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M21-1, Part III, Subpart vi, Chapter 1, Section B – Equitable Relief and Other Requests

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2

1.  Equitable Relief


Introduction

This topic contains information on requesting equitable relief, including

Change Date

July 28, 2017

III.vi.1.B.1.a.  Definition:  Equitable Relief

Equitable relief is a remedy for an injustice done to a claimant resulting from mistakes made in applying rules and regulations that either
  • deprived the claimant of benefits, or
  • caused the claimant to suffer a loss because he/she relied on an erroneous decision.
The following two provisions describe the authority of the Secretary of the Department of Veterans Affairs (VA) to provide equitable relief:
  • 38 U.S.C. 503(a) gives the Secretary authority to provide whatever relief is determined equitable if a claimant is denied VA benefits because of an administrative error by the Federal government or any of its employees, and
  • 38 U.S.C. 503(b) gives the Secretary authority to provide equitable relief if a claimant suffered loss as a result of relying on an erroneous determination by VA.

III.vi.1.B.1.b.  Who May Request Equitable Relief

Requests to the Director of Compensation Service or Pension and Fiduciary (P&F) Service for equitable relief may be made by
  • a claimant or someone acting on behalf of a claimant, or
  • a regional office (RO).
Note:  When a claimant or someone acting on behalf of a claimant specifically requests equitable relief, submit the request to the Director of Compensation Service (21C) or P&F Service (21PF).

III.vi.1.B.1.c.  Requirements for Requesting Equitable Relief

Thorough documentation of a claim for equitable relief is essential.  All RO requests for equitable relief must
  • provide evidence to clearly show that the requirements for consideration are met, and
  • include a detailed, factual determination of loss.
Reference:  For more information on the requirements for

III.vi.1.B.1.d.  Requirements for Consideration

The table below shows the requirements for consideration of equitable relief under38 U.S.C. 503(a) and 38 U.S.C. 503(b).
Consideration under …
Requires that …
a claimant has or had eligibility and entitlement under the current law.
evidence indicates that a claimant suffered a loss and all the following conditions also exist:
  • VA made an erroneous decision concerning benefit eligibility and entitlement
  • the individual acted to his/her detriment based on that erroneous determination, and
  • at the time the individual acted to his/her detriment, the person did not know the VA determination was in error.
Important:  38 U.S.C. 503(b) does notrequire that a claimant has or had a legal right to VA benefits.

III.vi.1.B.1.e.  Requirements for Demonstration of Loss

The table below shows the evidence required to demonstrate loss in claims for equitable relief.
If the loss involves …
Then the claimant must provide …
finances
a statement listing obligated expenses incurred because the claimant relied on the erroneous determination.
  • injury
  • damage, or
  • some other disadvantage suffered by the individual
documentation showing
  • the extent of the loss, damage, or some other disadvantage, and
  • that the loss, damage, or some other disadvantage was due to reliance on an erroneous determination of eligibility or entitlement.

III.vi.1.B.1.f.  Submitting a Request for Equitable Relief to P&F Service

Follow the steps in the table below to submit a request for equitable relief to P&F Service.
Step
Action
1
Use a standard letter format to request equitable relief consideration, including
  • a statement regarding the applicable provision, and
  • a concise justification for the request, including a
    • brief history of events
    • citation of the VA/government error
    • description of the loss, and
    • discussion of the recommended relief.
Reference:  For more information on the standard request letter format, see M21-1, Part III, Subpart vi, 1.A.1.e.
2
Ensure that full supporting documentation is in the claims folder and/or the electronic claims folder (eFolder).
3
File the letter in the claims folder or upload it into the eFolder.
4
Temporarily transfer the claims folder to the Director of P&F Service (21PF).
For eFolders, send notification via e-mail to P&F Service (VAVBAWAS/CO/Pension & Fiduciary Svc.).
Important:  The period behind “Svc” must be included when addressing the e-mail to P&F Service.
Reference:  For more information on temporarily transferring claims folders, see M21-1, Part III, Subpart ii, 5.F.1.

III.vi.1.B.1.g.  Submitting a Request for Equitable Relief to Compensation Service

Follow the steps in the table below to submit a request for equitable relief to Compensation Service.
Step
Action
1
Prepare a letter to the Director of Compensation Service, using the format of the letter displayed in M21-1, Part III, Subpart vi, 1.B.1.h.
2
Upload the letter and all other relevant documentation into the eFolder.
3
Is the request subject to National Work Queue routing?
  • If yes, proceed to the next step.
  • If no,
    • notify Compensation Service by e-mail (VAVBAWAS/CO/21) of the pending request, and
    • disregard the remaining step in this table.
4
Add the
  • Compensation Service Case Review tracked item, and
  • Compensation Service Review – Equitable Relief special issue.

