UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 17-2390

BRUCE R. TAYLOR, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued March 6, 2019 Decided April 5, 2019)

Mark B. Jones, of Sandpoint, Idaho, for the appellant.

Nicholas R. Esterman, with whom James M. Byrne, General Counsel; Mary Ann Flynn,

Chief Counsel; and James B. Cowden, Deputy Chief Counsel, were on the brief, all of Washington, 

D.C., for the appellee.

Before GREENBERG, MEREDITH, and FALVEY, Judges.

MEREDITH, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a 

dissenting opinion.

MEREDITH, Judge: The appellant, Bruce R. Taylor, through counsel appeals an April 14, 

2017, Board of Veterans' Appeals (Board) decision that denied entitlement to an effective date 

prior to February 28, 2007, for the award of benefits for post-traumatic stress disorder (PTSD) and 

for a total disability rating based on individual unemployability (TDIU). Record (R.) at 3-15. This 

appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. 

§§ 7252(a) and 7266(a). The matter was referred to a panel of the Court on October 30, 2018, and 

oral argument was held on March 6, 2019. For the following reasons, the Court will affirm the 

Board's decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Army from January 1969 to September 

1971, including service in Vietnam. R. at 206. There is no dispute that, during service, the 

appellant volunteered to participate in chemical agent exposure studies at the Edgewood Arsenal 
2

in Edgewood, Maryland (Edgewood Program), see R. at 2692 (describing the study), nor is there 

any dispute that he signed an oath vowing not to disclose his participation in or any information 

about the study, under penalty of court martial or prosecution, see R. at 10-11.

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. R. at 2695-97. VA also advised the appellant that he could file claims for benefits 

for any chronic health conditions that he believed were related to his participation in the Edgewood 

Program. Id. In August and September 2006, VA sent training letters to the Veterans Health 

Administration and the regional offices (ROs) outlining the procedures for handling claims filed 

by Edgewood Program veterans. See R. at 2649-90, 2691-94. 

In February 2007, the appellant filed a claim for benefits for PTSD, which he asserted was 

"caused in service in 1969 at the chemical research program at Edgewood Arsenal, Maryland." 

R. at 2646. In support of his claim, he provided a report from a private psychologist who diagnosed 

him with major depressive disorder and PTSD and recommended a full medical and neurological 

evaluation because "[e]xposure to toxic agents can have effects at different levels, [including to] 

psychological systems." R. at 2614. The appellant later submitted a stressor statement (identifying 

the Edgewood Program and several additional stressors) and a letter from a private clinical social 

worker who noted that the appellant was experiencing symptoms of PTSD. R. at 2574-84. 

During a June 2007 VA PTSD examination, the examiner diagnosed PTSD and major 

depressive disorder, which he opined were "a cumulative response" to the appellant's participation 

in the Edgewood Program and his experiences in Vietnam. R. at 2311. Relevant to the issues on 

appeal, the examiner noted: "In later years when [the appellant] sought treatment, he recalls being 

turned away because the treating provider believed his story about being an experimental subject 

was a fabrication." R. at 2307. The RO granted the appellant's claim for benefits for PTSD in July

2007 and assigned a 70% disability rating effective February 28, 2007, the date of his claim. R. at 

2282-90. Later that year, the RO granted the appellant's request for TDIU and assigned the same 

effective date. R. at 2247-59; see R. at 2274. 

The appellant filed a Notice of Disagreement with the effective date assigned for both 

benefits, asserting that he had "felt constrained from filing for VA benefits by secrecy agreements" 
3

until he received VA's letter advising him that he could file a claim for benefits. R. at 2233-34. 

He requested an effective date of September 7, 1971, the day after his discharge from service. Id. 

In his Substantive Appeal to the Board, the appellant argued that he was "precluded from obtaining 

disability benefits because the U.S. Government withheld necessary supporting evidence due to 

secrecy issues related to the Edg[e]wood Arsenal experiments." R. at 2211.

The Board subsequently denied the appellant's request for an earlier effective date, R. at 

1904-20, and the appellant appealed, through current counsel. In June 2013, in a single-judge 

memorandum decision, the Court vacated the Board's decision, finding that the Board had failed 

to provide adequate reasons or bases for its determination. R. at 702-06. Specifically, the Court 

found: "[T]he Board's lack of stated reasons or bases for its determination that 'there was nothing 

stopping the [v]eteran from filing [his] claim with the VA earlier,' . . . and its failure to cite to or 

discuss the language of the secrecy oath in its decision, leaves the Court unable to discern whether 

the appellant retained his eligibility to file for benefits while the oath was active." R. at 705-06. 

In April 2017, the Board issued the decision on appeal, denying entitlement to an effective 

date prior to February 28, 2007, for the award of benefits for PTSD and for TDIU. First, the Board 

noted that the appellant's PTSD diagnosis is based on multiple stressors, not only on his 

experiences in the Edgewood Program, and therefore "nothing prevented [him] from filing a claim 

for PTSD based on those stressors without having to divulge any information" about the Edgewood

Program. R. at 11. Second, the Board noted that the record reveals that the appellant did, in fact, 

disclose information about the Edgewood Program to a treatment provider long before DOD lifted 

the restriction on doing so. Id. Accordingly, the Board determined that the appellant "cannot now 

claim that [the oath] prevented him from filing a claim for benefits." Id. Finally, the Board found 

the law dispositive, explaining that 38 U.S.C. § 5110 only provides for an effective date earlier 

than the date of the claim under certain limited circumstances not present in this case. Id. This 

appeal followed.

