Ley v. McDonough, Case Number 23-1547, decided January 2, 2025 concerns whether the doctrine of equitable estoppel or constitutional principles can lead to an earlier effective date than that provided by 38 USC 5110.
The veteran was granted service connection for chronic lymphocytic leukemia (CLL) and given an effective date based on the veteran’s application for benefits with a 1 year look back pursuant to 38 CFR 3.114, which led to an effective date of January 29, 2015.
The Court then summarized the veteran’s position as: “Appellant does not contest the Board's analysis of the effective date to which he is entitled under section 5110. Instead, appellant raises two nonstatutory bases on which he maintains he is entitled to an effective date before January 29, 2015, for the award of service connection for CLL. One of appellant's arguments is that VA is equitably estopped from enforcing section 5110's effective date limits because the Agency's actions, in particular the alleged withholding of information from him about CLL, prevented him from filing a claim any earlier than he did. Appellant's other argument is that section 5110's effective date limitations are unconstitutional as applied to his situation because VA actively interfered with his right of access to the benefits system when Agency medical personnel failed to properly inform him of a CLL diagnosis before January 2016.” Id. at *2.
The Court then determined: “Neither of appellant's contentions are persuasive. First, appellant's equitable estoppel argument is directly foreclosed under Taylor, in which a majority of the en banc Federal Circuit unambiguously held that "equitable estoppel is not available to override the claim-filing effectivedate limits of [section] 5110." Even if we agreed with appellant as a general matter about equitable estoppel, we are bound by the Federal Circuit's majority opinion in Taylor. Second, as we explain below, Taylor does not establish a binding rule about as-applied constitutional challenges under section 5110. However, we independently reach the same conclusion as the Taylor plurality did—that section 5110 is potentially subject to an as-applied constitutional challenge. Nevertheless, appellant can't prevail because his right-of-access claim falls well short of the kind of extraordinarily rare circumstance that could justify a court ordering the assignment of an effective date outside the parameters Congress set forth in section 5110. Because both of appellant's grounds for circumventing section 5110 are unsuccessful, and he has abandoned any other grounds for challenging the Board decision on appeal, we will affirm the Board's December 8, 2022, decision finding that appellant is not entitled to an effective date before January 29, 2015, for service connection for CLL.” Id. at *2-3.
Judge Jaquith wrote a powerful dissent in which he agreed with the Court’s analysis of Taylor and 38 USC 5110, but determined “I disagree with the majority's conclusion that section 5110 is not unconstitutional as applied to Mr. Ley, so I respectfully dissent. In my view, a VA doctor's decision to deceive a patient about the nature and extent of his disability is (and should be) the kind of extraordinarily rare circumstance that justifies ordering the assignment of an effective date outside the parameters of section 5110.” Id. at *22-23.
Judge Jaquith wrote: “ The majority embraces the Board's characterization of the veteran's allegation of the doctor's conduct as a "misdiagnosis" and acknowledges that the veteran also argued that the doctor deliberately withheld information and failed to properly inform him; but the majority asserts that its analysis and conclusion are the same under each formulation.157 In my view, if the hematologist "knew appellant should be diagnosed with CLL and chose not to convey that diagnosis to him,"158 that hematologist—a VA doctor—foreclosed VA's use of section 5110 as a sword to cut off, from the effective date for his claim, the years until the veteran was told the truth (by a forthcoming VA doctor) about the serious nature of his disability.” Id. at *23.
This is an odd case built on exceptional facts. Still, I hope it is appealed to the Federal Circuit and they find the extraordinarily rare circumstances they discussed in Taylor, includes what happened here.
Decision by Chief Judge Allen and joined by Judge Falvey, dissent by the Judge Jaquith.