III.vi.1.B.1.h.  Format of Letter to Compensation Service for Consideration of a Request for Equitable Relief

Follow the format of the letter below when preparing a letter to Compensation Service for consideration of a request for equitable relief.
DEPARTMENT OF VETERANS AFFAIRS
[RO name]
[RO address]
[current date]
Director                                                                           In Reply Refer To:
Compensation Service (211B)                                        [RO number]
Department of Veterans Affairs                                       [file number]
Central Office                                                                  [Veteran’s name]
810 Vermont Ave. NW
Washington, DC 20420
SUBJECT:  Request for equitable relief in accordance with 38 U.S.C 503 and M21-1, Part III, Subpart vi, 1.B.1.g
BACKGROUND INFORMATION:  [Enter service information, to include branch(es), date(s), and place(s) of service.]
STATEMENT OF FACTS AND DISCUSSION:  [Provide the date of the original rating, the date the error was found, the date the Veteran was notified, the amount of overpayment involved, and all other pertinent actions and facts of the case.]
Example #1:  A benefit was granted in error in a 1976 rating decision and the RO discovered the error in 1985.  The Veteran was notified in June of 1985 that an error was found.  The RO is reducing the total compensation payment and will recoup the overpayment.   The Veteran requests equitable relief.
Example #2:  In January of 2003, the Veteran’s widow (Emma Smith) was awarded Dependency and Indemnity Compensation.  On June 7, 2005, Mrs. Smith submitted a claim for a child (Junior), who Mrs. Smith alleged was permanently incapable of self-support.  VA denied the widow’s claim by rating decision dated August 8, 2006.  On October 13, 2006, Mrs. Smith filed a notice of disagreement (NOD).  On May 4, 2007, a rating decision established permanent incapacity for self-support for Junior, with an effective date of June 7, 2005.  A letter, dated July 26, 2007, notified Mrs. Smith of the rating decision.  Mrs. Smith filed an NOD on August 21, 2007, asserting that VA should have assigned an earlier effective date.  A statement of the case (SOC) was promulgated on March 11, 2008, which denied entitlement to an effective date earlier than June 7, 2005.  On March 20, 2008, Mrs. Smith filed an appeal to the Board of Veterans Appeals (BVA).  On April 8, 2011, BVA rendered a decision to deny entitlement to an effective date earlier than June 7, 2005.
Mrs. Smith is claiming she was never advised of the applicable benefits for a child that is permanently incapable of self-support.  She is requesting equitable relief on this basis in the form of an earlier effective date for the establishment of permanent incapacity for self-support for Junior to June 26, 1980, the date he turned 18.  The total amount of equitable relief is $91,491.70, which represents the monetary loss of benefits from June 26, 1980, to June 7, 2005.
QUESTION(S) AT ISSUE:
Example:  Is the spouse entitled to equitable relief?
RECOMMENDATION:  [Make a recommendation based on the facts of the case.]
Example:  Entitlement to an effective date earlier than June 7, 2005, was denied by rating decision, an SOC, and BVA because there is no evidence that entitlement arose prior to June 7, 2005.   
38 U.S.C. 503(b) provides: “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 equitable, including the payment of moneys to any person whom the Secretary determines is equitably entitled to such moneys.”
The evidentiary record does not support the notion that Mrs. Smith suffered a loss as a consequence of reliance upon a determination by VA.  Loss of income has not been shown.  There is no basis for consideration of equitable relief under 38 U.S.C. 503(b).  We find that Mrs. Smith had ample opportunity to claim Junior at any time on or after June 26, 1980, and incurred no loss as a consequence of reliance upon a determination by VA of eligibility or entitlement to benefits, without knowledge that it was erroneously made.
SIGNATURE                                              
PRINTED NAME AND TITLE                                                        

2.  Requesting Laboratory Analysis and Handling Service Organization Requests for Additional Review


Introduction

This topic contains information on


Change Date

July 28, 2017

III.vi.1.B.2.a.  Requesting Laboratory Analysis

The Inspector General, Office of Investigation, assists in resolving apparent discrepancies if laboratory analysis is needed, including examination, analysis, identification, and classification of any of the following material:
  • handwriting
  • typewriting
  • fingerprints, and
  • document authenticity.
Follow the steps in the table below to submit a request for laboratory analysis.
Step
Action
1
Use a standard letter format to request laboratory analysis assistance, including the
  • purpose of the request, and
  • identity of the documents involved.
Reference:  For more information on the standard request letter format, see M21-1, Part III, Subpart vi, 1.A.1.e.
2
Add the letter to the claims folder.
3
Follow the instructions in the table below.
If the claims folder is …
Then …
paper
temporarily transfer the paper claims folder to:
Department of Veterans Affairs Inspector General, Office of Investigation (51)
810 Vermont Avenue, NW
Washington, DC  20420
electronic
print out all documents relevant to the request and mail them to:
Department of Veterans Affairs
Inspector General, Office of Investigation (51)
810 Vermont Avenue, NW
Washington, DC  20420
Reference:  For more information on temporarily transferring claims folders, see M21-1, Part III, Subpart ii, 5.F.1.

III.vi.1.B.2.b.  Handling a Service Organization’s Request for VA Central Office or RO Review

If a service organization with valid power of attorney makes a request for VA Central Office or RO review of the claims folder, honor the request.
Reference:  For more information on power of attorney, see M21-1, Part I, 3.
Historical_M21-1III_vi_1_SecB_5-1-15.doc May 18, 2019 90 KB
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7-28-17_Key-Changes_M21-1III_vi_1_SecB.docx May 18, 2019 54 KB
Transmittal-M21-1MRIII_vi_1_TS.doc May 18, 2019 61 KB
Change-November-13-2014-Transmittal-Sheet-M21-MR_III_vi_1_SecB_TS.docx May 18, 2019 38 KB
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