to provide such treatment.”
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United States Court of Appeals for the Federal Circuit
______________________
JOHN L. VIEGAS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7075
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-0568, Judge Alan G. Lance, Sr.
______________________
Decided: January 31, 2013
______________________
LINDA E. BLAUHUT, Paralyzed Veterans of America, of
Washington, DC, argued for claimant-appellant. With
her on the brief was JENNIFER A. ZAJAC.

SCOTT D. AUSTIN, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. On the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, TODD M. HUGHES, Deputy Director, and
ELIZABETH M. HOSFORD, Senior Trial Counsel. Of counsel
VIEGAS v. SHINSEKI
2

on the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and CHRISTA A. SHRIBER, Attorney,
United States Department of Veterans Affairs, of Washington,
DC.
______________________
Before RADER, Chief Judge, NEWMAN and MAYER, Circuit
Judges.
MAYER, Circuit Judge.
John L. Viegas appeals the final judgment of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a decision of the Board of
Veterans’ Appeals (“board”) that denied his claim for
disability compensation under 38 U.S.C. § 1151. See
Viegas v. Shinseki, No. 10-568, 2011 U.S. App. Vet.
Claims LEXIS 2554 (Nov. 23, 2011) (“Veterans Court
Decision”). Because we conclude that the Veterans Court
misinterpreted the causation requirement set forth in
section 1151(a)(1), we reverse and remand.

I. BACKGROUND
The relevant facts are not in dispute. Viegas served
in the United States Army from November 1965 to November
1967. After he left the service, he was injured in
a diving accident. As a result, Viegas now suffers from
“incomplete” quadriplegia.
In May 2004, Viegas participated in a prescribed
aquatic therapy session at a Department of Veterans
Affairs (“VA”) medical center in Palo Alto, California.
Afterward, he stopped to use a restroom located in the VA
facility. While he was in the restroom, the grab bar he
was using to lift himself into his wheelchair came loose
from the wall and he fell to the ground. As a result of the
fall, Viegas sustained injuries to both his upper and lower
extremities. Viegas’ medical condition deteriorated after
VIEGAS v. SHINSEKI 3

his fall. Prior to his fall, Viegas could sometimes walk
with a walker, but since the accident he can only stand
with assistance.
In July 2004, Viegas filed a claim for section 1151
benefits. He asserted that as a result of the fall in the VA
restroom he had “incurred severe injury to his shoulder
and neck resulting in loss of use of his lower extremities
and impairment of his upper extremities.” A VA regional
office denied Viegas’ claim, concluding that he was not
entitled to benefits under section 1151 because he was
“not in direct VA care at the time of [his] fall.” On appeal,
the board affirmed, stating that benefits are available
under section 1151 only if a veteran’s “additional disability
[is] the result of injury that was part of the natural
sequence of cause and effect flowing directly from the
actual provision of hospital care, medical or surgical
treatment, or examination furnished by [the] VA and . . .
such additional disability was directly caused by that VA
activity.”
Viegas then appealed to the Veterans Court. The
court held that although Viegas’ injury occurred in a VA
facility, it was not caused directly by “hospital care,
medical or surgical treatment, or examination furnished
by [the] VA.” Veterans Court Decision, 2011 U.S. App.
Vet. Claims LEXIS 2554, at *2 (citations and internal
quotation marks omitted). In the court’s view, while
Viegas might potentially be able to seek compensation for
his injuries under the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b), the additional disability incurred as a result of
his fall was “simply not covered by section 1151.” Veterans
Court Decision, 2011 U.S. App. Vet. Claims LEXIS
2554, at *3. Viegas then filed a timely notice of appeal
with this court.
VIEGAS v. SHINSEKI
4

