explaining that the First Amendment's "Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes"
How later courts described this case
- explaining that the First Amendment's "Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes"
- applying strict scrutiny to a constitutional right-of-access claim
- "The right that [we] acknowledged was the (already well- established) right of access to the courts." (emphasis omitted)
- “[E]ntitlement to [veterans] benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution”
Written by the judges who cited it.
The opinion
Case: 23-1547 Page: 1 of 29 Filed: 01/02/2025
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 23-1547
RICHARD J. LEY, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 18, 2024 Decided January 2, 2025)
Lea Suarez, of Arlington, Virginia, for the appellant.
Shannon E. Leahy, with whom Richard H. Hipolit, Deputy General Counsel for Veterans
Programs; Mary Ann Flynn, Chief Counsel; and James B. Cowden, Jr., Deputy Chief Counsel, all
of Washington, D.C., were on the brief for the appellee.
Before ALLEN, Chief Judge, and FALVEY and JAQUITH, Judges.
ALLEN, Chief Judge, filed the opinion of the Court. JAQUITH, Judge, filed a dissenting
opinion.
ALLEN, Chief Judge: In 38 U.S.C. § 5110, Congress provides that, subject to limited
statutory modifications, the effective date for an award of VA benefits generally can't be earlier
than the date of VA's receipt of a claimant's application for compensation.1 This appeal calls on us
to decide whether a claimant may receive an effective date for benefits earlier than provided under
section 5110 based on either the doctrine of equitable estoppel or constitutional principles. And to
do so, we must unpack the Federal Circuit's recent—and fractured—en banc decision in Taylor v.
McDonough.2
Appellant Richard J. Ley served the Nation honorably in the United States Marine Corps
from October 1962 to December 1966, earning the Good Conduct Medal, the Vietnam Service
1
See 38 U.S.C.§ 5110(a)(1). In full, section 5110(a)(1) provides that "[u]nless specifically provided otherwise in this
chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency
and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier
than the date of receipt of application therefor."
2
71 F.4th 909 (Fed. Cir. 2023) (en banc).
Case: 23-1547 Page: 2 of 29 Filed: 01/02/2025
Medal, as well as the National Defense Service Medal.3 In this appeal, which is timely and over
which the Court has jurisdiction,4 he challenges a December 8, 2022, decision of the Board of
Veterans' Appeals denying entitlement to an effective date before January 29, 2015, for an award
of service connection for chronic lymphocytic leukemia (CLL).5 The Board denied appellant's
request for an earlier effective date, applying the general rule under section 5110 based on the date
VA received his application for benefits , then applying the 1 year look back rule under 38 C.F.R.
§ 3.114 to reach an effective date not before January 29, 2015.6
Appellant does not contest the Board's analysis of the effective date to which he is entitled
under section 5110.7 Instead, appellant raises two nonstatutory bases on which he maintains he is
entitled to an effective date before January 29, 2015, for the award of service connection for CLL.
One of appellant's arguments is that VA is equitably estopped from enforcing section 5110's
effective date limits because the Agency's actions, in particular the alleged withholding of
information from him about CLL, prevented him from filing a claim any earlier than he did.8
Appellant's other argument is that section 5110's effective date limitations are unconstitutional as
applied to his situation because VA actively interfered with his right of access to the benefits
system when Agency medical personnel failed to properly inform him of a CLL diagnosis before
January 2016.9
Neither of appellant's contentions are persuasive. First, appellant's equitable estoppel
argument is directly foreclosed under Taylor, in which a majority of the en banc Federal Circuit
unambiguously held that "equitable estoppel is not available to override the claim-filing effective-
date limits of [section] 5110." 10 Even if we agreed with appellant as a general matter about
equitable estoppel, we are bound by the Federal Circuit's majority opinion in Taylor.11 Second, as
3
Record (R.) at 2267.
4
See 38 U.S.C. §§ 7252(a), 7266(a).
5
R. at 5-12.
6
R. at 8-9.
7
Because he does not raise any argument about the Board's analysis under section 5110, appellant has abandoned any
appeal of that issue. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc).
8
See Appellant's Brief (Br.) 12-23.
9
Id. at 7-12.
10
Taylor, 71 F.4th at 927-28.
11
Id.
2
Case: 23-1547 Page: 3 of 29 Filed: 01/02/2025
we explain below, Taylor does not establish a binding rule about as-applied constitutional
challenges under section 5110. However, we independently reach the same conclusion as the
Taylor plurality did—that section 5110 is potentially subject to an as-applied constitutional
challenge.
Nevertheless, appellant can't prevail because his right-of-access claim falls well short of
the kind of extraordinarily rare circumstance that could justify a court ordering the assignment of
an effective date outside the parameters Congress set forth in section 5110.12 Because both of
appellant's grounds for circumventing section 5110 are unsuccessful, and he has abandoned any
other grounds for challenging the Board decision on appeal, we will affirm the Board's December
8, 2022, decision finding that appellant is not entitled to an effective date before January 29, 2015,
for service connection for CLL.
