In the US Court of Federal Claims, there is generally very limited "discovery." In the military disability and military pay cases, almost everything is litigated based on the administrative record before the agency. That is just an aside; as to the real issue of the possibility of getting the military to provide the information about the identity of similarly situated persons to join a class, what would normally have to happen is that the court would have to certify the class first and then the military would be obligated to identify any members of the class. The rules are a bit different from what you see in normal civil litigation where the plaintiff would normally have to identify the class members who opt in. With the government as the defendant and being in the unique position of being the only party with the information, they normally have to provide the notice.
Much of this played out in the Sabo litigation (this was the case about minimum temporary ratings under 38 CFR 4.129). One factor in Sabo, though, was that the government conceded error and that it was appropriate to proceed on a class action basis. There was no real fight from the government on many issues, so things could be different when the issues have to be litigated.
Once the court certifies the class, I would not have serious concerns about non-compliance by the government.
This is the first time I have heard of this issue (offset of INCAP and VA disability compensation) so I haven't dived in and fully analyzed the issue. Given the general prohibition on dual receipt, my gut instinct was that the offset is proper. However, the positions you have described in the Op Gen and BCMR Advisory opinions suggest you may be on to a viable claim.
The above does concern me. I did not read either the Op. Gen. opinion or any TJAG opinion on this, but, I did take a quick look at 38 U.S.C. § 3104 (c). What concerns me is that this section is part of Chapter 31, Training and Rehabilitation, so not clear why that would be relevant to disability compensation issues. Would have to take a deeper dive to form an opinion.
This does seem to be very favorable to your position. Almost enough, on its own to make me think you should prevail.
Same as the previous comment. This is very strong support for your position.
The form letter denial, without any explanation, would likely be a basis for getting at least a judicially ordered remand if you were to go to court.
Did not have a chance to read the attachments. However, getting favorable advisory opinions are helpful (much better than a recommended denial).
The statute of limitations is a bright line issue. If you pass it, it deprives the court of jurisdiction (the power to hear a case). Normally, the running starts on the date that a person is entitled to compensation and later appeals to administrative boards do not stop the clock running. One thing to consider, however, is that there are "continuing claims" where a claimant may lose out on earlier that six years ago due monies, but, not on later months that still fall within the six years.
Sometimes, it is advisable to file a suit then request a stay while the agency (in this case the ABCMR) adjudicates it. This approach is actually discussed favorably in several cases and almost certainly a stay would be granted.
The fee for filing a complaint in the US Court of Federal Claims is currently $402.00. However, with attorneys fees, it can easily run into the tens of thousands of dollars or more to litigate a full case. Much depends on the complexity, volume of records, and legal issues.
I don't know that I would be fixated on filing a Class Action as determinative as to whether file suit at all or not. It seems very likely to me that what happened to you has happened to many thousands of folks over the years so a class action might be maintainable. However, a favorable judicial opinion would likely serve to help others, too.
All of that said, you might consider reaching out to
National Veterans Legal Services Program, which is a non-profit that does pursue this type of litigation (they were involved with the Sabo case, though another firm actually did the bulk of the legal work in that case.)
See my above comments. There are very narrow exceptions to some SOL issues, but for the most part, no. You want to meet the SOL or risk the case being dismissed for lack of jurisdiction.
When I get a chance, I will read over the attachments. Might not be for some time. Interesting issues. I hope you win.
