Concealment Of Evidence By The Government

[Stretch]

I never discussed EED with the VA. The VA says that my claim first started in 1986. Actually it started in 1972, but my formal claim came in 1983. Could be that they are violating Zeleznek, and that an EED could be resonable.

In Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985), the court noted in dictum:

"When the government actively conceals its own wrongdoing by misrepresentation, there

may well be equitable reasons for tolling the statute of limitations.

[donews]

I am a little lost on your post, please bear with me.

I read this to say since the VA stated your claim began after 1983 and that they are actively concealing a wrongdoing by misprespresentation (I presume that to be the date issue) that there should be a tolling of the statute of limitations.

Is that what you are saying?

If so I ask:

What statute of limitations are you suggesting that receives the tolling?

[Stretch]

The statute of limitations on an RO or BVA decision response is 1 year, I think. At that time it is said to be a final decision. From that time, a Vets claim has to be reopened with new and material evidence. EED would usually go from the time of reopening the claim.

If information, that was presented, was over looked or covered up it seems to me like this means that there would be an earlier effective date of the original claim other that VA statutes limiting claims.

I will find out soon.

Suppose that AO presumption of exposure was granted to US Navy Vets that were in the Gulf of Tonkin due to information that was suppressed by the Government. What would be the effective date of prior claims that were denied?

I can only think that Zeleznik applied in this AO case would mean from the date of original exposure claim, and not the date the same claim was denied.

http://dictionary.law.com/default2.asp?selected=2134&bold=||||

toll

v. 1) to delay, suspend or hold off the effect of a statute. Examples: a) a minor is injured in an accident when he is 14 years old, and the state law (statute of limitations) allows a person hurt by negligence two years to file suit for damages. But for a minor the statute is "tolled" until he/she becomes 18 and decides whether or not to sue. Thus the minor has two years after 18 to file suit. state law allows 10 years to collect a judgment, but if the judgment debtor (party who owes the judgment amount) leaves the state, the time is "tolled," so the judgment creditor (party to whom judgment is owed) will have extra time to enforce the judgment equal to the time the debtor was out of state. 2) a charge to pass over land, use a toll road or turnpike, cross a bridge or take passage on a ferry.

In my case, the evidence was always available, but evidence was disallowed simply because I allowed this BVA decision, without recourse, before the 1987 CAVC (Vets Court) was started up. The evidence was there but withheld. Denial decisions claims filed before 1987 should be reworked.

1151_Tolling_for_Gov_Fraud.pdf

[Chuck75]

You might very well be correct. However, there are a bunch of VA regs and so forth that can allow them to weasel out of almost anything when they do the homework. I'd expect that such a matter will certainly end up in court, if taken to the limit. I have always hoped that the VA would be so blatent in a case, that they might be accused of attempting "criminal fraud" in a real court.

I never discussed EED with the VA. The VA says that my claim first started in 1986. Actually it started in 1972, but my formal claim came in 1983. Could be that they are violating Zeleznek, and that an EED could be resonable.

In Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985), the court noted in dictum:

"When the government actively conceals its own wrongdoing by misrepresentation, there

may well be equitable reasons for tolling the statute of limitations.

[free_spirit_etc]

As a general rule I haven't seen equitable tolling claims work very well with the VA. But I am not sure what you mean by the evidence being there and being withheld. A claim in which they did not consider the evidence could be a CUE. But I don't think not considering the evidence would count for equitable tolling.

If they actually withheld evidence - then you might have a case if you can show they withheld it - and that it effected your claim.

Though they didn't mention equitable tolling in Betty's claim - it seems like they might be leaning in that direction - toward and earlier effective date because of the military withholding her medical records and covering up her SC illness.

I researched equitable tolling some quite some time back. Most of the decisions didn't look that promising. Because equitable tolling is about the statute of limitations - or where deadlines are tolled - the VA's basic stance has been that there is no NEED to toll a veteran's claim, because a veteran's claim is never barred.

