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.
Estop pel. 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:
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 estouper, to 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:
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.
To see where VA did it to me look at the bottom of this( Evans v. Shinseki.
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
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.