Will I lose my benefits? Camp Lejeune defendants could be hit with compensation

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In the rush to enroll veterans in Camp Lejeune’s toxic litigation, made possible by the PACT Act, veterans and civilians may be unaware of the possible impacts to their benefits, including compensation.

Veterans have long faced benefit offsets when filing medical malpractice claims against the Department of Veterans Affairs. You cannot collect twice for the same injury under the Federal Tort Claims Act and 38 USC § 1151 for benefits. Camp Lejeune veterans and many civilians should be aware of potential compensation issues that could arise if their lawsuit is successful under the new law.

Veterans who are already receiving benefits through VA compensation, Medicare, or Medicaid will most likely see compensation in certain situations. The same is true for civilians. More on that in a second.

Act PACT and Camp Lejeune

In August 2022, the Biden administration signed into law the Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). This new law encompassed the Camp Lejeune Justice Act, which in turn created legal recourse for all those exposed to toxic water at Camp Lejeune through the US court system.

Why is this a good thing?

Veterans have long fought the Department of Defense (DOD) and the Department of Veterans Affairs (VA) for compensation and health care for illnesses resulting from toxic exposure. For decades, these two agencies evaded responsibility by denying disability benefits to veterans with conditions difficult to link to water exposure at Camp Lejeune.

Many non-veterans faced little or no recourse other than Medicare or Medicaid to cover the costs of a lifetime of cancer and disability. This group would include children, spouses, base workers and anyone who has been drinking the water for more than a month.

Now, the Camp Lejeune Justice Act serves to provide recourse for those who have suffered, whether they are veterans or not, but there is a catch for veterans and a few others who have received benefits from two federal agencies. .

Individuals with certain illnesses who stayed at Camp Lejeune for 30 days or more between August 1, 1953 and December 31, 1987 are eligible. Included in the list of those who can sue are eligible veterans, family members, non-military workers and anyone else, including those who are in utero.

You might not notice much about compensation in some of the fancy law firm advertisements you receive in your inbox and on Facebook encouraging everyone concerned to sign up.

But, it caught my attention at a recent meeting held by the United Veteran Legislative Council of Minnesota (UVLC).

Compensation in the PACT law relating to the Camp Lejeune dispute

The portion of the PACT Act dealing with compensation reads as follows:

(2) Health and disability benefits related to water exposure – Any compensation awarded to a person or legal representative of a person under this section shall be offset by the amount of any compensation, payment or disability benefit granted to the person, or legal representative-

(A) sub-

(i) any program under the laws administered by the Secretary of Veterans Affairs;

(ii) the Medicare program under Title XVIII of the Social Security Act (42 USC 1395 et seq.); Where

(iii) the Medicaid program under Title XIX of the Social Security Act (42 USC 1396 et seq.); and

(B) under medical care or disability related to water exposure at Camp Lejeune.

PACT Act § 804(e)(2).

Compensation serves to prevent so-called “double dipping,” which is essentially receiving compensation for the same harm from two sources.

The provision applies to those who have already received benefits from the respective agency, the Department of Veterans Affairs and/or the Social Security Agency. It applies to benefits and health care received through VA, Medicare, or Medicaid for the type of condition related to any Camp Lejeune award by law.

This could involve both past benefits and health care as well as future benefits and health care.

For example, Veteran X is receiving compensation and health care for his bad knees related to a skydiving incident and kidney cancer related to drinking water at VA’s Camp Lejeune. Veteran X wins his case.

Before receiving the lawsuit money, the government will only compensate for the cost of benefits and health care already provided for kidney cancer, but not for bad knees.

How will litigation compensation work? I’m not sure how the compensation mechanism will work for veterans and civilians at Camp Lejeune who have already received benefits and health care.

As for the exclusion on the knees, why not the knees?

The condition of the knee was not caused by drinking water from Camp Lejeune.

It doesn’t appear that VA and other relevant agencies haven’t created regulations explaining how compensation will work in practice. The bylaws serve as the agency’s interpretation of what the statutes created under the act mean to the agency secretary.

Similar § 1151 Offset

A similar lag, however, can help inform how VA can fix the lag problem.