II. ANALYSIS

A. Parties' Arguments

On appeal, the appellant contends that his right to file a claim for benefits for PTSD based 

on his participation in the Edgewood Program was violated "by the same people [who] created his 

exposure to the traumatizing event, and who now say that he can't file a claim for PTSD even 
4

th[]ough the same agency held [him] to a secrecy agreement until at least 2006." Appellant's Brief 

(Br.) at 9. More specifically, he asserts that VA has violated his right to procedural due process 

"by failing to have any process in place by which [he] could make a claim for [benefits] . . . , as a 

former participant in the Edgewood [P]rogram, prior to the 2006 [declassification], and by the 

denial of his post[-]2006 claim requesting an earlier effective date." Id. at 12. He further argues 

that the application of section 5110's effective date rule to veterans like him results in VA 

"hold[ing] their fidelity against them, binding them with a rule meant to be applied to [v]eterans 

who were not prohibited from filing [claims by virtue of a secrecy oath]." Id. at 16. The appellant 

also posits that, even if he had been willing to risk court martial or prosecution by filing an earlier

claim for benefits based on his participation in the Edgewood Program, he would have been unable 

to substantiate the claim in the absence of declassification of the records. Id. at 17. The appellant 

seeks a remedy in which VA is directed to "allow . . . Edgewood [v]eterans a window during which 

time they may file a claim for [benefits] for those years where they were precluded from filing 

such a claim by the VA's official process." Id. at 17.

The Secretary responds that the appellant's arguments and prayer for relief are misdirected, 

as he appears to conflate VA with the executive branch agencies responsible for the Edgewood 

Program and the secrecy oath. Secretary's Br. at 12. Additionally, the Secretary contends that the 

appellant did not have a property interest in VA compensation benefits prior to the date on which 

he filed his claim and, therefore, there could have been no due process violation in this case. Id.

at 14. Further, the Secretary argues that the appellant has not identified any statute, regulation, 

policy, or caselaw that prevented him from filing a claim for benefits for PTSD with VA prior to 

the declassification of his participation in the Edgewood Program. Id. at 12-13. The Secretary

argues that the exception to section 5110 that the appellant seeks requires congressional 

intervention and is beyond the Court's authority to provide. Id. at 13. To the extent that the 

appellant seeks equitable relief, the Secretary asserts that the Court lacks the ability to grant such 

relief. Id. at 17. He also contends that the appellant's concern about his ability to substantiate any 

earlier-filed claim is misplaced, given that his PTSD is based on more than just his participation 

in the Edgewood Program. Id. at 13-14. Accordingly, the Secretary urges the Court to affirm the 

Board decision. 
5

B. Discussion

1. Due Process

The Fifth Amendment to the U.S. Constitution provides that "No person shall . . . be 

deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. "[T]he 

Due Process Clause provides that certain substantive rights—life, liberty, and property—cannot 

be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v. 

Loudermill, 470 U.S. 532, 541 (1985). The Court reviews constitutional questions de novo. 

Buzinski v. Brown, 6 Vet.App. 360, 365 (1994).

It is axiomatic that, for a due process violation to exist, there must first exist a protected 

property interest. "It is well established that disability benefits are a protected property interest 

and may not be discontinued without due process of law." Cushman v. Shinseki, 576 F.3d 1290, 

1296 (Fed. Cir. 2009) (citing Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 

424 U.S. 319, 332 (1976)). Nearly 10 years ago, the U.S. Court of Appeals for the Federal Circuit 

(Federal Circuit) considered "the specific question of whether applicants for [VA] benefits, who 

have not yet been adjudicated as entitled to them, possess a property interest in those benefits." Id.

(emphasis added). That court answered the question in the affirmative, as had "'[e]very regional 

circuit to address the question'" at that time. Id. at 1297 (quoting Kapps v. Wing, 404 F.3d 105, 

115 (2d Cir. 2005)). 

Here, the appellant asks the Court to find that, under the circumstances of this case, he had 

a protected property interest in VA benefits before he filed a claim, specifically during the more 

than 35 years between his September 1971 discharge from service and his February 2007 claim 

for benefits for PTSD. Appellant's Br. at 12-16. The authorities on which the appellant relies for 

this proposition, 38 U.S.C. § 1710 and Veterans for Common Sense v. Shinseki (VCS), 644 F.3d 

845 (9th Cir. 2011), vacated on rehearing en banc, 678 F.3d 1013 (9th Cir. 2012), are inapposite. 

See Appellant's Br. at 12-13. The panel decision in VCS, which had addressed whether veterans 

may have a property interest in VA-provided health care, was vacated by the en banc United States 

Court of Appeals for the Ninth Circuit (Ninth Circuit), which determined that it did not have 

jurisdiction to consider VCS's allegations concerning VA's provision of mental health services.

