Help with Denied Petition for Equitable Relief

[UpToHere]

Two years ago, I petitioned for equitable relief, on the bases of "A," "B," and "C."

Compensation Service denied my petition, on the grounds that "B" and "C" did not establish eligibility, but said nothing about "A."

One year ago, I petitioned for equitable relief again, but only on the basis of "A."

Last month, VA issued a new denial decision, again on the grounds that "B" and "C" did not establish eligibility, and again said nothing about "A."

Any thoughts out there on what my next step might be?

Thanks.

 

 

 

[broncovet]

We are trying to help you here.  As has been pointed out, your petition for equitable relief has apparently been denied, and is not appealable.  So, you have some choices, here:

1.  Give up.  Not recommended.  

2.  Try to locate, in your cfile, at least one instance where you submitted New and material evidence, 38 CFR3.156 b or 3.156 c. 

3.  File (again) for your requested benefits, since you posted you are apparently not interested in the retro that an earlier effective date (EED) could bring.  

4.  Consider reviewing your VARO/BVA decisions for instances of CLEAR Unmistakable Error.  

5.  If your BVA decision was within the past 120 days, you or your attorney can file a NOA. (Notice of Appeal).  

6.  Enlist the help of a representative (or attorney) to do the above, except, you dont need a representative for choice 1.   An experienced attorney may also have a few other ways to get you your benefits.  One way may be he may notice you have a "pending claim" you may have forgotten about, or that was never adjuticated.  

[UpToHere]

Thank you.

[UpToHere]

On 10/20/2018 at 7:42 PM, asknod said:

Equitable relief can only be awarded by the VA Secretary. No one, I repeat, no one can act in his stead. Thus a petition for equitable relief may not be appealed.

Thank you. 

I readily accept your point that only the Secretary can award equitable relief, but need help understanding your point, "[the denial decision] of a petition for equitable relief may not be appealed":

Do you mean that the usual appeal path veterans take to dispute an adverse VA disability benefits decision, is a path veterans are barred from taking to dispute an adverse VA determination of eligibility for equitable relief?, or

Do you mean that if VA sets out reasons and bases for denying a veteran's eligibility for equitable relief, and those reasons and bases do not accord with the record, there's nothing a veteran can do about it?

 

 

 

 

 

 

 

 

 

 

Edited October 22, 2018 by UpToHere
typo

[FormerMember]

You do yourself a great disservice if you do not read the regulation before querying Hadit readers.

 

§ 2.7 Delegation of authority to provide relief on account of administrative error.

(a) Section 503(a) of title 38 U.S.C., provides that if the Secretary determines that benefits administered by the Department of Veterans Affairs have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary is authorized to provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom he determines equitably entitled thereto.

(b) Section 503(b) of title 38 U.S.C., provides that if the Secretary determines that any 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 Veterans Affairs of eligibility or entitlement to benefits, without knowledge that it was erroneously made, the Secretary is authorized to provide such relief as the Secretary determines equitable, including the payment of moneys to any person equitably entitled thereto. The Secretary is also required to submit an annual report to the Congress, containing a brief summary of each recommendation for relief and its disposition. Preparation of the report shall be the responsibility of the General Counsel.

(c) The authority to grant the equitable relief, referred to in paragraphs (a) and (b) of this section, has not been delegated and is reserved to the Secretary. Recommendation for the correction of administrative error and for appropriate equitable relief therefrom will be submitted to the Secretary, through the General Counsel. Such recommendation may be initiated by the head of the administration having responsibility for the benefit, or of any concerned staff office, or by the Chairman, Board of Veterans Appeals. When a recommendation for relief under paragraph (a) or (b) of this section is initiated by the head of a staff office, or the Chairman, Board of Veterans Appeals, the views of the head of the administration having responsibility for the benefit will be obtained and transmitted with the recommendation of the initiating office.

(Authority: 38 U.S.C. 503, 512)

[ 37 FR 22864, Oct. 26, 1972, as amended at 49 FR 30693, Aug. 1, 1984; 54 FR 34981, Aug. 23, 1989; 68 FR 25504, May 13, 2003]

[UpToHere]

Apologies for being so thick.

Now I get it (I think):

There is no way anyone can "appeal" even a flawed VA decision of ineligibility for consideration for equitable relief, i.e., a VA decision that rests on reasons and bases that are contradicted by the record.

What I gather I can do, however, is submit a new petition for equitable relief over the administrative error(s) that led VA to determine that my original petition for consideration for equitable relief lacked merit.

Thank you.

 

 

 

 

 

 

[broncovet]

I dont recommend submitting a new position for equitable relief.  Instead, try the methods I posted earlier:  Appeals, Reopen due to new and material evidence, (38 cfr 3.156 ) file a new claim or file a motion to amend the decision based on Clear Unmistakable error, in that order.  The highest bar to jump over is CUE, so dont make it harder on yourself if one of the other methods work.  

The Secretary has already turned down your position for equitable relief (for whatever reason), and its unlikely that resubmitting that over and over will do anything but alienate the VASEC, as Alex has pointed out, there is no appeal for equitable relief.  The BVA all is under the VASEC, so if the boss says no, what are they to say?  

You need to "win" your benefits, and to do that, use the tools I posted earlier.  Dont keep beating your head against the wall.  Just look at the goal and look to the fastest/easiest way to get there.  If you submitted new and material evidence, then reopening may be the fastest way, while preserving your effective date(s).