Case: 19-2211 Document: 104 Page: 1 Filed: 06/15/2023
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`BRUCE R. TAYLOR,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF VETER-
`ANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2019-2211
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 17-2390, Judge Joseph L. Falvey
`Jr., Judge William S. Greenberg, Judge Amanda L. Mere-
`dith.
`
`______________________
`
`Decided: June 15, 2023
`______________________
`
` CHARLES MCCLOUD, Williams & Connolly LLP, Wash-
`ington, DC, argued for claimant-appellant. Also repre-
`sented by DEBMALLO SHAYON GHOSH, ANNA JOHNS HROM,
`LIAM JAMES MONTGOMERY, TIMOTHY M. PELLEGRINO; MARK
`B. JONES, Mark B. Jones Attorney at Law, Sandpoint, ID.
`
` WILLIAM JAMES GRIMALDI, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, argued for respondent-appellee.
`Also represented by BRIAN M. BOYNTON, PATRICIA M.
`
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`2
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`TAYLOR v. MCDONOUGH
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`MCCARTHY, LOREN MISHA PREHEIM; CHRISTOPHER O. ADE-
`LOYE, BRIAN D. GRIFFIN, Office of General Counsel, United
`States Department of Veterans Affairs, Washington, DC.
`
` DROR LADIN, American Civil Liberties Union Founda-
`tion, New York, NY, for amici curiae American Civil Liber-
`ties Union, American Civil Liberties Union of the District
`of Columbia. Also represented by BRETT MAX KAUFMAN;
`SCOTT MICHELMAN, ARTHUR B. SPITZER, ACLU Foundation
`of the District of Columbia, Washington, DC.
`
` GLENN R. BERGMANN, Bergmann Moore, LLC, Be-
`thesda, MD, for amicus curiae American Legion. Also rep-
`resented by THOMAS POLSENO, JAMES DANIEL RIDGWAY.
`
` MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
`LLP, for amicus curiae Military-Veterans Advocacy Inc.
`Also represented by THOMAS MARK BONDY; ELIZABETH
`MOULTON, San Francisco, CA; JOHN B. WELLS, Law Office
`of John B. Wells, Slidell, LA.
`
` ANGELA K. DRAKE, Veterans Clinic, University of Mis-
`souri School of Law, Columbia, MO, for amicus curiae Na-
`tional Law School Veterans Clinic Consortium.
`
` JENNIFER SWAN, Dechert LLP, Palo Alto, CA, for amici
`curiae National Veterans Legal Services Program, Swords
`to Plowshares. Also represented by HOWARD W. LEVINE,
`Washington, DC; RENEE A. BURBANK, National Veterans
`Legal Services Program, Arlington, VA; EMILY WOODWARD
`DEUTSCH, Washington, DC.
`
`
`
`______________________
`
`
`
`
`
`
`

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`Case: 19-2211 Document: 104 Page: 3 Filed: 06/15/2023
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`TAYLOR v. MCDONOUGH
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`3
`
`
`
`Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK,
`PROST, REYNA, WALLACH, TARANTO, CHEN, HUGHES,
`STOLL, CUNNINGHAM, and STARK, Circuit Judges.1
`Opinion filed by Circuit Judge TARANTO, Parts I–IV of
`which constitute an opinion for the court. Chief Judge
`MOORE and Circuit Judges PROST, CHEN, STOLL, and
`CUNNINGHAM join in full; Circuit Judges LOURIE and
`HUGHES join Parts I–IV.
`Opinion concurring in the judgment filed by Circuit Judge
`DYK, which Circuit Judges NEWMAN, REYNA, and
`WALLACH join in full and Parts I, II, and V of which
`Circuit Judge STARK joins.
`Opinion dissenting in part and dissenting from the
`judgment filed by Circuit Judge HUGHES, which Circuit
`Judge LOURIE joins.
`TARANTO, Circuit Judge.
