rlarc

A final followup to my posts (the last was on 7 may 2015). The compensation I received in may 2015 did not include compensation for my children. However, the VA did send me the necessary forms to apply for this compensation. Although I had filled out these forms in 2005 when I started the case, and although these forms were a part of my record before the agency, I decided the best course of action was to fill out the forms a second time. Time passed and then one day I found a large deposit in my checking account, followed, a few days later, by an explanation of the amount. Since the amount was within $10 of my own calculations, I decided to put this to rest. The final settlement arrived 11 years 4 months after the case was initially filed. Obviously, I am glad the case was settled in my favor, but I was disappointed that the court elected not to address the basic question in the case, namely the meaning of "properly notified" and "timely filed". Instead, the court directed the VA to pay me the compensation owed ($190,000) without having to admit their error. Of course, as someone once said, "You can't always get what you want, but if you try real hard sometimes you can get what you need." This website was one of several sources of very, very useful information. My thanks. rlarc

A followup to my Feb 2015 post. A special review of my case by the regional office where I originally filed my claim was mandated by the CAVC on 13 April 2015. A check covering a 36 year error in the compensation to which I was entitled back in 1969 was deposited in my account nine days later. Among other people, I am grateful for the help I received from this website. rlarc

My case went to the CAVC (for the second time) last year. The attorneys who represent the VA before the CAVC notified my attorney that they could not support the decision by the regional office and the BVA to disallow my claim. Because of this, the VA has agreed to award me the compensation that is the subject of my claim. rlarc

On 17 Feb 2010 I started a thread titled "Cavc or equitable relief" and thanks to, among others, the advise I received here I decided to pursue an appeal with CAVC. After receiving my case, the attorneys for the CAVC asked that the case be remanded to the regional office that made the original decision. This was done, the regional office did not change their decision, the case went to the BVA (again), the BVA upheld the decision, and after receiving the BVA's decision my lawyer sent the case to the CAVC. Last week, my lawyer told me the attorneys for the VA do not feel the decision of the regional office and the BVA is supported by the facts of the case and they have agreed to settle my claim for retroactive compensation between March 1969 and March 2005 when the VA corrected my rating. I have no idea exactly what happens next. rlarc

Here is an update. I've decided to pursue an appeal to the CAVC and I've found an attorney who, like others, finds the case very interesting and readily admits to never have seen anything like it. The BVA decision is now available on the BVA website. Should the CAVC uphold the BVA's decision, I will pursue the matter through the equitable relief channel. And if the CAVC does uphold the decision, my case will likely produce a remarkably convoluted precedent which is, I suppose, one form of immortality. In any event, thanks for the help and as this progresses, I will update the progress. rlarc

You are not alone. In my case the kind man happened to be my brother-in-law who finally convinced me that it was okay to ask for help. I began to get help for the 35 years of sleepless nights, remarkably unpleasant behavior that would appear from who knows where and usually without warning, and...the list goes on. I began receiving help for all of this from the VA in 2005 and, at that time, filed claims for several issues, one of them being PTSD. The claim for PTSD was denied by my regional office on the grounds that I had made no mention of it "since being treated for anxiety during my hospitalization in 1968". The hospitalization was for injuries received in combat. My official rep did not think there was anything more to be done, but my brother-in-law put me in touch with friends who were more familiar with the VA regulations concerning these issues. After filing an appeal, the denial of PTSD was overturned in short order, which seemed to make sense since, by this time, I had been receiving both medication and counseling from the VA for almost one year. Since 2005, life has been somewhat better. I sleep more often than not, I haven't hit anyone, and my health is better than it has been for some time. There are good people in the system, but it sometimes takes some help to find them. And sites like this are a part of the help. rlarc

No. I was retired from the Army in Feb 1969 for medical reasons and I collected military retirement pay. I never signed a waiver of retried pay to accept compensation. In 2005, after acknowledging a CUE in their March 1969 rating decision, the VA elected compensation for me since this now exceeded the amount I was receiving in military retired pay. The VA has never argued that I signed a waiver of compensation following their March 1969 decision, only my continuation to accept military retirement is the equivalent of having done so. The BVA's decision makes a point of recognizing the possibility of unfairness in my case, but states the law does not permit them to rule on that basis. That power is left to the Secretary (under "equitable relief"). In any event, I won't file for equitable relief until I am convinced there is simply no other course of action. rlarc