I. BACKGROUND
A. Factual and Procedural History
Appellant served honorably in the United States Marine Corps from October 1962 to
December 1966, with service in Vietnam where he is presumed to have been exposed to herbicides
including Agent Orange.13 In August 2009, appellant went to the Veterans Affairs Medical Center
(VAMC) in West Palm Beach, Florida, for a physical and blood work, reporting persistent
fatigue.14 He was instructed to report annually for blood work and examination.15 When appellant
received his yearly check-up in 2010, in addition to receiving treatment for skin cancer, his blood
work indicated elevated levels of a particular CLL indicator.16
In 2011, appellant reported to his VA primary care physician that he was experiencing
frequent and intensifying fatigue.17 The doctor, noting elevated lymphocytes in appellant's blood
work, ordered a LFT-lymphoma/leukemia panel.18 Noticing elevated "lymphs" on his panel in
conjunction with a history of skin cancer, the primary care physician referred appellant to a VA
12
Id. at 918, 942-43.
13
R. at 2267.
14
R. at 24-26, 41, 654, 1566.
15
Id.
16
R. at 24-26.
17
R. at 20-21, 595.
18
R. at 595, 598.
3
Case: 23-1547 Page: 4 of 29 Filed: 01/02/2025
hematologist.19 His visit to the VA hematologist in 2012 is the incident around which appellant
grounds his arguments for an earlier effective date for service connection for CLL, despite the rule
section 5110 provides.
After reviewing his medical history and examining him, the hematologist diagnosed
appellant with "monoclonal B-cell lymphocytosis."20 He also noted that appellant's 2010 blood
work showed levels "less than official criteria of 5000 for CLL," and, regarding CLL, he noted
that "even with the label as such this would/will be stage ZERO and warrant only an annual cbcd
[complete blood count with differential]."21 The hematologist's notes from the visit are detailed.22
Of particular importance for appellant's arguments on appeal, the hematologist, noting "no nodes
or spleen," specifically stated that he "did not use the term leukemia" to describe appellant's
condition. 23 The hematologist explained that instead of using the word "leukemia" he told
appellant that, based on his examination, "maybe in 20 years he would need further
investigation." 24 The hematologist concluded that "we can only label as 'monoclonal B-cell
lymphocytosis'" and recommended annual check-ups.25
Appellant did not apply for benefits following his examination by the hematologist, not for
leukemia, and not for the monoclonal B-cell lymphocytosis with which he had been diagnosed.26
According to his Board hearing testimony, appellant continued receiving annual check-ups and
experienced intensifying fatigue and weakness.27 In the ensuing years, appellant would lose his
19
R. at 570.
20
R. at 27, 565; see also R. at 22-42.
21
R. at 27, 565.
22
R. at 27, 565. Here is the full text of hematologist, Dr. James K. Weick's notes from the July 23, 2012, examination
of appellant reproduced as it reads on the medical examination record:
[r]eviewed before interview; ALC >5000 since 2010 in 68 yr man. Flow done by Dr Barker in 2010=
65% clonal less than official criteria of 5000 for CLL, and even with the label as such this would/will
be stage ZERO and warrant only an annual cbcd. Upon examining, there are no nodes or spleen and
I did not use the term leukemia; told him that maybe in 20 yrs he would need further investigation .
. . not now and we can only label as 'monoclonal B-cell lymphocytosis' and check annual cbcd."
(Emphasis and punctuation original).
Id.
23
Id.
24
Id.
25
Id.
26
See Appellant's Br. at 4.
27
R. at 398-400.
4
Case: 23-1547 Page: 5 of 29 Filed: 01/02/2025
job, unable to perform because he was weak and tired.28 Appellant and his wife eventually sold
their house in Florida in 2015 and moved to Tennessee as a consequence of appellant's
unemployment.29
Once in Tennessee, appellant established care at a VAMC in Murfreesboro, Tennessee.
Upon reviewing his medical records, his new VA physician observed the abnormalities in his past
blood work and ordered new labs.30 In January 2016, a VA oncologist diagnosed appellant with
CLL, presumptively resulting from Agent Orange exposure.31 Four days later, appellant filed a
claim for benefits with VA seeking service connection for CLL.32 Based on a review of appellant's
VA medical records, the diagnosing oncologist in Tennessee determined appellant had met certain
diagnostic criteria for CLL since 2010.33 VA granted appellant service connection for CLL in an
August 2016 rating decision.34 Consistent with the effective date limits of section 5110(a), an April
2017 rating decision assigned appellant a 100% disability rating effective January 29, 2016 for
CLL, the date VA received appellant's claim.35
In May 2017, appellant requested an earlier effective date for CLL.36 A July 2017 rating
decision affirmed his January 29, 2016, effective date, the date VA received his original claim.37
In October 2017, appellant filed a Notice of Disagreement (NOD), and an August 2018 rating
decision again denied an earlier effective date.38 Appellant submitted another NOD in October