II. DISCUSSION
We have jurisdiction over appeals from the Veterans
Court under 38 U.S.C. § 7292. Questions of statutory
interpretation are questions of law, subject to de novo
review. Chandler v. Shinseki, 676 F.3d 1045, 1047 (Fed.
Cir. 2012); Boggs v. Peake, 520 F.3d 1330, 1334 (Fed. Cir.
2008).
Pursuant to section 1151, a veteran who sustains a
“qualifying additional disability” as a result of VA medical
treatment or hospital care is entitled to benefits “in the
same manner as if such additional disability . . . were
service-connected.” 38 U.S.C. § 1151(a); see Roberson v.
Shinseki, 607 F.3d 809, 813 (Fed. Cir. 2010). In relevant
part, section 1151 provides:
(a) Compensation under this chapter and
dependency and indemnity compensation under
chapter 13 of this title shall be awarded for a
qualifying additional disability or a qualifying
death of a veteran in the same manner as if such
additional disability or death were serviceconnected.
For purposes of this section, a disability
or death is a qualifying additional disability or
qualifying death if the disability or death was not
the result of the veteran’s willful misconduct
and—
(1) the disability or death was caused by
hospital care, medical or surgical treatment, or examination
furnished the veteran under any law
administered by the Secretary, either by a Department
employee or in a Department facility as
defined in section 1701(3)(A) of this title, and the
proximate cause of the disability or death was—
(A) carelessness, negligence, lack of proper
skill, error in judgment, or similar instance of
VIEGAS v. SHINSEKI 5

fault on the part of the Department in furnishing
the hospital care, medical or surgical treatment,
or examination; or
(B) an event not reasonably foreseeable[.]
38 U.S.C. § 1151 (emphasis added).
Section 1151 delineates three prerequisites for obtaining
disability compensation. First, a putative claimant
must incur a “qualifying additional disability” that was
not the result of his own “willful misconduct.” Id.
§ 1151(a).1 Second, that disability must have been
“caused by hospital care, medical or surgical treatment, or
examination furnished the veteran” by the VA or in a VA
facility. Id. § 1151(a)(1). Finally, the “proximate cause” of
the veteran’s disability must be “carelessness, negligence,
lack of proper skill, error in judgment, or similar instance
of fault on the part of the [VA],” or “an event not reasonably
foreseeable.” Id. §§ 1151(a)(1)(A), 1151(a)(1)(B).
Section 1151 thus contains two causation elements—a
veteran’s disability must not only be “caused by” the
hospital care or medical treatment he received from the
VA, but also must be “proximate[ly] cause[d]” by the VA’s
“fault” or an unforeseen “event.” Id. § 1151(a). There is
no question that Viegas’ injury meets section 1151’s
second causation element since it was proximately caused
by the VA’s failure to properly install and maintain the
grab bar in a restroom at its Palo Alto Medical Center.
The sole issue presented on appeal is whether his injury
1 In determining whether a veteran has incurred a
“qualifying additional disability,” the VA compares the
veteran’s physical condition immediately prior to the
beginning of the hospital care or medical treatment in
which the claimed injury was sustained with his condition
at the conclusion of such care or treatment. See 38 C.F.R.
§ 3.361(b).
VIEGAS v. SHINSEKI
6

was “caused by” the medical treatment or hospital care he
received from the VA.
The government argues that Viegas’ injury falls
outside the ambit of section 1151 because the statute
encompasses only those injuries that are “directly caused
by the provision of medical care.” In the government’s
view, section 1151 applies “to disabilities that are caused
by actual care or treatment, rather than injuries that
coincidentally occur in VA facilities.” Viegas disagrees.
He asserts that his injury was “caused by” the hospital
care he received at the VA’s Palo Alto Medical Center
because it occurred while he “was receiving care and
treatment” at the facility. According to Viegas, section
1151’s causation requirement is satisfied whenever a
veteran comes to a VA facility for medical treatment and,
as a result of the VA’s negligence, sustains an injury
while on VA premises.
We do not find either the government’s or Viegas’ interpretation of the phrase “caused by” in section 1151(a)(1) wholly satisfactory. Contrary to the government’s assertions, nothing in the statutory text requires that a veteran’s injury must be “directly” caused by the “actual” medical care provided by VA personnel. On the other hand, however, section 1151 does not extend to the “remote consequences” of VA medical treatment, Brown v.
Gardner, 513 U.S. 115, 119 (1994) (“Gardner”), and a veteran is not entitled to obtain section 1151 disability benefits simply because he was in a VA medical facility at the time he sustained an injury.

