ptsd Off Set

[Speaking Out]

Does anyone know where I go to read about when the VA can do an off set? I was SC ptsd10% and rated SC for Migraines and Endometriosis, but those were not compensable. I filed a med malpractice suit against the VA in 2004. In Nov. 2004 I applied through the DAV SO to have my benefits for PTSD and endometriosis raised and for IU due the the malpractice I had to stop working. I was increased to 30%PTSD and endometriosis 10% and was denied the IU. After some complications with my meds in 2006 I applied for my PTSD and endometriosis to be increased again. The PTSD was increased to 50% and the endometriosis was left at 10% with the statement..."At this point it is not clear if your endometriosis is responsible for the abnormal bleeding, but may be responsible for the dyspareunia, which is currently under evaluation. At this time we cannot grant an increase in your endometriosis as we have no clear diagnosis of this being the cause of your abnormal bleeding. If endometriosis is found to be the cause of your abnormal bleeding you may reopen your claim." I have received written offers of settlement for the tort claim from the VARO counsel, which we denied. Now, through a US Attorney, the new offer is a lump sum and credit for my SC disability pay for the last three years while the tort has been ongoing and then hold my benefits until the monthly amount adds up to the lump sum plus the credit. This offer (the lump sum + credit for 3 years of my SC disability pay) is a lower offer numerically than the last written offer from the VARO counsel. I have not filed for 1151 benefits. Can they do the off set under these circumstances? Should I file for 1151 benefits? How do I reopen a claim?

[Chuck75]

It sounds like you will need to get independent medical opinions to back up your claim.

I'd also look into something along the line of "loss of function/use of a reproductive organ", which is compensatable. I believe that constant or intermittent low level or greater pain can cause migraines.

As to your options in the legal side, I cannot comment as to which way to go.

My personal preference would be to keep burying them in paper until they do more or less what you can be happy to live with.

Does anyone know where I go to read about when the VA can do an off set? I was SC ptsd10% and rated SC for Migraines and Endometriosis, but those were not compensable. I filed a med malpractice suit against the VA in 2004. In Nov. 2004 I applied through the DAV SO to have my benefits for PTSD and endometriosis raised and for IU due the the malpractice I had to stop working. I was increased to 30%PTSD and endometriosis 10% and was denied the IU. After some complications with my meds in 2006 I applied for my PTSD and endometriosis to be increased again. The PTSD was increased to 50% and the endometriosis was left at 10% with the statement..."At this point it is not clear if your endometriosis is responsible for the abnormal bleeding, but may be responsible for the dyspareunia, which is currently under evaluation. At this time we cannot grant an increase in your endometriosis as we have no clear diagnosis of this being the cause of your abnormal bleeding. If endometriosis is found to be the cause of your abnormal bleeding you may reopen your claim." I have received written offers of settlement for the tort claim from the VARO counsel, which we denied. Now, through a US Attorney, the new offer is a lump sum and credit for my SC disability pay for the last three years while the tort has been ongoing and then hold my benefits until the monthly amount adds up to the lump sum plus the credit. This offer (the lump sum + credit for 3 years of my SC disability pay) is a lower offer numerically than the last written offer from the VARO counsel. I have not filed for 1151 benefits. Can they do the off set under these circumstances? Should I file for 1151 benefits? How do I reopen a claim?

[Pete53]

Looks like you are going to win. I don't think that you can get around offsets but you could ask for it in a settlement offer.

Good Luck.

[Speaking Out]

Can anyone tell me where this is from? Is it from a VA manual?

EXAMPLE: A veteran has two non-1151 service-connected disabilities each evaluated at 60 percent and a 1151 disability evaluated at 30 percent. The combined evaluation is 90 percent and for the non-1151 disabilities the combined evaluation is 80 percent. Per paragraph c, VA offsets the difference between the 90-percent rate and the 80-percent rate. Subsequently, VA increases one of the 60-percent evaluations to 70 percent. Now the combined evaluation of all disabilities has not changed (remaining 90 percent), but the combined evaluation of the non-1151 disabilities is increased to 90 percent. Therefore, discontinue the offset. In the reverse situation (the 70 reduced to 60), commence the offset.