28
R. at 399-400.
29
R. at 400.
30
R. at 20-21; Appellant's Br. 3-5.
31
R. at 20-36, 2376.
32
R. at 2379-82.
33
R. at 23.
34
R. at 1903-05.
35
R. at 1747-48.
36
R. at 1726-28.
37
R. at 1308-09.
38
R. at 1076-79. A procedural oddity occurred here, and we will straighten it out briefly. Following the submission of
his October 2017 NOD challenging the July 2017 rating decision, appellant submitted a statement in support in July
2018 alleging clear and unmistakable error (CUE) in the determination of his effective date. The August 2018 rating
decision responded only to the allegation of CUE and not the original decision review request in the October 2017
NOD. Accordingly, from July 2018 until the first Board decision in 2021, the claim stream addresses only a CUE
claim, until the Board corrected the error in 2021. The Board found that addressing appellant's allegation of CUE in
August 2018 was improper because appellant did not then have a final decision on his claim. The Board concluded
that the issue of CUE concerning the determination of the effective date was moot because the issue still existed for
5
Case: 23-1547 Page: 6 of 29 Filed: 01/02/2025
2018 and VA generated a Statement of the Case, maintaining the January 29, 2016, effective date.39
In February 2020, appellant appealed to the Board and submitted a letter on his behalf by a VA
physician stating the physician's view that appellant has had CLL since 2010.40 Appellant also
submitted argument to the Board pertaining to the decision the Board was set to review, arguing
for an earlier effective date.41 In November 2020, appellant appeared at a hearing before a Board
member virtually and laid out his case through a representative.42
In February 2021, the Board issued its first decision in this case denying entitlement to an
earlier effective date.43 Appellant subsequently appealed to the Court.44 In April 2022, the Court
remanded the matter to the Board because it had not considered entitlement to an earlier effective
date up to 1 year before the filing date of the claim under 38 C.F.R. § 3.114.45
In December 2022, the Board issued the decision on appeal.46 Employing § 3.114(a)(3),
the Board assigned appellant an earlier effective date of January 29, 2015, 1 year before VA
received the initial claim.47 The Board favorably found that appellant met the diagnostic threshold
the Board to review in the claim stream, as it should have proceeded in August 2018. This history does not affect our
decision. We provide it for the sake of completeness.
39
R. at 428-460, 565-570, 1067-68.
40
R. at 403.
41
R. at 404.
42
R. at 396-402.
43
R. at 389-93. This decision dismissed the errant CUE motion as moot.
44
R. at 113. While his appeal was pending before the Court, appellant also filed a medical malpractice claim under 38
U.S.C. § 1151, per the February 2021 Board's suggestion, alleging essentially the same set of facts at issue in this
appeal.
45
R. at 113-18. 38 C.F.R. § 3.114 allows retroactive effective dates, to a certain extent, in cases where an award or
increase of compensation is granted pursuant to a liberalizing law, provided that the veteran met all the criteria of the
liberalizing law at that time. Section 3.114 (a)(3) in particular allows that "[i]f a claim is reviewed at the request of
the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period
of 1 year prior to the date of receipt of such request." See R. at 8-12.
46
R. at 5-12.
47
R. at 5, 8-12. The Board's assignment of an earlier effective date is an unreviewable favorable determination.
Roberson v. Principi, 17 Vet.App. 135 (2003). On this point, the Secretary informed the Court of his view that the
Board erred with respect to the assignment of an earlier effective date under § 3.114 (a). Secretary's Br. at 9, n. 3. The
Secretary notes that the Board inaccurately states that appellant had been diagnosed with CLL "at the time of the
liberalization of the law, as reflected in the July 7, 2010, blood work." Id. The change in the law occurred in 2003,
well before appellant's diagnosis. Id. (citing 38 C.F.R. § 3.309(e)); R. at 12, 22-23. The Secretary offers these
observations "to supply clarity regarding his argument," as he accurately notes that the "the Board’s assignment of
January 29, 2015, as the effective date for the award of service connection for CLL is a favorable finding, and, as
such, may not be disturbed by the Court." Secretary's Br. at 9, n. 3; see Roberson, 17 Vet.App. at 139.
6
Case: 23-1547 Page: 7 of 29 Filed: 01/02/2025
for CLL as early as July 2010.48 But because he did not file a claim (or even allege he filed a claim)
before January 2016, the Board concluded there was no legal route to an effective date before
January 29, 2015, under law.49 The Board acknowledged appellant's argument that it was VA's
"failure to properly inform him of his CLL diagnosis" that prevented him from filing a claim earlier
as appellant now argues to the Court, but noted that the "applicable regulations do not contain an
exception to the effective date rules based on misdiagnosis even if that misdiagnosis is due to VA's
error."50 The Board reiterated that the law provided no route to an earlier effective date and noted
that claims of medical malpractice, meritorious or not, by VA are distinct from the effective date
issue and beyond the scope of the appeal before it.51 This appeal ensued.