A. THE STATUTORY TEXT
“As is true in every case involving the construction
of a statute, our starting point must be the language
employed by Congress.” Reiter v. Sonotone Corp., 442
U.S. 330, 337 (1979). Nothing in the plain language of
section 1151 requires that a veteran’s injury must be
VIEGAS v. SHINSEKI 7

“directly” caused by the “actual” provision of medical care
by VA personnel. To the contrary, the statute is framed
disjunctively, stating that a disability must be “caused by”
hospital care or medical treatment that is provided to a
veteran “either by a [VA] employee or in a [VA] facility.”
38 U.S.C. § 1151(a)(1) (emphases added). In other words,
the causation element is satisfied not only when an injury
is directly caused by the actions of VA employees, but also
when that injury occurs “in a [VA] facility” as a result of
the VA’s negligence. By use of the disjunctive, Congress
intended to encompass not simply the actual care provided
by VA medical personnel, but also treatmentrelated
incidents that occur in the physical premises
controlled and maintained by the VA. See Reiter, 442
U.S. at 338 (eschewing a “strained construction” of a
statute that “would . . . ignore the disjunctive ‘or’” contained
in the statutory text); Fed. Commc’n Comm’n v.
Pacifica Found., 438 U.S. 726, 739-40 (1978) (explaining
that where terms “are written in the disjunctive, [it]
impl[ies] that each has a separate meaning”).
Here, Viegas came to the VA’s Palo Alto Medical
Center to participate in a recently-prescribed aquatic
therapy session that was designed to help him manage his
incomplete quadriplegia. He was injured because the VA
failed to properly install and maintain the equipment
necessary to provide him with medical treatment. The
VA cannot reasonably furnish hospital care2 or medical

2 The VA does not care for most veterans in traditional
“hospitals,” but instead provides hospital services
through a large network of medical centers, such as the
Palo Alto Medical Center where Viegas received his
prescribed therapy. See U.S. Dep’t of Veterans Affairs,
Veterans Health Administration, Health Care,
http://www.va.gov/health/aboutVHA.asp. (last visited Dec.
12, 2012) (explaining that VA medical centers “provide a
VIEGAS v. SHINSEKI
8

treatment to disabled veterans without also providing
access to handicapped-accessible restrooms. Restroom
grab bars, and other equipment specifically designed to
assist the disabled, are a necessary component of the
health care services the VA provides because without
such equipment many veterans would be unable to avail
themselves of VA medical care. See, e.g., Galloway v.
Baton Rouge Gen. Hosp., 602 So. 2d 1003, 1008 (La. 1992)
(A hospital has a “duty to protect a patient from dangers
that may result from the patient’s physical and mental
incapacities as well as from external circumstances pecuwide
range of services including traditional hospital-based
services such as surgery, critical care, mental health,
orthopedics, pharmacy, radiology and physical therapy”).
Here, Viegas was arguably receiving “hospital care” at the
time of his injury since it occurred while he was at a VA
medical center for prescribed physical therapy. See
Jackson v. Nicholson, 433 F.3d 822, 826 (Fed. Cir. 2005)
(“The term ‘hospital care’ implies the provision of care by
the hospital specifically, as opposed to the broader, more
general experience of a patient during the course of hospitalization.”).
Even if Viegas was not receiving “hospital
care” at the time of his injury, however, the physical
therapy prescribed to help him manage his quadriplegia
would fall under the umbrella of “medical treatment.” See
Bartlett v. Shinseki, 24 Vet. App. 328, 334 n.7 (2011)
(explaining that “treatment” is defined as “medical care
given to a patient for an illness or injury” (citations and
internal quotation marks omitted)); see also Franks v.
Shinseki, No. 11-2477, 2012 U.S. App. Vet. Claims LEXIS
2339, at *19-25 (Nov. 26, 2012) (concluding that the board
erred in rejecting the claim of a veteran seeking section
1151 benefits based upon the VA’s failure to provide him
with required physical therapy).
VIEGAS v. SHINSEKI 9