`During his service in the U.S. Army from 1969 to 1971,
`Bruce R. Taylor voluntarily participated as a test subject
`in a secret Army program, at the Edgewood Arsenal facility
`in Maryland, that assessed the effects of various dangerous
`substances, including chemical warfare agents. The gov-
`ernment swore him to secrecy through an oath broadly re-
`quiring him not to reveal any information about the
`program to persons not authorized to receive it, without
`specifying who might be so authorized. Mr. Taylor suffered
`injuries from his participation in the program, resulting in
`disabilities. But as the government concedes, the secrecy
`oath, backed by the possibilities of court-martial and crim-
`inal penalties, caused Mr. Taylor to refrain, for more than
`three decades after his discharge from service, from pursu-
`ing the sole adjudicatory route to vindicate his statutory
`
`
`1 Circuit Judge O’Malley retired on March 11, 2022.
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`TAYLOR v. MCDONOUGH
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`entitlement to disability compensation for those service-
`connected disabilities. Specifically, he refrained from filing
`a claim with the Department of Veterans Affairs (VA) for
`compensation based on his Edgewood injuries until after
`the government, in 2006, released him and similarly situ-
`ated veterans from their secrecy oaths.
`In 2007, Mr. Taylor filed a claim for disability benefits,
`which VA granted. But VA granted the benefits only from
`the 2007 date of the claim because the governing statute,
`38 U.S.C. § 5110, specifies that the earliest possible effec-
`tive date (with some limited exceptions) is the date on
`which VA receives the veteran’s claim. On appeal from an
`adverse decision of the United States Court of Appeals for
`Veterans Claims (Veterans Court), Taylor v. Wilkie, 31 Vet.
`App. 147 (2019) (Taylor CAVC 2019), Mr. Taylor argues
`that he was entitled to a much earlier effective date, as far
`back as one day after the day that he was discharged in
`1971, because it was the government’s threat of penalties
`for revealing information that for decades caused him not
`to file a claim to vindicate his legal entitlement to benefits.
`Mr. Taylor relies first on the general doctrine of equi-
`table estoppel to support his request. We conclude that ap-
`plication of that doctrine here is barred by the Supreme
`Court’s decision in Office of Personnel Management v. Rich-
`mond, 496 U.S. 414 (1990), which held that courts may not
`rely on equitable estoppel to award money from the public
`fisc of the United States in violation of limitations estab-
`lished by statute. That substantive limit on the doctrine
`applies in any forum unless Congress has overridden Rich-
`mond for a particular context by statutorily providing for
`application of the general equitable estoppel principles to
`claims for money from the public fisc. Congress has not
`done so for the benefits setting here, so Richmond pre-
`cludes reliance on equitable estoppel to override the claim-
`filing effective-date limits of § 5110, as we held in McCay
`v. Brown, 106 F.3d 1577 (Fed. Cir. 1997).
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`TAYLOR v. MCDONOUGH
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`We also conclude that Mr. Taylor has not supported his
`new argument for relief based on 38 U.S.C. § 6303, which
`directs VA to provide certain information and assistance
`regarding potential benefits to veterans even before they
`file, or indicate an interest in filing, claims for benefits.
`Nothing in § 6303 purports to displace the Richmond limit
`on equitable estoppel. To the extent that Mr. Taylor argues
`that equitable estoppel might apply based on § 6303 even
`if Congress did not make compliance with § 6303 a precon-
`dition to enforcing § 5110’s claim-filing effective-date re-
`quirements, he is incorrect. Applying equitable estoppel in
`those circumstances would violate Richmond because the
`monetary award would violate statutory limits. To the ex-
`tent that Mr. Taylor argues that Congress made compli-
`ance with § 6303 a precondition to enforcing § 5110’s claim-
`filing effective-date limits, he is also incorrect. That argu-
`ment is contrary to precedent, see Andrews v. Principi, 351
`F.3d 1134 (Fed. Cir. 2003); Rodriguez v. West, 189 F.3d
`1351 (Fed. Cir. 1999), and Mr. Taylor has not asked us to
`overrule that precedent and there are strong reasons not to
`do so.
