Veteran Exposed to Chemical Weapons Testing Fights Federal Circuit Precedent For 37 Years Back Disability Pay

Veteran Exposed to Chemical Weapons Testing Fights Federal Circuit Precedent For 37 Years Back Disability Pay

Vietnam veteran Bruce R. Taylor could be changing the way the Veterans Claims Appeals Court does business. While the VA tries to dodge paying Taylor 37 years of back disability pay, Taylor is pushing the legal system to the limits – and perhaps beyond.

In 1969, the U.S. Army wanted to test how soldiers perform after exposure to chemical weapons like nerve gas. To conduct these tests, soldiers were asked to complete training drills after exposure to various toxic chemicals. Participants had to sign an oath of secrecy, the consequences of breaking it being criminal charges and a dishonorable discharge.

Vietnam Army veteran Bruce R. Taylor volunteered as a test subject. Two years after testing, Taylor was struggling with serious disabilities caused by the chemical toxin exposure – disabilities that prevented him from working.

He needed to file for VA benefits, but there was no way to show that his disabilities were service connected without breaking the oath of secrecy – and breaking the oath would make him ineligible for benefits because he would have a dishonorable discharge. So, despite his statutory right to request VA benefits as a veteran, he did not file a claim.

Fast forward to 2006. Thirty-seven years after the chemical weapons experiments, the Defense Department ended the secrecy agreement, permitting test participants to file for disability benefits. Taylor filed a claim and VA granted monthly compensation, effective 2007.

Great, but what about the 37 years that he couldn’t file and was unable to work due to service? Taylor argued that the effective date should be his date of discharge since the secrecy agreement prevented him from receiving benefits all those years.

VA disagreed, arguing that 38 U.S.C. § 5110(a)(1) limits the start date for benefits to the date the veteran files a claim.

So Taylor petitioned the U.S. Court of Appeals for Veterans Claims to review the VA’s decision, arguing that, through the secrecy agreement, the government obstructed his legal right to disability compensation.

Using the doctrine of equitable estoppel, Taylor claimed (1) that the terms of the secrecy oath led him to erroneously believe he could not file for benefits back in 1971, (2) he relied on that belief, and (3) the misrepresentation and reliance prevented him from exercising his statutory right to VA benefits.

According to Taylor, the doctrine of equitable estoppel should render VA’s 38 U.S.C. § 5110 defense invalid. He should therefore receive an earlier effective date. But the Veterans Appeals Court denied his request for review, claiming that their scope and jurisdiction doesn’t allow equitable estoppel as a remedy.

At this point, Taylor turned to the U.S. Court of Appeals for the Federal Circuit. A panel of three judges heard his case and, on June 30, 2021, decided the government couldn’t assert 38 U.S.C. § 5110 against Taylor’s claim due to equitable estoppel. “Mr. Taylor kept his word and did what was required; it is time for the Government to do the same.”

The panel sent the case back to the U.S. Court of Appeals for Veterans Claims, holding that “the Veterans Court erred in concluding it lacked authority to hold the Government equitably estopped from denying Mr. Taylor’s claim for an earlier effective date.”

But some strong precedent persuaded the Federal Circuit to vacate the panel opinion and rehear the case en banc, (rather than just the panel of three). In 2018, a Federal Circuit case found that, due to substantive rules, equitable estoppel was not in the jurisdiction of the Veterans Court. [Burris v. Wilkie, Fed. Cir., 2018]

In July, legal advocates for Taylor filed an amicus brief for the en banc case, Taylor v. McDonough, 2019-2211, Fed. Cir., setting Mr. Taylor’s case apart from the Burris v. Wilkie decision by arguing that “effective date” is not a substantive rule. It’s a procedural rule. And a 2011 Supreme Court decision that held procedural rules do not determine jurisdiction. [Henderson v. Shinseki, (U.S., 2011)]

Taylor’s amicus brief goes on to argue that the language of 38 U.S.C. § 7261 indicates Congress has no interest in limiting equitable remedies in cases involving veterans, and there is no real difference in judicial power between federal courts and Veterans Court, asserting that the only reason the Court of Appeals for Veterans Claims is separate from the federal court system is to lighten the federal court burden and improve expertise in veteran-related matters.

The outcome of Taylor’s case will be an important one. In Burris, the Federal Circuit said it still wasn’t sure whether an estoppel remedy would ever work against the government. Taylor’s case could be the precedent-setting answer to that question.

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