United States Court of Appeals 

for the Federal Circuit ______________________ 

BENNIE C. ROBINSON,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-1968

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-427, Chief Judge Robert N. 

Davis.

______________________ 

Decided: October 4, 2018 

______________________ 

 KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant. 

Also represented by VIRGINIA A. GIRARD-BRADY, JAMIE 

MARIE ATWOOD, ABS Legal Advocates, P.A., Lawrence, 

KS. 

 MICHAEL ANTHONY RODRIGUEZ, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, argued for respondent-appellee. 

Represented by MELISSA BAKER, CHAD A. READLER,

ROBERT E. KIRSCHMAN, JR., CLAUDIA BURKE; BRIAN D.
2 ROBINSON v. WILKIE

GRIFFIN, CHRISTOPHER O. ADELOYE, Office of General 

Counsel, United States Department of Veterans Affairs, 

Washington, DC.

______________________ 

Before NEWMAN, LOURIE, and STOLL, Circuit Judges. 

Opinion for the court filed by Circuit Judge STOLL. 

Dissenting Opinion filed by Circuit Judge NEWMAN. 

STOLL, Circuit Judge. 

Mr. Bennie Robinson, a veteran who served in Vietnam as a member of the United States Marine Corps, 

appeals the effective date of his disability rating for 

coronary artery disease. Mr. Robinson’s effective date 

coincides with the date of his diagnostic testing results, 

but it took 14 months to schedule the tests. According to 

Mr. Robinson, he should be entitled to an earlier effective 

date because he did not cause the 14-month delay. Because there was no legal error in determining the effective 

date, we affirm the judgment of the United States Court 

of Appeals for Veterans Claims (“Veterans Court”). 

I 

Mr. Robinson served in the Marine Corps in the late 

1960s, and his service included a deployment in Vietnam. 

After returning from deployment, he began to suffer heart 

problems. Mr. Robinson saw his Department of Veterans 

Affairs cardiologist, Dr. Ali Sadoughian, on February 23, 

2006, for “evaluation of chest pain.” J.A. 71. 

Dr. Sadoughian recommended that Mr. Robinson undergo 

diagnostic testing, but the testing was not performed. 

Nine months later, Mr. Robinson returned to 

Dr. Sadoughian after spending a week in the hospital

with blood clots in his right leg. Dr. Sadoughian again 

recommended that Mr. Robinson schedule diagnostic 

testing “as planned in my previous consult.” J.A. 69–70. 

Mr. Robinson finally received the prescribed diagnostic 
ROBINSON v. WILKIE 3

testing on April 2, 2007—5 months after his follow-up 

visit and 14 months after Dr. Sadoughian’s initial recommendation. The record does not explain the cause of the 

delay, but the test results indicated that Mr. Robinson 

had “[c]oronary artery disease with prior inferior wall 

myocardial infarction.” J.A. 67.

Mr. Robinson did not receive any disability benefits at 

that time for his coronary artery disease because he could 

not establish that it was service connected. That changed 

in August 2010 when the VA amended its regulations to 

add ischemic heart disease—including coronary artery 

disease—to its list of conditions that are presumptively 

service connected for veterans who were exposed to certain herbicides. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 

2010) (amending 38 C.F.R. § 3.309(e) to add coronary 

artery disease to list of diseases associated with certain 

herbicide agents); see 38 C.F.R. § 3.309(e) (creating presumption of service connection for veterans with coronary 

artery disease who were exposed to certain herbicide 

agents). 

Then, in 2011, the VA retroactively granted disability 

benefits to Mr. Robinson for his coronary artery disease 

pursuant to a Nehmer1 review. See J.A. 38; J.A. 78–82. 

 

1 In response to orders from the U.S. District Court 

for the Northern District of California in Nehmer v. U.S. 