B. Taylor v. McDonough
We've just set out the factual and procedural background concerning appellant's claim on
appeal. However, there is an additional background task we must perform before we turn to
resolving the merits of the appeal before us. As mentioned above, the Federal Circuit's en banc
decision in Taylor plays a major role in our resolution of this appeal. So we take time now to
unpack Taylor, a decision that we explain is comprised of a majority view, plurality reasoning,
concurrences, and dissents. Care is needed to determine what in Taylor binds us today and what is
merely persuasive.
48
R. 11-12.
49
R. at 9, 12.
50
R. at 9. As mentioned throughout the remainder of the opinion, we will refer to appellant's allegation as a
misdiagnosis/withholding information. We note that the Board below and appellant in his briefing refer to what
appellant alleges prevented him from filing a claim by different terms at different points. In the Board decision on
appeal, it twice refers to appellant's allegation as a "misdiagnosis" and once as a "failure to properly inform." R. at 9.
Appellant's argument to the Court refers to the issue as "deliberate withholding of information" and other similar
formulations, such as "withholding of diagnosis." Our analysis is the same under either formulation. Whether the
hematologist diagnosed appellant with one condition when he should have diagnosed another, or whether he knew
appellant should be diagnosed with CLL and chose not to convey that diagnosis to him, for whatever reason, our
analysis of his legal claim is the same, and the result is unchanged. The Board saw the issue similarly, noting that any
claim sounding in "medical malpractice by VA is distinct from the claim of entitlement to an earlier effective date
herein and not within the scope of this appeal." R. at 9-10. Because these formulations present a distinction without a
difference in terms of our equitable estoppel and constitutional right-of-access analyses, we will refer to appellant's
allegation by both formulations, as misdiagnosis/withholding information.
51
R. at 9-10. The Board also noted that "the Veteran’s claim of medical malpractice by VA is distinct from the claim
of entitlement to an earlier effective date herein" and beyond the scope of its decision. The Board also noted that
appellant had filed a medical malpractice claim under section 1151, following the Board's instructions to do so in its
February 2021 decision.
7
Case: 23-1547 Page: 8 of 29 Filed: 01/02/2025
Like the appeal we face today, Taylor is also centered on section 5110's effective date
limits.52 Appellant in Taylor was a veteran who voluntarily participated as a test subject in a then-
secret Army program at the Edgewood Arsenal facility in Maryland (Edgewood program), which
studied the effects of chemical warfare agents on the human body.53 Participants in the Edgewood
program, including Mr. Taylor, were sworn to secrecy by taking an oath that forbid them from
revealing any information about the Edgewood program to those not authorized to receive such
information.54 The oath did not specify who was or was not authorized to receive such information,
but regardless of that omission, it was backed by the threat of a court-martial and criminal penalties
for violating the secrecy prohibition.55
Mr. Taylor abided by the terms of the oath for over 3 decades following his discharge.56
During that time, injuries he suffered in the program resulted in disabilities.57 Abiding by the terms
of his oath, Mr. Taylor refrained from filing a claim with VA for disability compensation.58 As the
Federal Circuit described it, the oath prevented Mr. Taylor from "pursuing the sole adjudicatory
route to vindicate his statutory entitlement to disability compensation for those service-connected
disabilities."59 Mr. Taylor did not file a claim for VA benefits until 2007, after the government
released him and similarly situated participants from their oaths in 2006.60
VA granted Mr. Taylor's claim for disability benefits and assigned an effective date of
February 28, 2007, under section 5110, the date VA received his initial claim.61 Under section
5110, the statute also at issue in the present appeal, this was the earliest effective date available to
the veteran under law.62 Appealing to the Federal Circuit from an adverse decision in our Court,
Mr. Taylor claimed he was entitled to an effective date as far back as the day after his discharge
52
See Taylor, 71 F.4th at 916-18.
53
Id. at 916-17.
54
Id.
55
Id.
56
Id.
57
Id.
58
Id.
59
Id. at 916.
60
Id. at 916-17.
61
Id. at 920.
62
Id.; see 38 U.S.C. § 5110.
8
Case: 23-1547 Page: 9 of 29 Filed: 01/02/2025
in 1971, arguing that the government's oath backed by threat of criminal penalties prevented him
from filing a claim to vindicate his legal entitlement to benefits.63
Mr. Taylor presented two theories of entitlement to an earlier effective date, the same two
theories Mr. Ley advances in the present case.64 He argued first that the doctrine of equitable
estoppel applied to prevent the government from enforcing the limits of section 5110, and second,
in the alternative, he maintained that enforcing section 5110 to limit his effective date would
constitute a violation of his constitutional right of access to an exclusive adjudicatory forum.65
Again, these are the precise arguments appellant offers here although under a different set of
facts.66
The Federal Circuit agreed with Mr. Taylor but did not do so in a single opinion. Rather,
the Federal Circuit's en banc opinion was divided, with three separate writings and different
combinations of judges joining some sections of the opinions and not others.67 To understand how
Taylor does and does not bind the Court in this case we will explain the alignment of the judges in
Taylor with respect to each legal issue. To make this assessment, it is critical to understand that
there were 13 judges sitting on the en banc Federal Circuit panel.68 So, to be binding precedent, a
given part of any opinion in Taylor needs to have been joined by at least seven Federal Circuit
judges.
