Taylor v. McDonough

• Decision Date: 30 June 2021
• Docket Number: 2019-2211
• Citation: 3 F.4th 1351
• Parties: Bruce R. TAYLOR, Claimant-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

3 F.4th 1351

Bruce R. TAYLOR, Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2019-2211

United States Court of Appeals, Federal Circuit.

Decided: June 30, 2021

Kenneth M. Carpenter, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

William James Grimaldi, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Jeffrey B. Clark, Robert Edward Kirschman, Jr., Loren Misha Preheim; Christopher O. Adeloye, Brian D. Griffin, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Newman, O'Malley, and Wallach^* , Circuit Judges.

Wallach, Circuit Judge.

Appellant, Bruce R. Taylor, appeals a decision of the U.S. Court of Appeals for Veterans Claims ("Veterans Court"). The Veterans Court affirmed the Board of Veterans Claims’ ("Board") denial of entitlement to an effective date earlier than February 28, 2007, for the award of service-connected disability benefits for post-traumatic stress disorder

("PTSD"), concluding that equitable estoppel against the Government was unavailable to Mr. Taylor. Taylor v. Wilkie (Taylor IV ), 31 Vet. App. 147, 154–55 (2019) ; J.A. 20 (Judgment).

Mr. Taylor appeals. We have jurisdiction pursuant to 38 U.S.C. §§ 7292(a), (c). We reverse and remand.

BACKGROUND

I. Factual Background¹

From 1955 to 1975, the Department of Defense ("DoD") undertook "experiments ... with a wide range of ... chemical warfare agents" at various "military facilities," including Edgewood Arsenal in Edgewood, Maryland. J.A. 34; see J.A. 34–37 (August 2006 U.S. Department of Veterans Affairs ("VA") Information Letter). The "experiments involved at least 6,700 ‘soldier volunteers’ exposed ... to more than 250 different [chemical warfare] agents." J.A. 35. Mr. Taylor was among those soldier volunteers. Taylor v. Shinseki (Taylor II ), No. 11-0254, 2013 WL 3283487, at *1 (Vet. App. June 28, 2013).

Mr. Taylor served on active duty in the U.S. Army from January 1969 through September 1971. J.A. 28 (DD-214). He was "an ammunition records clerk in Vietnam" and volunteered to "participa[te] in the testing of chemical and biological warfare agents as part of the Edgewood [Arsenal] testing project." Taylor II , 2013 WL 3283487, at *1 ; see J.A. 31 (Edgewood Arsenal Consent Form). In August 1969, upon reporting to Edgewood Arsenal, Mr. Taylor signed two documents. Taylor II , 2013 WL 3283487, at *1. First, he signed a secrecy oath providing that he would

not divulge or make available any information related to U.S. Army Intelligence Center interest or participation in the Army Medical Research Volunteer Program to any individual, nation, organization, business, association, or other group or entity, not officially authorized to receive such information.

S. REP. NO. 94-755, at 418 (1976). The secrecy oath further provided that Mr. Taylor

[u]nderst[oo]d that any action contrary to the provisions of this statement w[ould] render [him] liable to punishment under the provisions of the Uniform Code of Military Justice [("UCMJ")].

Id. ; see 10 U.S.C. §§ 801 – 946 (codifying the UCMJ).² Second, he signed "a document regarding consent," which provided that "[t]he proposed experimental procedure ha[d] been explained to [him]" and that "[he] voluntarily agree[d] to participate in th[e] test." J.A. 31 (Edgewood Arsenal Consent Form).³

In September and October 1969, Mr. Taylor was exposed to EA–3580 (a nerve agent akin to VX and sarin), EA–3547 (also called CR, a tear gas agent), and other chemical agents. See Taylor II , 2013 WL 3283487, at *1, *1 n.2, *1 n.3 ; see J.A. 31 (Volunteer Reports for September and October 1969) (noting that "[s]ixteen volunteers were used in testing the effects of a chemical agent," "EA 3580A," "on performance").⁴ Mr. Taylor "recalled being on the rifle range at one point and thinking that he was killing people rather than shooting at targets" and "being exposed to some agent in a gas chamber while wearing a mask and having to give only his name, rank and serial number." J.A. 57 (VA Initial Evaluation for PTSD); see J.A. 31 (Volunteer Reports for September and October 1969) (noting that, while exposed to EA–3580, "[m]easures of military performance and laboratory cognitive and psychomotor skills were employed," including "[n]umber [f]acility and [r]ifle [a]ccuracy," with "considerable variation [in effect] among subjects"). Mr. Taylor reported experiencing "hallucinations, nausea, jumpiness, irritability, sleepiness, dizziness, impaired coordination, and difficulty concentrating." Taylor IV , 31 Vet. App. at 155 (Greenberg, J., dissenting); see Taylor II , 2013 WL 3283487, at *1 ; J.A. 56–57 (VA Initial Evaluation for PTSD).

