tdiu 1151, When No Offset Regs

[Berta]

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCYQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch03%2Fpt04_sp02_ch03_secD.doc&ei=pfpoU9SCF4SPyATMzIKoBw&usg=AFQjCNF9K_I2UBBOXGTq0vWy6O0-OioFmw&bvm=bv.66111022,d.aWw

Under # 13

"Change Date March 20, 2011

a. Principles for Determining the Offset Amount Under 38 U.S.C. 1151 The amount of offset must not deprive a Veteran of any part of the compensation payable to him/her if a claim under 38 U.S.C. 1151 had not been filed.

Do not offset any amount if the disability compensable under 38 U.S.C. 1151 does not increase the total amount of compensation.

The offset provisions are applicable if compensation for a particular disability is payable solely under 38 U.S.C. 1151. If compensation is otherwise payable for that particular disability, regardless of previous evaluation, then no offset is required.

Reference: For an example of a situation in which an offset is not required, see M21-1MR, Part IV, Subpart ii, 3.D.13.g. "

This reg explains what a new member might need to know......

if you get 100% or TDIU and then have a separate Section 1151 issue,

in most cases there is NO offset to your SC comp of the 1151 payment.

I think I explained here last year of how and why the VA, after a 100% SC award had already been established, and paid as an accrued award to me , had to also award my deceased husband's additional 100% 1151 award ( as an accrued award) in 2012

as a separate payment to me with no offset to the past accrued awards ,or to the Nehmer IHD award.

These are complex legal 38 USC 1151 nuances that most vet reps probably dont have a clue on.

And VA sure doesn't want 1151 claimants to know of this reg either.

Edited May 6, 2014 by Berta

[WncGuy39a]

Veteran received  1151for one injury then received  two addition disabilities linked to 1151- does offset apply to all three disabilities?

 

[Berta]

The link is still good in the above post.

It might help answer your question.

I won a FTCA case due to my husband's death. I negotiated the FTCA offset to my 1151 DIC award.

But, do you mean this is a veteran who won one 1151 and then has won additional 1151s, but did not file a FTCA case?

I filed many 1151 claims. They have all been granted.They grew from my husband's 1151 claim, that VA had not adjudicated prior to his death.

Subsequently I proved direct SC death due to AO. I have 4 CUEs pending under OGC Pres Op 08-97.

It appears that when the VA granted for one of the 1151 issues, Stroke , they only applied the Pres Op to a six month period.

They did not apply it to the other issues, 1151 AO IHD, 1151 HBP ,and two years of continuous 1151 due to stroke.

Maybe I dont understand your question.

15 years after my husband died, I discovered another malpracticed condition, actually my daughter, a veteran, kept telling me she thought Dad had DMII from AO. I realised she was right after reviewing the medical records again many times. I filed a claim for Direct SC death. I could not file 1151 for the same 1151 death. Because of my daughter''s insistence, I did win that claim and it has been the most important claim of my life.

I recently asked a Congressman to sponsor a bill I wrote regarding amendments that involve VA malpractice, and that can save lives and I added to the letter and legal evidence I sent to him this:

"There is no honor in 1151 deaths because it means the very system that the military service of men and women created -the VA-did not provide them with proper and timely health care."

That goes for any 1151 award. The Bill is about something the VA does not want Congress to know-VA has no accountability at all for any VA medical employee who causes a Section 1151 claim. They just go on to potentially harm or kill another vet.And they absorb the 1151 payments into the general service connected comp amounts, another way to deceive Congress and the public.And they fail to report every FTCA settlement like mine to the NPDB.

 

But ,to answer better, I could file and did, for every malpracticed condition.It was in my husband's original 1151, that I had to re open after he died.

One thing I learned about VA malpractice is that one medical error can lead to another, and another....and sometimes those accumulated errors can be fatal. The malpractice on my husband covered a 6 year period, and involved two separate VAMCs.

 

 

 

 

 

Edited April 29, 2019 by Berta
added more

[broncovet]

I think we discussed 1151's before, Berta.  I think what you are saying here, is if a Veteran is 100 percent SC, and VA operates on him, botches it up, its possible that he get a a max of a second 100 percent check for 1151.  (No not a combined rating for SMC, but 2 seperate 100 percent checks).  

My knowledge is woefully inadequate on 1151's, so Im just asking and learning.  

[Vync]

@berta that is really good info. If I am successful in my forthcoming 1151 (NSAIDs treating SC disabilities led to heart attack), would that mean there would be no offset?

For my 1151 research, I went to myhealth.va.gov and looked up my NSAID and other medications which could negatively impact the heart. I had a heart ultrasound yesterday morning, so I am waiting on the radiologist's report which should be ready in a day or two. The ultrasound tech said they saw some problems, but could not tell me what they were (hospital policy). Once I have that, I think I will have enough information to get the ball rolling.

[Berta]

 

Broncovet , the OGC Pres Op # 08-97 applies to any situation whereby the veteran has a SC award and then a separate 1151 award, and ,in my case it involves one 100% P & T SC award and one 1151 100% P & T award.

The VA used to have a statement under their 1151 info at the main VA web site that stated no claimant shall be “deprived” of any direct SC or 1151 compensation. They took that statement down. It was the essense of the Pres Op.

