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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