`Although we thus find no equitable-doctrine or statu-
`tory basis to support Mr. Taylor’s effort to obtain an effec-
`tive date earlier than the date prescribed by § 5110, we
`agree with Mr. Taylor in his alternative argument that he
`is entitled under the Constitution to have the effective date
`of his benefits determined notwithstanding § 5110’s claim-
`filing limits on the effective date. For decades, the govern-
`ment denied Mr. Taylor his fundamental constitutional
`right of access to the adjudication system of VA, the exclu-
`sive forum for securing his legal entitlement to the benefits
`at issue. The government’s threat of court-martial or pros-
`ecution—without an exception for claims made to VA—af-
`firmatively foreclosed meaningful access to the exclusive
`adjudicatory forum. And without questioning the strength
`of the interest in military secrecy, we see no adequate jus-
`tification for this denial of access. The government makes
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`TAYLOR v. MCDONOUGH
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`only highly general assertions of national-security inter-
`ests, but it acknowledges that VA has created and uses spe-
`cial processes for adjudicating claims by former members
`of the special forces for injuries incurred during military
`operations whose existence remains classified, and the gov-
`ernment has furnished no adequate reason that secrecy
`could not have been similarly protected for Edgewood vet-
`erans like Mr. Taylor.
`For those reasons, which reach what we would expect
`to be a very rare set of circumstances, we hold that the
`claim-filing effective-date provisions of § 5110 are uncon-
`stitutional as applied to Mr. Taylor. A veteran in Mr. Tay-
`lor’s position
`is entitled, under ordinary remedial
`principles, to receive benefits for service-connected disabil-
`ities from the effective date that the veteran would have
`had in the absence of the government’s challenged conduct.
`We reverse the Veterans Court’s decision and remand for
`expeditious proceedings to implement our holding.
`I
`A
`Mr. Taylor served on active duty in the U.S. Army from
`January 1969 to March 1971. During his service, he vol-
`unteered to participate as a human subject in a testing pro-
`gram conducted at a U.S. Army facility in Edgewood,
`Maryland. The program—which was designed to study the
`effects of chemical warfare agents on the “ability [of the
`subjects] to function as soldiers,” S. Rep. No. 94-755, Book
`I, at 412 (1976)—involved testing of “more than 250 differ-
`ent agents” and “at least 6,700 ‘soldier volunteers’” from
`1955 to 1975, En Banc J.A. 35 [hereafter, simply J.A.].
`When Mr. Taylor arrived at the Edgewood Arsenal fa-
`cility in August 1969, he signed a consent form confirming
`that the experiment had been explained to him and that he
`“voluntarily agree[d] to participate.” J.A. 31. Mr. Taylor
`also signed an oath prohibiting him from disclosing
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`TAYLOR v. MCDONOUGH
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`7
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`information about the program under penalty of court-mar-
`tial. Although a copy of the piece of paper Mr. Taylor
`signed is unavailable, the parties agree that Mr. Taylor
`signed such an oath and also agree on the content of the
`oath for purposes of this case. Sec’y En Banc Response Br.
`at 2–3. The Veterans Court also determined: “[N]or is
`there any dispute that [Mr. Taylor] signed an oath vowing
`not to disclose his participation in or any information about
`the study, under penalty of court[-]martial or prosecution.”
`Taylor CAVC 2019, 31 Vet. App. at 149 (citing pages 10–11
`of the record before the Veterans Court in 2019 (Vet. Ct.
`Rec.)). The government has not disputed that determina-
`tion in this court.
`Both Mr. Taylor and the government point us to a sam-
`ple oath released by a committee of the U.S. Senate in
`1976. See Taylor En Banc Opening Br. at 8 (citing S. Rep.
`No. 94-755, Book I, at 418); Sec’y En Banc Response Br. at
`3 n.1 (citing same). The Board of Veterans’ Appeals found
`that this sample oath was the oath that “most [Edgewood
`program] participants were required to sign” and used the
`sample oath in its analysis of Mr. Taylor’s claim. In re Tay-
`lor, No. 08-13 206, 2017 WL 2498716, at *2, *4 (Bd. Vet.
