Taylor: DoD Experiments and VA Effective Dates, Two Injustices

Taylor v. Wilkie, Case Number 17-2390, decided April 5, 2019 address a truly tragic set of facts.  The veteran had been the subject of chemical agent exposure studies at the Edgewood Arsenal during the Vietnam era.  He had specifically signed an oath of secrecy related to those tests and ultimately suffered severe psychological harm as a result of the testing.

“In 2006, the Department of Defense (DOD) declassified the names of the servicemen and women who had volunteered for the Edgewood Program and, in June of that year, VA sent the appellant a letter advising him that DOD had given permission for those identified to disclose to health care providers information about their involvement in the Edgewood Program that affected their health.”  Id. at *2.  In fact, the DOD had recommended telling participants of likely health consequences in 1979.

The veteran applied for benefits in February 2007 related to PTSD and submitted stressor statements related to the testing and additional stressors occurring in Vietnam.  A VA examiner determined there was PTSD resulting from “cumulative response” to the Edgewood experiments and Vietnam experiences.  The veteran was ultimately service connected for PTSD and granted TDIU with an effective date of his application date.

This appeal concerned whether an effective date prior to his application should be granted.  The veteran agreed normally an earlier effective date would not be allowed, but argued under the unusual facts of this case—i.e., the secrecy oath related to the testing—that an earlier effective date should be granted. 

The Court denied the veteran relief.  First, related to his Constitutional Due Process argument, the Court tersely found there was no good argument in favor and denied.  Second, the veteran sought equitable relief.  The Court denied, saying their right to grant equitable relief is tightly circumscribed by case and statutory law and that they are not able to grant through equity substantive, monetary relief.

The Court then stated prior case law prevents equitable tolling in the context of the assignment of effective dates.

A chimera of hope is found in Footnote 3 where the Court notes the VA attorney had stated the Secretary does have discretionary powers under 38 U.S.C. 503 and that nothing in this opinion prevents the veteran from seeking such relief.  Frankly, I consider this to be a chimera (illusory and impossible to achieve) because the Secretary should be well aware of this case and could have taken action to grant it with his discretionary powers prior to the case being brief, argued or decided.

The dissent filed by Judge Greenberg is both a legally logical and so well-written as to render it a masterpiece of legal writing and thinking.  It describes in detail how the veteran was chosen for the experiments, his secrecy oath, and the impacts of the experiments.  It also notes that in 1979 (yes, 1979) the Army determined that as a matter of policy the Edgewood experiment participants should be notified about health consequences.  Action was not taken until 2006 when the VA sent a letter to the participants. 

Judge Greenberg then demolishes the Board’s legal conclusions.  As to the argument that the veteran could have told of his Vietnam stressors and thus been service connected for PTSD without divulging the experiments, he explained

It is nothing more than a heartless attempt to dehumanize a veteran with an unsubstantiated medical opinion.  See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (holding that the Board cannot rely on its own medical judgment). A VA examiner found that these disabilities were "considered to be a cumulative response to his participation as a human subject in the Edgewood Arsenal experiments and subsequent re-traumatization in Vietnam." R. at 2311. The Board does not possess the medical expertise to determine that a veteran is capable of untangling stressor events, especially not when a medical examiner has suggested otherwise. These stressors events have contributed to his current disability including nightmares and flashbacks.

Id. at *13.

Second, the fact the veteran divulged some information about the testing to medical providers has no bearing.  He explained: “The issue is not whether the appellant believed his secrecy oath precluded his ability to seek treatment. Filing a claim for benefits with the Government under a cloud of prosecution is a wholly different proposition from divulging information to a medical provider. It is undisputed that participants of the Edgewood experiments felt constrained to file for VA benefits because of the secrecy oaths.”  Id. at*13-14.

He then argued “We have a duty to properly examine through our inherent

constitutional power to apply equitable remedies where Congress has not expressly authorized a result.”  Id. at *15.  He then turns to the theory of equitable estoppel which “comes into play if the defendant takes active steps to prevent the plaintiff from

suing in time, as by promising not to plead the statute of limitations.”  Id. at *17.  He then explained:

The Government then waited more than thirty years to recognize the appellant's participation in these permanently disabling experiments. Even if it could be argued that there was a legitimate military purpose for concealing his participation, the necessity of notifying the appellant of potential long-term effects of the experiments was recognized by the Army in the 1970's; the appellant received notification in June 2006.…  As recognized by the Secretary of Defense, this notice not only served the purpose of informing the appellant of potential health consequences, but also acknowledged that the Edgewood Arsenal veterans felt inhibited to pursue claims for benefits…. The Government, through affirmative misconduct followed by reckless inaction, stopped the appellant from filing a successful claim. Congress could not have intended the appellant to be assigned the effective date of the date he filed here and our Court should have made clear that the extreme facts here warrant an application of equitable estoppel.

