1151?

[foreveryoung]

If you receive comp for a service connected disability, can you still file an 1151? Is there a time limit? How does this differ from a Tort claim?

Thanks

[Guest DON20906]

You can file an 1151 claim regardless of your SC disability. Both 1151 claims and FTCA claims can be filed for the same incident. With 1151 claims, all you need to show is that you incurred a new disability or aggravated an existing one by VA medical treatment or Voc Rehab. In a FTCA claim, you must show negligence on the part of VA, usually by a VA employee in the course of official duties. In the 1151 claim, you recieve periodic monetary benefits, same as for your SC disability. Successful FTCA claims are normally settled with a lump sum award. There is a two-year statute of limitations on most FTCA claims. There is none on 1151 claims. If you win both the 1151 and the FTCA claims, no periodic monetary payments are made until the FTCA pay-out is recouped. Denials 1551 claims may be appealed to the Board of Veterans Appeals and then to the Court of Appeals for Veterans Claims. If you lose an FTCA claim, you can appeal it to the Federal District Court having jurisdiction.

[Guest morgan]

As I understand it, there is no offset for the FTCA award if the disability is service connected.

[Berta]

Morgan-Don seemed to sum it all up very well-

There is an offset to a Section 1151 award with a FTCA settlement-

You raised a good point-

I had a 40% SC vet who was raised to 100% due to Section 1151 misdiagnosis which shortened his life.

If he had accepted a lump FTCA settlement-the 40% SC would have continued but the additional Sec 1151 disability would have been offset against his 100% award.

He chose not to even file FTCA because he felt he would have spent that too quickly.

My DIC due to Section 1151 death was offset for many years for VA to recoup the offset amount. That amount was determined by General Counsel.

But then I discovered three years ago (and have IMOs to prove) that my husband's misdiagnosis was for an Agent Orange condition,DMII, and untreated ,this is what led to his Section 1151 death.(it caused heart disease that VA misdiagnosed.

I have a direct SC death claim in progress.

The VA cannot recover FTCA from a direct SC disability or death-only from a Section 1151 disability or death which also received an FTCA settlement.

[foreveryoung]

To try and understand this correctly, since I currently have SC for the disability. The VA can still grant periodic monetary benefits? This is an issue of malpractice from the VA in 1976 during an operation, also have secondary problems. How does periodic monetary benefits differ from VA Comp?

[Guest DON20906]

The percentage under 1151 would be added into your current disability rating to arrive at a new combined evaluation. VA comp and 1151 are both paid as periodic monetary benefits. It's just another issue, unless it's the only rating you have, then certain "as-ifs" apply. Only the part awarded under 1151 would be withheld against a FTCA award.

To try and understand this correctly, since I currently have SC for the disability. The VA can still grant periodic monetary benefits? This is an issue of malpractice from the VA in 1976 during an operation, also have secondary problems. How does periodic monetary benefits differ from VA Comp?

[foreveryoung]

Thats what I thought should happen on a 1151. I dug out the 1151 I filed in 2002 and the VA told me, since I was granted SC for this disability they can not grant an 1151 for the same issue. Is this correct or should I refile?