`App. Apr. 14, 2017) (Taylor BVA 2017). The sample oath
`committed those who signed it “not [to] divulge or make
`available any information related to U.S. Army Intelli-
`gence Center interest or participation in the Department
`of 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, Book I, at 418. Sig-
`natories also acknowledged that they “underst[oo]d that
`any action contrary to the provisions of this statement
`w[ould] render [them] liable to punishment under the pro-
`visions of the Uniform Code of Military Justice.” Id.
`The Veterans Court, in an earlier decision, found that
`Mr. Taylor was exposed at Edgewood to at least EA-3580
`(an anticholinergic, a type of nerve agent that blocks the
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`TAYLOR v. MCDONOUGH
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`transmission of the neurotransmitter acetylcholine), EA-
`3547 (a tear gas agent), and scopolamine (also an anticho-
`linergic). Taylor v. Shinseki, No. 11-0254, 2013 WL
`3283487, at *1 & nn.2–3 (Vet. App. June 28, 2013) (Taylor
`CAVC 2013) (citing Vet. Ct. Rec. at 134–35, 151, 438, 466,
`469, 482–83); see also J.A. 31 (volunteer report memorial-
`izing the administration of EA-3580A to Mr. Taylor); J.A.
`40 (psychological report showing Mr. Taylor’s recall of hav-
`ing been “injected with large doses of [s]copolamine”). Mr.
`Taylor reported experiencing hallucinations after being ad-
`ministered agents being tested, such as, when on the rifle
`range, “thinking that he was killing people rather than
`shooting at targets.” J.A. 57; see also J.A. 40 (reporting
`same).
`After leaving Edgewood, Mr. Taylor served two tours
`in Vietnam, deploying in December 1969. Taylor CAVC
`2013, 2013 WL 3283487, at *1 (citing Vet. Ct. Rec. at 438,
`444). Mr. Taylor reported that, while in Vietnam, “he ex-
`perienced flashbacks and insomnia, used marijuana and
`alcohol extensively,” id. (citing Vet. Ct. Rec. at 384), and
`was “suicidal at times,” J.A. 47. At one point, Mr. Taylor
`described his conditions to his platoon sergeant, who re-
`ferred him to a service psychiatric office, where, he said, he
`“was treated like a liar and reprimanded.” J.A. 46; see also
`J.A. 62. At another point, Mr. Taylor was reduced in rank
`after being “accused of sleeping [on] Guard Duty,” J.A. 46–
`47; although Mr. Taylor recalled that during that particu-
`lar Guard Duty he experienced “a major flashback” that
`prevented him from “hear[ing] anyone call [his] name,” J.A.
`46, his Edgewood oath “prevented [him] . . . from showing
`mitigating or extenuating circumstances during [the]
`court-martial,” Taylor CAVC 2013, 2013 WL 3283487, at
`*1 (citing Vet. Ct. Rec. at 402–03, 454–55).
`Mr. Taylor was honorably discharged on September 6,
`1971. After discharge, Mr. Taylor “isolated himself” and
`“exhibit[ed] marked impairment in social and vocational
`functioning.” J.A. 58, 62. He continued to experience
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`9
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`insomnia, nightmares, a depressed mood, and auditory hal-
`lucinations, all of which became more pronounced around
`2000. Eventually, he sought treatment but, he said, was
`“turned away because the treating provider believed [that]
`his story about being an experimental subject [was] a fab-
`rication.” J.A. 58.
`
`B
`In 2006, the Department of Defense “declassified the
`names of the servicemen and women who had volunteered
`for the Edgewood Program.” Taylor CAVC 2019, 31 Vet.
`App. at 149 (citing Vet. Ct. Rec. at 2695–97). On June 30
`of that same year, VA sent letters to the Edgewood partic-
`ipants—including Mr. Taylor, see Sec’y En Banc Response
`Br. at 3—informing them that the Department of Defense
`“had given [them] permission . . . to disclose to health care
`providers information about their involvement in the Edge-
`wood Program that affected their health,” Taylor CAVC
`2019, 31 Vet. App. at 149 (citing Vet. Ct. Rec. at 2695–97).
`“For example,” the letter said, “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.” J.A. 32. The letter also offered a VA clinical
`examination and advised: “[I]f you think that you suffer
`from chronic health problems as a result of these tests [con-
`ducted at Edgewood], contact VA . . . to speak to a VA rep-
`resentative about filing a disability claim.” J.A. 33.