Department of Veterans Affairs, the VA promulgated 

special rules for determining the effective date of claims 

for diseases that are presumed to be caused by exposure 

to Agent Orange. See Nehmer v. U.S. Veterans’ Admin., 

712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. U.S. Veterans’ Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999). A 

Nehmer class member is a Vietnam veteran who has a 

“covered herbicide disease.” 38 C.F.R. § 3.816(b)(1)(i). A 

“covered herbicide disease,” in turn, is “a disease for 
4 ROBINSON v. WILKIE

The VA assigned an initial disability rating of 10 percent 

from January 18, 2005 and a 60 percent disability rating 

from April 2, 2007—the date Mr. Robinson’s diagnostic 

testing showed that he had coronary artery disease. 

After Mr. Robinson filed a notice of disagreement, the 

VA issued a new rating decision. That decision awarded 

Mr. Robinson a 100 percent disability rating effective 

January 26, 2003 and a 10 percent disability rating from 

May 1, 2003 through April 1, 2007. The VA did not 

change the effective date for the 60 percent disability 

rating, however, and Mr. Robinson appealed that decision 

to the Board of Veterans’ Appeals. The Board denied 

Mr. Robinson’s claim because the April 2007 test results 

were the earliest medical evidence demonstrating that he 

satisfied the criteria for a 60 percent disability rating. 

Mr. Robinson appealed the Board’s decision to the

Veterans Court. On appeal, Mr. Robinson argued for the 

first time that the effective date for his 60 percent disability rating should be the date Dr. Sadoughian ordered the 

diagnostic testing rather than the date on which the 

testing occurred. Although the cause of delay is not 

reflected in the record, Mr. Robinson asserted that he 

should not be penalized for the 14-month delay in scheduling his test, and that he would have received an earlier 

effective date for his 60 percent disability rating if the VA 

had provided him with prompt treatment. The Secretary 

asked the Veterans Court not to consider the argument 

because Mr. Robinson did not raise it before the Board. 

Instead, the Veterans Court “balance[ed] the competing 

 

which the Secretary of Veterans Affairs has established a 

presumption of service connection pursuant to the Agent 

Orange Act of 1991 . . . as provided in § 3.309(e).” Id.

§ 3.816(b)(2). As discussed above, coronary artery disease 

was added to the list of covered diseases in August 2010.
ROBINSON v. WILKIE 5

interests” and “determine[d] that it [wa]s appropriate to 

remand this matter for the Board to address in the first 

instance.” J.A. 39. 

On remand, Mr. Robinson cited 38 C.F.R. 

§ 17.33(a)(2)’s requirement that veterans receive “prompt 

and appropriate treatment” in arguing that his effective 

date should be the date on which Dr. Sadoughian ordered 

the testing. J.A. 27. The Board concluded that § 17.33 

applies only to medical treatment and has “no bearing on 

the law or regulations governing effective date criteria.” 

J.A. 30. Moreover, the Board could not identify any 

evidence in the record that would support an earlier 

effective date for Mr. Robinson’s 60 percent disability 

rating. Accordingly, the Board denied Mr. Robinson’s 

claim.

The Veterans Court affirmed the Board’s decision. 

Applying 38 C.F.R. § 3.816, the Veterans Court explained 

that “the effective date of an award of disability compensation will be the date the claim is received by [the] VA or 

the date the disability arose, whichever is later.” Robinson v. Shulkin, No. 16-0427, 2017 WL 1046285, at *1 (Vet. 

App. Mar. 20, 2017) (citing 38 C.F.R. § 3.816(c)(1), (c)(2)) 

(“Veterans Court Opinion”). The Veterans Court agreed 

with the Board that “an effective date earlier than April 

2007 was not warranted because ‘[t]he treatment records 

do not demonstrate that [Mr. Robinson] met the criteria 

for a 60[%] rating for coronary artery disease until . . . 

testing was accomplished on April 2, 2007.’” Id. at *2 

(alterations in original) (quoting J.A. 30). And even if 

§ 17.33 imposed on the VA a requirement that veterans be 

treated in a timely manner, the Veterans Court detected 

no clear error in the Board’s effective date determination 

because no medical evidence prior to April 2007 supported 

a 60 percent disability rating. 