Like in a lawsuit - if you don't file by a certain time - it is forever barred, unless you can show wrong doing, etc. so the deadline for filing is equitably tolled. But the VA has pretty consistently either:

1. Found the wrong doing on the part of some one OTHER than the VA - and therefore the VA's deadline can't be equitably tolled - no matter how much the wrong doing affected the vet's claim - because the VA wasn't responsible for the error.

or

2. Decided equitable tolling is not an option because the vet's claim is never barred, and the vet always has the right to open or reopen the claim (it is never FOREVER barred).

But, actually, CUEs are basically a type of equitable tolling - so the VA pretty much seems to stick to them.

I haven't looked too much at the Federal Courts (in their decisions on vets claims) about this though.

And I can see what you mean about how before the CVA was formed, the Vet had no other recourse. I am just not sure how it would play out.

But now, with attorneys on the scene, I am sure there will be many things questioned - and hopefully some questions answered.

Free

The statute of limitations on an RO or BVA decision response is 1 year, I think. At that time it is said to be a final decision. From that time, a Vets claim has to be reopened with new and material evidence. EED would usually go from the time of reopening the claim.

If information, that was presented, was over looked or covered up it seems to me like this means that there would be an earlier effective date of the original claim other that VA statutes limiting claims.

I will find out soon.

Suppose that AO presumption of exposure was granted to US Navy Vets that were in the Gulf of Tonkin due to information that was suppressed by the Government. What would be the effective date of prior claims that were denied?

I can only think that Zeleznik applied in this AO case would mean from the date of original exposure claim, and not the date the same claim was denied.

http://dictionary.law.com/default2.asp?selected=2134&bold=||||

toll

v. 1) to delay, suspend or hold off the effect of a statute. Examples: a) a minor is injured in an accident when he is 14 years old, and the state law (statute of limitations) allows a person hurt by negligence two years to file suit for damages. But for a minor the statute is "tolled" until he/she becomes 18 and decides whether or not to sue. Thus the minor has two years after 18 to file suit. state law allows 10 years to collect a judgment, but if the judgment debtor (party who owes the judgment amount) leaves the state, the time is "tolled," so the judgment creditor (party to whom judgment is owed) will have extra time to enforce the judgment equal to the time the debtor was out of state. 2) a charge to pass over land, use a toll road or turnpike, cross a bridge or take passage on a ferry.

In my case, the evidence was always available, but evidence was disallowed simply because I allowed this BVA decision, without recourse, before the 1987 CAVC (Vets Court) was started up. The evidence was there but withheld. Denial decisions claims filed before 1987 should be reworked.

1151_Tolling_for_Gov_Fraud.pdf

[Stretch]

My denial, for back injury claim decision, stated that there was no injuries in SMR (decision 1986).

On the same paper, dental decision in the second paragraph it says that I had severe head trauma injury shearing off several teeth and a broken nose and lip. This injury was detailed in my SMR medical and dental records.

The VA witnessed it's own withholding of evidence in the same decision on another claim.

(I have always had VA dental.)

If I would have been granted the Back injury Claim, in 1983-1986, I would have had an EED of 1971.

Edited April 1, 2008 by Stretch

[donews]

Free,

I agree with your assesment one hundred percent. Very well stated.

Stretch,

As Free said with the rules a little different now and lawyers abound, this type of lawsuit / claim might work for you. It will be interesting to see how it plays out.

So are you saying that in denying your back injury claim due to no SMR showing a back injury that they errored because they didn't use your head / dental injury as a basis for your back claim?

Did you ever file an NOD or appeal of the 1980's decision?

Have you gotten then or now an IMO or doctors opinion tying the head injury to your back injury if thats what you are saying?

Sorry to ask so much, trying to understand your situation better to offer any help I can.

Either way, I always wish the best for a vet.

and Good Luck!