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Berta

Offset Og Pres Op

Question

The rules regarding FTCA offsets to 1151 are explained well in this 2011 General Counsel Precedent Opinion.

These apply to living FTCA/1151 veterans.

The offset rules for surviving spouses due to wrongful death cases are different and involve legal standing of the survivor as to the estate of the veteran or to their standing as administrator of the veteran's estate.They involve other issues too and are too complex to really explain here and best to get a lawyer in that type of case.

This Pres Op explains the ramifications of FTCA to 1151 claims.The veteran had filed both and both claims were successful.

His settlement of $775,000 was to be correctly offset to his Sec 1151 award.

http://www.va.gov/ogc/docs/2010/Prec1_2010.pdf

DISCUSSION:

1.In the case underlying the request for this opinion, a veteran who was in receipt of compensation under 38 U.S.C. § 1151 in March 1997 obtained a settlement from the United States under the Federal Tort Claims Act (FTCA) in the amount of $775,000 based on the same disability for which he is compensated under section 1151.2 If an individual is awarded a judgment or enters into a settlement or compromise under the FTCA based on a disability treated under section 1151 (a) as if it were service connected, VA is prohibited from paying section 1151 benefits for that disability for any month beginning after the date such jUdgment, settlement, or compromise becomes final until the aggregate amount of benefits that would otherwise have been paid equals the total amount included in such jUdgment, settlement, or compromise. 38 U.S.C. § 1151(b)(1). Thus, the regional office (RO) in this case should have discontinued compensation payments under section 1151 starting with the payment for April 1997 until the aggregate amount of compensation that would otherwise have been paid equaled $775,000, the amount of the settlement. However, the RO failed to discontinue the veteran's section 1151 payments ….”

In part :

“The fact that VA erroneously paid the veteran $222,128 in section 1151 compensation for the period from April 1997 through July 2005 or that the Board determined the $222,128 overpayment to be an "invalid" debt does not obviate the statutory prohibition against paying section 1151 compensation until the aggregate amount of compensation that would otherwise have been paid equals the total amount of the tort claim settlement. Section 1151(b)(1) unambiguously prohibits duplication of payments following a tort claim settlement and operates independently of the laws governing overpayments and debt collection. No law authorizes VA to reduce, due to a failure of VA to timely suspend benefit payments, the amount of benefits required to be offset. Therefore, VA must discontinue paying compensation to the veteran until the amount of compensation that would otherwise have been paid equals $775,000. Furthermore, we can discern no reason for distinguishing between an "invalid" debt and a waived debt. In either case, the veteran is permitted to keep compensation payments to which he was not rightfully entitled. The law prohibits VA from paying compensation until the entire amount of the tort settlement, $775,000, is offset, and payments that the veteran is permitted to keep cannot be considered payments that were not made for purposes of this offset. “

Will A. Gunn Attachment (claim folder)

(Anyone getting a large FTCA settlement award should certainly seek advise of an investment counselor.I sure did and my investments generated enough interest to cover the 1151 DIC check on paper that did not come until the offset I agreed on was paid to the VA.When the DIC was changed to Direct SC death that changed everything-the entire offset was refunded but still= that does not happen often (I never found a similiar case in 16 years) . A good lawyer can advise best if a vet should file both 1151 and FTCA.If there is any potential at all that the 1151 FTCA issue could ever be proven as direct SC, then they should definitely file both.But they must accept that the entire FTCA settlement will be offset to their Section 1151 comp. The VA however-cannot recover it from any of their established SC comp.)

Edited by Berta

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