Id. at *18.

This case illustrates the horrors that have been suffered by our serviceman as well as the horrors inflicted upon them by the Secretary of the VA.  I can only hope this case is appealed to the Federal Circuit and that Court corrects this injustice.

The decision was by Judge Meredith and joined in by Judge Falvey.  The dissent was by Judge Greenberg.

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Jones: VA Medical Records and a Duty to Assist

Jones v. Wilkie, Opinion Number 2017-2120 is a Federal Circuit decision that discusses the duty to assist to obtain VA medical records in the context of an earlier effective date.

The veteran served in the Marine Corps from 1968 until 1970 and in 2011 formally applied for VA benefits and was granted service connection for PTSD.  He filed a notice of disagreement arguing he should receive an earlier effective date reflecting the fact he received VA medical treatment for PTSD beginning in 2000.  Mr. Jones asserted he had not filed earlier because he did not really understand PTSD back then.  The Board acknowledge VA mental health treatment records, but found the records did not indicate an intent to file a claim for benefits and are not considered an informal claim under the regulations then existing.

On appeal to the Veterans Court, that Court rejected the appeal, noting

“The Secretary tacitly admits that the complete VA medical records from 2000 and 2001 are not in the record . . . .” J.A. 1. In light of Mr. Jones’s statement that he did not request benefits until 2011, however, the Veterans Court found that “the likelihood of such an informal claim [from 2000 or 2001] appearing in the unobtained VA medical records is extremely low.” J.A. 3. Further, the Veterans Court found, even if the records contained a communication that met the definition of an “informal claim,” Mr. Jones had not shown that such an informal claim was received by the “benefits section of the VA,” as opposed to a doctor at the “Veterans Health Administration.”

Id. at *4.

Initially, the Secretary argued to the Federal Circuit that that the RO and the Board actually reviewed Mr. Jones’s treatment records.  But, the Court noted “The completeness of the record presents a question of fact outside of this court’s jurisdiction, a point we have made more than once in the past, albeit in nonprecedential

opinions.… We cannot, therefore, second guess the Veterans Court’s finding that the Board did not review Mr. Jones’s complete history.”  Id. at *5. 

The Court then stated that it would decide the legal issue of “whether the Veterans Court applied the correct legal standard when it ruled that the VA fulfilled its duty to assist Mr. Jones in obtaining “relevant” treatment files.” Id. at *6.

Essentially, the veteran’s surviving spouse believed the treatment records from 2000 and 2001 may contain an informal claim for benefits and the VA should have been required to assist in obtaining those records.  Initially, the parties did not dispute that the enough information as provided to locate the records.  “However, an exception to the duty to assist is that “[t]he Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2).”  Id. at *6-7.

The Court determined

We agree with Ms. Jones that the Veterans Court erred as a matter of law in requiring an impermissibly high threshold to trigger the VA’s duty to assist. While the Veterans Court mentioned the “no reasonable possibility standard,” it actually required Mr. Jones to show more than what the statute requires. Section 5103A does not allow the VA to avoid the duty to assist in obtaining records based on a mere belief that the likelihood of finding a record substantiating a veteran’s claim is “low” or “extremely low.” Rather, the applicable standard is whether “no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2) (emphasis added). Thus, to trigger the VA’s duty to assist, a veteran is not required to show that a particular record exists or that such a record would independently prove his or her claim.

Moreover, the Secretary acknowledges that regulations implementing Section 5103A require the VA to assist obtaining VA medical records without even considering the

records’ relevance:

In a claim for disability compensation, VA will make efforts to obtain the claimant’s service medical records, if relevant to the claim; other relevant records pertaining to the claimant’s active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency.

38 C.F.R. § 3.159(c)(3) (emphasis added). In Sullivan v. McDonald, 815 F.3d 786, 790–91 (Fed. Cir. 2016), we held that because the above regulation uses the word “relevant”

as a modifier for three of the four categories of records it identifies, but not for “VA medical records or records of examination or treatment at non-VA facilities authorized by

VA,” the VA may not consider relevance when determining whether to assist in obtaining VA medical records.  Thus, in the instant case, the Veterans Court erred in ruling that

the duty to assist only “includes obtaining records of treatment at VA facilities that are relevant to the claim.” J.A. 2.

Id. at *7-8.

