BOTH BARRELS!!!!!

[broncovet]

As many of you know, Im at my 4th trip to the CAVC, at least 5 BVA decisions, and more than a dozen VARO decisions, and I still have not won all I deserve in more than 16 years.  

I am getting ready to hit VA with BOTH BARRELS, Im done with their fooling around delays, etc.  I should know it a month or two if this CAVC is awarded, and, if not, here comes barrel 1:

1.  Im preparing filing a "second" writ of mandamus.  In spite of a letter I got in 2008, from the VAOIG directing the VARO to give me special handling for shredding, they have not done so.  Im going to ask them to compel the VARO to actually comply with Dr. Peak's directive that "VA employees would be held accountable, and Vets would be believed".  Neither has happened.  

2.  Im going to be prepared.  This is my second Writ, and I learned a bunch from the first one.  Proper preperation prevents poor performance.  They are going to get documents from the VAOIG..along with another copy of my "special handling request due to mishandled evidence"  filed in 2008.   Im going to hold them accountable to Dr. Peak's promise..as well as Mr. Lincoln's promise to Veterans.  

I plan on sending a copy to the white house and to ask them not to give VA any more money to squander until they keep their promises.   

[Buck52]

I don't blame you broncovet.

It's a crying damn shame we have to fight VA like this   when we have everything (EVIDENCE) they need to adjuicate correctly Claims or EED.

[vetquest]

And I thought that my case was difficult.  Cakewalk compared to yours.

[Berta]

Broncovet- I wonder if the regulations for Equitable Relief would help you:

https://community.hadit.com/topic/72495-equitable-tolling-vs-equitable-relief-for-eed/#comment-450070

Equitable tolling is one thing but Equitable Relief is different.

I have 5 CUE claims pending and am preparing another one today-

and have a copy of the Equitable Relief regulation waiting in case I need it.

 

38 U.S. Code § 503

 

(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.)

 

 

 

 

Edited September 19, 2018 by Berta

[broncovet]

Thanks Berta.  I was reading about "Equitable relief" just the other day.  Apparently, this is at the VAsec's sole discretion, and some VAsec's choose "not to go there".  Wilikie is so new, its unsure if he will/will not go for "equitable relief".   

Your advice is good, as usual, and its not too early for me to think about persuing equitable relief.  

When Shinseki was fired, his complaint was that he trusted those VA executives who advised him.  If the VASEC looked into this, there is not much doubt that there will be VA executives opposed to equitable relief for me.  (If they were in favor of granting equitable relief, my guess is that we would not be having this conversation, that it would have already happened.)  

Still, my case has some good things going for it:  

First, I have not only an honorable discharge, but the good conduct medal.  

Next, I do have a letter from VAOIG, in 2008, where they suggested I "Tell the VARO I was shredded", in response to my complaint that evidence was mishandled.  

Further, my "Special Handling Request (SHR) due to mishandled evidence" was REFERENCED in my RBA, but it is absent.   A VARO employee, in my RBA, stated that, "This does not look like a real shredding case".  There was at least one other reference to my SHR in the RBA.  I told them if my special handling request was denied, that I needed to see this in writing.  One VA employee noted that at least a portion of my documents resubmitted was "outside" of the 18 month window (that VASEC PEAKE arbritrarilly used) for damage control on the October, 2008 "incident".  

The VA has applied massive pressure to make the "October incident" go away as quietly as possible, where Veterans evidence was found to be in the shredder bin by a VAOIG inspection of about a half dozen VARO's, including mine.  Im still fighting for an earlier effective date, and I dont plan on giving up easily.  

[Berta]

Yes, there is a lot to Equitable Relief Broncovet.

I found more info:

https://www.data.va.gov/sites/default/files/2016 Equitable Relief.pdf

When the TBI fiasco was uncovered a few years ago former Sec Mc Donald extended equitable relief to thousands of TBI vets who were not given proper  C & P exams by doctors.

It isn't easy to get -but one more weapon if every thing else fails.

It seems VA applied OGC Pres Op 08-97 to part of my dead husband's 1151 100% P & T stroke but somehow the Director told me his stroke was Total but not permanent at death-yet all of my evidence certainly stated he was.

(and since this  was 1151, inj a 1998 award letter - obviously I had already proved he did not get proper care at all and VACO agreed (FTCA)

It seems they paid me only for 6 months, yet the residuals showed continuous 100% P & T.

But that 'medical statement' only came from the Director of my VARO -who does not have a medical degree.

The medical  evidence outweighs her attempt to get me to accept something that is ludicrous and not based on a single medical or legal fact..

 

If I need to use Equitable Relief I will base it on the 'congressional intent" of 38 USC 1151 as defined and explained by the General Counsel in OGC Pres Op 08-97. The congressional intent was that ALL 1151money will be paid to the claimant under 1151, not part of it.