Mr. Robinson appeals. We have jurisdiction pursuant 

to 38 U.S.C. § 7292. 
6 ROBINSON v. WILKIE

II

Our jurisdiction to review decisions of the Veterans 

Court is limited. Martin v. O’Rourke, 891 F.3d 1338, 1342 

(Fed. Cir. 2018). We have jurisdiction to “decide all 

relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). 

But absent a constitutional issue, we “may not review

(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a 

particular case.” Id. § 7292(d)(2).

Mr. Robinson contends that he is entitled to an earlier 

effective date for his 60 percent disability rating for three 

interrelated reasons. First, Mr. Robinson asserts that his 

60 percent disability rating is a staged or increased rating 

and therefore 38 C.F.R. § 3.816(c) does not apply. We do 

not find this argument compelling because the April 2, 

2007 effective date for Mr. Robinson’s 60 percent disability rating was part of his initial grant of benefits in 

March 2011. As the Secretary argues, “[t]his places his 

claim within the ambit of section 3.816(c).” Appellee 

Br. 13. Moreover, § 3.816 is titled “Awards under the 

Nehmer Court Orders for disability or death caused by a

condition presumptively associated with herbicide exposure,” and its express purpose is to “state[] effective-date 

rules required by orders of a United States district court 

in the class-action case of Nehmer.” 38 C.F.R. § 3.816(a). 

Mr. Robinson acknowledges that he is a Nehmer class 

member, see Appellant Br. 12, and so we see no reason 

why § 3.816(c) would not apply here. 

The dissent likewise relies on the general effective 

date statute, 38 U.S.C. § 5110(b)(3) (implemented by 

38 C.F.R. § 3.400(o)(2)), which states that the “effective 

date of an award of increased compensation shall be the 

earliest date as of which it is ascertainable that an increase in disability had occurred.” See Dissent at 3. The 

dissent also cites Swain v. McDonald, 27 Vet. App. 219 
ROBINSON v. WILKIE 7

(2015), and similar Veterans Court cases instructing that 

the effective date of hearing loss disability is predicated 

on when the increase in hearing loss can be ascertained—

not on when the audiological test warranting the increase 

was performed. See Dissent at 3–4, 8–9. But the Veterans Court in Swain based its decision on 38 U.S.C. 

§ 5110(b)(3) and 38 C.F.R. § 3.400(o)(2). Dissent at 3–4. 

Those provisions do not apply here because 38 U.S.C. 

§ 5110(g) provides that where, as here, benefits are 

“awarded or increased pursuant to any Act or administrative issue,” the effective date of the benefits “shall not be 

earlier than the effective date of the Act or administrative 

issue.” Thus, under § 5110(g), Mr. Robinson would not be 

able to obtain retroactive benefits with an effective date 

earlier than that of the regulation that made his condition 

compensable—August 31, 2010. In order to secure retroactivity here, Mr. Robinson had to rely on the special 

regulations applicable to Nehmer class members. The 

effective date for a Nehmer class member is determined 

by 38 C.F.R. § 3.816(c) and not by 38 U.S.C. § 5110(b)(3)

or 38 C.F.R. § 3.400(o)(2). This interpretation is supported by 38 C.F.R. § 3.816(c)(4), which states that “[i]f the 

requirements of paragraph (c)(1) or (c)(2) of this section 

are not met, the effective date of the award shall be 

determined in accordance with §§ 3.114 and 3.400.” Here, 

Mr. Robinson does not dispute that the requirements of 

paragraph (c)(2) are met. Thus, the provisions of 

38 C.F.R. § 3.816(c)(2) apply. 

Mr. Robinson next cites 38 C.F.R. § 17.33(a)(2) in arguing that the VA violated its obligation to provide veterans with prompt and appropriate treatment, and that this 

violation should have been considered by the Veterans 

Court in assigning his effective date. Had the VA complied with its obligation to provide prompt treatment, 

Mr. Robinson asserts that he would have been able to 

establish an earlier effective date for his 60 percent 

disability rating. 
8 ROBINSON v. WILKIE

Our review of § 17.33 indicates that it was not intended to create rights that would impact the handling of 

compensation claims, and Mr. Robinson has not directed 

us to any evidence suggesting otherwise. Section 17.33 is 

located in part 17 of chapter I of the VA’s regulations, 

which governs the VA’s administration of medical treatment. It lays out certain rights to which patients are 

entitled, including the right to be treated with dignity, id.