My apologies for the delay in response, I have been out of the country for the past few days. I met with an attorney several weeks ago who asked to be given more time to look into my case before he decided whether or not to represent me. He asked to do this at his expense, and this after we spent almost two hours going over my history. I am meeting with him on 1 March. When I began the process, my official vet rep was the American Legion. I asked that they be relieved of the responsibility last November My brother-in-law has sent me a link to Ed Crosby. When I get home, I will look up my spn but my recollection is my retirement orders state that I was retired for medical reasons with a 100% disability rating from the Army. I am going to proceed with the CAVC process and will file for equitable relief should the CAVC ruling be unfavorable. The CAVC process should allow me to see my c-file, something my former official rep was never able to make happen despite repeated requests. I almost elected to use the FOI route, eventually chose not to do so. I am curious to see just what is in the file since there has been a small discrepancy in the VA's several accounts of what happened between my official date of retirement and when the one year time period for electing compensation began to toll. It may be nothing, but then again... And so it goes. I am learning much more about all of this than I ever expected to have to learn. My hope is that someday I will be able to help another vet with what I have learned. rlarc

Thankyou for the links, deltaj. In my case, the VA awarded me 100% plus SMC(k) in March 1969 when they should have infered SMC(L). This was the basis for the CUE which I filed in 2005. The VA achnowledged the CUE and awarded me SMC(L) retroactive to Feb 1969. The subsequent claims for a retro-active payment of the difference between what I should have received from the VA and what I received in military retirement pay have been rejected on the grounds that I had already opted out of the VA system for compensation. Yes, I did in fact opt out of the system based upon the incorrect information in the March 1969 award, but the BVA argues that does not provide a legal basis for them to award retro-active payments. My case certainly seems to fit the profile required under the provision for equitable rights, but for the reasons you have brought up, I will postpone filing such a claim until I am convinced all other options have been exhausted. Again, thanks for your input. rlarc

Thanks for your response and for having this moved to a more appropriate forum. I'm not sure if my answers to your questions arrived along with my attached .pdf, and so to be certain, here they are. How much time do you have left for appeal to the CAVC? The 120 day time period for filing began on 4 Dec. 2009, and I filed the notice of appeal in Jan. The CAVC has acknowledged receipt. do you have a rep or have you considered getting an attorney? From 2005 when I filed the original appeal until Nov. 2009, my official rep was the American Legion. I found it necessary to ask that they be withdrawn as my rep. in Nov. 2009. I have been unofficially assisted throughout the process by two individuals with more than 50 years of experience between them in these matters. Your are in good company, Berta, as both of them have said this case was not like anything they had ever seen. Thus far, attorneys I have contacted have essentially said, "We'll get back to you". I can't say as I blame them. Was your initial NOD filed after June 20th 2007? No, the initial disagreement was filed in 2005. I can't think of anything in the BVA's decision that might warrant a CUE, nor can I find anything that bypasses the "timely filed" requirement even though the time began to toll based upon a faulty decision that has since be corrected by a CUE. My unofficial advisors both feel there is a due process issue here in that I have never been given a chance to make an election following August 2005 award of a CUE. However, it recently occurred to me that the BVA states I had 1 year to file to elect VA benefits and that I "opted out of the regulatory scheme for receipt of VA compensation in March 1969". But the rating decision was made retro-active to 21 February 1969 and therefor prior to the time the BVA says I opted out of the system. Splitting hairs, I know. I am supposed to meet with an atorney on 1 March.

BVA_decision.pdf

The decision was dated 4 December 2009, I don't think it has been posted (or I can't find it!). The docket number is 07-19 415. I filed a decision to appeal and the Vet. App. No. is 10-0600. I will try to scan the relevant parts of the BVA decision later today. In the meantime, my thanks for your help. rlarc

I have recently had an appeal rejected by the BVA and I am trying to decide whether to appeal to the CAVC or to file for equitable relief. The facts are these. I retired from active duty in feb. 1969 by reason of medical disability. Just prior to my retirement, I was offered the choice of receiving VA compensation at 100% or military retirement. I was advised to take the latter since it was more than the former, and I did so. In 2005, I filed a claim concerning, among other things, the rating I had been given. The VA acknowledged a CUE in that I should have been awarded SMC for loss of one leg and loss of use of the other and the CUE was made retroactive to feb. 1969. The VA began to compensate me at that rate and since that rate is now higher than my military retirement. I filed for retroactive compensation, specifically for the difference between what I had received in military retirement and what I should have received in VA compensation. This claim has been rejected on the grounds that my election was not timely filed, that is it was not filed within the one year period following my retirement in 1969. The BVA asserts they lack the statutory authority to make such an award and seem to suggest that equitable relief might be a more appropriate channel. I thought I understood that "Any previous decision that is subsequently revised or reversed based on a CUE claim 'has the same effect as if the decision had been made on the date of the prior decision.' " However, it seems I don't because the VA has yet to offer me a choice with accurate information following their award of the CUE. Nor have they provided any assistance regarding educational benefits for which my children most certainly would have been eligible. I would appreciate any advice. rlarc