Beginning with the issue of equitable estoppel, Judge Taranto wrote a majority opinion in
which eight judges held that equitable estoppel was not available to circumvent the effective date
rules under section 5110.69 The majority explained that section 5110 contains no provision that
imports the doctrine of equitable estoppel into a statutory standard. Therefore, the Supreme Court's
rule that equitable estoppel is not available against the federal government to award funds
63
Taylor, 71 F.4th at 917-18
64
Id. at 917.
65
Id. at 917-18.
66
Appellant's Br. at 7.
67
Taylor, 71 F.4th at 915.
68
Id.
69
Id. at 916-32. Chief Judge Moore and Circuit Judges Prost, Chen, Stoll, and Cunningham joined Judge Taranto's
opinion in full. Circuit Judges Lourie and Hughes joined Parts I–IV. Parts I-IV accordingly constitute an opinion for
the court.
9
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appropriated by Congress established in Office of Personnel Management v. Richmond applied.70
In the words of Judge Taranto's majority, "equitable estoppel is not available to override the claim-
filing effective-date limits of [section] 5110."71
The remaining five judges joined Judge Dyk's concurring opinion that reached a different
conclusion about equitable estoppel.72 Judge Dyk concurred only in the judgment in favor of Mr.
Taylor, holding that the government was equitably estopped from limiting Mr. Taylor's recovery
under the rules set out in section 5110.73 So to be clear, we have a binding rule under Taylor that
section 5110 is not subject to equitable estoppel because eight judges on the 13-member en banc
court adopted that rule.
The issue of an as-applied constitutional challenge to the application of section 5110 based
on the right of access to an adjudicatory system is not so clear. Indeed, that issue deeply divided
the Federal Circuit. Only six judges joined in the part of Judge Taranto's opinion (now a plurality)
holding that section 5110 is subject to as-applied constitutional challenges and finding Mr. Taylor's
situation constituted a rare instance in which there was a constitutional violation due to the
application of section 5110's rules concerning the assignments of effective dates.74 We will explore
the plurality's decision about the constitutional issue in more detail below. For now, suffice it to
say that the constitutional holding of the plurality does not constitute precedent that is binding on
the Court. Judge Dyk's opinion concurring in the judgment, joined by a total of five judges
including Judge Dyk, did not reach the constitutional question on constitutional avoidance
grounds, choosing to resolve the case in appellant's favor on the basis of equitable estoppel.75
Finally, and to round out the discussion, two of the eight judges who signed onto the part
of Judge Taranto's opinion concerning equitable estoppel, dissented on the constitutional
question.76 That dissenting opinion, authored by Judge Hughes and joined by Judge Lourie, would
70
496 U.S. 414 (1990). The Federal Circuit discussed the case extensively. See Taylor, 71 F.4th at 916-32.
71
Taylor, 71 F.4th at 927-28; see Richmond, 496 U.S. at 427-28.
72
Taylor, 71 F.4th at 946-55. Judge Dyk's opinion concurring in the judgement which Circuit Judges Newman, Reyna,
and Wallach joined in full. Judge Stark joined with respect to Parts I, II, and V.
73
Id. at 946.
74
Id. at 917-18, 935-36.
75
Id. at 946.
76
Id. at 955-64.
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have held for the government on the question of the right-of-access constitutional violation.77
While the dissenters sided with Judge Taranto on the estoppel issue, they found the importance of
the executive branch's national security interests provided a valid justification for infringing upon
Mr. Taylor's right of access.78 Considering the case through this national security lens, the dissent
went a step further, explaining that it would have found that courts lack both the equitable and
statutory authority to override or second-guess executive branch determinations regarding national
security and foreign affairs.79 So the dissent appeared to accept, at least for argument's sake, that
there could be a constitutional challenge under section 5110, but limited the discussion to the
national security interests implicated in Mr. Taylor's situation.
Having set out the Federal Circuit's various positions in Taylor, we are now able to consider
the arguments at issue in the appeal. We do that next.
II. ANALYSIS
To repeat, Congress has provided in section 5110 that the effective date of an award based
on an initial claim is assigned based on "the facts found," but unless subject to an enumerated
exception, "shall not be earlier than the date of receipt" of an application for compensation.80 On
appeal, appellant raises two distinct legal theories of entitlement to an earlier effective date, despite
section 5110(a)'s default rule. Both theories of entitlement raise legal issues we review de novo.81
First, appellant argues that under the doctrine of equitable estoppel the government may
not enforce the effective date rules from section 5110 where its misdiagnosis/withholding
information prevented appellant from filing a claim earlier and receiving an earlier effective date.82
Second, appellant maintains that section 5110 is unconstitutional as applied to his circumstance,
because VA's misdiagnosis/withholding information effectively prevented appellant from filing a
77
Id. at 955-56.