This Court underlines the VA’s ability to obtain VA medical records (when they are sufficiently identified to locate) and how that can be the basis of a remand that might lead to further argument.

Decision by Judge Chen and joined by Judges Moore and Reyna.

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James: Equitable Tolling Related to Late Notices of Appeal

James v. Wilkie, Opinion Number 2018-1264 is a Federal Circuit decision that discusses equitable tolling related to the filing of the notice of appeal.

The Veterans Court had rejected as late a notice of appeal filed 1 day late.  A Board decision was made on January 28, 2016 and on May 27, 2016 the pro se party placed a notice of appeal in a stamped envelope addressed to the Veterans Court in his mailbox at his residence and put the flag up for collection.  They then left town for several days.  They returned on May 30 and when he discovered the uncollected notice of appeal in his mailbox he took it to his local post office that night.  The Veterans Court received and docketed the notice which bore a postmark of May 31, 2016.

The Veterans Court ordered the veteran to show cause why his appeal should not be dismissed as untimely filed.  Now, with counsel, he argued “the 120-day appeal window

should be equitably tolled because, based upon the particular facts of his case, an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance

beyond his control.”  Id. at *3.    He also stated in an affidavit

[the neighbor] had received mail on Friday,” and also observed “that some neighborhood kids had been playing in the street near [Mr. James’s] house” and “might have put the flag down.” J.A. 15. Mr. James’s Declaration also states that the postman confirmed to Mr. James that he had made his rounds through the neighborhood after 1:00 p.m. on Friday, May 27, 2016, but he did not stop to pick up any mail at the James residence because the flag was down and he had nothing to deliver to the

James residence.

Id. at *4.

The Veterans Court dismissed the appeal as untimely stating “Mr. James had not demonstrated that equitable tolling was warranted because “a fallen mailbox flag” was not “an extraordinary circumstance beyond [Mr. James]’s control . . . but rather an ordinary hazard of last minute mailing that could have been avoided.”  Id. at *4.

The Federal Circuit began by finding it did have jurisdiction to hear the matter (no small  matter itself) explaining “Since we are asked to review whether the Veterans Court applied the correct legal standard for equitable tolling, this issue is one of law within our jurisdiction.”  Id. at *5-6.

The Court then addressed equitable tolling in general and reaffirmed that the filing deadline is not jurisdictional but may be tolled where appropriate.  It then discussed the Checo factors:

In order to benefit from equitable tolling, . . . a claimant [must] demonstrate three elements: (1) extraordinary circumstance; (2) due diligence; and (3) causation.” Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014).

Id. at *7.  It also made clear that “we have rejected the argument that equitable tolling “is limited to a small and closed set of factual patterns and that equitable tolling is precluded if a veteran’s case does not fall within those patterns,”  Id. at *7. 

The Federal Circuit rejected the Veterans Court’s ruling by stating:

The Veterans Court held “that a fallen mailbox flag is not an extraordinary circumstance beyond [Mr. James]’s control that warrants equitable tolling.” James, 29 Vet. App. at 130. The Veterans Court, however, did not perform a case-specific analysis of the undisputed facts of Mr. James’s case. See id. at 129. Instead, it made a categorical

determination that a fallen mailbox flag is not entitled to equitable tolling but is “rather an ordinary hazard of last minute mailing that could have been avoided but for [Mr.

James]’s ‘garden variety neglect.’”

Id. at*8.  It further explained that while the Veterans Court framed its conclusions in terms of a case-by-case analysis, “it actually applied a categorical ban foreclosing the possibility that a fallen mailbox flag may ever constitute an extraordinary circumstance.”  Id. at *9.    It also stated the Veterans Court focused too narrowly on whether the case at hand fit within on the fact patterns of past cases whereas the Federal Court has

expressly stated that “[e]quitable tolling is not ‘limited to a small and closed set of factual patterns’” and have historically “rejected the approach of looking to whether a particular case falls within the facts specifically identified in Irwin or one of our prior cases.”

Id. at *9

The Court also dealt with government arguments that the failure to wait until the final day to mail the notice was support for dismissal by stating “We disagree with the Government’s implication that Mr. James was required to file earlier in order for the

Veterans Court’s categorical bar not to apply. There is no requirement that Mr. James file any earlier than the 120- day deadline.”  Id. at *11.  It continued to explain:

Moreover, it is irrelevant to the extraordinary circumstances element analysis whether Mr. James could have done more after he put his NOA in his residential mailbox.

Instead, under the proper legal standard, what would have been highly relevant is the undisputed fact that Mr. James placed his NOA in a U.S. Postal Service mailbox in time for it to be postmarked within the 120-day filing deadline of § 7266.