`On February 22, 2007, Mr. Taylor filed a claim for ben-
`efits for posttraumatic stress disorder (PTSD) “caused in
`service in 1969 at the chemical research program at Edge-
`wood.” J.A. 38. A VA clinical examiner diagnosed Mr. Tay-
`lor with chronic PTSD and recurrent major depressive
`disorder, both of which the examiner “considered to be a
`cumulative response to [Mr. Taylor’s] participation as a hu-
`man subject in the Edgewood . . . experiments and subse-
`quent re-traumatization in Vietnam.” J.A. 62.
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`TAYLOR v. MCDONOUGH
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`In July 2007, a VA regional office granted Mr. Taylor’s
`benefits claim for PTSD and major depressive disorder, as-
`signing a 70% rating and an effective date of February 28,
`2007, the date that VA received Mr. Taylor’s benefits claim.
`Later, in October of the same year, VA granted Mr. Taylor
`entitlement to a total disability rating based on individual
`unemployability, also with an effective date of February 28,
`2007.
`
`C
`Mr. Taylor appealed to the Board of Veterans’ Appeals,
`requesting “an effective date of September 7, 1971, the day
`following [his] discharge,” because he “felt constrained
`from filing for VA benefits by [the] secrecy agreement[] un-
`til [he] received the VA letter” authorizing him to do so.
`J.A. 77–78. The government does not dispute the effect of
`Mr. Taylor’s oath. The government accepts that “[t]he con-
`sequence of the oath was that Mr. Taylor refrained from
`seeking benefits until 2007.” Sec’y En Banc Response Br.
`at 28; see also id. at 26 (“[A]lthough Mr. Taylor refrained
`from seeking benefits until 2007, his inaction was the con-
`sequence of . . . the secrecy oath.”).
`On July 20, 2010, the Board denied Mr. Taylor’s re-
`quest for an earlier effective date. In re Taylor, No. 08-
`13 206, 2010 WL 3537263 (Bd. Vet. App. July 20, 2010)
`(Taylor BVA 2010). The Board explained that, for claims
`like Mr. Taylor’s, the effective date of an award of disability
`compensation is generally the later of the date that VA re-
`ceives the claim or the date that entitlement arises—i.e.,
`the date that the service-connected disability begins. Id. at
`*1 (citing 38 U.S.C. § 5110; 38 C.F.R. § 3.400); see 38 U.S.C.
`§ 5110(a)(1). Section 5110(b)(1), however, provides an ex-
`ception: If VA receives the disability-compensation claim
`within one year of the date that the veteran was dis-
`charged, then the effective date is the day following the day
`of discharge. 38 U.S.C. § 5110(b)(1); see 38 C.F.R.
`§ 3.400(b)(2)(i). The Board reasoned that, because Mr.
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`TAYLOR v. MCDONOUGH
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`Taylor first filed his benefits claim in February 2007, “more
`than 30 years” after he was discharged, the § 5110(b)(1) ex-
`ception does not apply, and the effective date cannot be ear-
`lier than February 28, 2007, the date that VA received his
`benefits application. Taylor BVA 2010, 2010 WL 3537263,
`at *1–2. Although the Board “[was] sympathetic” to Mr.
`Taylor’s situation, it said that “there was nothing stopping
`[Mr. Taylor] from filing the claim with . . . VA earlier,” that
`the Board was “bound by the law,” and that it was “without
`authority to grant benefits on an equitable basis.” Id. at
`*2–3.
