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

[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

[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.

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

[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

[Pete53]

Thanks and good luck