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Berta, Did You Know This?


Guest Morgan

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Berta,

I took this from the link Railroader posted--Citation's Changes. The part in red was interesting. Were you the Administratix of the Estate?

TORT JUDGMENTS--DIC OFFSET BY FTCA5 JUDGMENT

§ 38 U.S.C. § 1151 (1995) provides for Dependency Indemnity Compensation to be offset by Federal Tort Claims Act (FTCA) judgments. In the case VA compensation paid to the widow results in a reduced judgment, the widow’s remedy is through “the U.S. District Courts that would have jurisdiction over questions arising from that litigation”. Gantt v. Principi, 16 Vet.App. 89, 95 (2002) quoting Bryan v. West, 13 Vet.App. 482, 486 (2000). Another question is the appellant’s legal status in the FTCA litigation. Depending on whether her legal status was the direct beneficiary or the Administratix of the Estate, the amounts of money offset would be different. Monies paid to the estate are not offset. Id citing Neal v. Derwinski, 2 Vet.App. 296, 299 (1992). The Court also found that the widows legal status in the FTCA litigation would determine whether or not legal fees would be included in the VA offset against the widow’s DIC payments. Id at 96 citing 38 U.S.C. § 1151.

Carrie

Edited by Morgan (see edit history)
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Yes- I was Administratrix of the estate- and the VA General Counsel specified an offset amount in my settlement- It was about a third of the FTCA amount.

The VARO withheld my DIC for years to satisfy the offset and then had to refund years of overpayment I made-I had questioned this long ago-

The VARO (I specifically cited Neal V Derwinski)had held that this was a North Carolina estate (Neal)and that New York laws did not apply to the offset provision for administratrixs. I questioned that.They were wrong.

When the VARO finally cut the check-4-5 years of DIC- I questioned that too- and it was still an entire year of DIC short-which they had to send.

I think they are still po'ed about this-they see this stuff everytime they open my c file-The regional counsel had to order them to square it all away.

You are correct- but this only applies to administration of an estate by the surviving spouse , not if he or she is an executor.

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  • HadIt.com Elder

Good Post. I did not know that.

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