93 Decision Citation: BVA 93-07537 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-01 819 ) DATE ) ) ) THE ISSUE Whether the proceeds of a settlement under the Federal Tort Claims Act should be offset against the appellant's dependency and indemnity compensation and, if so, the amount of the offset. ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had active service from November 1944 to March 1946. An appeal has been taken from a May 1991 action by the Regional Office, San Juan, Puerto Rico, determining that the amount of a settlement received by the appellant under the Federal Tort Claims Act had to be offset against her dependency and indemnity compensation benefits. The notice of disagreement was received in August 1991. The statement of the case was issued in November 1991. The substantive appeal was received in January 1992. The case was initially received at the Board of Veterans' Appeals (hereinafter the Board) in March 1992. In June 1992 the case was remanded for further action. A supplemental statement of the case was issued in October 1992. The case was returned to the Board in February 1993 and is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that the proceeds of a settlement she received under the Federal Tort Claims Act should not be offset against her dependency and indemnity compensation since her understanding was that the sum received as a result of the settlement could not have any effect on her entitlement to dependency and indemnity compensation benefits. The money received from the settlement was used to pay debts and cover expenses and it did not even last a year. The appellant believes that the decision to offset the proceeds received under the Federal Tort Claims Act settlement against her dependency and indemnity compensation was very unjust and unfair. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim that the sum of $12,759.51 received by the appellant in a settlement under the Federal Tort Claims Act was improperly offset against her dependency and indemnity compensation. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office. 2. The record discloses that the veteran's death occurred in May 1986. 3. In June 1989 the appellant and her three children received $75,000 in settlement of a claim under the Federal Tort Claims Act. 4. In a June 1990 rating action it was held that the veteran's death had resulted from Veterans' Administration (now Department of Veterans Affairs) (VA) medical treatment. The appellant was accordingly awarded dependency and indemnity compensation benefits as though the veteran's death was service connected under 38 U.S.C.A. § 1151. 5. In April 1991, an assistant United States attorney advised the regional office that the amount the appellant had received under the Federal Tort Claims Act settlement was $12,759.51. Her award of dependency and indemnity compensation was adjusted to withhold benefits until that amount was recouped. 6. In an August 1992 affidavit the assistant United States attorney indicated that the sum of $12,759.51 had been paid to the appellant in consideration of the pain, suffering and loss of companionship. It was indicated that the aforesaid amount did not include the payment of additional amounts to the deceased veteran's estate, attorneys fees or burial expenses. CONCLUSION OF LAW The proceeds of a settlement under the Federal Tort Claims Act in the amount of $12,759.51 were properly offset against the appellant's dependency and indemnity compensation. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. § 3.800(a)(2) (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION We note that we have found the appellant's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); effective on and after September 1, 1989. That is, we find that she has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. The record reflects that the veteran died in May 1986. In June 1989, the appellant and her three children received $75,000 in settlement of a claim against the United States for damages under the Federal Tort Claims Act in connection with the veteran's death. In a June 1990 rating action, the regional office determined that the veteran's death had resulted from VA medical treatment and the appellant was awarded dependency and indemnity compensation as though the veteran's death was service connected under 38 U.S.C.A. § 1151. The record further discloses that, in April 1991, an assistant United States attorney advised the regional office that the amount the appellant had received under the Federal Tort Claims Act settlement was $12,759.51. Her award of dependency and indemnity compensation was adjusted to withhold benefits until that amount was recouped. In an August 1992 affidavit, in response to the Board's request in its remand for clarification with respect to whether the $12,759.51 was payment to the appellant individually, the assistant United States attorney advised the regional office that after reviewing the file and based on her recollection of the settlement process and the considerations involved there was no doubt that the amount of $12,759.51 had been paid in consideration of the pain, suffering and loss of companionship. It was indicated that the settlement did not include the payment of additional amounts to the deceased veteran's estate, attorneys fees or burial expenses. Where any veteran shall have suffered an injury or an aggravation of an injury as the result of hospitalization, medical or surgical treatment, awarded under any of the laws administered by the Secretary or as a result of having submitted to an examination under any such law and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation and dependency and indemnity compensation shall be awarded in the same manner as if such disability, aggravation or death were service connected. Where an individual on or after December 1, 1962, enters into a settlement or a compromise under § 2672 or 2677 of Title 28 by reason of a disability, aggravation 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 settlement on account of such disability, aggravation or death becomes final until the aggregate amount of benefits which would be paid but for this provision equals the total amount included in such settlement or compromise. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.800(a)(2). The United States Court of Veterans Appeals in the case of Neal v. Derwinski, 2 Vet.App. 296 (1992) held that 38 U.S.C.A. § 1151 mandated offsetting that portion of a settlement received by the appellant in that case, in her capacity as an individual beneficiary under the Federal Tort Claims Act, against her dependency and indemnity compensation. The Court held that the only amount of a Federal Tort Claims Act settlement that could be offset against the appellant's dependency and indemnity compensation was the sum representing compensation to her individually due to her loss of companionship. Since the evidence reflects that the amount of $12,759.51 received by the appellant in settlement of her claim under the Federal Tort Claims Act represented only an amount paid to her in consideration of her pain, suffering, and loss of companionship and did not include the payment of any additional amounts for the deceased veteran's estate, attorneys fees or burial expenses, the Board concludes that the sum of $12,759.51 received by the appellant from the settlement under the Federal Tort Claims Act was properly offset against her dependency and indemnity compensation benefits. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.800(a)(2). The appellant has maintained that the sum received from the Federal Tort Claims Act settlement was used to pay various debts and expenses and did not even last for a period of one year. However, such a factor would not be determinative of the matter under consideration. The appellant has also asserted that the decision in her case was very unjust and unfair, but the applicable statute was enacted by Congress and the VA has no authority to deviate from its provisions. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER The proceeds of a settlement received by the appellant under the Federal Tort Claims Act in the amount of $12,759.51 were properly offset against her dependency and indemnity compensation. The benefit sought on appeal is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * CHARLES E. HOGEBOOM (MEMBER TEMPORARILY ABSENT) WAYNE M. BRAEUER *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of (CONTINUED ON NEXT PAGE) the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.