78
Id.
79
Id. at 964.
80
38 U.S.C. § 5110(a)(1).
81
Martinez v. Wilkie, 31 Vet.App. 170, 175 (2019) (citing 38 U.S.C. § 7261(a)(1)); see Lane v. Principi, 339 F.3d
1331, 1339 (Fed. Cir. 2003).
82
Appellant's Br. at 12-23.
11
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claim, thereby denying his constitutional right of access to an exclusive adjudicatory forum.83 We
address each argument in turn, starting with equitable estoppel.
A. Equitable Estoppel
Equitable estoppel is a doctrine "invoked to avoid injustice" based on "the maxim that no
man may take advantage of his own wrong." 84 Equitable estoppel is not available against the
federal government to the same extent it is against private litigants.85 The extent to which the
federal government may be equitably estopped is an uncertain one under the law. But that
uncertainty does not affect us today. To begin with, the Supreme Court laid out a bright line rule
in Richmond concerning equitable estoppel against the government in cases involving claims for
payment of money pursuant to congressional statutory appropriation. 86 Richmond holds that
"judicial use of the equitable doctrine of estoppel cannot grant . . . a money remedy that Congress
has not authorized."87 The Supreme Court based its decision on the Constitution's Appropriations
Clause providing that "No [m]oney shall be drawn from the [t]reasury, but in [c]onsequence of
[a]ppropriations made by [l]aw."88 The practical import of this rule is that it applies in all situations
where, as here, "there is no specific statutory provision turning the [equitable estoppel] doctrine's
principles into statutory standards" such that Richmond would be displaced by the will of
Congress.89
Richmond provided the analytical foundation for the Federal Circuit's majority holding in
Taylor that equitable estoppel was not available to overcome the effective date assignment rules
under section 5110. 90 The en banc Federal Circuit majority in Taylor left no doubt about its
holding. The majority stated that nothing in section 5110 or the related statutory scheme indicated
that "Congress [] turned equitable estoppel standards into statutory standards that could alter the
83
Id. at 7-12.
84
Taylor, 71 F.4th at 925 (quoting Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 59 (1984));
Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232 (1959).
85
Lee v. Munroe & Thornton, 11 U.S. 366 (1813); see Richmond, 496 U.S. at 421-22.
86
Richmond, 496 U.S. at 421-22.
87
Id. at 425-26 (citing Knote v. United States, 95 U.S. 149, 154 (1877)); see U.S. CONST., art. 1, § 9, cl. 7.
88
U.S. CONST., art. 1, § 9, cl. 7; Richmond, 496 U.S. at 421-26.
89
Taylor, 71 F.4th at 925. This rule operates under the premise that if Congress intended to build in something
resembling an equitable estoppel mechanism into an appropriations statute, it knows how to do so.
90
Taylor, 71 F.4th at 925-28.
12
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results required by . . . [section] 5110."91 The Taylor majority then stated with crystal clarity that
"under Richmond, equitable estoppel is not available to override the claim-filing effective-date
limits of [section] 5110."92 Even if we were to disagree with it, we are bound by this holding here.
In sum, while equitable estoppel against the federal government remains something of an
open question generally, the issue has been settled with respect to questions concerning payment
of money pursuant to an appropriation by Congress.93 Appellant argues just as Mr. Taylor did, that
the government should be equitably estopped from enforcing the effective date limits of section
5110. 94 That argument is foreclosed by Taylor's unequivocal holding that section 5110 is not
subject to equitable estoppel. And that is all we need to say.95
B. Constitutional Right of Access: As-Applied Challenge
Appellant's second theory of entitlement to an earlier effective date is premised on section
5110 being subject to an as-applied challenge under the Constitution. 96 Appellant argues that
section 5110 is unconstitutional as applied to his circumstance because a VA hematologist's undue
active interference prevented him from filing a benefits claim, thereby denying his constitutional
right of access to the exclusive forum for adjudicating entitlement to VA benefits. 97 As we
described earlier, appellant claims that the VA hematologist's misdiagnosis/withholding
information concerning CLL effectively prevented him from applying for benefits, leaving him
shut out of the system.98
In this section, we first consider whether section 5110 is subject to an as-applied
constitutional challenge at all. Consistent with the Federal Circuit's plurality opinion in Taylor, we
see no reason why section 5110 would be categorically immune to an as-applied constitutional
91
Id. at 926-27.
92
Id. at 926-28; see Richmond, 496 U.S. at 421-23.
93
Heckler, 467 U.S. at 60-61; Taylor, 71 F.4th at 926-28; see Richmond, 496 U.S. at 421-25.
94
Appellant's Br. at 12-23.
95
Id.; Taylor, 71 F.4th at 926-28. Appellant appears to argue that somehow Richmond does not apply because the
government failed to fulfill a statutory prerequisite required in order to enforce section 5110 as a limitation on benefits.
See Appellant's Br. at 12-13. This argument, which seems to focus on 38 U.S.C. § 6303, doesn't help appellant because
the Federal Circuit rejected a nearly identical contention. See Taylor, 71 F.4th at 928-32. We won't address the matter
further.
96
Appellant's Br. at 7-12.
97
Id.
98
Id.
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challenge. In terms of establishing that an as-applied constitutional violation has occurred, we
essentially adopt the Federal Circuit plurality's reasoning about how one shows a violation of the
right of access to an exclusive adjudicatory forum.99 We then turn to appellant's claim in this
appeal.
As we explain below, we conclude that VA's actions to which appellant points—the
hematologist's misdiagnosis/withholding information—do not rise to the level of a constitutional
violation, underscoring the rarity of finding a set of facts that establish such a violation.
1. Section 5110 and As-Applied Constitutional Challenges
The first step in our analysis is to decide whether section 5110 can ever be subject to an as-
applied constitutional challenge. As we explained earlier, there was no majority opinion in Taylor
about the constitutional question. However, and as we explore in a moment, Judge Taranto's
plurality opinion extensively discusses how one can establish a constitutional violation in the
context of the application of section 5110's effective date rules. Implicit in that discussion, of
course, is the recognition that section 5110 is in fact subject to a constitutional challenge.
We agree with the premise underlying the Taylor plurality that nothing categorically bars
section 5110 from being subject to an as-applied constitutional challenge. The Constitution sets
certain boundaries, and courts enforce those boundaries.100 Nullifying the laws of the Nation's
elected representatives however, even in small part at the margins, should be done with great care
given Congress' position as a coequal branch of government, and protector and interpreter of the
Constitution in its own right.101 It is for this reason that we agree with the Federal Circuit plurality
that a successful as-applied challenge to the application of section 5110's effective date rules will
only be based on a "very rare set of circumstances."102
We now consider the appropriate test a court should employ to determine whether such a
"very rare set of circumstances" exists. If one has read Taylor what follows should appear familiar.
That is so because, while not technically binding precedent, the Taylor plurality's analysis is
persuasive. We essentially adopt it as our own.
99
Taylor, 71 F.4th at 932-39.
100
See Marbury v. Madison, 5 U.S. 137, 178 (1803).
101
Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012); U.S. v. Harris, 106 U.S. 629, 635 (1883).
102
Taylor, 71 F.4th at 918.
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We start with the constitutional right that is at issue—the right of access to adjudicative
fora. The Supreme Court has characterized constitutional right of access to the courts as a
"fundamental right." 103 Early on, the Court explained that "[t]he very essence of civil liberty
certainly consists in the right of every individual to claim the protection of the laws."104 And that
was not a one-off comment—the right's importance has been repeatedly affirmed.105 The Supreme
Court has held the right of access to an adjudicatory system applies to executive agencies operating
such systems, as well as to the courts.106
The Supreme Court explained the contours of establishing a violation of the right to access
an exclusive adjudicatory forum in Christopher v. Harbury. 107 The Court there observed that
denial of the right of access necessarily operates in reference to a specified underlying legal
entitlement. 108 In this case, appellant has a constitutionally protected property interest in the
disability benefits to which he claims he is entitled.109 Accordingly, under Christopher, appellant
has a right to access an exclusive forum for the adjudication of that property right.110
In terms of what the right guarantees an individual, the Supreme Court has held that the
touchstone of the right of access is "meaningful access."111 While certain cases have focused on
removing specific impediments, such as filing fees or access to a law library, these decisions do
103
Tenn. v. Lane, 541 U.S. 509, 533 (2004); see also, e.g., Ringgold-Lockhart v. Cnty. of L.A., 761 F.3d 1057, 1061
(9th Cir. 2014).
104
Marbury, 5 U.S. at163; see Chambers v. Balt. & Ohio R.R. Co., 207 U.S. 142, 148 (1907).
105
See, e.g., Lewis v. Casey, 518 U.S. 343, 350 (1996) ("The right that [we] acknowledged was the (already well-
established) right of access to the courts." (emphasis omitted)); Bounds v. Smith, 430 U.S. 817, 824 (1977) ("[O]ur
decisions have consistently required [s]tates to shoulder affirmative obligations to assure all prisoners meaningful
access to the courts.").
106
Taylor, 71 F.4th at 933; see Borough of Duryea v. Guarnieri, 564 U.S. 379, 387 (2011) (explaining that the First
Amendment's "Petition Clause protects the right of individuals to appeal to courts and other forums established by the
government for resolution of legal disputes"); Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972)
(applying the right of access to an executive agency).