Thereafter, Mr. Taylor returned to his unit and, in December 1969, was deployed to Vietnam. Taylor II , 2013 WL 3283487, at *1. Mr. Taylor "served two combat tours in Vietnam." Id. At the time, by its own regulation, the Army was required to provide necessary "medical treatment and hospitalization ... for all casualties" of the Edgewood Arsenal testing program. Vietnam Veterans II , 811 F.3d at 1073 (quoting AR 70–25). Nonetheless, "[t]he secrecy of the Edgewood [Arsenal] testing project prevented [Mr. Taylor] from obtaining psychiatric help on multiple occasions during service, and from showing mitigating or extenuating circumstances during a court-martial for his behavior." Taylor II , 2013 WL 3283487, at *1 (citation omitted); see J.A. 45–47 (Statement in Support of Claim); cf. Vietnam Veterans II , 811 F.3d at 1081 (noting the Army's ongoing "[d]uty to provide [medical] care" "for disabilities, injuries or illnesses caused by ... participation in government experiments"); S. REP. NO. 94-885, at 4 (1976) (finding that, at Edgewood Arsenal and in other such testing programs, "medical supervision was inadequate, medical backup was deficient, and long-term follow[-]up virtually nonexistent," supporting the adoption of federal standards for the protection of human subjects of biomedical research).

II. Procedural Background

In 2006, the DoD "declassified the names of the servicemen and women who had volunteered for the Edgewood [Arsenal testing p]rogram[.]" Taylor IV , 31 Vet. App. at 149. In June 2006, the VA sent letters to Edgewood Arsenal testing program participants, including Mr. Taylor, notifying them that the "DoD had given permission for those identified to disclose to health care providers information about their involvement in the Edgewood [Arsenal testing p]rogram that affected their health," id. ; see J.A. 32–33 (June 2006 VA Letter), and that participants should "speak to a VA representative about filing a disability claim" for any "chronic health problems as a result of [the Edgewood Arsenal] tests," J.A. 33; see Taylor IV , 31 Vet. App. at 149. "In August and September 2006, [the] VA sent training letters to the Veterans Health Administration and the regional offices ... outlining the procedures for handling claims filed by Edgewood [Arsenal testing p]rogram veterans." Taylor IV , 31 Vet. App. at 149 ; see J.A. 34–37 (August 2006 VA Information Letter).⁵

In February 2007, Mr. Taylor filed a claim for service-connected benefits for PTSD, which he asserted was "caused in service in 1969 at the chemical research program at Edgewood Arsenal[.]" J.A. 38 (February 2007 Claim); see Taylor IV , 31 Vet. App. at 149. In June 2007, a VA medical examiner diagnosed Mr. Taylor with PTSD and major depressive disorder

, with "[b]oth diagnoses ... considered to be a cumulative response to his participation as a human subject in the Edgewood Arsenal experiments and subsequent re-traumatization in Vietnam." J.A. 62 (VA Initial Evaluation for PTSD); see

Taylor IV , 31 Vet. App. at 157 (Greenberg, J., dissenting). The examiner noted that, while Mr. Taylor had previously sought treatment for his PTSD, he was " ‘turned away because the treating provider believed his story about being an experimental subject was a fabrication.’ " Id. at 150 (quoting J.A. 58 (VA Initial Evaluation for PTSD)); see J.A. 62 (VA Initial Evaluation for PTSD) (indicating that Mr. Taylor "experienced unusual physical and psychological problems but there was no help available to him due to the secret status of the [Edgewood Arsenal] research," that he was "forbidden to talk about his experiences," and that "[o]n the one occasion he did seek help, he was treated as a liar and malingerer"). He also noted that, following discharge, Mr. Taylor had experienced continuing physical and psychological problems. See

Taylor II , 2013 WL 3283487, at *2 ; see also J.A. 62 (VA Initial Evaluation for PTSD).

In July 2007, the VA granted Mr. Taylor's claim for service-connected benefits for PTSD, with a 70 percent disability rating and, in October 2007, granted him entitlement to total disability rating based on individual unemployability ("TDIU"), both with an effective date of February 28, 2007, the date of his PTSD claim. J.A. 38 (February 2007 Claim), 64 (July 2007 Rating Decision), 73 (October 2007 Rating Decision). Mr. Taylor appealed the VA's Rating Decisions to the Board, "request[ing] an effective date of September 7, 1971, the day following [his] discharge from active duty military service," for the "grant of service connection for [PTSD] and total disability benefits[.]" J.A. 77–78 (Notice of Disagreement). Mr. Taylor "argue[d] that entitlement arose on September 7, 1971," but that he "was precluded from obtaining benefits because the ... Government withheld necessary supporting evidence due to secrecy issues related to the Edgewood Arsenal experiments." J.A. 78. Before the Board, he "asserted that he could not file for VA benefits until he received the letter from [the] VA in September 2006 regarding the Edgewood [Arsenal] project." In re Taylor (Taylor I ), No. 08-13 206, slip op. at 3 (Bd. Vet. App. July 20, 2010). The Board...