liarly within the hospital’s control.” (citations and internal
quotation marks omitted)); Johnson v. Grant Hosp.,
291 N.E.2d 440, 446 (Ohio 1972) (“A hospital owes a duty
to its patients to exercise such reasonable care for their
safety as their known mental and physical condition may
require.”). Viegas’ injury was not, as the government
asserts, merely “coincident” with his prescribed physical
therapy, but was instead caused by the VA’s failure to
properly maintain and install the equipment required so
that that treatment could take place. See Bartlett, 24 Vet.
App. at 334-36 (concluding that section 1151 covered an
injury incurred as the result of the VA’s failure to properly
supervise patients hospitalized in a VA psychiatric
facility); see also Sweitzer v. Brown, 5 Vet. App. 503, 507
(1993) (Mankin, J., dissenting) (emphasizing that when a
veteran goes to a VA medical center for examination he
remains under the VA’s “control and authority while on
VA premises” and the VA bears responsibility “for taking
all reasonable precautionary measures to assure” his
safety).
In Gardner, the Supreme Court unanimously rejected the government’s efforts to impose limitations on the scope of section 1151 beyond those specifically dictated by Congress. 513 U.S. at 117-20. The previous version of section 11513 provided that a veteran was

3 Prior to a 1996 amendment, section 1151 provided:
Where any veteran shall have suffered an injury, or an
aggravation of an injury, as the result of hospitalization,
medical or surgical treatment, or the pursuit of a course of
vocational rehabilitation . . . or as a result of having
submitted to an examination . . . , and not the result of . . .
willful misconduct, . . . disability or death compensation
VIEGAS v. SHINSEKI
10

entitled to disability benefits for an injury that occurred
“as the result of hospitalization, medical or surgical
treatment, or the pursuit of a course of vocational rehabilitation.”
The VA had interpreted this provision to
require that a veteran demonstrate that his additional
disability was incurred as the result of “fault” on the part
of the VA. Gardner, 513 U.S. at 117. The Supreme Court
rejected this approach, however, noting that the statutory
language contained not “so much as a word about fault.”
Id. (footnote omitted). Instead, the language of section
1151 is most “naturally read simply to impose the requirement
of a causal connection between the ‘injury’ or
‘aggravation of an injury’ and ‘hospitalization, medical or
surgical treatment, or the pursuit of a course of vocational
rehabilitation.’” Id. at 119.
A similar analysis applies here. Although the government
asserts that a veteran’s disability must be “directly”
caused by the provision of hospital care or medical
. . . shall be awarded in the same manner as if such disability,
aggravation, or death were service-connected.
Pub. L. No. 85-857, 72 Stat. 1105, 1124 (1958). As will be
discussed more fully in section IIC, Congress amended
section 1151 in 1996, adding a requirement that the
“proximate cause” of a veteran’s additional disability must
be “carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of the
[VA], in furnishing the hospital care [or] medical or surgical
treatment” or “an event not reasonably foreseeable.”
See Departments of Veterans Affairs and Housing and
Urban Development and Independent Agencies Appropriations
Act, Pub. L. No. 104-204, 110 Stat. 2874, 2926-
27 (1996).
VIEGAS v. SHINSEKI 11

treatment, section 1151 contains not “so much as a word
about” direct causation. There is simply nothing in the
plain language of the statute which requires that an
injury be “directly” caused by the medical care provided
by VA personnel. Instead, the statute requires only a
“causal connection,” Gardner, 513 U.S. at 119, between
the injuries sustained by the veteran and the hospital
care or medical treatment provided by the VA.

Gardner makes clear that if there is any ambiguity
regarding the prerequisites for compensation under
section 1151, “interpretive doubt [must be] resolved in the
veteran’s favor.” Id. at 118. By its plain terms, section
1151 imposes no requirement that a veteran’s additional
disability must be “directly” caused by the “actual” provision
of hospital or medical care by VA employees. Even if
it were a close case, however, we would be constrained to
construe the statute in Viegas’ favor. See, e.g., Fishgold v.
Sullivan Drydock & Repair Corp., 328 U.S. 275, 285
(1946) (“This legislation is to be liberally construed for the
benefit of those who left private life to serve their country
in its hour of great need.”).

