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

[deltaj]

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.

Edited February 22, 2010 by deltaj

[deltaj]

[Berta]

As I recall our last show here in archives woth Edwin Crosby was about Equitable Relief-

http://www.stardustradio.info/Download4.html

I could be wrong about that- but I believe he has had experience with this facet of VA case law.

I will try to get more contact info on him.

I too am considering filing a claim for Equitable Relief.

If the VA has no legal way to resolve an issue like yours,it seems equitable relief is the only avenue left (as well as the CAVC)

You should be hearing from lawyers soon who will see your CAVC case on the public docket.

[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

[deltaj]

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

Hmm, You signed a waiver of retired pay to accept compensation. I'm thinking that does not mean you opted out of V.A. I think it's sort of like opting out of military retirement. I think that V.A. still had an obligation to rate you correctly and that they should pay you the difference between the retired pay also called retainer pay and the higher rate of compensation you were owed after they determined that there was a CUE in the earlier decision. I searched online under CUE AND retainer pay AND veteran. I discovered BVA published a regulation in December 1999 in the Federal Register. I read excerpts and thought it was an unfair regulation concerning unappealed claims. I wounder if it would be possible to argue on appeal that BVA interpreted that regulation prior to a particular law. A failure by a veteran to appeal a decision should not construed by BVA as a license to steal from the veteran.

[Berta]

Rlarc-I lost Edwin Crosby's contact info in email when I switched over to newer PC-but Jerrel Cook (SVR Radio) told me he had personal experience with Equitable Relief claims.

He can be googled and his email addy might well be at his landscaper site-or if you Google SPN Codes he will surely pop up- as he has done extensive research on SPN codes and I believe his Equitable Relief case involved wrong SPN codes on his DD 214.

This excerpt from a BVA case indicates that this type of claim-Equitable Relief- can be filed in addition to any other steps the claimant takes in the appellate process:

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

The "fairness" factor seems to be the key point in claims of this type-fairness that the actual regs do not provide (maybe because these situations are so unique)

I am in same boat-although VA granted me a direct SC death of my husband due to AO DMII, CAD and CVAs-the fact that they misdiagnosed him to the point of causing his death (FTCA wrongful death award 1997) meant they could refuse to give diagnostic codes for his malpracticed disabilities (although it was the medical documentation of those disabilities in his med recs that caused me to succeed in the FTCA claim)and thus

they are trying to say I am not eligible for accrued SMC under the Nehmer court order-

they might as well have said-

since we killed him medically (a separate issue)we dont have to recognize his AO disabilities for any accrued purposes.

I certainly can pull apart their decision and fight it but like you- I am in exceptional circumstance and I feel we both have basis for Equitable Relief claims.

If I find any more info at all on this type of claim I will post it for you-----

Do you have a vet rep and are they supportive of this type of claim?