This issue came up here a few times over the years, and also some months ago—but it bears repeating.
In Most of the 1151 and/or FTCA questions we see here- it is obvious that the veteran’s health care same solely from the VA.
In a widow’s issue, months ago – it took quite some time for us to realize that the veteran’s surgery, which seemed to contribute to his death, was acvtually done at a non VA facility.That is not a valid basis for 1151 or FTCA charges against the VA.
These types of claims can only be filed in regards to actions of actual VA employees.
The BVA explains this in the following decision:
“As an initial matter, compensation pursuant to 38 U.S.C.A. § 1151 is only warranted for treatment under the laws administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title. 38 U.S.C.A. § 1151(a)(1) (West 2002). A Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of the law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. 38 C.F.R. § 3.361(e)(1) (2013). A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e)(2).
Activities that are not hospital care, medical or surgical treatment or examination by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a) are: (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. 38 C.F.R. § 3.361(f) (2013). “