1

 

1

In his brief, the appellant cites the en banc Ninth Circuit opinion as the source of a quotation from the earlier 

panel decision that was vacated on rehearing by the en banc Ninth Circuit. See Appellant's Br. at 12 (citing VCS, 

678 F.3d 1013 (9th Cir. 2012) (en banc), but quoting VCS, 644 F.3d at 873). 
6

VCS, 678 F.3d at 1028. Also, section 1710 pertains to "[e]ligibility for hospital, nursing home, 

and domiciliary care," 38 U.S.C. § 1710, and does not speak to the matter at issue here—the 

effective date for the award of benefits. Further, the appellant cites no authority that establishes 

that a person has a property right in disability benefits before a claim is filed, nor does he articulate 

a legal theory for such a proposition. The Court thus need not address this argument further. See 

Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain 

undeveloped arguments); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff'd per curiam, 

232 F.3d 908 (Fed. Cir. 2000) (table).

2. Equitable Relief

The appellant essentially contends that he believed that he was precluded from filing a 

claim for benefits prior to 2006 because of the secrecy oath he signed when he agreed to participate 

in the Edgewood Program.2 Appellant's Br. at 9. He therefore argues that equity demands that the 

Court order VA to establish a process by which he and other veterans like him may establish an 

earlier effective date for the award of benefits as of the date of the injury, in the absence of a prior 

claim. Id. at 14, 21; see Oral Argument at 10:47-11:10 (March 6, 2019) (acknowledging that 

Congress has not authorized payment of benefits under these circumstances and that he is seeking 

relief on an equitable basis). 

The Court's equitable powers, however, are not so broad. In Burris v. Wilkie, the Federal 

Circuit noted that Congress has conferred certain equitable authority on the Secretary under 

38 U.S.C. § 503(b) but had not conferred on this Court a similar statutory grant of equitable power. 

888 F.3d 1352, 1358-59 (Fed. Cir. 2018). As the Court recently held in Burkhart v. Wilkie, 

although the Federal Circuit in Burris "acknowledged th[is] Court's 'authority to grant certain 

forms of non-substantive equitable relief required to enable the [Court] to carry out its statutory 

 

2 To the extent that the appellant contends that VA is "the same [party that] created his exposure to the 

traumatizing event" and is the "same agency [that] held [him] to a secrecy agreement," Appellant's Br. at 9, he has not 

pointed to any evidence that VA was involved in the Edgewood Program or is the agency that required him to sign 

the secrecy agreement. At oral argument, the Secretary asserted that VA was unaware of the Edgewood Program until 

it received the declassified list of participants from DOD in 2006. Oral Argument at 23:41-24:10. The Court notes, 

however, that another court that addressed the issue of VA involvement in the Edgewood Program on a more 

developed evidentiary record has acknowledged the existence of evidence that the Central Intelligence Agency (CIA) 

identified VA "as among the suppliers of chemicals used for tests, which, when conducted on humans, were carried 

out jointly with the Army and Edgewood Arsenal," although that court also acknowledged that there was no evidence 

"to show that the substances that [VA] provided to [the CIA] were actually used at all, much less that they were used 

on humans who were service members." Vietnam Veterans of Am. v. Cent. Intelligence Agency, No. C 09-0037 CW, 

2013 WL 3855688, at *26 (N.D. Cal. July 24, 2013). As discussed below, even if VA had limited involvement in the 

Edgewood Program, the Court cannot provide the relief the appellant seeks.
7

grant of jurisdiction,' it cautioned that 'the Veterans Court cannot invoke equity to expand the scope 

of its statutory jurisdiction.'" 30 Vet.App. 414, 426 (2019) (quoting Burris, 888 F.3d at 1361). In 

that regard, the Federal Circuit in Burris distinguished the kind of equitable relief that the Court 

has authority to grant—relief provided by other statutes such as the All Writs Act and interlocutory, 

procedural relief—from the kind it does not have jurisdiction to grant—"substantive, monetary 

relief." 888 F.3d at 1361. It is, plainly, the second type of relief that the appellant seeks in this 

case. See Appellant's Br. at 21 ("VA would then pay the claim as if it [had] been properly filed as 

of the date the injury was established" (emphasis added)); R. at 2233-34 (October 2007 NOD in 

which the appellant asserted that he is entitled to an effective date as of the day after his discharge 

from service, because his PTSD began in service). Accordingly, although the Court is sympathetic 

to the appellant's situation, our equitable powers are constrained by statute and controlling caselaw 

from the Federal Circuit.

3

 

3. Statutory Relief

The Supreme Court has held that payments of money from the United States Treasury are 

limited to those authorized by statute, and that, regardless of the equities involved, a claimant 

cannot be paid benefits where he or she does not meet the statutory eligibility requirements for 

those benefits and there is no other statutory authority under which to pay him or her. Office of 

Pers. Mgmt. v. Richmond, 496 U.S. 414, 426 (1990). Section 5110, the statute that governs the 

assignment of an effective date for an award of benefits, provides:

[T]he effective date of an award based on an original claim, a claim reopened after 

final adjudication, or a claim for increase, of compensation, dependency and 

indemnity compensation, or pension, shall be fixed in accordance with the facts 

found, but shall not be earlier than the date of receipt of application therefor.

