Equitable Relief

[Mr cue]

? I been looking into this but can't seem to find.

We're do you send the petition the board or the us court.

[Berta]

I believe it has to be filed with the Secretary of the VA.

His contact info is here:

The Honorable Denis R. McDonough Secretary U.S. Department of Veterans Affairs Washington, D.C. 20420 VIA EMAIL: Denis.McDonough@va.gov

This should help:

Also here are some successful ER petitions, filed with the VA -----3 are from widows:

https://www.va.gov/data/VAOpenDataMigration2019/2001_Equitable_Relief.pdf

They are all older Equitable Relief awards- if I find any recent ones I will post them here.

But this one was a Biggie:

https://www.disabledveterans.org/wp-content/uploads/2016/06/TBI-Equitable-Relief-Factsheet-FINAL.pdf

It affected  vets at hadit and many more in hyperspace.I remember it well as the VA was not properly asessing TBI claims.

In part:

"Secretary of Veterans Affairs Robert McDonald has granted equitable relief to more than 24,000 Veterans following a national review of Traumatic Brain Injury (TBI) disability compensation examinations conducted between 2007 and 2015. Equitable relief is a unique legal remedy that allows the Secretary to correct an injustice to a claimant, where VA is not otherwise authorized to do so within the scope of the law."

I have not found any Equitable Relief Petition filed with the current Secretary of the VA.

 

 

 

[Berta]

Just to add, it seems to me that the ER petition can be granted,if it fullycomplies with 503 (a) but it is then up to the VARO to award.

NVLSP had limited info on Equitable relief but mentioned , in their 2020-2021 VBM that M21-1  (Part Three) III.vi.1.B.1. was changed in April 10,2020, regarding Equitable Relief issues.

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014283/M21-1,-Part-III,-Subpart-vi,-Chapter-2,-Section-A---Simultaneous-Award-Adjustments

Equitable relief appears in thousand of BVA decisions back to 992 but the BVA cannot award equitable relief. In one case the BVa stated:

"The Secretary of VA, but not the Board, has discretionary power to provide equitable relief, and the appellant is at liberty to apply to the Secretary and request that he exercise his discretionary authority to grant this claim on an equitable basis. See 38 U.S.C. § 503; 38 C.F.R. § 2.7. Authority to award equitable relief under 38 U.S.C. § 503(a) is committed to the sole discretion of the Secretary. The Board is without jurisdiction to consider matters which are solely committed to the Secretary's exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). The Board offers no opinion on this matter, but advises the appellant that if she wishes to petition for equitable relief, she may file such a petition with the Secretary."

https://www.va.gov/vetapp21/files3/a21006038.txt

This is one of the "clues" that sometimes the BVA will give us and is similar toone of the ER petitions above that was granted to a widow.

NVLSP also maks the point that all other avenues of 

approach, when considering a ER petition, must be ehausted first before the petition wil be addressed.

 

Edited November 2, 2021 by Berta
in fog poor satelitte access

[Mr cue]

Thanks Berta I send it there this week.

I am done I can't get anyone to address there errors.

The court has had my petition for extraordinary relief with the judge almost two months.

The board will not address the smc r and o remand by the court.

And are use a remand for loss of use to not address it.

They been shopping the claim for a unfavorable medical opinion for 5 months.

I have two issues remand by the court been treated as new appeals with new 2021 docket number now.

If the court denied my petition for extraordinary I don't think I even have the fight in me anymore.

I will be waiting years for some one to address a cavc remand.

I fought alway to the cavc about my effective dates for smc s and l. The court set a side the effective dates granted by the board.

The board granted the same effective dates I fought. 

And granted them in the first instance.

The court order didn't stated to do this.

I have fought va for years but all this new stuff has put veterans at a disadvantage.

1. The new comp exam thing is just a new hold pen for claims.

They are now shopping veterans claims.

2. No contact with bva no number they don't even answer irs anymore.

They will not even respond to the white house hot line now. Smh.

3 the mailing of decision not get them for 30 days.

4 not been able to get a copy of the comp exam until you do a freedom of information. And it take a month to get it.

The va will have put a unfavorable medical opinion in the record before a veteran will even see it. Smh.

5 they are make veterans do 5 6 exam for the same issue Over and over to cause delay.

They are reducing veterans rating at a all time high.

After the petitions I will just let them do whatever I am not fighting anymore.

I not going to make a difference anyway smh.

 

 

 

[Mr cue]

Last thing I am going to try for my smc s.

I have been tdiu one condition for over 25 year. Never was able to leave my house for a income.

Smc s.

Because of the va error of never cretifed my appeal back in 1993. Which I won 8 years retro.

I was never inferred smc s.

I apply first in was my tdiu is based on all my condition.

Once I provide the board with the tdiu decision.

And the court remand it.

It has been remove from the legacy appeal system and hardship and cavc remand docket.

And put in the new appeal system with a 2021 date.

And they refuse to address it.

So now I wait years for something I fought all way to court.

And it's is percendent if a veteran can't leave his home to make a income he should be grant smc s.

 

[broncovet]

If I recall correctly, you said you had SMC L.  Well, you dont get SMC L and then also get SMC S for housebound.  Reason:   You already have a higher rating (than SMC S).  Its like being awarded 100 percent, and then apply for 20 percent more. 

Pyramiding prevents duplicating SMC S, and SMC L.  Dont ask me to show you the regulation, you will have to look it up yourself.  If you can file a writ, surely you can look that up.  

The VA allows adding many SMC's, such as adding SMC K's, provided that you already have one SMC L.  But SMC L is considered the Building block for other SMC's, while housebound is a smaller version.  

If you read the regulations on housebound and A and A, it may help.  The Veteran is awarded SMC L (A and A) OR housebound, but not both.  SMC L is considered the greater of the 2.  

Its the same with compensation and pension.  You can not get both, you get the greater of the 2.  Many years ago, I was awarded 40 percent, then pension.  I got the greater of 40 percent comp or pension, which was pension.  Later, when awareded 100 percent, I was no longer eligible for pension because the compensation was greater than the pension.  The law prohibits paying compensation and pension..only the greater of the 2.  

One reason:  Pension is needs based, and when you make over the poverty level, you are no longer eligible for pension.  And, when you get to 100 percent, you are over the poverty level and not eligible for pension.  

In a similar manner, you get SMC S or SMC L..you get the greater of the 2, not both.  Once you get aid and attendance, you are no longer eligible for housebound, in no small part because if you require the assistance of others for every day needs, its presumed you are not able to leave the home for work.  

People who are in nursing homes dont get jobs at McDonalds.  If you are a patient at a nursing home or hospital, its presumed you can not work.   If you could work, you should be released from nursing home.  This said, I saw a man the other day on oxygen working as a walmart greeter.  He wasnt there long.  

You have to look at the whole forest..not just one branch of one tree.  The judge considers all the regulations in the forest, not just one isolated regulation.  

[Mr.B]