Veteran finds victory over VA is costly Agency grants damages for error, then docks ex-Marine's pension

January 30, 1998|By Robert A. Erlandson | Robert A. Erlandson,SUN STAFF

For Korean War veteran Richard A. Salisbury, it was a short-lived victory: The Department of Veterans Affairs paid him $7,500 damages in June because government doctors misdiagnosed him as a carrier of a deadly virus.

But a month later, the VA docked the former Marine corporal's pension $71 a month -- on grounds that the award put him over the income-eligibility limit and must be repaid.

"First they gave me the money because they screwed up, then they stabbed me in the back and took it back," said Salisbury, 66, a bachelor who lives in a Middle River trailer park and receives $640 a month in Social Security and veteran's payments. "That $71 means a lot to me. It means I can't eat right, I can't buy enough gas."

As Salisbury fights to reverse the VA's July decision, government officials say they are following restrictions dictated by federal law.

Milton Maeda, veterans services officer for the Baltimore region, said the law governing pensions specifies certain money that may be excluded from "income." Anything else -- from a lottery win to an inheritance or an award for VA negligence -- is considered income when calculating benefits.

Salisbury receives two forms of benefits from the VA, Maeda said. Since 1984, he has received a monthly "compensation" for a 30 percent service-connected disability. In 1994, Salisbury was deemed permanently and totally disabled, and was granted an additional sum as a "pension" for nonservice-connected disability.

It was the pension that was suspended for at least one year, because a veteran cannot have a pension and outside income, Maeda said. He calculates that Salisbury will lose $852 before he is allowed to apply in June for resumption of his full pension.

"This isn't right," said Rep. Robert L. Ehrlich Jr., a Republican who represents part of Baltimore County.

Ken Ziegler, an Ehrlich spokesman, said the congressman will seek to amend the law to exempt damage awards for VA negligence from the "income" provisions.

Salisbury, a former vehicle mechanic, said he turned to the VA for medical assistance in April 1992, after losing his supplementary Social Security grant when he became 62 and was not eligible for Medicare.

His first VA physical brought a horrible shock -- a diagnosis that he was carrying the Hepatitis C virus.

According to medical authorities, "C" is one of six known varieties of hepatitis, a virus that attacks the liver. No vaccine exists against "C," which is incurable but can be treated with Interferon if it becomes active.

The "C" virus is a "silent virus" that people can carry for years before it becomes active and leads to liver cancer or, more commonly, cirrhosis of the liver, and death.

"They told me it could flare up any time. I walked around for 14 months not knowing when it would strike me and I would die," said Salisbury.

Salisbury said the diagnosis stood, through monitoring, until June 1996, when his cardiologist became suspicious, ordered tests and found that the VA was wrong.

Salisbury's lawyer, Barton J. Sidle of Towson, filed a negligence claim against the VA, which acknowledged its mistake and in June paid $7,500. Sidle got about $2,500 of that money.

In July, VA adjudicator James D. Wear notified Salisbury that his disability pension was being reduced because the award was extra "income" that put him over the income eligibility limit.

"Because of this change, you have been paid too much," Wear wrote. "We'll let you know shortly how much you were overpaid. We'll also tell you how you can repay this debt."

Salisbury said he tried to get the decision reversed before asking Sidle to intervene but with no success.

The lawyer wrote Wear on Jan. 8 that his client wanted to appeal the ruling because "all applicable tax laws clearly show that proceeds from a personal injury claim are not income but rather restitution and compensation for wrongs alleged."

The lawyer added: "What is particularly disturbing is that the funds which you are now taking from him were awarded as a result of negligence from employees of the Department of Veterans Affairs."

Sidle said, "He didn't even get the full $7,500 and they cut his pension by $71. It's obnoxious. It was not income, it was compensation for their screw-up."

When he heard nothing, Sidle said, he called VA but "some talking head in the [VA] office said they didn't get my letter and they don't know that [I'm] his lawyer. I offered to fax a copy of the letter, but they refused."

Maeda confirmed that the lawyer's letter is not in Salisbury's file. "This is a bureaucracy and it may not have reached here yet. However, we will be happy to reply to the lawyer when we get it and set up a hearing."

Pub Date: 1/30/98

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