Equitable tolling vs Equitable relief for EED

[Austin11]

Hello all, I have an initial claim under review by VA and also a claim under review with the BCMR.

There were clear administrative errors that allowed me to be discharged without disability evaluation.

Would I have more chance of success for a VA EED, earlier than initial application, if I pursue equitable tolling or should I just pursue equitable relief under 38 USC 503(a), or should I wait for the BCMR decision?

My understanding of reading precedent is that tolling may not apply to VA effective dates  prescribed by 5110.

Would a BCMR ruling granting retroactive IDES processing effectively establish a VA effective date, or would that BCMR date only apply to the DoD disability effective date?

Your insight is appreciated.

Austin

 

 

 

 

 

 

 

 

[broncovet]

I think you have the Best chance waiting until the VARO decision/BVA is complete and simply timely appeal them, assuming you are in applicable time frame.  

If you are at the BVA, given that this takes years to process, there is a good chance your BCMR is "fixed" and, if applicable, you can submit your BCMR decision as "new and material evidence" under 38 cfr 3.156 b.

A "normal appeal" of the effective date is your FIRST and most popular choice for a good reason:

The standard of review is lower for a regular appeal rather than a CUE, equitable relief,  or equitable tolling.  

If you are represented by an attorney, I suggest you take his or her advice, because they have reviewed your file and we have not, among other reasons.  

If you are represented Pro Se, or with a VSO, consider hiring an attorney AT THE RIGHT TIME.  

The best time to hire an attorney is often IMMEDIATELY AFTER A BVA DENIAL.  The reason for this is CAVC often awards EAJA fees, so you often pay little or no attorney fees, yet, get the benefit of professional representation.   

 

[Berta]

"Equitable tolling is to be applied only when circumstances preclude a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional office or the Board.  Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam order).  This is consistent with guidance provided by the Supreme Court.  Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (equitable tolling is allowed in situations where the claimant has actively pursued his/her judicial remedies, but the principles of equitable tolling do not extend to what is at best a garden variety claim of excusable neglect).

Equitable tolling may also be appropriate in extraordinary circumstances.  The Veterans Court has recognized a three-part test to determine whether extraordinary circumstances justify equitable tolling: (1) the extraordinary circumstance must be beyond the veteran's control, (2) the veteran must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the veteran must exercise due diligence in preserving his or her appellate rights, meaning that a reasonably diligent person, under the same circumstances, would not have filed his or her appeal within the appeal period.  McCreary v. Nicholson, 19 Vet. App. 324 (2005).
https://www.va.gov/vetapp16/files6/1645207.txt
 

It works for some vets but not for many others.

https://www.va.gov/vetapp18/files3/1814058.txt

https://www.va.gov/vetapp18/files6/18114313.txt

You have a VA claim and BCMR claim pending- I would wait until you get the decisions because the standard for Equitable Relief is so high.

 

[Berta]

Equitable Relief is different - I might have to use this regulation under Part (a) and (b), if the RO does not apply a  specific General Counsel Pres Op to my next claim. 

Two or three times already the VA OGC  has had to order my RO to pay me, so I didnt need to use this regulation.

This time I am sending copies of my claim to the Secretary.These regulations s dont come up much here at all.

My situation is very unique.

 

(a)

If the Secretary determines that benefits administered by the Department have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary may provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom the Secretary determines is equitably entitled to such moneys.

(b)

If the Secretary determines that a veteran, surviving spouse, child of a veteran, or other person has suffered loss as a consequence of reliance upon a determination by the Department of eligibility or entitlement to benefits, without knowledge that it was erroneously made, the Secretary may provide such relief on account of such error as the Secretary determines is equitable, including the payment of moneys to any person whom the Secretary determines is equitably entitled to such moneys.

(c)

Not later than April 1 of each year, the Secretary shall submit to Congress a report containing a statement as to the disposition of each case recommended to the Secretary for equitable relief under this section during the preceding calendar year. No report shall be required under this subsection after December 31, 2018.

(Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 386; amended Pub. L. 106–419, title IV, § 403(c)(1), Nov. 1, 2000, 114 Stat. 1864; Pub. L. 109–233, title IV, § 403, June 15, 2006, 120 Stat. 411; Pub. L. 111–275, title VIII, § 808, Oct. 13, 2010, 124 Stat. 2893; Pub. L. 113–175, title IV, § 403, Sept. 26, 2014, 128 Stat. 1905; Pub. L. 114–58, title IV, § 404, Sept. 30, 2015, 129 Stat. 535; Pub. L. 114–228, title IV, § 404, Sept. 29, 2016, 130 Stat. 940; Pub. L. 115–62, title IV, § 404, Sept. 29, 2017, 131 Stat. 1164.)

https://www.law.cornell.edu/uscode/text/38/503

 

 

[broncovet]

It you elect self representation, then dont even consider it without access to a current Veterans Benefit manual.  Your opponent at law (the VA) will  have one, and you will be missing a valuable weapon if you dont.