38 U.S.C. § 5110(a) (effective to February 18, 2019). The implementing regulation similarly 

provides that the effective date generally will be the date of receipt of the claim or the date 

entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2018). 

A Board determination regarding the proper effective date is a finding of fact that will not 

be overturned unless the Court finds the determination to be clearly erroneous. Evans v. West, 

12 Vet.App. 396, 401 (1999). A finding of fact is clearly erroneous when the Court, after 

 

3

In the Secretary's brief, he writes that "an equitable remedy lies not with this Court, but may lie with the 

Secretary, pursuant to his discretionary powers under 38 U.S.C. § 503." Secretary's Br. at 17. Nothing in this opinion 

precludes the appellant from seeking equitable relief from the Secretary under section 503, if he wishes.
8

reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been 

committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. 

Derwinski, 1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, the Board must 

provide a statement of the reasons or bases for its determination "adequate to enable a claimant to 

understand the precise basis for the Board's decision, as well as to facilitate review in this Court." 

Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 

56-57.

The Board determined that section 5110 was controlling and dispositive. R. at 11. 

Accordingly, because the appellant did not file a claim for benefits for PTSD earlier than February 

2007, the Board found that February 28, 2007, was the earliest possible effective date for the award 

of benefits. R. at 11-12. 

This Court and the Federal Circuit have considered whether section 5110 is subject to 

equitable tolling and have found that it is not.4 See Andrews v. Principi, 351 F.3d 1134, 1137-

38 (Fed. Cir. 2003) (finding that, although "[e]quitable tolling may be applied to toll a statute of 

limitations[,] . . . . [section] 5110 does not contain a statute of limitations, but merely indicates 

when benefits may begin and provides for an earlier date under certain limited circumstances");

see also Butler v. Shinseki, 603 F.3d 922, 926 (Fed. Cir. 2010) (reaffirming Andrews); Rodriguez 

v. West, 189 F.3d 1351, 1355 (Fed. Cir. 1999) (stating that nothing in 38 U.S.C. §§ 5102 or 7722(d) 

indicates or suggests a justification for "ignoring the unequivocal command in 38 U.S.C. § 5110(a) 

that the effective date of benefits cannot be earlier than the filing of an application therefor"); Noah 

v. McDonald, 28 Vet.App. 120, 128-29 (2016) (regarding authorities that the Court determined 

"operate similar to effective-date provisions for the award of VA benefits," noting that the Federal 

Circuit has held that the effective date provisions are not subject to equitable tolling). At oral 

 

4 Our dissenting colleague argues that it is not equitable tolling that is at issue, but equitable estoppel, which 

he asserts prevents the Government "from finding that the appellant filed a claim after the date he was entitled." Post

at 17. In Burkhart, however, this Court expressly rejected the possibility of equitable estoppel in the absence of an 

"explicit statutory grant[]" of that privilege. 30 Vet.App. at 427. Likewise, the Federal Circuit has held that this Court 

cannot use equitable estoppel to authorize payment outside of the requirements set out in section 5110. See McCay v. 

Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997) ("Although equitable estoppel is available against the government, it is 

not available to grant a money payment where Congress has not authorized such a payment or the recipient doesn't 

qualify for such a payment under applicable statutes."). Both decisions flow from the Supreme Court's holding in 

Richmond, 496 U.S. at 434, where the Court held that equitable estoppel could not be used to pay money not authorized 

by a statute. Our colleague is correct that the Supreme Court did not shut the door on all estoppel claims against the 

government, but it explicitly did so when the claimant seeks monetary relief. See id. ("As for monetary claims, it is 

enough to say that this Court has never upheld an assertion of estoppel against the Government by a claimant seeking 

public funds. In this context there can be no estoppel, for courts cannot estop the Constitution.").
9

argument, the appellant's counsel conceded that there was no statutory authority for the relief the 

appellant seeks. Oral Argument at 13:31-13:40. The appellant does not dispute that he did not 

file a claim until February 2007. In the absence of an earlier claim, section 5110 is clear: The 

effective date for the award of benefits is the date of the claim. See 38 U.S.C. § 5110(a). The 

appellant thus has not demonstrated error in the Board's conclusion. 

III. CONCLUSION

After consideration of the parties' pleadings and a review of the record, the Board's

April 14, 2017, decision is AFFIRMED.

GREENBERG, J., dissenting: "This case puts judicial humanity to the test; . . . the Court 

of Appeals for Veterans Claims [fails] the test." Aldridge v. McDonald, 837 F.3d. 1261, 1266 

(Fed. Cir. 2016) (Newman, J. dissenting). Equity is always available to right a wrong. See

Aldridge v. McDonald, 27 Vet.App. 392, 394 (2015) (Greenberg, J. dissenting). With the greatest 

possible respect for my eminent colleagues, the injustice done by the Court today requires this 

dissent.

I.

The medical experimentations on soldiers administered by the Government at the 

Edgewood Arsenal are well documented. For twenty years between 1955 and 1975, the United 

States Army systematically recruited volunteers from among those who had been conscripted or 

otherwise met their required national military service. The appellant, Bruce Taylor, was a 

volunteer, anxious to serve the needs of his Country.

5

 He was one of 16 volunteers who were 

given a nerve agent 6 while on a shooting range to test how this chemical affected military 

 

5 The appellant voluntarily joined the Army after his brother was killed in Vietnam. See R. at 2305.

6 EA 3580 N-methyl-4-piperidyl cyclobutylphenylglycolate is an "anticholinergic glycolic acid ester." R. at 

2666. Anticholinergics include nerve agents such as sarin and VX, and cause "toxic accumulation of the 

neurotransmitter acetylcholine." R. at 2666. Symptoms of exposure include those "consistent with acute cholinergic 

toxicity, including dizziness, frontal headache, blurred vision, lethargy, nausea, stomach pain, vomiting, rhinorrhea, 

chest tightness, wheezing, fasciculations, sweating on hands and feet, and significantly deceased red blood cell 

cholinesterase levels." R. at 2666.
10

performance.7 R. at 2337. The appellant has stated that during the experiment, he thought he was 

killing people rather than shooting at targets. R. at 2306. Records contemporaneous with the 

testing reflect his complaints of hallucinations, nausea, jumpiness, irritability, sleepiness, 

dizziness, impaired coordination, and difficulty concentrating.8 R. at 2305-06. 

II.

The appellant signed at least two documents, amounting to contracts of adhesion, relating 

to his participation. The first was a secrecy oath. Although the CIA has never provided any of the 

oaths taken by the soldiers at Edgewood Arsenal, see Vietnam Veterans of America v. C.I.A., 

288 F.R.D. 192, 198 (N.D. Cal. 2012), the Government has conceded that the secrecy oaths may 

have required that a volunteer would 

not divulge or make available any information related to U.S. Army Intelligence 

Center interest or participation in the [volunteer program] to any individual, nation, 

organization, business, association, or other group or entity, not officially 

authorized to receive such information. I understand that any action contrary to the 

promises of this statement will render me liable to punishment under the provisions 

of the Uniform Code of Military Justice.

R. at 11. 

The appellant also signed a document regarding consent that provided: "The proposed 

experimental procedure has been explained to me, and I voluntarily agree to participate in this 

test." R. at 2337. The form contains a signature by an "Investigator/and or Physician" 

acknowledging that "I have explained the proposed experimental procedure in its entirety to the 

above named volunteer." R. at 2337. The record does not reflect whether this signatory was in 

fact a physician or had any medical training whatsoever. Nowhere is there even the hint of a 

suggestion that by volunteering the appellant had forfeited his constitutional and statutory rights 

to medical benefits and compensation from the United States. 

 

7 The appellant was also a participant in an experiment involving exposure to an agent in a gas chamber, but 

the record contains less information about this test. See R. at 2306.

8 The appellant remembers a fellow soldier, who was a terrified test subject, covered in excrement and vomit. 

R. at 2305. 
11

III.

After participating in the Edgewood Arsenal experiments, the appellant served all or part 

of two tours in the Republic of Vietnam from January 1970 to September 1971. See R. at 461 (DD 

Form 214), 2310. A May 5, 1971, service treatment record reflects complaints of "insomnia and 

flashbacks"; this record has been overwritten and altered. See R. at 2306. The appellant has stated 

that these flashbacks related to his participation as a test subject. R. at 2576. In Vietnam, the 

appellant experienced numerous stressor events. See R. at 2306. The appellant remained true to 

his oath of secrecy in not applying for compensation. 

IV.

In August 1979, the Army's General Counsel drafted a memorandum to other high-level 

Army officials and to the Army Surgeon General that acknowledged that "'as a policy matter, some 

type of notification [to the Edgewood Arsenal experiment subjects about the health consequences 

of their participation] is necessary.'" Vietnam Veterans of Am. v. Cent. Intelligence Agency, 

811 F.3d 1068, 1073 (9th Cir. 2016) (quoting August 8, 1979, memorandum). The memorandum 

stated that the "legal necessity for a notification program is not open to dispute." Id.

V.

The Office of the Deputy Secretary of Defense has admitted that:

"In the 1990s, several reviews of military human subject research programs from 

the World War II and Cold War eras noted the common practice of research 

volunteers signing "secrecy oaths" to preclude disclosure of research information. 

Such oaths or other non-disclosure requirements have reportedly inhibited veterans 

from discussing health concerns with their doctors or seeking compensation from 

the Department of Veterans Affairs for potential service-related disabilities."

Vietnam Veterans of America v. C.I.A., 288 F.R.D. at 199-200 (emphasis added) (quoting January 

11, 2011, memorandum). 

On June 30, 2006, twenty-seven years after the Army recognized the necessity of 

notification, VA sent out a boilerplate letter to the Edgewood Arsenal participants, including the 

appellant. R. at 2702-03. The letter acknowledged that participants "may be concerned about 

releasing classified test information to your health care provider when discussing your health care 

concerns" and relayed that the Department of Defense has stated:
12

You may provide details that affect your health to your health care provider. For 

example, you may discuss what you believe your exposure was at the time, 

reactions, treatment you sought or received, and the general location and time of 

the tests. On the other hand, you should not discuss anything that relates to 

operational information that might reveal chemical or biological warfare 

vulnerabilities or capabilities.