§ 17.33(a)(1), the right to execute legal instruments, id.

§ 17.33(a)(4)(ii), the right to refuse visitors, id.

§ 17.33(b)(1)(ii), and the right to social interaction with 

others, id. § 17.33(b)(5). The effective date of a claim for 

benefits, on the other hand, is controlled by part 3 of 

chapter I. Part 3 is entitled “Adjudication” and contains 

§ 3.816, which establishes the effective date for Nehmer

class members. The phrase “effective date” does not 

appear in § 17.33, and nothing else in the regulation’s text 

suggests that it is linked to the effective date determination in § 3.816. Therefore, we agree with the Veterans 

Court that “§ 17.33(a)(2) is not related to the effective 

date of an award of VA benefits.” Veterans Court Opinion, 

2017 WL 1046285, at *2. 

Finally, Mr. Robinson faults the Veterans Court for 

not awarding equitable relief in the form of an earlier 

effective date. The Veterans Court had stated that 

“[a]lthough the Court is sympathetic to Mr. Robinson’s 

plight and delays in the VA health system are concerning, 

the Court is not a court of equity.” Id. Mr. Robinson 

contends that the Veterans Court erred in finding that it 

could not apply principles of equity. We have recognized 

that “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.” Burris v. Wilkie, 888 F.3d 

1352, 1361 (Fed. Cir. 2018). 
ROBINSON v. WILKIE 9

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. 

III

We have considered Mr. Robinson’s remaining arguments and find them unpersuasive. No medical evidence 

in the record supports his entitlement to an effective date 

earlier than April 2, 2007. Although we are sympathetic 

to Mr. Robinson’s plight, the Veterans Court did not err in 

its analysis. The judgment of the Veterans Court is 

affirmed. 

AFFIRMED

COSTS

No costs.
United States Court of Appeals 

for the Federal Circuit ______________________ 

BENNIE C. ROBINSON,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-1968

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-427, Chief Judge Robert N. 

Davis.

______________________ 

NEWMAN, Circuit Judge, dissenting.

Mr. Robinson, a veteran of the war in Vietnam, experienced heart problems including a heart attack in 2003. 

By regulation adopted in August 2010, coronary and other 

diseases were deemed service-connected for veterans who, 

like Mr. Robinson, had been exposed to Agent Orange in 

Vietnam: 

38 C.F.R. § 3.309(e) (Disease associated with exposure to certain herbicide agents) 

If a veteran was exposed to an herbicide agent 

during active military, naval, or air service, the 

following diseases shall be service-connected . . . . 
2 ROBINSON v. WILKIE

Ischemic heart disease (including, but not limited 

to, acute, subacute, and old myocardial infarction; 

atherosclerotic cardiovascular disease including 

coronary artery disease (including coronary 

spasm) and coronary bypass surgery . . . .

Mr. Robinson then sought the statutory compensation for

his cardiac condition.

After various proceedings not here relevant, the VA 

assigned Mr. Robinson an initial effective date of January 

26, 2003, the date of Mr. Robinson’s heart attack, with 

100 percent disability rating for the period between 

January 26, 2003 and May 1, 2003. The VA then assigned a 10 percent disability rating between May 1, 2003 

and April 1, 2007, followed by a 60 percent disability 

rating starting on April 2, 2007, the date of a cardiac test 

that a VA cardiologist had first ordered 14 months earlier. 

The issue on appeal is the start date of the 60 percent 

rating, in view of the 14-month test delay. 

