Citation Nr: 0620914 Decision Date: 07/18/06 Archive Date: 07/26/06 DOCKET NO. 04-25 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the amount of a settlement under the Federal Torts Claims Act (FTCA) should be offset against disability compensation awarded pursuant to 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from January 1945 to May 1946. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2003 administrative decision of the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia (RO), which stopped payment of compensation made to the veteran under 38 U.S.C.A. § 1151, effective March 1, 2003, the first day of the month after the veteran was awarded a $100,000 tort settlement from VA. FINDINGS OF FACT 1. In June 2000, the RO awarded the veteran compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of an injury to the vagus nerve, with paralysis of the true left vocal cord, incurred in December 1998 at the Atlanta VA Medical Center (VAMC). 2. In February 2002, the United States settled a claim made by the veteran under the FTCA for personal injury incurred in December 1998 at the Atlanta VAMC in the amount of $100,000. CONCLUSION OF LAW The full settlement amount of $100,000, or any remaining portion, must be recouped from the veteran's award of 38 U.S.C.A. § 1151 disability benefits. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.800 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law in this case is clear. Under 38 U.S.C.A. § 1151, "[w]here an individual is, on or after December 1, 1962, awarded a judgment against the United States in a civil action brought pursuant to section 1346(b) of title 28, or . . . enters into a settlement or compromise under section 2672 or 2677 of title 28 by reason of a disability or death treated pursuant to this section as if it were service- connected, then no benefits shall be paid to such individual for any month beginning after the date such judgment, settlement, or compromise becomes final until the aggregate amount of benefits which would be paid but for this subsection equals the total amount included in such judgment, settlement or compromise." 38 U.S.C.A. § 1151(b) VA regulations implementing section 1151(b) provide that where any person is awarded a judgment on or after December 1, 1962, against the United States in a civil action brought pursuant to 28 U.S.C. § 1346(b), or enters into a settlement or compromise on or after December 1, 1962, under 28 U.S.C. § 2672 or § 2677, by reason of disability, aggravation or death within the purview of this section [i.e., 38 U.S.C.A. § 1151], no compensation . . . shall be paid to such person for any month beginning after the date of such judgment, settlement, or compromise on account of such disability, aggravation, or death becomes final until the total amount of benefits which would be paid except for this provision equals the total amount included in such judgment, settlement, or compromise. The provisions of this paragraph do not apply, however, to any portion of such compensation or dependency and indemnity compensation payable for any period preceding the end of the month in which such judgment, settlement, or compromise becomes final. 38 U.S.C.A. § 3.800(a)(2). By a June 2000 rating decision, the RO granted the veteran disability compensation benefits under 38 U.S.C.A. § 1151. The compensation was for a December 1998 injury at the Atlanta VAMC consisting of damage to the veteran's vagus nerve, with paralysis of the true left vocal cord. In November 2000, the veteran filed a FTCA claim, due to the December 1998 injury. The United States settled the claim in February 2002 in the amount of $100,000. The evidence of record establishes that he received $100,000 in full settlement of his civil claim. Under the statutory provision quoted above in this decision, and under the corresponding applicable regulation, the total amount of $100,000 is subject to recoupment from the veteran's award of VA compensation benefits under 38 U.S.C.A. § 1151 before payments to him of those benefits can resume. The controlling law and regulation are quite specific on this point, and there is no legal authority for any exception in the present case. For the reasons shown above the Board has determined that the full amount of the $100,000 settlement of the FTCA claim should be offset against the compensation benefits payable to the veteran under 38 U.S.C.A. § 1151. Because of the absence of legal merit or lack of entitlement under the law, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In conclusion, the Board finds that the veteran's compensation benefits awarded pursuant to 38 U.S.C.A. § 1151 are subject to offset in the amount of $100,00 against his FTCA settlement award and that the RO's offset of these benefits was proper. When a veteran is awarded benefits pursuant to the FTCA, compensation shall not be paid pursuant to 38 U.S.C.A. § 1151 based on the same incident until an amount equal to the tort award is offset by VA. VAOPGCPREC 79-90 (the offset provision of section 351 was intended to assure that the same individual does not recover twice for the same disability or death). The Board also observes that relevant statutes recognize certain circumstances where VA will refrain from, or discontinue providing, assistance to the veteran in the development of his claim for VA benefits. VA is not required to provide assistance to a claimant if, as in this case, "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A(2) (West 2002). Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to the claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility. 38 C.F.R § 3.159(d). No other development is warranted for this claim because the law, and not the evidence, is dispositive; therefore, any deficiency in notice to the appellant as to the duty to assist, including the respective responsibilities of the parties for securing evidence, is harmless, non-prejudicial error. See Valiao v. Principi, 17 Vet. App. 229 (2003). Where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the decision, the case should not be remanded for development that could not possibly change the outcome of the decision. The failure to carry out such required development under those circumstances is nonprejudicial error under 38 U.S.C.A. § 7261(b) (in conducting review of BVA decision, the Court shall take due account of the rule of prejudicial error); cf. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (stating "strict adherence [to the law] does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case. Such adherence would result in this Court's unnecessarily imposing additional burdens on the BVA and [the Secretary] with no benefit flowing to the veteran"). Because the law, not the evidence, controls the outcome of this appeal, further expenditure of VA's resources is not warranted, and there is no prejudice to the appellant in proceeding to consider the claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). It is also pertinent to note that, in a recent opinion, VA General Counsel held that section 5103(a) does not require VA to seek evidence from a claimant other than that identified by VA as necessary to substantiate the claim. See VAOPGCPREC 1-2004. Furthermore, in VAOPGCPREC 5-2004 (June 23, 2004) the VA General Counsel held that VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. ORDER The appeal to establish that proceeds of a settlement under FTCA should not be offset against compensation benefits granted under 38 U.S.C.A. § 1151 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs