- Government is equitably precluded from invoking statute of limitations
- Tests took place in 1969
(Reuters) – A US military veteran who participated in secret testing of toxic chemical agents is entitled to disability benefits dating back to 2007, when he was finally allowed to discuss the tests, has ruled a federal court of appeal.
Unanimously decision The U.S. Circuit Federal Court of Appeals on Wednesday overturned a decision by the U.S. Court of Appeals for Veterans Claims that Bruce Taylor was entitled to benefits as of February 2007, when he successfully filed for secret testing, but not before.
“Mr. Taylor kept his word and did what was required; it is time for the government to do the same,” wrote Circuit Senior Judge Evan Wallach.
The Department of Veterans Affairs said it was evaluating the decision. Taylor’s attorney, Kenneth Carpenter, did not immediately respond to a request for comment.
According to Wednesday’s opinion, Taylor volunteered for toxic chemical testing in 1969 and then made two tours of Vietnam. As a result of her exposure to the toxic agents, Taylor suffered from hallucinations, nausea, startle, irritability, drowsiness, dizziness, impaired coordination and difficulty concentrating.
Because Taylor signed an oath of confidentiality on the tests, he was unable to seek psychiatric help for resulting post-traumatic stress disorder, nor to raise them as a mitigating circumstance when he was court martialed, according to opinion.
In 2006, the tests were declassified, and in February 2007, Taylor filed a claim for disability arising from the tests with the Department of Veterans Affairs.
In June of the same year, a VA medical examiner diagnosed Taylor with post-traumatic stress disorder and major depressive disorder linked to the chemical tests and the fighting that followed in Vietnam. The examiner noted that Taylor had requested treatment once before, but was refused by the care provider, who believed his history of participating in secret chemical tests was a fabrication.
The VA awarded Taylor disability benefits with an effective date of February 2007, the date of his claim.
Taylor appealed to the Board of Veterans Claims and then to the Court of Appeals for Veterans Claims, arguing that he was entitled to benefits dating back to 1971. However, the court found that he did not have the power to ‘apply an equitable right to Taylor’s claim.
The Federal Circuit, overturning, ruled that the court had the power to find that the government was fairly precluded from limiting Taylor’s claims to post-February 2007, in light of his previous oath of secrecy.
“Indeed, to find otherwise would be contrary to the statutory mandate of the Veterans Review Board,” the judge wrote, citing the “purpose of the tribunal to ensure that veterans are treated fairly by the government and to ensure that all veterans entitled to benefits receive them ”.
The court returned the matter to the Commission to determine the effective date in light of the decision.
Wallach was joined by circuit judges Pauline Newman and Kathleen O’Malley.
The case is Taylor v. McDonough, United States Court of Appeals for the Federal Circuit, No. 19-2211.
For Taylor: Kenneth Carpenter, Carpenter Chartered Law Firms
For the Department of Veterans Affairs: William Grimaldi of the Civil Division of the United States Department of Justice