Mr. Robinson states that he should not be prejudiced

by the VA’s inordinate delay in performing this test, and 

that the effective date of the 60 percent rating should be 

the date the test was first ordered, or a reasonable period 

thereafter. The Secretary responds that the regulation 

requires that the rating runs from the date the test was 

performed, and offers no explanation for the 14-month 

delay. The regulation states:

38 C.F.R. § 3.400(o)(2). (Disability compensation) 

Earliest date as of which it is factually ascertainable based on all evidence of record that an 

increase in disability had occurred if a complete 

claim or intent to file a claim is received within 1 

year from such date, otherwise, date of receipt of 

claim. When medical records indicate an increase 

in a disability, receipt of such medical records may 

be used to establish effective date(s) for retroac-
ROBINSON v. WILKIE 3

tive benefits based on facts found of an increase in 

a disability only if a complete claim or intent to 

file a claim for an increase is received within 1 

year of the date of the report of examination, hospitalization, or medical treatment. The provisions 

of this paragraph apply only when such reports 

relate to examination or treatment of a disability 

for which service-connection has previously been 

established.

My colleagues hold that Mr. Robinson’s increase in 

compensation should be limited to the date of testing, 

because there is no evidence of the extent of disability 

during the 14-month period of delay in testing.

The court and the VA have incorrectly constricted the 

regulation, beyond its purpose and beyond the intent of 

the veterans’ statutes. Mr. Robinson’s cardiac health 

history and the results of this belated medical test

demonstrate cardiac illness of several years, in ready 

conformity with the VA’s statutory obligation to assign 

the earliest ascertainable effective date. From my colleagues’ contrary ruling, I respectfully dissent.

DISCUSSION

The VA is required to determine the effective date of 

compensation “in accordance with the facts found.” 38 

U.S.C. § 5110(a). The effective date “shall be the earliest 

date as of which it is ascertainable that an increase in 

disability had occurred,” id. § 5110(b)(3). The regulation, 

cited ante, refers to “medical records,” but does not erase 

the obligation to present a reasonable analysis of the 

veteran’s disability.

The Court of Veterans Appeals has considered 38 

U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2), Swain v. 

McDonald, 27 Vet. App. 219 (2015), and held that the 

effective date is, by statute, the “earliest” date the disabil-
4 ROBINSON v. WILKIE

ity is “ascertainable,” not the date a particular test was 

administered:

[T]he Secretary’s contention that § 4.85(a) requires the effective date for an increased disability 

claim to be set in accordance with the date a Maryland CNC test is administered not only adds 

words to the regulation that are not there, but it 

also conflicts with the plain meaning of section 

5110(b)(3), which requires the effective date of an 

award of increased compensation to be ‘the earliest date as of which it is ascertainable that an increase in disability had occurred.’

Id. at 224 (emphasis in original); see also id. (“Therefore, 

the effective date for an increased rating, indeed, as well 

as for an initial rating or for staged ratings, is predicated 

on when the increase in the level of hearing loss can be 

ascertained.”) (citing 38 U.S.C. § 5110 and 38 C.F.R. 

§ 3.400). The present case reflects similar principles, for 

Mr. Robinson’s heart attack is direct evidence of cardiac 

illness long before the 14-month delayed test of ejection 

fraction. 

The panel majority disagrees with any relevance of 38 

U.S.C. § 5110 and 38 C.F.R. § 3.400 because Mr. Robinson 

is a Nehmer class member whose effective date should be 

determined by 38 C.F.R. § 3.816(c). See Maj. Op. at 6–7. 

Respectfully, the majority misunderstands the “effective 

date” determination that is the subject of this appeal. Mr. 

Robinson has not appealed the effective date of January 

26, 2003, which is the date he sought treatment for a 

myocardial infarction. In the words of the Board, “[t]his 

effective date was awarded under the Nehmer case and 38 

C.F.R. § 3.816(c)(2).” Bd. Op. at 7 (J.A.19). Instead, Mr. 

