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Ftca ,sec 1151 Offset


Berta

Question

I recently had to explain the offset provisions of Section 1151 and FTCA to a local veteran-

and maybe this BVA case that I used for him will help any one here similiarly situated:

http://www.va.gov/vetapp01/files01/0101466.txt

"FINDINGS OF FACT

1. In May 1996, the veteran was granted compensation under

38 U.S.C.A. § 1151 for interdigital nerve neuropathy between

the third and fourth fingers, right hand, as residuals of

January 1995 surgery at a VA facility.

2. In May 1998, a settlement was negotiated in a claim under

the Federal Tort Claims Act and monetary damages totally

$70,000 were awarded to the veteran.

3. Effective retroactively to June 1, 1998, the veteran's

compensation benefits were reduced as a result of an offset

of $70,000 against the FTCA settlement award. "

(This is NOT a direct SC injury-solely a 1151 one- but a good example of why I said in past posts that a veteran, with a Section 1151 claim,should weigh the potential of succeeding in an FTCA- yet incurring an offset.)

Lump sum FTCA awards, if invested well, can help overcome any lack of Sec 1151 compensation lost by the offset.

Also- an offset amount can be determined by General Counsel.

If the claimant asks that to be specified by counsel-and it is agreed to in the settlement then that is the offset-it cannot change.

I cued an offset wrongful death FTCA matter years ago and lost the CUE at the BVA, BUT years later VA counsel cued the VARO on the same thing-

I was right all along-and had even sent them the settlement papers but in those days I actually believed some of the stuff VA said.

My point is that VA Counsel in DC can determine the offset amount, as less then the full settlement amount. They might not want to but try to negotiate this with them.

"The facts show that the FTCA settlement was distributed to

the veteran in his individual capacity. As such, the Board

finds the compensation benefits awarded to the veteran under

38 U.S.C.A. § 1151 are subject to the offset in the amount of

$70,000 against his FTCA settlement award"

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