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

[Berta]

The opinion also states:

"shall also be payable" in above text that mentions "all" three times.

It has never been altered or recinded. It was prepared right after the Gardner Moratorium I was in.

It was prepared after I had settled with the USA because 351 was the law at the time of Gardner, whereby a veteran did not need to prove fault,to succeed in a 351 negligence/malpractice claim.

I however proved fault and malpractice, and this claim was initially filed by my husband months before he died,. and I  had to wait out the moratorium, but  the new 1151 came out ,  and the OGC already had enough of my medical evidence to settle with me.

I have asked 5 Senators to amend a bill they have in the Senate on VA malpractice, (S 221)and have recently sent a Bill I wrote myself to Congressman Roe, on that issue: The Rodney F Simmons VA Malpractice Accountability Act.

It involves 4 amendments, 2 involve Title 38 as amending Chapter One Part 4, and  also Section 1151 ,and 2 involve 38 USC 5701,which also involves a letter I need to send to President Trump-if you are familiar with 5701 ,you can see why.

The current Tally bill HR 7105,in my opinion, will go no where.The Tally case is here somewhere.

 

 

 

 

 

[broncovet]

Im still "wrapping my head" around this concept, in no small part because it seems to go against VA's longstanding policy that you can't get more than 100 percent (plus SMC, if applicable), no matter what.  

For example, they dont permit a Veteran to collect pension and compensation at the same time, but instead the VEt gets the larger of the 2 amounts.  

Further, if a Veteran has 2 100 percent ratings, he does not get 2 checks times 100 percent comp.  (He should get SMC S, tho, but that is only about an extra 350 per month, not 3000 per month.)  

But..this Pres Op 08- 97, seems to make it clear that a Veteran CAN get 100 percent plus a possible second 100 percent if he is injured by VA and succeeds in his/her 1151 claim. 

And this brings up something else..maybe more important:

THE VA LOVES TO BURY BENEFITS In OBSCURE places like PRES OP"S, where few, if any, Vets can find them  and take advantage of them.    

   This is a travesty of justice!  Its clear the VA does not "want" us to find these "jewels".  They are not on the VA website, so to find out about them, requires in depth knowledge.  

    The average Veteran doesnt know what a "Prec-Op" even is, so how would he know to search for the same?  

     Thus this benefit, would be limited to Veterans with exceptionally knowledgeable attorneys, or the Vet themselves had "Berta-class" knowledge!!!

     As far as I know, no one has "Berta-class" VA knowledge, except maybe Ron Abrams, and a few people like Ken Carpenter and CCK law, and Mr. Chris Attig. 

 

Edited April 30, 2019 by broncovet

[Berta]

Broncovet- you mentioned Ron Abrams. As an advocate I have had a relationship with NVLSP since 1991 and Ron Abrams was always generous with his time regarding any calls I made to him about the VBM.Rick Spataro was a Big help in helping me to understand Nehmer Footnote One.It was so good I could hardly believe it.

Sometime around early 1998 , I asked him (Ron)  a hypothetical question- he knew I had a 1151 /FTCA wrongful death issue that had been granted. I had mentioned to him that all I had was the VBM ,with some limited FTCA info but more info on Section 1151. Without any lawyer or IMO, and an internet that was very limited, all I had was Evidence and that was all I needed.

and he knew I was in the Gardner moratorium. The hypothetical question was if a  widow/widower  succeeded in a 1151 death claim, and then could succeed in a direct SC death claim, what would happen, and he said they would get DIC, 'under both DIC theories of entitlement.'

When I won AO DMII direct SC death in 2009, I did not give the Pres Op a thought-after a 6 year long ordeal (caused by my RO) I was satisfied with the award even though the malprctice was so bad they could not rate my husband's DMII, as an accrued benefit..