B. JACKSON
In Jackson, we interpreted section 1151’s causation
requirement expansively, noting that “[t]he statute uses
broad language and allows for compensation any time
there has been an injury that results from ‘hospitalization.’”
433 F.3d at 826.4 There, a veteran, who was

4 Jackson construed the previous version of section
1151 which, as noted previously, provided for compensation
for an injury that was “the result of hospitalization
[or] medical or surgical treatment.” As will be discussed
more fully in section IIC, the 1996 amendment to the
statute substituted the phrase “hospital care” for the word
“hospitalization.”
VIEGAS v. SHINSEKI
12

hospitalized at a VA medical center for physical therapy
and treatment of chronic pain, was injured when she was
assaulted by another patient. Id. at 823. The government
argued that the veteran was not entitled to benefits
under section 1151 because her injury was caused by
another patient rather than actions of the VA. Id. at 824.
We rejected this argument, however, explaining “that the
fact that a causal connection is required for compensation
does not mean that the cause must be VA personnel.” Id.
at 825. Because the veteran would not have been injured
had she not been hospitalized, her injury was the “result
of [her] hospitalization.” Id. at 826.
The government points to language in Jackson
which states that “[w]hereas medical and surgical treatment
involve direct involvement with VA staff, hospitalization
need not be related to any treatment, but rather is
related to the circumstance of being hospitalized.” Id. at
825. Relying on this language, the government contends
that because medical treatment requires direct involvement
with VA staff, Viegas’ injury, which occurred as a
result of an improperly installed restroom grab bar, was
not “caused by” his medical treatment. We disagree.
There is no dispute that the medical treatment provided
by the VA normally “involve[s] direct involvement with
VA staff.” Id. Viegas’ physical therapy, for example,
presumably involved direct interaction with VA personnel.
The fact that VA medical treatment normally involves
interaction with VA personnel, however, does not
mean that such treatment only encompasses the actions
of VA employees. If, for example, a veteran who was
suffering from an infection visited a VA medical facility
and obtained an antibiotic, his “medical treatment” would
presumably include not only the actions of the VA physician
who prescribed the antibiotic but also the drug itself.
Thus, while the medical treatment provided by the VA
typically includes “direct involvement with VA staff,” id.,

VIEGAS v. SHINSEKI 13

this does not mean that it does not also include the medications
and equipment necessary to provide such treatment.

C. THE LEGISLATIVE HISTORY
Section 1151 has a long history, but contains nothing
to indicate that Congress intended to preclude compensation
for injuries stemming from the VA’s failure to properly
install and maintain the equipment necessary to
provide health care services. See Gardner v. Brown, 5
F.3d 1456, 1460 (Fed. Cir. 1993), aff’d, 513 U.S. at 115
(“The Secretary must make an extraordinarily strong
showing of clear legislative intent in order to convince us
that Congress meant other than what it ultimately
said.”). Prior to 1924, veterans were not eligible for
benefits for injuries caused by VA medical care because
such injuries were not deemed to be service-connected.
Id. Pursuant to the World War Veterans’ Act of 1924,
Pub. L. No. 68-242, § 213, 43 Stat. 607, 623 (the “1924
Act”), however, compensation was provided to those
veterans injured “as the result of training, hospitalization,
or medical or surgical treatment.” Congress repealed the
1924 Act in 1933, but in 1934 replaced it with a similar
statute that was designed to apply to all veterans, not
simply those who had served in World War I. See Act of
Mar. 28, 1934, Pub. L. No. 73-141, § 31, 48 Stat. 509, 526
(the “1934 Act”); see also Hornick v. Shinseki, 24 Vet. App.
50, 55 (2010). The 1934 Act was amended several times,
eventually resulting in the version of section 1151 construed
by the Supreme Court in Gardner. That iteration
of the statute, as noted previously, provided compensation
for disabilities which occurred “as the result of hospitalization
[or] medical or surgical treatment” provided by the
VA. Although the 1924 Act, the 1934 Act and the previous
version of section 1151 all required that a veteran’s
injury occur as a “result” of specified health care services,
none contained any indication that the equipment neces
VIEGAS v. SHINSEKI
14

sary to provide medical care was not encompassed within
the scope of the health care services the VA provides.
In 1996, in the wake of Gardner, Congress
amended section 1151, adding a provision that requires
that the “proximate cause” of a veteran’s additional
disability must be “carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on the part of the [VA],” or “an event not reasonably
foreseeable.” 38 U.S.C. § 1151(a)(1). The stated purpose
of the amendment was “[t]o provide benefits for certain
children of Vietnam veterans who [had been] born with
spina bifida, and to offset the cost of such benefits by
requiring that there be an element of fault as a precondition
for entitlement to compensation for a disability or
death resulting from health care or certain other services
furnished by the Department of Veterans Affairs.” 142
Cong. Rec. S9932 (daily ed. Sept. 5, 1996).
Although the 1996 amendment to section 1151
clearly served to restrict the statute’s reach to situations
in which a veteran’s injury resulted from “fault” on the
part of the VA or an unforeseeable “event,” there is nothing
to suggest that it was intended to impose additional
limitations on the statute’s original requirement that a
veteran’s injury must be the result of medical care provided
by the VA.5 In other words, although Congress