R. at 2702. The letter also provided that VA was offering a clinical examination to veterans who 

received the notification letter and that "if you think you suffer from chronic health problems as a 

result of those tests . . . speak to a VA representative about filing a disability claim." R. at 2703.

VI.

The appellant filed for service-connected benefits for PTSD based on his participation in 

the Edgewood Arsenal experiments in February 2007. R. at 2615-24. In June 2007, a VA 

examiner diagnosed the appellant with PTSD and major depressive disorder, both of which 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 examiner 

noted "[a]fter participating in the experiments, physical symptoms persisted and he had increasing 

difficulty adjusting to Army life." R. at 2310. The appellant reported that after service he sought 

treatment for his mental difficulties, but was turned away because the treating provider thought he 

had fabricated his participation in the Edgewood Arsenal Experiments. R. at 2307. Again, he 

remained true to his oath.

VII.

In the decision on appeal, the Board denied the appellant an earlier effective date for three 

reasons. First, the Board found that the appellant's PTSD diagnosis was based on multiple 

stressors, including events in Vietnam, concluding that "nothing prevented the Veteran from filing 

a claim for PTSD based on those stressors without having to divulge any information regarding 

the Edgewood experiments." R. at 11.

The Board next determined that, even if there was a secrecy oath he violated it when he 

sought medical treatment after service, but was turned away. R. at 11. The reasoning was that 

"having divulged information subject to the oath of secrecy in the past, the Board finds that the 

Veteran cannot now claim it prevented him filing a claim for benefits." R. at 11. 
13

Finally, the Board stated:

most importantly, and, in fact, dispositive to the outcome of the instant case, the 

governing statute in this case, 38 U.S.C.A. § 5110, merely prescribes when benefits 

may begin and provides for an earlier effective date under certain limited 

circumstances. It does not allow for equitable tolling, even when based on some 

malfeasance by the government. 

R. at 11 (citing Andrews (Holly) v. Principi, 351 F.3d 1134, 1137 (Fed. Cir. 2003). The Board 

concluded that "no equities, no matter how compelling, can create a right to payment out of the 

United States Treasury which has not been provided for by Congress. See Office of Personnel 

Management v. Richmond, 496 U.S. 414, 426 (1990). The Board has no discretion to award 

benefits in this matter." R. at 12.

VIII.

All these findings were wrong as a matter of law. The Board's finding that the appellant 

could have filed for PTSD-related benefits for his service in Vietnam without divulging 

information related to the Edgewood experiments is a basic Board error and thoughtless. 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. R. at 2308. 

IX.

Next, the fact that the veteran divulged his participation for the purposes of treatment9has 

no bearing on whether the secrecy oath negatively affected his ability to file. The issue is not 

 

9 The appellant has also admitted that he spoke about the experiments while in Vietnam and to the army 

lawyer representing him during the course of military justice proceedings. He stated "I informed my JAG lawyer 

about Edgewood the experiments and the after effects so to submit these facts as mitigating and extenuation 

circumstances. I didn't want to get a BCD[(bad conduct discharge)]. I got the usual reception from my JAG that 

I was crazy and this was a delusion and he referred me to E327 med for a referral to a psychiatrist. Apparently 
14

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. 

See Vietnam Veterans of America, 288 F.R.D. at 199-200. 

Further, the oath is important because it supports the appellant's statements that nobody 

believed him. He could not receive proper treatment for his mental disability, much less file a 

successful claim for benefits based on his participation in the experiments. The Government does 

not dispute that the appellant could not have succeeded on his claim prior to his filing, but rather 

contends that Congress intended for him to have filed a claim in futility. 

X.

Our Court "must do its best, bearing in mind the fundamental canon of statutory 

construction that the words of a statute must be read in their context and with a view to their place 

in the overall statutory scheme." King v. Burwell, 135 S.Ct. 2480, 2483 (2015) (internal quotations 

omitted). Where Congress has chosen to limit earlier effective dates, it has done so expressly. 

Although Congress has adopted an effective date for "previously denied claims" based on mustard 

gas exposure, including those who were exposed at Edgewood Arsenal and signed secrecy oaths, 

Pub. L. No. 115-48, 131 Stat. 996-99, § 502 (2017), nothing has been promulgated for those 

veterans who felt prohibited from filing a claim for benefits. 

Absent an express statutory command addressing the appellant's circumstances, 38 U.S.C. 

§ 5110 must be construed in his favor. After all, the veteran's canon, reflecting Congressional 

intent to presume interpretive doubt in the veteran's favor, has always been consistent, and remains 

paramount. See Shinseki v. Sanders, 556 U.S. 396, 416, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009) 

(Souter, J., dissenting) (stating that Congressional "solicitude for veterans is plainly reflected in 

the Veterans Judicial Review Act of 1988, 38 U.S.C. § 7251 et seq. (VJRA)], as well as in 

subsequent laws that 'place a thumb on the scale in the veteran's favor in the course of 

administrative and judicial review of VA decisions'"); see also Henderson, 131 S.Ct. at 1205 

(declaring that congressional solicitude for veterans is plainly reflected in "the singular 

 

they didn't believe a word I said and refused to refer me to a psychiatrist, the over written file speaks for itself." 

