This is by far the most common and concerning question that is called into our office by our veteran clients. We welcome the opportunity to set the record straight for all veterans and veteran service organizations (VSOs).
The answer is NO.
The Navy's Tort Claims Unit (TCU) has said on its official website relating to the CLJA claims that "[c]laims filed with the TCU do not impact benefits or programs administered by the Department of Veterans Affairs."
Source: https://www.jag.navy.mil/organization/code_15_Camp_Lejeune_Claims.htm.
Similarly, the VA through a spokesperson has recently said in a Verify article that veterans' CLJA claims will not have their VA benefits reduced because of any additional compensation from the CLJA. The spokesperson also said "if a veteran is already receiving VA benefits as a result of disability related to contaminated water exposure at Camp Lejeune, their court award will be reduced by the value of those benefits."
Source: https://www.11alive.com/article/news/verify/government-verify/camp-lejeune-justice-act-2022-honoring-our-pact-act-water-how-to-file-claim-fact-check/536-b1e0baef-193f-429e-8e0a-8faf7ad78cbd)
Notably, the spokesperson for the VA correctly stated that the veterans’ “court award” may be reduced -- not the veterans’ VA benefits. This means that only once an individual receives a court award can the government seek any potential reduction (offset) to the award for VA benefits that individual has received. The government could also presumably waive the offset entirely in negotiations.
We believe the Navy’s and the VA’s positions are consistent and in line with the CLJA statute. We are aware of no examples of any governmental agency taking contrary positions. So far, we are only aware of the Veterans of Foreign Wars (VFW) nonprofit organization taking a seemingly different position in a recent VFW Magazine article, referenced below.
The offset provision in the CLJA clearly states:
(2) HEALTH AND DISABILITY BENEFITS RELATING TO WATER EXPOSURE.—
Any award made to an individual, or legal representative of an individual, under this section shall be offset by the amount of any disability award, payment, or benefit provided to the individual, or legal representative—
(A) under—
(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 U.S.C. 1395 et seq.); or
(iii) the Medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.); and
(B) in connection with health care or a disability relating to exposure to the water at Camp Lejeune.
(emphasis added)
See Sect. 804(d)(2) https://www.congress.gov/bill/117th-congress/senate-bill/3373/text
We believe there are two key parts of this legislation directly relevant to this issue.
Only An Award Can Be Offset. First, the law clearly states that only a CLJA “award” (i.e., settlement, verdict, etc.) can be offset, i.e. reduced, by whatever “amount of any disability award, payment, or benefit ... provided to the individual ... under any [VA-administered program, Medicare, or Medicaid].” Black’s Law Dictionary defines “offset” simply as “a reduction.” Therefore, according to the plain language of the statute, only a CLJA award shall be reduced by the amount of VA/Medicare/Medicaid benefits that the government can prove are related to the harm caused by contaminated water at Camp Lejeune. The purpose of an offset is to prevent a double-recovery, where the government would have to pay a veteran twice for the same damages.
Only a CLJA-Related Benefit Is Subject to an Award Offset. The second provision of importance (sect. 804(d)(2)(B) highlighted above) clarifies that the veteran’s CLJA award could only be reduced to the extent the veterans’ VA provided benefit was related to the same water-related illness. For example, the government will have to prove that the VA benefit (e.g., health care or monthly disability benefits) was related to the veterans’ contaminated water disease/harm.
Example: If a veteran is on 100% disability for combat-related PTSD and a knee injury, but his/her CLJA award is for kidney cancer, the government would not be permitted to take any offset for monthly disability benefits from that veteran’s CLJA settlement because the government cannot prove the disability benefits are related to the harm caused by toxic water. There would be no “double recovery” for the veteran under those circumstances.
In an opposite example, if a veteran is getting 100% disability for kidney cancer, and his/her CLJA award is also related to kidney cancer, then the statute states that the veteran’s CLJA court award may be reduced by the amount of benefits they have received from the VA for kidney cancer-related health care or disability.
However, it is important to note that the reduction is only permitted up to the date of the claim's resolution because a reduction is only permitted on the award, not on VA benefits. Even under this scenario, where the VA benefits were provided for the proven CLJA-related harm, there is no indication that the benefits can or would be reduced on an ongoing basis. Only the court award or settlement – not future VA benefits - would be reduced by the previous VA benefits provided.
Key takeaways from this provision include:
If you do not prevail in the case, your benefits will never be affected
If you win your lawsuit and get a verdict or settlement from the U.S. Government, only then will the government be allowed a reduction of the award for already-provided VA benefits.
But in order to receive the reduction, the U.S. Government will have the burden of proving that the provided VA benefit was related to contaminated water at Camp Lejeune.
There is little likelihood, if any, that a veteran would receive no settlement after the government reductions, as that would be inequitable and a settlement that no veteran or civilian would likely accept after being exposed unknowingly to contaminated water and suffering a terrible harm, disease, or cancer.
There is a reasonably likely possibility that the government – as a part of a settlement – could waive the government’s entitlement to an offset or reduction, due to the complexity of analyzing each individual case for a reduction and their burden to prove that the benefit was related to the disease/harm caused by contaminated water.
It is important to note that the Camp Lejeune Justice Act statute is very different from how a contaminated water claim was brought under the Federal Tort Claims Act (FTCA). Pursuant to 38 U.S.C. § 1151, if a veteran is awarded any compensation from a FTCA claim related to the same injury/illness for which the veteran also receives VA benefits, the VA can suspend benefits until the full amount of the FTCA award is recovered. The language that is present in the Federal Tort Claims Act statute is not present in the Camp Lejeune Justice Act of 2022. Source: 38 U.S.C. § 1151 (b)(1); https://www.law.cornell.edu/uscode/text/38/1151. The Camp Lejeune Justice Act allows an offset on the award and not a suspension of benefits.
In its recent Fall 2022 edition, VFW Magazine published an article and included quotations by VFW General Counsel John Muckelbauer causing veterans to believe that filing a claim under the Camp Lejeune Justice Act could potentially cause their VA benefits to stop or be suspended. VFW is a nonprofit veterans’ service organization (VSO). This nonprofit program has many members and has been wonderfully helpful and trusted to veterans for decades. However, it is not a governmental entity and is not involved with the administration of VA benefits nor is it the entity who is handling and/or litigating these claims on behalf of the United States (Department of Navy/Torts Claims Unit and Department of Justice (DOJ)). We have had conversations with Mr. Muckelbauer, who was kind enough to speak to us after the article was released, and we are continuing to work with the VFW and Mr. Muckelbauer to ensure that truthful and accurate information is circulated to veterans.
Our firm encourages veterans to rely upon the plain language of the statute as well as the guidance which has been issued directly by the VA and Navy’s Tort Claims Unit which unequivocally states that claims filed under the Camp Lejeune Justice Act do not impact benefits or programs administered by the Department of Veterans Affairs. Any offset, or reduction, would only be to a court award to prevent “double recovery,” and only for VA benefits which are proven to be related to the harm caused by the contaminated water and have been received prior to the date of the award.
If you continue to have any questions about whether filing a claim under the CLJA will affect your past or future benefits, please do not hesitate to contact our firm by emailing [email protected] or calling or texting Wallace & Graham, PA in Salisbury, NC at 704-633-5244.