5 The 1996 amendment substituted the phrase
“caused by” for the phrase “as the result of,” but this does
not appear to have been a substantive change. See Gardner,
513 U.S. at 119 (explaining that the phrase “as the
result of” simply “impose[d] the requirement of a causal
connection”). Nor is there any indication in the legislative
history that substitution of the phrase “hospital care” for
the word “hospitalization” was intended to change the
statute’s scope.
VIEGAS v. SHINSEKI 15

added a second causation requirement to section 1151,
requiring a showing of fault on the part of the VA, there is
no indication that it intended to impose any additional
restrictions on the statute’s original causation element.
Significantly, the amended version of section 1151 specifies
that the “cause[]” of a veteran’s injury must be VA
hospital care or medical or surgical treatment, but that
the “proximate cause” of that injury must be the VA’s
negligence. 38 U.S.C. § 1151(a)(1) (emphasis added); see
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In
ascertaining the plain meaning of the statute, the court
must look to the particular statutory language at issue, as
well as the language and design of the statute as a
whole.”). Congress plainly knew how to deploy adjectives
when it wished to modify the meaning of the word
“cause.” If it had wanted to impose a requirement that
the “direct” cause of a veteran’s injury must be the “actual”
medical treatment provided by VA personnel, Congress
could readily have inserted such a requirement into
the statutory text. See Russello v. United States, 464 U.S.
16, 23 (1983) (When “Congress includes particular language
in one section of a statute but omits it in another
Pursuant to 38 U.S.C. § 1701, which provides definitions
of terms for purposes of chapter 17 of Title 38, “[t]he
term ‘hospital care’ includes . . . medical services rendered
in the course of the hospitalization of any veteran.” 38
U.S.C. § 1701(5)(A)(i) (emphasis added). The term “hospital
care” also includes benefits such as travel expense
reimbursement and services, such as family counseling,
for members of the veteran’s family. Id. § 1705(B). The
statute does not limit the term “hospital care” to the care
provided by medical professionals. Nor does the statute
specifically exclude the care provided to a veteran who
receives treatment at a VA medical center, but who is not
actually hospitalized as a patient at the facility.
VIEGAS v. SHINSEKI
16

section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (citations and internal quotation
marks omitted)).

D. REMOTE CONSEQUENCES
Section 1151 recognizes that a veteran should be
compensated when “[t]he Government having undertaken
to bestow a benefit, has, in fact, inflicted a loss.” Hearings
on H.R. 7320 Before the H. Comm. on World War Veterans’
Legislation, 68th Cong., 1st Sess. 113 (1924). This
does not mean, however, that the statute covers every
injury sustained by a veteran in a VA medical facility.
Gardner makes clear that the statute does not extend to
the “remote consequences” of the hospital care or medical
treatment provided by the VA. 513 U.S. at 119; see also
Roberson, 607 F.3d at 815-16 (emphasizing that the VA
has no responsibility “to insur[e] for every possible condition
that a veteran has, even if unrelated to service or VA
treatment”). If, for example, a veteran reported to a VA
medical center for an examination, and hours later was
injured while engaged in recreational activities at the
facility, his injury might well be deemed only a “remote
consequence” of his earlier examination. Here, however,
Viegas’ injury was not a “remote consequence” of the
treatment he received at the VA’s Palo Alto Medical
Center, but instead occurred because the VA failed to
properly install and maintain the equipment necessary
for the provision of his medical care.

III. CONCLUSION
Accordingly, the judgment of the United States Court
of Appeals for Veterans Claims is reversed and the case is
remanded for further proceedings consistent with this
opinion.
REVERSED AND REMANDED

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