R. at 2577.
15

characteristics of the review scheme that Congress created for the adjudication of veterans' benefits 

claims," and emphasizing that the provision "was enacted as part of the VJRA [because] that 

legislation was decidedly favorable to the veteran"). As Justice Alito has recognized, "[w]e have 

long applied 'the canon that provisions for benefits to members of the Armed Services are to be 

construed in the beneficiaries' favor." Id. at 1206 (quoting King v. St. Vincent's Hospital, 502 U.S. 

215, 220-21 N. 9, 112 S.Ct. 570, 116 L. Ed. 2d 578 (1991)). See United States v. Oregon, 366 U.S. 

643, 647, 81 S. Ct. 1278,6 L.Ed. 2d 575 (1961) ("The solicitude of Congress for veterans is of long 

standing.").10

XI.

Congress could not have intended to have provided an earlier effective date to those 

veterans who felt unconstrained by their secrecy oath when filing for VA benefits, but deny them 

to veterans like the appellant. We have a duty to properly examine through our inherent 

constitutional power to apply equitable remedies where Congress has not expressly authorized a 

result. See U.S. CONST. ART. III, § 2, CL. 1 ("The judicial power extends to all cases, in law and 

equity"); American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 512 (1828) (finding that judicial 

power extends to all cases in law and equity, arising under the Constitution and the laws of the 

United States"); see also Chambers v. NASCO, Inc., 501 U.S. 32, 47 (2011) ("'[W]e do not lightly 

assume that Congress has intended to depart from established principles' such as the scope of a 

court's inherent power." (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982))); 

Califano v. Yamasaki, 442 U.S. 682, 705 (1979) ("Absent the clearest command to the contrary 

from Congress, federal courts retain their equitable power . . .").

 

10 See also, e.g., Hayburn's Case, 2 U.S. 408, 2 Dall. 409, 1 L. Ed. 436 (1792) (describing the attempts of 

circuit courts to circumvent the unconstitutionality of the Invalid Pensioners Act of 1792); U.S. ex. rel. Miller v. Raum, 

135 U.S. 200, 204 (1890) (finding that, although "the courts will not interfere with the executive officers of the 

government in the exercise of their ordinary official duties," the Supreme Court could compel the payment of a 

veteran's disability pension by mandamus); Boone v. Lightner, 319 U.S. 561, 575 (1943) (noting that Soldiers' and 

Sailors' Civil Relief Act of 1940, 50 U.S.C. § 501 et seq., was "always to be liberally construed to protect those who 

have been obliged to drop their own affairs to take up the burdens of the nation"); Feres v. United States, 340 U.S. 

135 (1950) (considering, but ultimately denying, applicability of the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 

to service-related injuries); Johnson v. Robison, 415 U.S. 361 (1974) (holding that judicial review of constitutional 

challenges to veterans benefits legislation was available even though Congress had foreclosed judicial review of 

individual benefits determinations); Conroy v. Aniskoff, 507 U.S. 511, 514 (1993) (holding that the Soldiers' and 

Sailors' Civil Relief Act of 1940 was "unambiguous, unequivocal, and unlimited," without contextual conditions for 

its protections).
16

"Equitable remedies are distinguished for their flexibility, their unlimited variety, their 

adaptability to circumstances, and the natural rules which govern their use," Sears, Roebuck & Co. 

v. Camp, 124 N.J. Eq. 403, 411 (E. & A. 1938) (Heher, J.) (internal quotations omitted). The 

ability of a court to right a demonstrated wrong is intrinsic to the basic concept of equitable powers:

It is universally recognized that equity will not suffer a wrong without a remedy. 

This maxim is derived, Professor Pomeroy informs us, from the more 

comprehensive legal maxim that wherever a legal right has been infringed a remedy 

will be given. The equitable maxim is the source of the entire equitable jurisdiction, 

whether it be exclusive, concurrent or auxiliary. See 2 Pomeroy Equity 

Jurisprudence (5th ed., Symons), § 423. 

Gazaille v. McDonald, 27 Vet.App. 205, 212 (2014) (Greenberg J. concurring), quoting Cona v. 

Gower, 89 NJ. Super 510, 516-17 (N.J. Super Ct. Ch. Div 1965) (Matthews, J.S.C.). 

XII.

The Supreme Court expressly rejected adopting a flat rule that estoppel will never lie 

against the Government; instead, the Court found a grant of monetary relief from the Public 

Treasury based on the equitable doctrine of estoppel that is contrary to a statutory appropriation 

was prohibited by the Appropriations Clause of the Constitution. Office of Personnel Mgm't, 496 

U.S. at 422-23, citing ART. I § 9, CL. 7. The Court noted that where Congress wished to recognize 

claims for estoppel, it knew how to do so. Id. at 428. This statement, however, is not determinative 

here. 