OGC Pres Op # 08-97 states in part:
 

“4.  Although an injury compensated under section 1151 is not a “service-connected” injury within the literal meaning of 38 C.F.R. § 3.310, section 1151 requires VA to pay compensation for disabilities under section 1151 in the same manner as if the disability were service-connected.  We have previously concluded that the language and history of section 1151 reflect a con-gressional intent that all disability and death compensation and dependency and indemnity compensation (DIC) benefits payable for service-connected disability shall also be payable for disability within the scope of section 1151.”

Then ,after further explanation, the word “all” is underlined in the Pres Op:
 

“We stated that “the language and legislative history of [38 U.S.C. § 351] make clear that Congress intended that all veterans’ monetary benefits payable for service-connected disability or death be payable for qualifying disability or death resulting from, among other things, medical examination or treatment in the same manner as though the dis-

ability or death had been a result of military service.”  VAOPGCPREC 80-90, at 3 (emphasis in original).

 

5.  In VAOPGC 12-86, we concluded that a disability compensated under 38 U.S.C. § 351 could provide a basis for compensating disability of a paired organ or extremity under 38 U.S.C. § 360 (now § 1160), which provides that when there is a service-con-nected disability of one paired organ, a non-service-connected disability in the other paired organ may be compensated as if it

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were service connected.  In VAOPGCPREC 100-90, we concluded that a disability compensated under 38 U.S.C. § 351 would provide a basis for payment of a clothing allowance under 38 U.S.C. § 362 (now § 1162), which authorized payment of a clothing allowance to any veteran who “because of a service-connected disability” wears or uses a prosthetic or orthopedic device which tends to wear out or tear clothing or uses skin medication which damages clothing.  In that opinion, we clarified the statement in VAOPGCPREC 80-90 that “all veterans’ monetary benefits payable for service-connected disability or death” are available for disabilities compensated under 38 U.S.C. § 351.  We explained that the statement “was generally intended to encompass all disability and death compensation and DIC benefits,” but not necessarily all other ancillary benefits available to veterans suffering from service-connected disabilities.  VAOPGCPREC 100-90, at 2-3.  We stated that “section 351 entitlement may also provide entitlement to certain ancillary and special service-connected benefits depending upon congressional intent.”  Id. at 3 (emphasis in original).”

The word “all “ is mentioned three times.

In this paragraph they state that 1151 payments are ancillary payments because “they are payable in addition to the other general compensation benefits authorized by 38 USC 1110 and 1131 or the general disability payments under 1310.”

“6.  We have construed section 1151 to authorize payment of all disability compensation and DIC benefits under chapters 11 and 13 of title 38, United States Code, including compensation and DIC benefits under those chapters which may be considered “ancillary” benefits because they are payable in addition to the general compensation benefits authorized by 38 U.S.C. §§ 1110 and 1131 or the general DIC benefits under 38 U.S.C. § 1310.  That construction implements the plain language of section 1151, which authorizes payment of “disability or death compensation under [chapter 11] and dependency and indemnity compensation under chapter 13” and is not limited to the benefits provided in the general compensation and DIC provisions of 38 U.S.C. §§ 1110, 1131, and 1310. “

I am the only claimant I know of who has used this Pres Op to support a CUE, or any type of claim.

In 1996-1997  I had many conversations with Ron Abrams of NVLSP regarding the VBM and he knew of my FTCA . At one point he mentioned this Pres op after it was publlished somewhere- I dont know if the OGC was even on line then. He mentiond they would have to py me ALL DIC under 1151 and, also under direct SC death, if I succeeded in both of those claims, and I did not undertstand that at all until the OGC went on line.

With a 21-4138 I sent to support the CUEs I filed on that, I also sent the Buffalo RO a copy of th OGC contact area and advised them, if they do not understand the Pres Op , to contact the OGC for an opinion.

Many of the Pres Ops at the OGC site have arisen from ROs requesting clarification of prior OGC Pres Ops.

I  believe that ,when I see a 1151 has been combined with a SC rating, in some BVA decisions, that the VA has commited CUE by not applying this facet of established VA case law- 

Oddly enough a vet friend I got  100% P & T 1151, also received SMC for a GSW to leg or for HB, I forget which, and also received a SC PTSD rating at 50 % ( which was Way too low) after years of asking him to claim PTSD, and he also I believe could use this Pres Op but he received a big retro on the PTSD so maybe they did use it.

The type of cancer they malpracticed on is an AO presumptive, but he could not understand what I meant by the pres op-they mentioned it was presumptive but only awarded the 1151 claim I wrote, as it was not presumptive to AO then.

My long point is exacty what Tbird has as our hadit Motto- Knowledge is Power-

Indeed it is!

I have 4 CUEs pending- one for example is the AO IHD they awarded to my husband as direct SC (posthumnous award)

The Nehmer VARO granted that under a CUE I filed in 2004, and is listed in my 1151 DIC award as one of the multiple malpracticed conditions.It falls under the Pres Op. as well as under direct SC.

 

 

 

[Berta]

Vync, they usually apply an offset factor to FTCA settlements with additional 1151 claims for the same disability.

As I understand the above Pres Op 08-97, they cannot offset or combine any 1151 amount with anything directly due to service.

https://www.va.gov/ogc/precedentopinions.asp

Just click on 1997 , then on # 8