Robinson: An Earlier Effective Date as a Result of the VA’s Failure to Provide a Timely Diagnostic Test

Robinson v. Wilkie, Case Number 2017-1968, decided October 4, 2018 by the Federal Circuit addressed an earlier effective date after the VA failed to provide a timely diagnostic test.

This case involved a Vietnam veteran and the effective date for an increase from 10% to 60% for his coronary artery disease.  The VA granted an effective date of the date of a diagnostic test showing coronary artery disease, but it took 14 months after a VA physician suggested the need for such tests for them to actually be done.  The veteran essentially argued the effective date should be the date the tests that would eventually show an increase were ordered rather when they were conducted and that “ he should not be penalized for the 14-month delay in scheduling his test.”  Id. at *4.  

The veteran relied on 38 CFR section 17.33(a)(2) which states “Patients have a right to receive, to the extent of eligibility therefor under the law, prompt and appropriate treatment for any physical or emotional disability.”  The Court determined Section 17.33 is related to the provision of healthcare services and was not intended to create rights impacting the handling of compensation claims.  Id. at *8. 

The veteran also argued that the Veterans Court should have granted equitable relief and erred in stating it could not apply principles of equity.  Id. at *8.  But, the Federal Circuit agreed with the Veterans Court that while the Veterans Court “has authority to grant certain forms of non-substantive equitable relief required to enable the court to carry out its statutory grant of jurisdiction,” but it “cannot invoke equity to expand the scope

of its statutory jurisdiction.””  Id. at *8. 

The Federal Circuit then concluded

We agree with the Veterans Court that the facts of this case are troubling. The 14-month delay for coronary artery disease testing strikes us as excessive. But our court’s jurisdiction generally is limited to reviewing legal errors, 38 U.S.C. § 7292(d)(1), and we cannot say that the Veterans Court committed legal error by not exercising its equitable powers to find an effective date earlier than April 2, 2007. Under the circumstances in this case, where we do not know what caused the testing delay and we do not know whether Mr. Robinson would have satisfied the requirements for the 60 percent disability rating had he received the testing at an earlier date, we see no such error in the Veterans Court’s decision.

Id. at *9.

This is a disappointing result for the veteran and also demonstrates the Federal Circuit is not inclined to expand the Veterans Court’s equitable powers.  But, it does leave open the possibility that it would have rule otherwise if the record had supported an explanation that the delay in testing was the result of the VA and not the veteran.

Judge Newman wrote a penetrating dissent in which he argued the veteran’s heart attack is direct evidence of a cardiac illness long before the 14 month delayed test of ejection fraction.  Dissent, Id. at *4.  His dissent explained:

No “special regulation” mandates that the effective date is the date of testing and not the earliest ascertainable date that an increase has occurred. The panel majority’s “special regulation,” 38 C.F.R. § 3.816(c)(2), is silent on these issues. On the other hand, § 3.400(o) expressly addresses the effective date for an increase in disability compensation and defines it as the earliest ascertainable date.

Id. at *6.

He continued:

the entirety of the record must be considered and reasonably evaluated based on sound

medical opinion. It is incorrect for the VA to automatically resolve any gap in evaluation against Mr. Robinson; this court has observed that a condition may have existed before it was verified. See Collins v. Shinseki, 310 F. App’x 393, 395 (Fed. Cir. 2009) (“it may be logical to assume that the date of an injury precedes the date it is verified by a physician”).

Mr. Robinson states that if the VA is authorized to measure disability only from the date of a specific test, despite sound evidence that the disability existed, then the VA must conduct the test in a timely manner. Reply Br. at 2–3. The Secretary does not argue that the 14 months’ delay is reasonable; the Secretary’s only response is that Mr. Robinson could have gone to a private physician for the test. Secretary Br. at 20 (“Mr. Robinson was at liberty to obtain documentation of the status of his condition on his own prior to April 2007 . . . .”)  The record does not show that Mr. Robinson was so advised when the

VA cardiologist ordered the VA to conduct the test.

Id. at *6-7.

The Court then concluded:  “The Secretary offers no explanation or excuse for the delay. Contrary to the VA’s obligation to assist veterans, and to give veterans the benefit of the doubt, Mr. Robinson received neither.”  Id. at *7.

The decision was by Judge Stoll and joined in by Judge Lourie.  The dissent was by Judge Newman.

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