Darrow v. Derwinski

2 Vet. App. 303, 1992 U.S. Vet. App. LEXIS 90, 1992 WL 77885
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 17, 1992
DocketNo. 90-1225
StatusPublished
Cited by50 cases

This text of 2 Vet. App. 303 (Darrow v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Darrow v. Derwinski, 2 Vet. App. 303, 1992 U.S. Vet. App. LEXIS 90, 1992 WL 77885 (Cal. 1992).

Opinion

FARLEY, Associate Judge:

Virginia B. Darrow, appellant and widow of veteran Harold M. Darrow, appeals an August 15, 1990, Board of Veterans’ Appeals (Board or BVA) decision. The BVA ruled that an administrative grant of partial equitable relief by the Secretary of Veterans Affairs (Secretary) under 38 U.S.C. § 503(a) (formerly § 210(c)(2)) was not a matter falling within the appellate jurisdiction of the BVA, and therefore, no issue was properly before the Board for review. Because there is neither a statutory nor a regulatory provision for appellate review by the Board of awards of equitable relief by the Secretary under 38 U.S.C. § 503(a), the decision of the BVA is affirmed.

I.

In 1985, the veteran died and appellant applied for death benefits. An October 1, 1985, rating decision awarded service connection for the cause of death which was listed as emphysema. SR. at 5. Subsequently, in a memorandum dated November 3, 1988, the Director of the Compensation & Pension Service (Director) advised the Administrator (Secretary) that errors had been made in past Veterans’ Administration (now the Department of Veterans Affairs) (VA) decisions and recommended that he “grant equitable relief under 38 U.S.C. [§ 503(a)] in the amount of $3477.00.” R. at 16, 20. The Secretary approved the Director’s recommendation and granted equitable relief to appellant in the amount of $3477.00. R. at 21-23.

Appellant sought reconsideration of the Secretary’s decision, arguing that the amount of equitable relief should have been computed based upon a disability rating of 100% rather than 70%. The request for reconsideration was denied by the adjudication officer in a letter dated June 15, 1989, which also advised appellant that “any grant of equitable relief under the [304]*304provisions of 38 U.S.C. [§ 503(a)] is not appealable.” R. at 29.

Appellant, in a letter dated February 23, 1990, by her representative, took express issue with the statement that a decision by the Secretary with respect to equitable relief could not be appealed to the BVA and argued that only the BVA could determine whether it had jurisdiction to review denials or partial grants of equitable relief. R. at 31. The VA was asked to treat the letter as a Notice of Disagreement, to issue a Statement of the Case, and to “let the Board decide whether it has jurisdiction over this issue.” Id.

A Statement of the Case was issued (R. at 33-35) and on August 15, 1990, the BVA ruled:

The provisions of 38 U.S.C. [§ 503(a)] specifically vest the authority to grant equitable relief in the Secretary of Veterans Affairs. This authority has not been delegated to the Board of Veterans Appeals [sic], and equitable relief is not a “benefit” under the laws administered by the Department of Veterans Affairs. A request for equitable relief, or an appeal from a less than complete grant of equitable relief, is thus not a matter falling within the appellate jurisdiction of the Board of Veterans Appeals [sic], and the Board has no authority to assume jurisdiction of the matter. The appellant’s appeal must be dismissed.

Virginia B. Darrow, BVA 90-28045, at 3 (Aug. 15, 1990). A timely Notice of Appeal was filed with this Court on October 25, 1990.

II.

The issue presented in this appeal is whether the BVA has jurisdiction to review a grant of equitable relief by the Secretary under 38 U.S.C. § 503(a). It may be helpful first to distinguish the Secretary’s authority to grant relief based upon principles of equity from his authority to award benefits based upon statutory entitlements.

Congress has enacted statutes which create entitlement to benefits for those eligible in specifically defined situations. See, e.g., 38 U.S.C. § 1110 (compensation for disability resulting from wartime service); 38 U.S.C. § 1131 (compensation for peacetime disability); 38 U.S.C. §§ 1121, 1141 (survivors’ benefits); 38 U.S.C. § 1151 (injury resulting from hospitalization or vocational rehabilitation); 38 U.S.C. § 3461 (educational assistance); 38 U.S.C. § 3702 (housing loans). When a veteran submits a claim for a benefit under one or more of the entitlement statutes, the Secretary must determine whether the claimant is legally and factually eligible to receive the benefit claimed. Section 511(a), title 38, authorizes the Secretary to “decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.”

In point of fact, very few decisions on claims for benefits under the Congressionally-enacted entitlements are actually made by the Secretary. The Secretary is authorized under 38 U.S.C. § 512(a) (formerly § 212(a)) to “assign functions and duties, and delegate, or authorize successive re-delegation of, authority to act and to render decisions, with respect to all laws administered by the Department, to such officers and employees as the Secretary may find necessary.” Pursuant to § 512(a), the Secretary has delegated his authority under § 511(a) to decide questions of fact and law, i.e., to adjudicate claims for benefits, to personnel in the VA Regional Offices (ROs). See, e.g., 38 C.F.R. §§ 2.67, 3.100(a) (1991) (authorizing the Chief Benefits Director and supervisory and adjudicatory personnel of the Veterans Benefits Administration to make findings and decisions “as to entitlement of claimants to benefits”). The Secretary’s authority under § 511(a) is exercised literally thousands of times a day in accordance with numerous regulations promulgated by the Secretary to guide ROs in adjudicating claims for benefits. See generally, 38 C.F.R., Part 3.

A veteran dissatisfied with a decision rendered on a claim for benefits has the statutory right to have that decision reviewed by the Board of Veterans’ Appeals. Pursuant to 38 U.S.C. § 7104 (formerly [305]*305§ 4004), “[a]ll questions in a matter which under section [511(a) ] of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board.”

III.

In 1966, Congress authorized the then Administrator to grant whatever relief he determined to be equitable in those instances where he concluded that benefits had been denied due to an administrative error. See

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Bluebook (online)
2 Vet. App. 303, 1992 U.S. Vet. App. LEXIS 90, 1992 WL 77885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darrow-v-derwinski-cavc-1992.