Taylor v. McDonough, Case Number 2019-2211, decided June 30, 2021 discusses a set of tragic effects and finds equitable estoppel applied to result in an earlier effective date.
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. Section 5110 says the effective date of an award is the date of facts or found, but not earlier than the date of the receipt of application for benefits. Mr. Taylor had signed a secrecy oath stating he would not disclose the testing and he did not apply for benefits until the DoD and VA sent a letter to veterans of the experiments that they could apply for benefits based on those experiments. 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 Veterans Court upheld the effective date finding their ability to grant equitable relief was so limited as to prevent is application under these facts. Judge Greenberg wrote a masterful dissent.
The Federal Circuit determined the Court erred in finding equitable estoppel was unavailable. The Federal Circuit explained: “the Veterans Court may exercise such equitable powers, within the scope of its statutory jurisdiction, to ensure that “all veterans entitled to benefits receive[] them.”” Id. at *18. The Court then explained “concluding otherwise would be contrary to the Veterans Court’s statutory mandate. Congress created the Veterans Court, through the VJRA, “for the [express] purpose of ensuring that veterans were treated fairly by the [G]overnment and to see that all veterans entitled to benefits received them[.]” Id. at *21.
The Federal Circuit also addressed the Veterans Court’s argument that it could not use equitable estoppel to authorize payment outside of the requirements set forth in 38 U.S.C. Section 5110. The Court explained this was error because 5110 is not jurisdiction and therefore is subject to equitable considerations. Id. at *22.
The Court did explain that Section 5110(a)(1) does have importance and that “[i]n nearly all cases challenging the effective date of a veteran’s disability benefits, 38 U.S.C. § 5110(a)(1) and its enumerated exceptions will be dispositive.” Id. at *29. However, in this case, the Court found the government was estopped from using Section 5110(a)(1) from precluding the veteran from getting an earlier effective date because essentially the government had prevented him from making a claim by telling him he would be subject to criminal prosecution if he talked about the testing.
This is a monumental victory for the veteran and his advocates, but also based on particularly sympathetic facts, which necessarily led to the conclusion reached by the Federal Circuit. It will be interesting to see in the years to follow how it is pushed to gain earlier effective dates. It also serves as a repudiation of a Veterans Court decision that seemed focused on limiting its ability to review cases and grant relief rather than giving justice to those who deserve it.
Decision by Judge Wallach and joined in by Judges Newman and O’Malley.
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