`Mr. Taylor appealed to the Veterans Court, arguing
`among other things that VA “denied his right to due pro-
`cess . . . by failing to have any process in place by which
`[he] could make a claim for [benefits] . . . as a former par-
`ticipant in the Edgewood program, prior to the 2006 partial
`[declassification].” J.A. 104. Citing Christopher v. Har-
`bury, 536 U.S. 403 (2002), Mr. Taylor asserted that VA
`“must give [him] and all other Edgewood Veterans their
`right to access the VA system.” J.A. 111. The Veterans
`Court, in a single-judge decision on June 28, 2013, vacated
`the Board’s decision, stating that the Board’s decision
`“le[ft] the Court unable to discern whether [Mr. Taylor] re-
`tained his eligibility to file for benefits while the oath was
`active.” Taylor CAVC 2013, 2013 WL 3283487, at *2. The
`Veterans Court remanded for the Board to “obtain and ac-
`count for the language of the secrecy oath,” id., and the
`Board in turn remanded to VA, In re Taylor, No. 08-13 206,
`2014 WL 1417924 (Bd. Vet. App. Feb. 27, 2014).
`VA “attempted to obtain [the oath] directly from . . .
`Edgewood . . . but failed to receive a response.” Taylor BVA
`2017, 2017 WL 2498716, at *2; see also Vietnam Veterans
`of America v. Central Intelligence Agency, 288 F.R.D. 192,
`198 (N.D. Cal. 2012) (“Defendants have been unable to lo-
`cate written secrecy oaths administered during WWII or
`the Cold War.”). Therefore, VA relied on the sample oath
`we have quoted, which the Board also found was the oath
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`TAYLOR v. MCDONOUGH
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`that “most [Edgewood] participants were required to sign,”
`Taylor BVA 2017, 2017 WL 2498716, at *2, and which has
`been accepted as Mr. Taylor’s oath throughout the remain-
`ing litigation.
`With that oath in hand, the Board again denied Mr.
`Taylor’s request for an earlier effective date, identifying
`three reasons for its decision. Id. at *3–6. First, Mr. Tay-
`lor’s “diagnosis of PTSD is based on multiple stressors, in-
`cluding witnessing the death of [a fellow soldier]” in
`Vietnam, and “nothing prevented [Mr. Taylor] from filing
`a claim for PTSD based on those [Vietnam] stressors with-
`out having to divulge any information regarding the Edge-
`wood experiments.” Id. at *4. Second, Mr. Taylor “appears
`to have divulged information regarding the Edgewood ex-
`periments despite the secrecy oath” during his attempts to
`seek treatment, so he “cannot now claim that [the oath]
`prevented him from filing a claim for benefits.” Id. at *5.
`“Third, most importantly, and, in fact, dispositive to the
`outcome of the instant case,” the Board said, “the governing
`statute . . . [§ 5110] does not allow for equitable tolling.” Id.
`See generally Arellano v. McDonough, 143 S. Ct. 543, 547
`(2023) (explaining that equitable tolling “pauses the run-
`ning of, or ‘tolls,’ a statute of limitations when a litigant
`has pursued his rights diligently but some extraordinary
`circumstance prevents him from bringing a timely action”).
`Mr. Taylor again appealed to the Veterans Court, and
`on April 5, 2019, a panel affirmed the Board’s decision over
`the dissent of Judge Greenberg. Taylor CAVC 2019, 31
`Vet. App. 147. The majority rejected Mr. Taylor’s proce-
`dural due process argument, reasoning that he “cite[d] no
`authority that establishes that a person has a property
`right in disability benefits before a claim is filed.” Id. at
`152. The majority also agreed with the Board that § 5110
`is not subject to equitable tolling. Id. at 154–55 (citing,
`among other authorities, Andrews, 351 F.3d at 1137–38,
`and Rodriguez, 189 F.3d at 1355). The majority further
`declined to apply the distinct doctrine of equitable estoppel
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`TAYLOR v. MCDONOUGH
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`13
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`at least because this court in McCay, relying on the Su-
`preme Court’s decision in Richmond, “held that [the Veter-
`ans Court] cannot use equitable estoppel to authorize
`payment outside of the requirements set out in section
`5110.” Id. at 154 n.4 (citing 106 F.3d at 1581). The major-
`ity concluded that § 5110 “is clear” in this case: “The effec-
`tive date for the award of benefits is the date of the claim.”
`Id. at 155.