A few VSO's, and virtually all Veteran's attorneys have access to the VBM.  It would take months of research for you to do what has already been researched in the VBM as far as regulations and case law.  

[hollywoodnc]

On 8/11/2018 at 8:12 AM, Berta said:

Equitable Relief is different - I might have to use this regulation under Part (a) and (b), if the RO does not apply a  specific General Counsel Pres Op to my next claim. 

Two or three times already the VA OGC  has had to order my RO to pay me, so I didnt need to use this regulation.

This time I am sending copies of my claim to the Secretary.These regulations s dont come up much here at all.

My situation is very unique.

 

(a)

If the Secretary determines that benefits administered by the Department have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary may provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom the Secretary determines is equitably entitled to such moneys.

(b)

If the Secretary determines that a veteran, surviving spouse, child of a veteran, or other person has suffered loss as a consequence of reliance upon a determination by the Department of eligibility or entitlement to benefits, without knowledge that it was erroneously made, the Secretary may provide such relief on account of such error as the Secretary determines is equitable, including the payment of moneys to any person whom the Secretary determines is equitably entitled to such moneys.

(c)

Not later than April 1 of each year, the Secretary shall submit to Congress a report containing a statement as to the disposition of each case recommended to the Secretary for equitable relief under this section during the preceding calendar year. No report shall be required under this subsection after December 31, 2018.

(Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 386; amended Pub. L. 106–419, title IV, § 403(c)(1), Nov. 1, 2000, 114 Stat. 1864; Pub. L. 109–233, title IV, § 403, June 15, 2006, 120 Stat. 411; Pub. L. 111–275, title VIII, § 808, Oct. 13, 2010, 124 Stat. 2893; Pub. L. 113–175, title IV, § 403, Sept. 26, 2014, 128 Stat. 1905; Pub. L. 114–58, title IV, § 404, Sept. 30, 2015, 129 Stat. 535; Pub. L. 114–228, title IV, § 404, Sept. 29, 2016, 130 Stat. 940; Pub. L. 115–62, title IV, § 404, Sept. 29, 2017, 131 Stat. 1164.)

https://www.law.cornell.edu/uscode/text/38/503

 

 

Hi Berta!

I hope you're doing well!

In Regard to Equitable Tolling v Equitable Relief...

In my original 1977 Disability Determination, the Dept. awarded a 10% rating Code: 5010-5003.

The decision makers did not review the entire file.

A few issues were made by VA drs. in the 1976 time frame.  They are "Pins working loose, Avascular Necrosis, Cannot Cross Leg, Atrophy & (minor) 1/2" Leg Length discrepancy"

There is no code for Pin penetration into the joint space, so unless I missed it, would I be filing this as "Prosthetic Loosening"?

Anyway, upon this discovery, when I requested my entire file in 2002, all these ailments were NOT addressed in the original 1977 decision.

All this time I was going on the "Irwin" decision, basing it on the VA making a Clear & Unmistakable Error & it (1977 decision) is Equitably Tolling, being that the issues stated by drs' were not included in the original determination.  ONLY Osteoarthritic conditions. (5010-5003).

I recently did some observing of Title 38 and noticed changes in The Bones, Joints, etc..  STILL though NOTHING about additional hardware, other than artificial hip replacements.  NOTHING on pins, screws, nuts, plates, etc..

I ALSO noticed that the VA incorporated Avascular or Asceptic Necrosis as "5003"!?  Correct me if I'm wrong, but, I thought I recall seeing Avascular Necrosis listed separately under it's own code?

Anyway...with ALL this said. would you recommend I continue with Equitably Tolling or should I pursue the "relief" option?

Look forward to hearing from you!

BM

 

 

[Berta]

 https://www.va.gov/vetapp16/Files3/1626202.txt

As of that 2016 decision Asceptic Necrosis is still coded as 5003.

This BVA decision explains equitable tolling :

https://www.va.gov/vetapp14/Files2/1414314.txt

This is a Fabulous Fed district court case: (re equitable tolling- I have been reading it since last week.

https://www.govinfo.gov/content/pkg/USCOURTS-hid-1_14-cv-00455/pdf/USCOURTS-hid-1_14-cv-00455-2.pdf

I had this link on my PC already because of a situation involving a veteran who,I believe, (I firmly believe) received false information from a VA attorney (who I dealt with myself) at  Office of the General Counsel-VA.His lawyer also received false information, I think.

It was a bonafide proven malpractice case, I know how those cases go ,and we both have Bills before Senate/Congress that would change the way the VA handles this type of issue, for other veterans.

His case is Very similar to the vet's who I am helping.

 

Equitable relief can be googled and add BVA at the end of the search term and you might find something that can help.