COVA–LAZANO v.DERWINSKI–ESTOPPEL


What is estoppel? It’s another one of those crazy words the Courts use to confuse all but the initiated. Let’s turn it into DickandJanespeak.  Estoppel. See? That was easy. What we have left is “stop” as in “They told me I was good to go and I believed them”. Estoppel simply means that a person relied on something said to his detriment. Lots of times this has big consequences for us. We have time deadlines to submit appeals notices and validate our substantive appeals. Delaying too long with no good reason to file a timely Notice of Appeal to the CAVC used to be a death sentence to a claim. The Court has recently relented after having its arm twisted by the Fed. Circuit. While this is called equitable tolling, it can be caused by estoppel. Nevertheless, you still need a note from your parent.

Here’s the Free Dictionary’s take on it:

es·top·pel   (-stpl)

n. Law

A bar preventing one from making an allegation or a denial that contradicts what one has previously stated as the truth.


[Obsolete French estouppail, from Old French estouperto stop up, from Vulgar Latin *stuppre; see stop.]

I have searched for the earliest example of this in VA history and believe Mr. Simeon G. Lazano holds the distinction. While the Court ruled against him, they did not rule out the theory of estoppel entirely. They simply adopted the Supreme Court’s position that a good example of estoppel had yet to surface against the VA yet (or the government in general).

I may have to rely on this theory soon if the VA chooses to 86 my appeal for an earlier effective date. Imagine this. You file for SC. VA denies. You submit new evidence with your NOD. VA chooses to send you a SOC saying we denied you based on this and this. But…. we did receive your new evidence and will be making a decision on it soon. So don’t do anything , okay? You’ll be hearing from us. 13 years go by and you get the feeling they were funning you. You win in 08 and then ask for the 1994 date because-hey, they never called back. Everyone knows the VA takes a long time to get anything done. Things weren’t significantly different back then. VA does a DRO and says “Dude! You didn’t file a Form 9. Your claim died in January of 96.” My take on estoppel is that they “induced” me not to file the Form1- 9 until they did a new decision on the new and material evidence. By law, I couldn’t file the F-9 until they had denied again. This may be the make or break of the CAVC case if they deny me..

This is another of the long line of rights we are accorded that you might not see at first glance. It’s one of those rights that exists like a pot of gold at the end of the rainbow. We know it’s there. We just have never seen one.

Take a look at what estoppel isn’t. Mr. Lazano from 1991:

http://search.uscourts.cavc.gov/isysquery/814046b1-59b5-41ad-9c58-fdee3d402c62/3/doc/

Here’s a more recent example of what estoppel isn’t. Unfortunately this double dipper got caught and then tried the estoppel argument. It can be done, but you need it in writing from them.

http://www.va.gov/vetapp11/Files4/1140022.txt

To see where VA did it to me look at the bottom of this( Evans v. Shinseki.

https://asknod.wordpress.com/2011/09/28/cavc-evans-v-shinseki-2011-post-hoc-rationalizations-3/

Item #2 is labeled 1/95 SOC. Note the yellow hightlight that says:

“We are reviewing the additional records you submitted with your appeal and we will notify you of our decision as soon as it is reached.” 

Now, I ask you. Would you wait for a new decision based on that statement or would you file a Form 1-9 out of time and risk condemning your claim to several years of BVA purgatory?  I gave them thirteen years worth of rope to hang themselves with. I rest my estoppel.

So, if VA says “Don’t worry. Be ‘appy”, my advice from now on is to be worried and conserve your humor for decision day and the magic paper.

P.S.  I had a premature verbal emission.  Included are two important concepts of estoppel

Collateral estoppel:

A doctrine by which an earlier decision rendered by a court in a lawsuit between parties is conclusive as to the issues or controverted points so that they cannot be relitigated in subsequent proceedings involving the same parties.

Collateral estoppel is an affirmative defense that must be pleaded by a defendant in civil actions. The similar affirmative defense of Res Judicata differs from collateral estoppel in that it completely precludes the relitigation of a claim, demand, or cause of action, as opposed to an issue or controverted point, in a subsequent proceeding between the same parties to an earlier action.

The application of the collateral estoppel doctrine promotes the speedy administration of justice by preventing the continuous, duplicative litigation of fruitless claims when relitigation of them is unlikely to change the original decision made regarding them.

And equitable estoppel:

Equitable estoppel, sometimes known as estoppel in pais, protects one party from being harmed by another party’s voluntary conduct. Voluntary conduct may be an action, silence, acquiescence, or concealment of material facts.

There are several specific types of equitable estoppel. Promissory estoppel is a contract law doctrine. It occurs when a party reasonably relies on the promise of another party, and because of the reliance is injured or damaged.

Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time. This doctrine is closely related to the concept of statutes of limitations, except that statutes of limitations set specific time limits for legal actions, whereas under laches, generally there is no prescribed time that courts consider “proper.” A defendant seeking the protection of laches must demonstrate that the plaintiff’s inaction, misrepresentation, or silence prejudiced the defendant or induced the defendant to change positions for the worse.

Here is a beautiful case of equitable estoppel where the VA tried to change their story after the fact. The evidence told a different story.

http://search.uscourts.cavc.gov/isysquery/1a85bd71-e1b3-45c1-ba34-23cdc150a369/2/doc/

About asknod

VA claims blogger
This entry was posted in Important CAVC/COVA Ruling, Introduction-Read these first, Veterans Law and tagged , , , , , . Bookmark the permalink.

2 Responses to COVA–LAZANO v.DERWINSKI–ESTOPPEL

  1. Kiedove says:

    My question for you today has nothing to do with the legal concept, espoppel. I don’t know where to post it so here goes: It’s about the question, “how is the proposed SC disability affecting the veteranTODAY?” and how it affects claims.
    For example, suppose a veteran suffers from depression from combat-PTSD. He is given a strong anti-depression, which alleviates his symptoms. The good news is that the veteran is less disabled from depression due to the medication. The bad news is that the medication has side-effects and adverse effects. The bad news is that the veteran can’t forget to take the medication or run out of the medication. If they do, they will revert to the depression. In other words, the medication does not cure the depression, it controls it. The brain chemistry is altered but the memories lie in wait, ready to pounce. How then, do you answer the question, “How disabled is the veteran today?” The same concept goes for the SC HCV victim who achieved SVR. The doctors say their chance of relapse is 2%. They consider that a cure. But there are serious after-effects. So how does the VA rate, if at all, SVR patients who aren’t dying from HCV, but are still
    ill from the treatment? Brain fog, weakness, and fatigue are disabling but how are these conditions rated, if at all? If there are any cases you can link to, I’d appreciate it. Thanks.

    • asknod says:

      You always pose interesting questions. I regularly search the BVA decisions for these kinds of things and post when I find any. Additionally I always filter the CAVC site for hep. claims-even SJDs. Some of the decisions I have located deal with residuals of the IFN Tx as a residual of the Hep. VA is dense when it comes to ascribing the right symptoms to the disease process. Some of the side effects from the IFN are common to HCV as well. High levels of IgG in the blood from HCV create brain fog. To search, go to the 2011 BVA Hep cases widget above and erase hepatitis on the search bar. Insert Interferon and you will get 80 hits for 2011. Check it out. This site has all kinds of information available. Ask if you need more. That’s the idea-Vets helping Vets.

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