Berta--offset In 1151 Claim.

[Guest Morgan]

Berta,

I came across this and thought you might want to see it. I'm not sure it would apply to your claim. The rest of this document has a lot of info about how the VA develops an 1151 claim.

Does this confirm the "double compensation" for a successful 1151 claim for an already SC condition? Ron Abrams told me the VA cannot pay twice for the same condition, but I think this says otherwise. What do you think?

(I thought it was interesting that in example 2, the vet filed an 1151 claim for side effects injury from clinically appropriate medication.)

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.

Another question. We haven't filed a claim under 1151, but will they consider the investigation going on now as a claim for 1151? Here's what I found when I found the above excerpt:

22.02 CLAIMS REQUIREMENTS

a. The veteran need only submit a statement showing an intent to apply for compensation under 38 U.S.C. 1151. There is no requirement for submission of VA Form 21-526. A formal claim, however, for compensation or pension is a claim for compensation under 38 U.S.C. 1151 (38 CFR 3.154).

Carrie

Edited October 21, 2005 by Morgan

[Guest Berta]

Carrie- I need to clarify this-

I won a Sec 1151 claim and wrongful death settlement under FTCA years ago.

Only part of my DIC -$57,000 =I think was deducted from the past DIC. I receive full DIC now.

My present claim is for death due misdiagnosed diabetes mellitus due to Agent Orange.

The fact that VA already had never diagnosed Rods heart disease and also misdiagnosed many of hisa strokes makes it most likely they failed to diagnose that causes of these.

I have two Independent Medical opinions and am in process of DRO review. My vet rep (a REAL good one) at the VARO was astonished I did not succeed weeks ago on the weight of my medical evidence. I had a new Decision Review officer and she never even had opened most of the evidence packets.We are awaiting an additional medical opinion. I even sent more evidence last week- there was plenty of it in the med recs.

I intend to prevail on direct SC death due to DMII due to AO.

This is what Ron Abrams told me- there is no prohibition on dual benefits in my case since the 1151 claim and DIC is separate from the direct SC AO claim.

Even though I get DIC under Sec 1151 , they will have to pay me 11 years more of it under the Nehmer decision.

He told me when I prevail on this claim, that if the VA doesnt pay me retro and direct DIC (and smc too)for the AO disability and death , NVLSP will certainly represent me.

I have already spelled this all out to the VARO as to the fact these are separate awards.

Ron Abrams does not put a specific citation in the VBMs as to how this type of claim should go-they are usually awarded at the VARO level- and there sure aren't many.There is no CAVC or BVA claim like it.

A vet friend of mine from another vets site gets 100% SC for PTSD and additional payment of comp (at 40%) under Sec 1151

A good friend of mine gets 100% under Sec 1151, as well as 40% GSW and some additional SMC ratings.

He also comes under Nehmer and has NHL. I wrote a direct SC claim for him-under Nehmer-

last I heard he had not filed it yet.

It should award him 100% under NHL AO, 100% under 1151, and additional SMC.

He is afraid of his service officer- and this is why he wont file it.

The regs you used are correct- I sent the VARO these exact regs so that they get this right-

these are two distinctly different and separate issues and also require separate monetary awards.

I dont even think the VA can use combined math on them- havent checked that out yet.

I told Ron he could use my claim as an example in the VBM when I succeed.

Edited October 22, 2005 by Berta

[Guest Morgan]

OK, so let me see if I have this regulation right. Your current DIC was for an 1151 misdiagnosis for a NSC condition (at that time) and the $57,000 offset was because of NSC.

BUT when you win the current claim, you will get an additional DIC benefit (comp) for "death due to a SC condition" (the same one, but now SC), plus retro, including SMC, (posthumously) for heart and DMII (AO).

Then you are going to have 3 SCDs at 100%--PTSD, DMII, and heart--with need for A&A--to use for SMC calculations, right?

Carrie

[Guest Berta]

OK, so let me see if I have this regulation right. Your current DIC was for an 1151 misdiagnosis for a NSC condition (at that time) and the $57,000 offset was because of NSC.

BUT when you win the current claim, you will get an additional DIC benefit (comp) for "death due to a SC condition" (the same one, but now SC), plus retro, including SMC, (posthumously) for heart and DMII (AO).

Then you are going to have 3 SCDs at 100%--PTSD, DMII, and heart--with need for A&A--to use for SMC calculations, right?

Carrie

Exactly correct Carrie-

When I filed the claim in 2003 I thought that it had absolutely no more monetary benefits-(except REPS)

it was important to me and Frances that dad could have Peace With Honor-as there is none of that with a Section 1151 death.

Then a few months later the new VBM came out and I seemed to understand that NVLSP was saying that these claims are not under prohibitions of dual benefits at all-

I had not understood Nehmer well and I took the time to get through that-

in the VBM they had the entire retro stipulation etc , lots of legalise-and then it started to hit me-

Because this was going to be an Agent Orange claim- I fit into Category one- and there is additional potential for significant retro award. as well as REPS and some other stuff I forget what-

I seem to have VA paranoia- if I read something that seems like a favorable aspect of a reg-I begin to doubt it- so I called Ron Abrams- known him for many years- and asked him if my interpretation of the direct and 1151 awards was correct and rattled by him the AO DMII stuff.

He assured me (also checked more recently too with him) that if I succeed and they dont send the money he (NVLSP) will get me my money.

It was a very odd feeling knowing that- all we wanted was a direct SC death- I didnt think of the offset at that time because the VA had actually determined that the full amount of my settlement was to be offset.

I had written to them and griped at the time but they still said total amount was to be offset.

When I re-open the claim for the AO DMII direct SC death I got a check from the VARO a few months later for $27,000. I called the VA three times that week because I didnt know what it was for .Then a letter came from VARO which stated that District COunsel (they had to check with counseL as to what I had said in the claim as to the prior misdiagnoses etc) had ordered them to correct their offset amount and that I had in fact overpaid it. (I had been right when I griped about this years back but then I just said the heck with it)

Then I checked their figures and the offset letter which explained the VARO CUE on itself and my figures for what they owed me came to $11,000 more than theirs.

Meantime they had been snookering me out of the proper DIC amount but had started my DIC checks.

I wrote to them that either they owed me about 200 bucks on the monthly DIC checks or about $11,000 more on the DIC CUE or both---

3 weeks later I got about 300 more for the DIC correction and over $11,000 more on the offset and a complete audit of the payments.

You correctly assessed my claim-

My local vet rep in 2003 saw no potential in it at all-now he kisses my rear end because his boss- who is handling it at the VARO level is just thrilled with it.

[Guest Morgan]

WOOHOO! I understand this.

My husband definitely has a Sec. 1151 claim for three conditions. Until now, I thought there was no need to file a claim because he was already getting 100% comp. Meg in Ron Abrams office told me that. She said with his increase to 100%,the VA took responsibility for the doctors' goof ups. I called Ron to verify what she said and he confirmed it (and told me to stop reading online vet forums). I, obviously, didn't explain it right to them. Maybe I failed to tell them his increased 100% ratings were SC conditions that were worsened because of VA medical care.

Do you think I should wait on the chief of staff investigation report to file the 1151 claim?

Carrie

[Guest Berta]

If you have all of his VA med recs, I would not hesitate to file this claim under Sec 1151.