`Judge Greenberg, dissenting, would have reversed the
`Board. Id. at 155–62. First, he said, “the Board’s finding
`that the appellant could have filed for PTSD-related bene-
`fits for his service in Vietnam without divulging infor-
`mation related to the Edgewood experiments” is “error”
`because “[t]he Board does not possess the medical expertise
`to determine that a veteran is capable of untangling
`stressor events, especially not when a medical examiner”
`found that Mr. Taylor’s conditions are “a cumulative re-
`sponse to his participation as a human subject in the Edge-
`wood Arsenal
`experiments
`and
`subsequent
`re-
`traumatization in Vietnam.” Id. at 157–58 (quoting Vet.
`Ct. Rec. at 2311 (J.A. 62)). Second, Judge Greenberg con-
`tinued, “the fact that [Mr. Taylor] divulged his [Edgewood]
`participation for the purposes of treatment has no bearing”
`on whether the oath prevented him from filing a disability
`claim with VA because “[f]iling a claim for benefits with the
`[g]overnment under a cloud of prosecution is a wholly dif-
`ferent proposition from divulging information to a medical
`provider.” Id. at 158. Third, Judge Greenberg concluded,
`VA and the Board should be “equitably estopped from find-
`ing that [Mr. Taylor] filed a claim after” September 7, 1971,
`because the government “waited more than thirty years to
`recognize [Mr. Taylor’s] participation” at Edgewood. Id.
`161–62 (emphasis omitted).
`
`D
`Mr. Taylor timely appealed to this court, invoking our
`jurisdiction under 38 U.S.C. § 7292. On June 30, 2021, a
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`TAYLOR v. MCDONOUGH
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`panel reversed the Veterans Court’s decision, concluding
`that the Veterans Court had the authority to equitably es-
`top the government in this case and that Mr. Taylor is en-
`titled, on this record, to have the government equitably
`estopped “from asserting” the claim-filing effective-date
`limitation of “38 U.S.C. § 5110(a)(1) against [his] claim.”
`Taylor v. McDonough, 3 F.4th 1351, 1372–73 (Fed. Cir.
`2021). We sua sponte vacated the panel opinion and or-
`dered the case reheard en banc, with additional briefing on
`equitable estoppel and on the constitutional right of access
`to courts and other forums for redress. Taylor v.
`McDonough, 4 F.4th 1381 (Fed. Cir. 2021) (en banc) (per
`curiam). After receiving new briefs, the en banc court
`heard oral argument on February 10, 2022. ECF No. 89.
`Twelve days later, the Supreme Court granted a peti-
`tion for a writ of certiorari in Arellano v. McDonough, 142
`S. Ct. 1106 (2022), a case addressing whether equitable
`tolling applies to § 5110(b)(1)—which provides that, if VA
`receives a disability-benefits claim within one year of a vet-
`eran’s discharge, the effective date for benefits is as early
`as the day following the day of the veteran’s discharge. We
`immediately stayed proceedings in this case pending the
`Supreme Court’s disposition of the Arellano case. ECF No.
`91.
`On January 23, 2023, the Supreme Court held that
`“§ 5110(b)(1) is not subject to equitable tolling.” Arellano,
`143 S. Ct. at 552. The Supreme Court explained that its
`decision in Arellano “resolve[s] only the applicability of eq-
`uitable tolling to § 5110(b)(1). [It] do[es] not address the
`applicability of other equitable doctrines, such as waiver,
`forfeiture, and estoppel.” Id. at 552 n.3. We lifted the stay
`and requested supplemental briefing on “the impact of the
`Supreme Court’s decision in Arellano on this case.” ECF
`No. 95, at 2. One concurrence, by Judge Dyk (joined by
`Judges Reyna and Wallach), suggested that the parties in-
`clude in their supplemental briefs a discussion of whether
`equitable estoppel should be available based on 38 U.S.C.
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`TAYLOR v. MCDONOUGH
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`15
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`§ 6303 (which originated in 1970 as § 241 and was codified
`for many years as § 7722). Id. at 3–9 (Dyk, J., concurring).
`A separate concurrence, by Chief Judge Moore (joined by
`Judge Prost), cast doubt on the suggestion. Id. at 10–12
`(Moore, C.J., concurring).
`Mr. Taylor and the government filed their supple-
`mental briefs on March 15, 2023, and March 29, 2023, re-
`spectively. ECF Nos. 96, 101. We now decide the case.