Robinson has appealed the effective date for an increase 

in compensation based on a 60 percent disability rating. 

See Robinson Br. at 4. Determining the effective date for 

such increase in compensation is governed by 38 U.S.C. 
ROBINSON v. WILKIE 5

§ 5110 and 38 C.F.R. § 3.400(o)(2). The applicability of 

this statute and regulation is undisputed. See Secretary 

Br. at 9 (“Broadly speaking, section 3.816(c) concerns the 

available effective date a veteran may be assigned under 

Nehmer . . . . This section, however, does not address the 

rating that must be assigned for the periods while service 

connection is in effect, nor does it govern the procedures 

to address a veteran’s claim for increased compensation, 

which can be found at 38 U.S.C. § 5110 and 38 C.F.R. 

§ 3.400(o)(2).”); Robinson Br. at 8 (“Once an award of 

benefits for a Nehmer-related condition is established and 

the original effective date is determined, 38 C.F.R. 

§ 3.816(c) ceases to become applicable. If a staged rating 

is subsequently assigned, the effective date for any increased rating is subject to the provisions of 38 U.S.C. 

§ 5110(b)(3) and 38 C.F.R. § 3.400(o)(2).”) (emphasis 

omitted); Bd. Op. at 17 (J.A.29) (citing 38 U.S.C. 

§ 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) as providing “the 

proper effective date for increased rating claims”); Robinson v. Shulkin, No. 16-0427, 2017 WL 1046285, at *2 (Vet. 

App. Mar. 20, 2017) (citing 38 U.S.C. § 5110(a) as a basis 

to deny an earlier effective date for the 60 percent disability rating) (“Vet. Ct. Op.”). 

Section 3.816(c) sets forth the earliest effective date 

for disability compensation resulting from a covered 

herbicide disease. Its subsections (1–4) are directed to the 

timing of the claim and the earliest starting date for 

disability compensation. This regulation does not speak 

to determining the effective date for increased compensation resulting from a veteran’s worsening covered herbicide disease once service connection under Nehmer is 

established. That is the role of § 3.400(o).

The panel majority argues that Mr. Robinson “had to 

rely on the special regulations applicable to Nehmer class 

members” and no other statutes or regulations are applicable. Maj. Op. at 7. Yet no “special regulation” absolves 

the VA for the 14-month delay in testing Mr. Robinson. 
6 ROBINSON v. WILKIE

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. And it is this date—assigned by the Board pursuant 

to § 3.400(o)—that is the subject of this appeal.

Per the majority’s interpretation of § 3.816(c)(2), 

Nehmer class veterans suffering from a covered herbicide 

disease, nearly all of which are chronic (see 38 U.S.C. 

§ 1116), have no legal basis for an increase in compensation for a worsening condition. Such an interpretation is 

unconscionable, legally incorrect, and inconsistent with 

the majority’s recognition that Mr. Robinson is entitled to 

an increase in compensation based on the test results.1

38 C.F.R. § 17.33(a)(2) imposes a duty on the VA to 

provide “prompt and appropriate treatment” to veterans: 

(2) 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.

When the VA fails in the duty of promptness, the consequences of such failure cannot be imposed on the veteran. 

 

1 The panel majority writes that the Veterans Court 

“cannot invoke equity to expand the scope of its statutory 

authority.” Maj. Op. at 8. No statute, no constitutional 

requirement, excludes equity from the scope of the Court 

of Appeals for Veterans Claims. Here, equitable principles are sought not to “expand the scope” of the court’s 

jurisdiction, but to implement the statute in accordance 

with its legislative purpose.
ROBINSON v. WILKIE 7

To summarize: Mr. Robinson consulted a VA cardiologist 

on February 23, 2006, and the cardiologist ordered certain 

tests. The tests were not performed. Mr. Robinson again 

consulted the VA cardiologist on November 27, 2006, and 

the tests were again ordered. The tests were performed 

on April 2, 2007, showing an ejection fraction of 44%. The 

VA measured the 60% disability rating from the date of 

this test: 

38 C.F.R. § 4.104 [Rating of 60%]: More than one 

episode of acute congestive heart failure in the 

past year, or; workload of greater than 3 METs 

but not greater than 5 METs results in dyspnea, 

fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 

to 50 percent. 

