Equitable Relief

[UpToHere]

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.

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

5. ER is 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, 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 cites the record to support its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA *misstated* the record, 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

[broncovet]

 

My opinion, other than what I have already posted, but based on your new information, you should:

Take your file (at least your last decision(s)) to a qualified Veterans benefit attorney.  They will review your file, and decide whether or not they feel you have a valid earlier effective date claim.  THEN you can decide whether or not to hire the attorney.  He may well opine whether or not "equitable relief" is the best route for you to go.  To find an attorney who represents Vets, you can go here:https://www.vetadvocates.org/cpages/sustaining-members-directory

If (and only if) the attorney and you agree to representation, then you will likely owe about 20 percent of your back pay "if successful".  Knowing what I know about effective dates, if I were 84 years old, this is what I would do, without a doubt.  NOTE:  You should contact "more than one" law firm.  Reason:  Many are just too busy, dont accept effective date claims (for whatever their reason), dont think your claim has "enough value" to be worth their while, or other wise simply decline to represent you.  I have been declined probably 10 times.  I have hired 3 different law firms, however, and each of them "won" a remand.  My cost:  about 1000.00.  Reason:  At the CAVC, they regurarly award EAJA fees to the Veteran, so he pays zero.  However, I kept the attorney for representation to the BVA after the remand, and compensated the attorney for representation "at the board" of about 1000 dollars.  It was well, well worth it.  I have won in excess of 6 figures, total, on my effective date appeals.  (combined).  

 

I did a "case search" for "Equitable relief" at the CAVC and got 492 cases where that term was mentioned, here:

http://search.uscourts.cavc.gov/search/

 

[broncovet]

THIS law firm appears to be familiar with 1151 claims (which you stated was your type of claim):

https://cck-law.com/blog/1151-claims-what-they-are-and-how-to-file/

Also, this firm seems to be familiar with 1151 claims:

https://ptsdlawyers.com/blog/1151-claim/

     Now, its my opinion that "if" in your file, there is a record of an "informal 1151 claim", this could likely serve as the effecitve date.  

[UpToHere]

6 hours ago, broncovet said:

5 hours ago, broncovet said:

THIS law firm appears to be familiar with 1151 claims (which you stated was your type of claim):

 

[UpToHere]

5 hours ago, broncovet said:

THIS law firm appears to be familiar with 1151 claims (which you stated was your type of claim):

I prevailed in my 1151. 1151 is no longer an issue.

The only remaining issue is ER.

And that VA says I’m not eligible for ER under (a) or (b) of 38 U.S.C. § 503, *and* that a review of the record showed “X,” when, in fact, a review of the record unequivocally shows “not-X.”

*That’s* the issue.

The *problem* I have, is getting VA to *actually* review the entire record (not the “top-sheet” version of the record), page-by-page.

I’ve tried this, from different angles, repeatedly.

VA is quite happy with the bogus denial they put in the record, and refuses to go anywhere near correcting it.

[broncovet]

It sounds like your issue is an earlier effective date, and are trying to achieve that with ER.  This is exactly the kind of thing an attorney would be interested in.  I dont know if he would go the ER route or not, as I mentioned there ARE alternatives, perhaps, that would produce better results, but I wouldnt know that until/unless I saw your file.  

I would reiterate that you should have an open mind and let the attorney determine the best legal method to produce an earlier date.  I did, and it worked out for me.  ER would have been my last choice.  In this order:

1.  Appeal to the Board, then to the CAVC if denied.  

2.  Reopen due to new and material evidence under 38 cfr 3.156.

3.  Try to locate an informal claim, if its in the file.  Then "pry it open".  

4  There are several other exceptions to the general effective date rule, such as if you applied within a year of service, if you filed an informal claim, if its a claim for increase, if you fall under Nehmer (mostly Vietnam).  Many of the regulations are here:

https://www.law.cornell.edu/uscode/text/38/5110

5.  File Cue

6   Writ of Mandamus

7  ER

[UpToHere]

1 hour ago, broncovet said:

It sounds like your issue is an earlier effective date, and are trying to achieve that with ER. 

No, not at all.

EED & ER are not “birds of a feather.”

They’re two entirely different beasts.

Consider, “Case #13, from the Secretary’s CY 2002, 503(c) Report to Congress on Equitable Relief,” (attached).

In Case #13, the Secretary held that although the statutory bar to an Earlier Effective Date of Claim (EED) is inviolable, it is, nevertheless, not a bar to a grant of Equitable Relief.

To put it another way, in Case #13, the Secretary granted ER in the interests of justice, precisely *because* EED was barred by statute.

2002EqRelGrants.pdf