`II
`The Supreme Court has described the features of the
`statutory regime that frame the questions before us.
`Through 38 U.S.C. § 1110 (wartime service) and § 1131
`(peacetime service), “[t]he law entitles veterans who have
`served on active duty in the United States military to re-
`ceive benefits for disabilities caused or aggravated by their
`military service.” George v. McDonough, 142 S. Ct. 1953,
`1957 (2022) (quoting Shinseki v. Sanders, 556 U.S. 396, 400
`(2009)). “A veteran seeking such benefits must first file a
`claim with . . . VA.” Id. (citing 38 U.S.C. § 5101(a)(1)(A)).
`“A regional office of . . . VA then determines whether the
`veteran satisfies all legal prerequisites, including the re-
`quirement that military service caused or aggravated the
`disability.” Id. (citing, among other authorities, 38 U.S.C.
`§ 511(a)). “If the regional office grants the application, it
`assigns an ‘effective date’ to the award, and payments
`begin the month after that date.” Arellano, 143 S. Ct. at
`546 (citing 38 U.S.C. §§ 5110(a)(1), 5111(a)(1)).2
`
`
`2 The 1970 counterparts of the cited provisions were
`materially the same for present purposes. See 38 U.S.C.
`§§ 310, 331 (1970) (counterparts of current §§ 1110, 1131);
`id. § 3001 (1970) (counterpart of current § 5101); id.
`§ 211(a) (1970) (counterpart of current § 511(a)); id. § 3010
`(1970) (counterpart of current § 5110).
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`TAYLOR v. MCDONOUGH
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`Procedurally, as relevant here, after applying statutory
`standards, “the regional office issues an initial decision
`granting or denying benefits.” George, 142 S. Ct. at 1957
`(citing 38 U.S.C. §§ 511(a), 5104(a)). “A veteran dissatis-
`fied with this decision may challenge it through several
`layers of direct review,” starting with an appeal to “VA’s
`Board of Veterans’ Appeals” under 38 U.S.C. §§ 7104(a)
`and 7105(b)(1). Id. “If the Board also denies relief, the vet-
`eran may seek further review outside the agency”—first, in
`the Veterans Court, 38 U.S.C. §§ 7252(a), 7261(a), 7266(a),
`then in this court, 38 U.S.C. § 7292, and then in the Su-
`preme Court, 28 U.S.C. § 1254(1). See George, 142 S. Ct. at
`1957.3
`The effective-date provision, § 5110, is the focus of the
`present case. “If the effective date precedes the date on
`which the VA received the claim, the veteran receives ret-
`roactive benefits,” Arellano, 143 S. Ct. at 546, but such ret-
`roactive benefits are the exception and are limited.
`The default rule is that “the effective date of an
`award . . . shall be fixed in accordance with the
`facts found, but shall not be earlier than the date
`of receipt of application therefor.” This rule applies
`“[u]nless specifically provided otherwise in this
`chapter.” Sixteen exceptions in § 5110 “provid[e]
`otherwise,” including one specifying that “[t]he
`
`3 The first-level and Board steps were materially
`similar to the current steps, for present purposes, as far
`back as 1970. See 38 U.S.C. §§ 210–212, 4001–4009 (1970).
`Judicial review outside VA was generally unavailable until
`1988, when Congress created the Veterans Court to review
`VA decisions, with further review by this court. See 38
`U.S.C. §§ 4051–4092 (1988) (establishing review of VA de-
`cisions regarding benefits by the Veterans Court and then
`by this court); Bates v. Nicholson, 398 F.3d 1355, 1362–64
`(Fed. Cir. 2005) (recounting history).
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`effective date of an award of disability compensa-
`tion to a veteran shall be the day following the date
`of the veteran’s discharge or release if application
`therefor is received within one year from such date
`of discharge or release.”
`Id. at 546–47 (alterations in original) (quoting 38 U.S.C.
`§ 5110(a)(1), (b)(1)). Several of the specific exceptions, the
`Court in Arellano explained, “reflect equitable considera-
`tions” that provide for specified, limited departures from
`t