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.

 

 

 

[Berta]

The third resident doctor was probably afraid you would file under FTCA and/or 1151.

If a veteran or survivor files under 1151 and succeeds, unlike a settlement ( FTCA settlements are signed off by a OGC lawyer for the Unites States of America- the 1151 award  will provide ( at least it did in my case) a good rendition of the malpractice and admission of it.I say good meaning thorough, but it is horrible to read my  initial award letter.

Also another difference is that FTCA settlements fall under the NPDB I mentioned, they must be reported to the National Practitioners Data Bank. NONE of the multiple VA doctors who caused my husband's death were ever reported to the NPDB. Without any accountability they possibly malpracticed on other vets.

But my point is ,since 1151 has no accountability at all under NPDB ( part of my Bill would change that significantly)

that resident doctor feared you would take action yet you had every right to be advised by the VAMC what your options were. The VA had to do that when the malpractice scandal at Fayetteville AR occurred.

They should be doing that now as well with the 12 suspicious deaths at the Lewis Johnson VAMC...advising the survivors of their legal rights.

BUT the truth is VA does not want us to know anything and tried to keep Fayetteville as a local incident. 

I called the White House Hot Line immediately when I saw the Town Hall meeting on line, when the director said that.I also called a local Fayetteville law firm who had dealt with repping vets and the lawyer told me he was right there at the meeting and they said they would start advising vets or their survivors of the legal attempts they could take.(FTCA/ 1151)

You said:

"My understanding is that EED is barred by statute, so I petitioned for equitable relief for the monthly disability benefits I lost (approximately 30 months) + unreimbursed mileage (8500 miles)."

What statute bars EED?

Can you scan and attach here the VA letter that awarded you for 1151 and that contains some info on the EED they gave you? I assume they gave you the date of the claim..as the EED and that might well be correct...if that is the statute you mean.

One of my husband's malpracticed conditions was heart disease.I gave as EED for the Nehmer award 8-13-1988. Then again this was under Nehmer.

But they also resolved a CUE I had on a 1998 decision that brought a very favorable EED for his 1151 100% P & T stroke . 

There might be something in their 1151 award that could trigger a CUE as I assume you never appealed it...?

Cover your name, address, and C file number.

[Berta]

It seemed you had a situation of Equitable Tolling- which is different than Equitable Relief.

Are you aware of the Equitable Tolling regulations? But I am just guessing- we need to see the 1151 award letter and their EED rationale....which might be correct.

If a veteran or their survivor feels something at VA was drastically wrong with their health care and the medical evidence would reveal negligence or malpractice, they need to take action immediately ( FTCA has a 2 year SOL, except in some states it is only one year and state law is used by VA to determine Statute of Limits.

1151 has no statute of limits.But they almost always only pay back to the date the formal claim was filed. My husband filed 1151 in early 1994, the stroke EED was 2 years prior to that.Maybe I got the favorable EED because that claim was still pending until he died and I became the claimant.

 

Edited September 10, 2019 by Berta

[UpToHere]

1 hour ago, Berta said:

yet you had every right to be advised by the VAMC what your options were.

They didn’t, my PCP, a resident, is on record that he didn’t, and nowhere is there a record that my (resident) PCP’s advisors, or my (real) PCP ever did either.

Now that I’m trying to get equitable relief posited on the basis that they didn’t, VA, variously, denied that there were any adverse events in my care, wouldn’t respond to my rebuttal that a grant of 1151 benefits in connection VA medical care, is proof of some adverse event(s ) in that care, and, most recently, stated the matter of my petition for equitable relief was “closed,” and put me on notice that they were no longer going to “engage on this matter.”

The bottom line is that, although I had every right to be advised by my VAMC what my options were, my VAMC flouted its obligation to me then, and VA continues to do so now.

1 hour ago, Berta said:

What statute bars EED?

Poorly put, what I meant to say was, if someone files a disability claim within 1 year of an injury, the ED of any award would be the date of injury, whereas,  if someone files a disability claim more than 1 year after an injury, the ED of any award would be the date of the claim

1 hour ago, Berta said:

Are you aware of the Equitable Tolling regulations? But I am just guessing- we need to see the 1151 award letter and their EED rationale....which might be correct.

Yes, but ET doesn’t apply, and I’m well past the statute of limitations to file under FTCA

I applied for 1151 benefits years after I was injured in the course of my VA medical care, so the ED of my 1151 benefits, was the date I applied for 1151 benefits.

,

[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. The statutory authority Congress invested in the Secretary is inviolate. You may not file a NOD for denial of Equitable Relief. You may not file a Writ at the Court alleging the VA is remiss in answering your prayer for relief. It's a one-shot deal that is not appealable. 38 CFR §2.7...

(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.

I accept asknod’s points:

1. Only the Secretary can award ER.

2. There’s no way to appeal a *denied* ER petition.

3. There’s no way to file an NOD  for a denied ER petition.

e. There’s no way to file a Writ at the Court.

f. It’s a one-shot deal that’s not appealable.

Nevertheless, I have a question:

When VA provides its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA misstated the record to justify that denial, is there a way other than NOD, CUE, Writ, or, Appeal, to urge VA to revisit its denial?

To put this question another way:

When VA provides its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA misstated the record to justify that denial, can a petitioner invoke the Administrative Procedure Act, to prod VA to revisit its denial?

“Administrative law” may sound like a boring subject, but it isn’t. It’s both fascinating and, in the 73-year history of the Administrative Procedure Act, more important than ever for providing the legal structure in which encounters between citizens and their government take place. The Administrative Procedure Act doesn’t tell the government what to do. It simply requires that actions of federal agencies be supported by reasoned decision-making. When challenged, agencies have to provide explanations that are plausible and consistent rather than “arbitrary and capricious.”

https://www.nytimes.com/2019/11/21/opinion/sunday/Supreme-Court-DACA-Trump-taxes.html