But then when I obtained an additional SC death award due to AO IHD, (which they did rate)no diagnosis , no treatment but the medical evidence I had proved a 6 year period of malpractice on my husband's IHD, I began to think about the Pres op because the audit they gave me was ,in the decision, an "estimate" and it was wrong.

It seems they did consider the Pres Op for a 6 month period, granting l151 100% P & T  for the stroke and then the RO rated him on the residuals- all of my evidence, most from VA itself, had declared him 100% P & T for the stroke until he died.The director of my VARO, I mentioned before called me twice to see if she could get over on me, insisting he was definitely 100% Total under 1151 but not "Permanent". This was so outrageous I asked her what sudden CUE of this catastrophic stroke did VA perform , yet failed to tell the veteran he had been cured)No answer.

Death makes any Total disability , of a veteran, that is continuous through their lifetime, permanent when they die.

That is why this same VARO awarded me as accrued 100% P & T for my husband's PTSD almost three years after he died. The Permanent part was neveran issue with them.

Her rationale( The Director of the Buffalo VARO) means any survivor of a veteran who has had a 100% P & T in their lifetime ,whether SC or 1151 "as if sc"might be denied DIC or accrued on the same basis  -even those who had the 100% P & T in their lifetime for ten continuous years. I am waiting for something VA said I would receive right away-that was a few weeks ago.

When I get it ( or even if I dont get it- I can use a SOC instead)The Director will be part of my next OAWB complaint.I told OAWB about this issue with those phone calls - there were 4 that same week from the VA,in my formal complaint but the main NPDB issue was what they focused on.OAWB was stunned at receipt of one of my SOCs and the "cause of death" the examiner opined on. This same RO director was in charge when they withheld probative evidence from him.1996 .

OAWB gave me a contact person at the VA if I have more problems with the way my pending evidence is handled or with the Director.

 

 

I had no idea what he (Ron Abrams)meant by' both 'and the converation changed to other VAOLA-and  When I found this Pres Op-many years ago, it seemed to be what he meant. He would have had access to the OGC Pres Ops far sooner than when they formally came on line.

I cannot say this enough- make sure your spouse knows what your medical issues are and is PC literate enough to get here, if you die.

Over 50 % at least of the questions we get here  from surviving spouses, reveal they dont have a clue on how DIC or accrued benefits works.That is not their fault, the info is all here at hadit, but worse yet, some do not answer questions like what was the cause of death on the Death Certificate, and what was a contributing factor, was an autopsy done, what did the veteran get any SC for, etc etc., or' the VA killed my husband' and yet provide no evidence (or refuse to seek an IMO) to properly pursue a 1151 death claim. The VA will walk all over them,if they can.

Sometimes I think we have gotten  VA shills asking questions as widows or vets, that are often bizarre - just to see what advice we give them.

 

 

Edited April 30, 2019 by Berta

[Buck52]

Yes I agree with ya broncovet  ms berta is the most knowledgeable person we have with us on hadit  VA Related Issues  and we all should be proud and happy she shares her valuable time & Great Information AND advice with us.

All veterans can take her word to the BANK.

[broncovet]

(Broncovet goes up to the bank teller):

"Ok, I would like to make a deposit."

"How much would you like to Deposit, Mr. Broncovet?"

"MMMM How about $100,000?"  

"Ok, where is your check for that amount?"  

"Ah heck, Berta sayz that Op Prec 08-97 should......, so I want to deposit Berta's post instead of the hundred grand, ok?   I have printed out Berta's post so that you have a record of it."    

"Ok, Mr. Broncovet.  We do accept Berta's Posts instead of cash (that inflation eats away) or checks that can bounce.    Now, do you want cash back from that or do you want to deposit the full amount?"  

"Aw, just deposit the full amount.  I need to have some of it to donate to Tbird for introducing me to this wonderful new resource."  

[Vync]

@Berta Today, I went to my state VSO to ask him some questions about 1151. He said, "What's 1151?" I reached into my bag and handed him the pages I printed from the Federal Register.