The BVA stated that “[t]he treatment records do not 

demonstrate that [Mr. Robinson] met the criteria for a 60 

percent rating for coronary artery disease . . . until 

. . . testing was accomplished on April 2, 2007.” J.A.30. 

The Veterans Court affirmed, stating that Mr. Robinson 

“does not demonstrate clear error in the Board’s decision 

because he does not identify any medical record prior to 

the April 2007 testing that would support a 60% disability 

rating.” Vet. Ct. Op. at *2. Mr. Robinson states that he 

should not be penalized for the VA’s 14-month delay in 

providing the ordered tests.

The BVA, the Veterans Court, and now my colleagues, 

ignore the requirement of measuring disability compensation from the earliest ascertainable date based on all the 

evidence. The record includes the earlier heart attack

showing an existing cardiac condition and the consultations with the VA cardiologist. The panel majority states

that “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.” 

Maj. Op. at 9. However, the entirety of the record must 
8 ROBINSON v. WILKIE

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. 

38 U.S.C. § 5110 requires that the earliest ascertainable effective date must be applied. The Veterans Court 

has recently so recognized. See Cary v. Shulkin, No. 16-

3181, 2017 WL 5496167, at *6 (Vet. App. Nov. 16, 2017): 

After concluding that Mr. Cary had sufficient 

symptoms to warrant the 70 percent rating as of 

June 17, 2011, the Board failed to take the next, 

necessary, step to examine the record to determine whether the increase in symptomology was 

“ascertainable” before this.

It is error to mechanically limit the effective date for a 

disability rating to the date of performance of a specific 

test related to that disability. See id.; see also Blanchard 

v. McDonald, No. 15-4290, 2016 WL 7473954, at *2 (Vet. 

App. Dec. 29, 2016) (observing that a retrospective medical opinion may be necessary and helpful); Thomas v. 
ROBINSON v. WILKIE 9

McDonald, No. 15-3619, 2016 WL 6273232, at *3 (Vet. 

App. Oct. 27, 2016); Pludeman v. McDonald, No. 13-2408, 

2015 WL 369963, at *4 (Vet. App. Jan. 28, 2015). 

Mr. Robinson’s situation is not of the unknown existence of a disability until basic diagnostic tests were conducted. His coronary illness had been manifested for 

years; the only new event was the regulatory presumption 

of service-connection based on herbicide exposure. With 

presumptive service connection, and clear manifestation 

of coronary illness, it is incorrect to ignore the entirety of 

the medical record, and limit the effective date of compensation to the date a specific symptom was measured. See

Thomas, 2016 WL 6273232, at *3 (a retrospective medical 

opinion may be helpful).

To the extent that 38 C.F.R. §§ 3.400(o)(2) and 4.104 

are applied to negate the statutory purpose, they are

invalid. “The VA is charged with the responsibility of 

assisting veterans in developing evidence that supports 

their claims, and in evaluating that evidence, the VA 

must give the veteran the benefit of any doubt.” Henderson v. Shinseki, 562 U.S. 428, 440 (2011). Although my 

colleagues do state concern with this unreasonable delay, 

Maj. Op. at 9, they place the consequences of delay on the 

Veteran. 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.

“The government’s interest in veterans cases is not 

that it shall win, but rather that justice shall be done, 

that all veterans so entitled receive the benefits due to 

them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. 

Cir. 2006). This principle is here contravened, for there is 

no fault attributed to Mr. Robinson. The statute and 

regulations have been incorrectly construed to tie disability compensation to the date a test is performed, no 
10 ROBINSON v. WILKIE

matter what other evidence exists. From my colleagues’ 

endorsement of this flawed ruling, I respectfully dissent.