Jump to content
  • Latest Donations

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims


    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   


  • Advertisemnt

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Sponsored Ads

  • Available Subscriptions

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Searches Community Forums, Blog and more

  • 0

Equitable tolling vs Equitable relief for EED


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.










Share this post

Link to post
Share on other sites

4 answers to this question

Recommended Posts

  • 0

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.   


Share this post

Link to post
Share on other sites


  • 0

"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).

It works for some vets but not for many others.



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.


  • Thanks 1

Share this post

Link to post
Share on other sites
  • 0

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.


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.
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.
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.)

Share this post

Link to post
Share on other sites
  • 0

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.  

Share this post

Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Ads

  • Ad

  • Latest News
  • Our picks

    • SHOW YOUR SUPPORT: Ad Free Subscriptions to the Forum available
      Ad free subscriptions are available for the forum. Subscriptions give you the forums ad free and help support the forum and site. Monthly $5 Annually $50 https://community.hadit.com/subscriptions/

      Every bit helps - Thank you.

      • 0 replies
    • Choosing a VA Disability Attorney Means Learning What Questions to Ask
      Choosing a VA Disability Attorney Means Learning What Questions to Ask. Chris Attig - Veterans Law Blog 

      <br style="color:#000000; text-align:start">How to Hire an Attorney For Your VA Claim or Appeal Free Guidebook available on the Veterans Law Blog

      I got an email the other day from a Veteran.  It had 2 or 3 sentences about his claim, and then closed at the end: “Please call me. So-and-so told me you were the best and I want your help.”

      While I appreciate the compliments, I shudder a little at emails like this.  For 2 reasons.

      First, I get a lot of emails like this.  And while I diligently represent my clients – I often tell them we will pursue their claim until we have no more appeals or until we win – I am most assuredly not the best.

      There are a LOT of damn good VA Disability attorneys out there.  (Most, if not all, of the best are members of the National Organization of Veterans Advocates…read about one of them, here)

      Second, I don’t want Veterans to choose their attorney based on who their friend thought was the best.  I want Veterans to choose the VA Disability attorney who is BEST for their case.

      In some situations, that may be the Attig Law Firm.

      But it may also be be Hill and Ponton, or Chisholm-Kilpatrick, or Bergman Moore.  Or any one of the dozens of other attorneys who have made the representation of Veterans their professional life’s work.

      There are hundreds of attorneys that are out there representing Veterans, and I’m here to tell you that who is best for your friend’s case may not be the best for your case.

      How do you Find the Best VA Disability Attorney for your Claim?

      First, you have to answer the question: do you NEED an attorney?

      Some of you don’t...
      • 1 reply
    • VA Emergency Medical Care
      VA Emergency Medical Care
      • 3 replies
    • Veterans Appeals Improvement and Modernization Act
      Veterans Appeals Improvement and Modernization Act
      • 1 reply
    • Thanks Berta for your help. I did receive my 100% today for my IU claim on 6/20/2018. It only took 64 days to complete and it is p&t. Thanks for your words of wisdom. 

Important Information

{terms] and Guidelines