Id. at *11.

This case represents the constant push by the Veterans Court to limit equitable tolling and the corresponding push by the Federal Circuit against an unreasonable limitation on equitable tolling.  This case is not the end of these as the Veterans Court has suggested a proposed Court Rule that would attempt to divide late notices of appeal into those before and beyond 30 days late and apply different standards for them.  This proposed Court Rule would appear to run afoul of the Federal Circuit’s demand that all such determinations be done on a case by case basis.

Decision by Judge Wallach and joined by Judges Linn and Hughes.

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Young: When Can the VA Find CUE

Young v. Wilkie, Case Number 17-2179, decided March 11, 2019 is an opinion discussing when the VA can find CUE.

The veteran had been granted a staged rating and filed a notice of disagreement (NOD) and sought DRO review.  The DRO reviewed and found CUE in the prior decision and actually lowered the veteran’s rating.  The Board affirmed. 

The legal question was whether the VA could find CUE after a NOD had been filed.  The veteran argued that Section 3.105(a) only permits revision of final decisions and the since a NOD had been filed, the case was in appellate status and not final.

The Court noted “§ 3.105(a), unlike § 3.160(d), doesn't use the term "finally adjudicated

claim"—it instead says that "final and binding" decisions are subject to revision based on a finding.”  Id. at *3.  It then determined:

In other words, "final and binding" in § 3.104 does not mean unappealable as Mr. Young contends; rather, it means that the AOJ's review is complete and the AOJ (or another AOJ) cannot reach a different decision on the same evidence, except as otherwise provided. Since § 3.105(a) expressly provides that "final and binding" decisions are subject to CUE, it follows that VA was permitted to revise the June 2012 rating decision despite the filing of an NOD.

Id. at *4.

The Court then determined that it also had to delve deeper since:

3.104(a) also provides that a "final and binding agency decision shall not be subject to revision . . . except as provided in § 3.105 and § 3.2600 of this part." Significantly, § 3.2600(a), which addresses "[r]eview of benefit claims decisions," provides that "a claimant who has filed a[n] [NOD] . . . with a decision of an [AOJ] . . . has a right to a review of that decision." 38 C.F.R. § 3.2600(a) (2018). It goes on to list the different types of review, including review by a DRO. Id. Subsection (e) expressly authorizes reviewers to revise rating decisions on the basis of CUE even if there's a pending NOD:

Notwithstanding any other provisions of this section, the reviewer may reverse or

revise (even if disadvantageous to the claimant) prior decisions of an [AOJ]

(including the decision being reviewed or any prior decision that has become final

due to failure to timely appeal) on the grounds of clear and unmistakable error (see

§ 3.105(a)).

Id. at *4.

The Court then concluded:

Here, Mr. Young filed an NOD as to a "final and binding" rating decision, as defined by § 3.104(a), and selected review by a DRO. Since § 3.2600(e) undoubtedly authorized the DRO ("the reviewer") to revise the June 2012 rating decision ("the decision being reviewed"), the Court discerns nothing improper with the actions taken by VA in this case.

Id. at *5.

The Court also considered other arguments, specifically, an argument that the VA did not follow proper procedures for a reduction found in Section 3.105(e).  However, the Court determined:

§ 3.105(e) might come into play when a claimant is assigned a rating for a certain condition but that condition later improves. That's not what happened in this case.

Rather, the Board found that the DRO's revision of the June 2012 rating decision on the

basis of CUE was correct given what the evidence reflected as of June 2012. Properly speaking, this action wasn't a "reduction" based on later evidence showing a change in the veteran's condition, but a revision based on the evidence of record at the time the original decision was made. R. at 7 ("Again, the RO did not allege an improvement in the veteran's cervical spine symptoms . . . the RO asserted that there was [CUE] in the June 2012 rating decision . . . .").  Therefore, the procedures set out in § 3.105(e) were not applicable in this case.

Id. at *6.

A concurring and dissenting opinion by Judge Pietsch refused to adopt the discussion of final and binding found in the majority opinion and instead simply relied on the authority in Section 3.2600(e) allowing the DRO to review the decision.

This case is appears to apply the regulations faithfully, but ignores the result—that the VA was able to evade its process for reductions by couching the decision as one for CUE.  While this situation is probably rare, the result gives the VA another tool to reduce a claim—calling it CUE.  The case also underscores the fact that while the VA system is called “non-adversarial” in reality a veteran might be served well by having counsel to fully advocate for them.

Decision by Judge Toth and joined in by Judge Bartley.  Dissent by Judge Pietsch.

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