AgentOrangeWife

1151 v Tort claim Technical Questions

6 posts in this topic

Posted (edited)

Does anyone know if it's true that tort award funds are deducted from 1151 award funds?

Is 1151 a lump sum or is it payments?

There is another Veteran's community website where a senior person says, and I quote, "any amount that you receive under the tort will be deducted from the 1151 payments".

I thought 1151 was for additional disability caused by less-than-standard-care and tort's were for all the rest including loss of consortium etc etc.

Thanks again,

A/Owife

ps - thanks broncovet!

Edited by AgentOrangeWife

Share this post


Link to post
Share on other sites

vlb-how-to-file.jpg

Posted (edited)

There is considerable info in the 1151/FTCA forums on this issue.

"Does anyone know if it's true that tort award funds are deducted from 1151 award funds?"

Yes that is true...in this way. The VA will award for the 1151 disability on paper and then that amount will be deducted from the tort settlement until the settlement is recouped.....unless a FTCAer does what I dd as explained below,if it is a wrongful death FTCA settlement.

"Is 1151 a lump sum or is it payments?"

An FTCA TORT settlement is a lump sum payment.

1151 awards are paid monthly "as if" service connected.1151 DIC is pa8id that way as well.

I had no  lawyer or IMO for my FTCA case. I have wondered many times since then  if most lawyers negotiate well for 1151 offsets(or DIC under 1151) offset with General Counsel.(regarding wrongful death)

I negotiated a very favorable offset amount myself with the VA General Counsel.

15 or 20 NY lawyers ,this was many years ago, told me I didnt have a case at all so I did it myself and glad I did. No lawyer fees to pay. I could not find an IMO doc in those days either so I did the medical and legal work myself.

The VA however kept deducting the agreed on offset ( clearly in the settlement papers they had)from my DIC for many years and I could not seem to get them to understand it was wrong.

When I re opened my claim for AO DMII (for a direct SC death) in 2003  the Regional Counsel VA was contacted to check what I had stated as to the tort claim and what I had enclosed as evidence for my DMII claim ( which included my FTCA settlement info), and the letters I had sent them about the DIC offset,and he immediately called a CUE on them and they had to pay me almost 40 thousand they had withheld improperly from my DIC.

Also the VA in 2010 had to refund the full FTCA offset because I won the DMII AO death claim.

I learned a lot about 1151 and FTCA through all that and everything I know is here in the FTCA and/or 1151 forums.

I helped a Vietnam vet friend get 100% P & T under 1151 ( he worked at the same VA my husband did and they almost killed him too) and I advised him of the FTCA but he didn;t want to file and get a lump sum because he would spend it all on Elvis paraphernalia.He made a good decision because he still gets the 100% P & T and also SMC and living vets cannot really negotiate a wrongful death offset...but their survivors can if they die from proven VA malpractice.

 

Edited by Berta

Share this post


Link to post
Share on other sites

Thanks Berta-

I looked under the 1151 forum's and found a plethora of helpful information. I just missed comprehending the answers to my questions.

My husband sounds like your Rodney in that they both want/ed us to keep fighting for their benefits.

I am surely sad to hear that there was not a huge increase in sales of Elvis paraphenalia. OMG that's really enjoyable:)

If a Veteran is already 100% for 1 disease how does the 1151 change anything? Does it get somehow move into the SMC ratings?

How do they calculate the lump sum - do they use some sort of actuarial table?

Thanks!

Share this post


Link to post
Share on other sites

Posted (edited)

"If a Veteran is already 100% for 1 disease how does the 1151 change anything? Does it get somehow move into the SMC ratings?"

It can... at SMC S HB or SMC S based on 100% plus 60% for an independent system rating.

"How do they calculate the lump sum - do they use some sort of actuarial table"

Many if not all states by now have Caps on FTCA settlements.

Those vets or their survivors who have won millions due to VA malpractice, (some awards that high have been posted here) did not accept the VA offers or maybe their FTCA was even denied at first and they pursued their FTCA cases  in Federal Court.

Sometimes VA will try to appeal any large  Fed Court settlement at that point.

1151 disability awards are rated by the same VA rating scale we have here under the VA SRD.

I dont know how FTCA non- death settlement amounts are determined, other than considertions of any state settlement caps.

As I advised in the FTCA/1151 forums here- the criteria of proof is the same for both types of claims.

But anyone contemplating FTCA should an attorney's advice.- one who has handled FTCA issues before for veterans. Often that would go for any 1151 claimant who VA has denied their 1151 claim( as well).

And in my opinion, any FTCA or 1151 without an IMO/IME will be denied right off the bat.

I studied cardio, and neuro and other complex medical stuff to win my FTCA/1151 issues and also my DMII claim (I studied endocrinology for that one but I also got 3 IMOs for that one as the VA didn't even want to re open that claim and all of my claims have been battles. I knew my IMO doctors would agree with my lay medical opinion, and they did because my evidence was solid.. )

 

 

 

Edited by Berta
1 person likes this

Share this post


Link to post
Share on other sites

Posted (edited)

Am I correct in concluding that the 1151 is financial in nature but the additional purpose is to add the 1151 damage/malpractice/disability to the Veterans compensation?

Edited by AgentOrangeWife

Share this post


Link to post
Share on other sites

Under  a General Counsel Pres Op, the VA is supposed to pay "as if SC " comp to anyone with a 1151 disability, at a ratable level.They are not supposed to be "deprived" of any comp due to them.

However they don't always do that. In my case I am fighting them with the Pres Op ( #08-97)

They "deprived" me of proper compensation in an accrued award I had ( Nehmer and CUE award letter)

by subtracting my husband's 1151 stroke from his 100% SC PTSD comp.

If a vet who might have a very low 1151 rating expires and the Death Certificate states the 1151 issue had caused or contributed to he/she's death, the spouse would be eligible for 1151 DIC, unless the veterans comp profile indicates the spouse would be eligible instead for direct SC death ( far better then a 1151 DIC award.

A lot of info on 1151 appears in M21 if you google M21-1MR 1151....

I used a lot from M21-1MR Part IV,Subpart iii, Chapters One and two for my many 1151 issues.

All  main org vet reps got the same basic training I did from NVLSP as to 1151 claims. 

That does not mean, however, that they know what they are doing.

The criteria for a successful l151 claim is the same as for a FTCA case. I used the exact cause of action for my FTCA as for my 1151 claim.

The cause of action and criteria for 1151 claims is here in our 1151 forum and searchable.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!


Register a new account

Sign in

Already have an account? Sign in here.


Sign In Now

hadit-20-year-logo.png











Popular Forums Common VA Disabilities