Cavc Or Equitable Relief?

[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

[Berta]

Does the BVA web site have your case posted yet?

If so can you give us the link? or citation number and decision number?

"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."

or can you scan and attach here that part of the BVA decision?

[Berta]

How much time do you have left for appeal to the CAVC?

I would think you could try for CAVC as well as file for equitable relief.

I found some info on Equitable relief in two 2009 BVA decisions:

The Board is sympathetic to the veteran's situation, however, it is bound by law, and this decision is dictated by the relevant statutes and regulations. The Board has no legal authority to consider the "fairness" of the laws which it is legally bound to apply. Simply put, the Board does not have the authority to grant equitable relief. Darrow v. Derwinski, 2 Vet. App. 303 (1992). If the veteran wishes to petition for equitable relief, he should file such a petition for equitable relief with the Secretary. It has been held, however, that the authority to award equitable relief under 38 U.S.C.A. § 503(a) (West 2002) is committed to the sole discretion of the Secretary, and that the Board is without jurisdiction to consider that which is solely committed to the Secretary's exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). http://www4.va.gov/vetapp09/files1/0902449.txt

Notwithstanding the above, the Veteran may specifically request equitable relief pursuant to 38 U.S.C.A. § 503 (West 2002) for a grant of eligibility. However, such an application must be made separately from the issue currently on appeal; a grant of equitable relief is solely within the discretion of the Secretary of Veterans Affairs, and is not within the Board's jurisdiction. See Darrow v. Derwinski, 2 Vet. App. 303 (1992). http://www4.va.gov/vetapp09/files1/0909701.txt

There seems to be no time frame for this type of petition to the Secretary-nor can I find that one is prohibited from pursuing additional appellate avenues too--but I am not sure at all.

I am having a Chapter 35 run a round and might petition the Sec myself under Equitable relief- however I don't want to overlook my other options.These types of Equitable Relief awards come few and far between-

If I find more on this type of petition I will let you know here-

do you have a rep or have you considered getting an attorney?

Was your initial NOD filed after June 20th 2007?

[rlarc]

Does the BVA web site have your case posted yet?

If so can you give us the link? or citation number and decision number?

"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."

or can you scan and attach here that part of the BVA decision?

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

[rlarc]

How much time do you have left for appeal to the CAVC?

I would think you could try for CAVC as well as file for equitable relief.

I found some info on Equitable relief in two 2009 BVA decisions:

The Board is sympathetic to the veteran's situation, however, it is bound by law, and this decision is dictated by the relevant statutes and regulations. The Board has no legal authority to consider the "fairness" of the laws which it is legally bound to apply. Simply put, the Board does not have the authority to grant equitable relief. Darrow v. Derwinski, 2 Vet. App. 303 (1992). If the veteran wishes to petition for equitable relief, he should file such a petition for equitable relief with the Secretary. It has been held, however, that the authority to award equitable relief under 38 U.S.C.A. § 503(a) (West 2002) is committed to the sole discretion of the Secretary, and that the Board is without jurisdiction to consider that which is solely committed to the Secretary's exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). http://www4.va.gov/vetapp09/files1/0902449.txt

Notwithstanding the above, the Veteran may specifically request equitable relief pursuant to 38 U.S.C.A. § 503 (West 2002) for a grant of eligibility. However, such an application must be made separately from the issue currently on appeal; a grant of equitable relief is solely within the discretion of the Secretary of Veterans Affairs, and is not within the Board's jurisdiction. See Darrow v. Derwinski, 2 Vet. App. 303 (1992). http://www4.va.gov/vetapp09/files1/0909701.txt

There seems to be no time frame for this type of petition to the Secretary-nor can I find that one is prohibited from pursuing additional appellate avenues too--but I am not sure at all.

I am having a Chapter 35 run a round and might petition the Sec myself under Equitable relief- however I don't want to overlook my other options.These types of Equitable Relief awards come few and far between-

If I find more on this type of petition I will let you know here-

do you have a rep or have you considered getting an attorney?

Was your initial NOD filed after June 20th 2007?

BVA_decision.pdf

[Berta]

This is a very unusual situation-I will ask a moderator to move this up to claims research where more can give opinions.

The BVA decision makes sense but so does your premise!

You won a CUE claim here-CONGRATS-

I wonder if you can CUE the older decision again under a different CUE basis and also -if I were you I sure would file the Equitable Relief claim too-

Others hopefully will also chime in-

http://74.125.113.132/search?q=cache:xQqQo...lient=firefox-a

(M21-1MR on Equitable Relief claims)

[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.