As concluded by Justices Marshall and Brennan in dissent,

[w]hen Congress passes a law to provide a benefit to a class of people, it intends 

and assumes that the Executive will fairly implement that law. Where necessary to 

effectuate Congress' intent that its statutory schemes be fully implemented, this 

Court therefore often interprets the apparently plain words of a statute to allow a 

claimant to obtain relief where the statute on its face would bar recovery.

Id. at 438.

Here, the question is not whether "there's any Congressional authorization to pay benefits 

for a period prior to when the claim was filed?" Oral Argument at 13:30-13:37. Nor is the question, 

"Do you know any court that says that benefits can be paid without an application?" Oral 

Argument at 13:40-13:50. The proper inquiry should have been, "has the Government ever 
17

disregarded the rights of one of its favored citizens, a veteran, when Congress has established a 

long-standing scheme to ensure care and compensation? This is why we have courts. 

For example, by analogy, in Bivens vs. Six Unknown Named Agents of Federal Bureau, 

403 U.S. 388 (1971), the Supreme Court held that a violation of the Fourth Amendment by a 

federal agent acting under color of his authority gives rise to a cause of action for damages. Justice 

Brennan, writing for the Court stated:

Of course, the Fourth Amendment does not in so many words provide for its 

enforcement by an award of money damages for the consequences of its violation. 

But "it is well settled that where legal rights have been invaded, and a federal statute 

provides for a general right to sue for such invasion, federal courts may use any 

available remedy to make good the wrong done." 

Id. at 396 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). 

XIII.

Further, while merely awarding benefits on an equitable basis may run afoul of the 

appropriations clause, this is not the remedy I would have provided. The majority and the Board 

wrongly treat this as a matter of equitable tolling of 38 U.S.C. § 5110, instead of equitable estoppel.

Equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if 

despite the exercise of all due diligence he is unable to obtain vital information 

bearing on the existence of his claim. In contrast, the doctrine of equitable estoppel 

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. 

Shropshear v. Corporation Counsel of City of Chicago, 275 F.3d 593, 595 (7th Cir. 2001) (Posner, 

J.).

I would have held that the Government is equitably estopped from finding that the appellant 

filed a claim after the date he was entitled. Such a holding is necessary to effectuate Congressional 

intent. Congress created an entitlement system for veterans; not a system where there is the 

requirement that a claimant file a futile claim. 

XIV.

Facts like these must have been the reason that the majority in Office of Personnel Mgm't, 

v. Richmond, expressly refused to find that a private citizen could never succeed on a claim of 

estoppel against the Government. 496 U.S. at 422-23. The affirmative misconduct standard 
18

addressed, but not rejected in that case must be adopted here. See Office of Personnel Mgm't, 496 

U.S. at 421-22.

XV.

The Government has taken the position that participants like the appellant were provided 

informed consent regarding the Edgewood Arsenal Experiments. See R. at 2700 ("The Army 

obtained the voluntary consent of volunteers and provided them with study information."). Yet, 

VA has also acknowledged that "there was little scientific or medical information on long-term 

health effects from these exposures." R. at 2671. The informed consent document signed by the 

appellant and a Government "investigator and/or physician" was a contract. R. at 2337. In every 

contract there is an implied duty of good faith and fair dealing. See Wood v. Lucy, Lady DuffGordon, 222 N.Y. 88, 118 N.E. 214 (1917) (Cardozo, J.). The Government has violated this duty. 

There is no evidence that the appellant was told that the potential long-term effects of his 

participation were unknown. Given that the long-term effects of the testing were yet to be 

determined, it is impossible that the Government could have obtained informed consent from the 

appellant.

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. C.f. Vietnam Veterans of Am. v. C.I.A., 

811 F.3d at 1073 with R. at 2702-03. 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. 

Vietnam Veterans of America v. C.I.A., 288 F.R.D. at 199-200. 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.
19

XVI.

VA attempts to separate itself from the bad acts of the Department of Defense.

11 Yet, VA 

serves as part of one Government. The VA benefits system compensates veterans based on their 

service to the Government and their country, not to VA. VA merely serves as the intermediary 

between the Treasury and the worthy veteran. Any argument that the appellant is not entitled to 

equitable relief from VA ignores congressional intent and the reason this Court was created. 

VJRA, 102 Stat. 4105 (codified, as amended, in various sections of 38 U.S.C. (2006 ed. and Supp. 

III)) §§ 7251, 7252(a) (2006 ed.). 

XVII.

"[F]iat justicia, ruat caelum, let justice be done whatever be the consequence." Somerset 

v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.) 509 (Lord Mansfield). I would have assigned an 

effective date of 1971. For these reasons, I respectfully dissent.

 

11 VA does not dispute that it provided substances to the CIA suspiciously similar to those used during the 

Edgewood Arsenal experiments, and that it conducted separate human trials of LSD testing. Vietnam Veterans of 

America v. Central Intelligence Agency, No. C 09-0037 CW, 2013 WL 6092031, at *26-27 (N.D. Cal. 19, 2013). The 

claim that VA participated in the experiments has never been debunked. See id.