22.07 OFFSET NOT APPLICABLE

The offset provisions are applicable if compensation for a disability is payable SOLELY under 38 U.S.C. 1151. If compensation is otherwise payable for a disability, no offset is required.

EXAMPLE 1: A veteran is rated 10 percent disabled because of a service-connected foot disability. The veteran enters a VA medical center for treatment of the disability. The evaluation is increased to 30 percent due to an aggravation of the injury as a result of the medical or surgical treatment. The veteran sues the hospital and recovers. No offset is required because the foot disability is service connected without regard to 38 U.S.C. 1151.

EXAMPLE 2: A veteran is service connected for a severe pulmonary condition which requires the administration of significant doses of steroids. The veteran later develops cataracts and claims that the cataracts are due to the steroid treatments. The veteran files a compensation claim under 38 U.S.C. 1151. The rating board should consider whether the cataracts are proximately due to or the result of a service-connected disability so that the condition can be service connected under 38 CFR 3.310. If the rating board does grant service connection for cataracts under 38 CFR 3.310, no offset is required.

[Berta]

M21-1 is the manual that adjudicators are supposed to use-

38 USC and 38 CFR are the regs and laws, M21-1 tells the VA how to apply the regs-

This is exactly why I wondered HOW could the VA claim an offset-in your case- to disabilities that are not under Sec 1151-

I am in the same situation-

well a little different-

My tort settlement was partially offset to my DIC-

I got what I wanted in that settlement- I stuck to every law in the book as to the offset-I was willing to give some back but not all-

it is too legally complex for me to explain it all here-

and we all deal with the OGC as individual situations-

The VA continued to offset the whole settlement-from my DIC-

my POA would not support my appeal but by time it was denied at BVA in 1998 I just gave up thinking maybe I was wrong.But I was right.

Upon my re-opened 2003 claim Regional Counsel saw my CUE and he awarded it-

they had to refund every penny they took- over the offset amount-

Because of the reg you just out here (M21-1)

when I succeed on my AO claim the VA has to pay me over 12 -13 years of DIRECT DIC-NO offset-

the 1151 DIC is moot-

Long story- but I do see what you meant-

if you have filed a Section 1151 claim THAT is where the offset amount should come from-

they cannot take it from direct SC- what would an offset have to do with direct SC?

BUT as I well know- they will try-

This is another reason that Sec 1151 claims need good vet rep help- often the vet is better off claiming the screw up as a secondary condition rather than a screw up under Sec 1151- still they have to prove it all-and if they sue-they have a lot to consider-

[Berta]

PS- this is the link to the actual M21-1-Part 4-

with that reg somewhere down the pages- 20 pages here-

I wanted to double check what you posted -

You can support any illegal offset appeal with copy of the this actual reg from M21-1-as evidence and make sure-that they read it and that your vet rep understands it.

I got my offset returned but that was only 2 years ago and only because Regional Counsel knows how to read-

I should have more aggressively pursued the denials because the CAVC would have agreed with me.

http://209.85.165.104/custom?q=cache:5CO8g...381742111066612

It is page 12 and 13-

I have used this for my AO DIC award.If you send them the whole thing- highlight with majic marker the part they (VA) needs to read.

Edited March 16, 2007 by Berta

[Speaking Out]

Thank you for the info. I have forwarded it my attorney. Now I know why the US Attorney is willing to put it in writing in our settlement papers that no off set will be taken because they could have never have done it to start with. I never filed 1151, my SC benefits were increased but no 1151. I thnk the US Attorney committed a fraud upon the court by giving the settlement offer to me of 15 lump sum plus 15 credit for my SC disability pay for the last three years and then holding my benefits under USC title 38 at a "good faith" settlement conference with a Federal Magistrate. I learn something new every day. I'm not sure if we are going to settle now or not armed with this info.