Under the Federal Tort Claims Act (FTCA) or 38 USC § 1151, a veteran may receive compensation or benefits, but not both, to avoid double deductions. In VA General Counsel Notice 1-2010, General Counsel Will Gunn outlined the general direction of the existing statue:

“If a veteran who has established entitlement to compensation for disability under 38 USC § 1151(a) is granted a judgment or enters into a settlement or compromise under the federal tort claims law on the basis of the same disability, Section 1151(b)(1) prohibits the Department of Veterans Affairs (VA) from paying compensation for that disability for any month commencing after the judgment, settlement, or compromise becomes final until that the total amount of the indemnity which would otherwise have been paid is equal to the amount of the judgment, settlement or compromise.

After a settlement, VA will not pay any further benefits until the full amount of the tort settlement has been cleared, which could take several decades.

In cases where a veteran is not expected to live long, the amount of settlement or compensation may be significantly higher than projected monthly VA benefit amounts.

Camp Lejeune Offset Difference

What appears to be different in the wording of the Camp Lejeune Justice Act is the assessment of benefits and health care already paid for and provided and the future value of those services.

What do you bet VA is charging Mayo Clinic dollars for the health care services they fought to avoid providing for so many decades? Or, will VA charge the extreme discounted rates it charges to healthcare providers who don’t like to take on the VA community because of the heavily discounted prices?

What do you think?

I’m leaning more towards VA probably charging premium Mayo prices.

The compensation provision may be implemented differently from the provision for claims § 1151 in that compensation for Camp Lejeune may incorporate benefits and health care already paid plus future benefits and projected health care services .

Recent UVLC meeting

At the meeting held by UVLC, the question was raised about the confusion surrounding the lag.

One organization that came forward questioned whether a successful lawsuit could result in some veterans essentially forgoing health care and benefits in exchange for the litigation award.

This is a significant concern, especially if the veteran would have received a reward equivalent to what would have been paid through VA benefits. However, there are some differences in what a person may receive through litigation that may not normally be available through VA compensation benefits.

Camp Lejeune attorney fees

In addition, any court ruling will also incur 40% attorney fees in many cases. This money will probably also be deducted from the compensation.

Here’s what it might look like.

Veteran X wins $200,000. The attorney fee agreement allocates 40% of the recovery. The veteran may be responsible for hard costs such as expert and attorney filing fees. Let’s say the fixed costs are $10,000. The lawyer’s fees would be $80,000.

In this scenario, the veteran may recover $110,000, but compensation may be calculated by the agency using the full $200,000.

Veterans stuck in compensation may then be required to self-fund their health care for the duration of the compensation.

If the sums are equal, it may work, but it is unlikely given current cancer treatment costs and projected increases due to inflation and other variables.

The challenge with this litigation framework is the possible sacrifice that veterans may face with compensation minus fees charged by attorneys.

Excluded from Camp Lejeune compensation

One nuance permitted by litigation is the potential clawback for veterans that is outside of what the VA compensation framework allows.

Veterans cannot recover from pain and suffering and loss of income, for example.

The Camp Lejeune Justice Act should allow for the recovery of losses not included in VA compensation laws, and these nuanced recoveries should be outside of any compensation.

Ultimately, we won’t know how exactly compensation will work until veterans begin to recover successfully in court and the agency begins to implement compensation procedures.

How will this work?

Really, much of this is speculation until we get clear guidance from VA and Social Security on how they will implement compensation, but it is concerning.

What do you think of the Camp Lejeune Justice Act?

Have you noticed the incredible increase in email campaigns and advertisements from personal injury lawyers flooding your inbox?

I was affected by advertisements and I never set foot in Camp Lejeune. Some veteran caregivers have been kind enough to forward some of the spam-looking email solicitations they have received from various law firms nationwide.

It looks like an open hunt not only for affected veterans, but also for potential phishing schemes. Be careful what you click on in emails, especially emails from suspicious URLs. When you click to unsubscribe after being strewn with emails, there is a chance that the emails will infect your computer.

I plan to cover this issue soon.

What do you think?

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