107
536 U.S. 403, 405-06, 412-15 (2002).
108
Id. at 412-415; see Taylor, 71 F.4th at 933-34.
109
Cushman v. Shinseki, 576 F.3d 1290, 1297-98 (Fed. Cir. 2009).
110
Note that an individual does not have a right to their choice of forum, if there are multiple available to adjudicate
the underlying interest. The government cannot keep an individual from a forum when it is the exclusive forum for
the vindication of a right, as the veterans benefits system is for the legal entitlement to disability benefits.
111
Lewis, 518 U.S. at 350 ; Bounds, 430 U.S. at 824.
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not "foreclose alternative means to achieve that goal," referencing "a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the courts."112
As the Federal Circuit plurality in Taylor recognized, the opportunity to litigate an
underlying legal entitlement can be viewed from one of two vantage points.113 It can be forward
looking in the sense that access to an otherwise available forum is being frustrated with respect to
a claim yet to be asserted. 114 Or, as here, it can be backward looking.115 A backward-looking
violation is premised on an allegation that access to the relevant forum was frustrated in the past
and is no longer meaningfully available.116 From both perspectives, the right of access is "ancillary
to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of
court."117 And for an alleged backward looking access violation like the one in this case, in addition
to a specific legal entitlement, a remedy must be identified, one "that may be awarded as
recompense but [is] not otherwise available in some suit that may yet be brought."118
Given the existence of an underlying legal entitlement and an exclusive remedy, the
Federal Circuit plurality in Taylor formulated a test for adjudicating a right-of-access claim. That
approach, adopted from the Ninth Circuit Court of Appeals' formulation in Silva v. Di Vittorio,
describes the right-of-access violation as "active interference" on the part of the government, that
is "undue."119 While the Supreme Court has not explicitly established a test for assessing a right
of access violation, the Federal, Seventh, and Ninth Circuits have determined that the undue, active
interference test is consistent with the Supreme Court's formulation of the right-of-access violation
in Christopher.120
The Federal Circuit's plurality in Taylor provides useful markers for employing the "active
interference" prong of the analysis. A court asks "whether the government has, by affirmative
112
Bounds, 430 U.S. at 830, 825; Lewis, 518 U.S. at 351.
113
Taylor, 71 F.4th at 932-34; Christopher, 536 U.S. at 412-15.
114
Taylor, 71 F.4th at 933; Christopher at 412-15.
115
Taylor, 71 F.4th at 933.
116
Id.; Christopher, 536 U.S. at 415-16.
117
Christopher, 536 U.S. at 414-15.; Lewis, 518 U.S. at 352.
118
Taylor, 71 F.4th at 932-35; Christopher, 536 U.S. at 414-15.
119
Taylor, 71 F.4th at 935; Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011).
120
Taylor, 71 F.4th at 935; see Snyder v. Nolen, 380 F.3d 279 (7th Cir. 2004) (per curiam) (applying a similar test);
see also Silva, 658 F.3d at 1103.
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conduct, unduly interfered with the individual's access to the adjudication offered by the forum."121
In Taylor, the plurality found that the government's "securing [of] a secrecy oath backed by court-
martial and prosecution threats" constituted affirmative conduct, meeting the standard of active
interference.122 While noting that there is not a general test for specifying what level of interference
suffices, the court found that the terms of the Edgewood program's secrecy oath would be naturally
understood as "foreclosing the ability to support an essential element of the standard for benefits"
and it "actually caused Mr. Taylor to refrain from filing the claim at issue to vindicate his legal
entitlement" until the oath was lifted three and a half decades later.123 While not describing a
universal standard, the Taylor plurality described the Edgewood program oath as "ample
affirmative interference with the right of access at issue."124 This discussion guides our application
of the constitutional test.
Judge Taranto's plurality opinion in Taylor does not squarely address the undue prong of
the test, but the plurality considered the government's argument that, assuming it had actively
interfered with Mr. Taylor's access to the VA benefits forum, such interference was justified on
national security grounds.125 While the Taylor plurality again noted that the Supreme Court had
not established a standard in the right-of-access context for evaluating a stated justification for an
interference, it did not question the strength of the professed national security interest.126 Instead,
the plurality relied on the fundamental nature of the right of access to courts in our system of
government and borrowed from the Supreme Court's caselaw addressing when "military-secrecy
interests preclude the maintenance or continuation of litigation" to decide that strict scrutiny
applied to the government's asserted justification.127
121
Taylor, 71 F.4th at 935.
122
Id.
123
Id.
124
Id. at 935-36.
125
Id. at 939-41. Again, while the opinion couches this discussion in terms of the Silva test's undue prong, the
government's argument and the court's response in Taylor function to the effect that a justified interference would not
be undue.
126
Id.
127
Id. at 939-40; see General Dynamics Corp. v. U.S., 563 U.S. 478, 486, 492 (2011) (citing Totten v. U.S., 92 U.S.
105, 107 (1876)); Reno v. Flores, 507 U.S. 292, 301-02 (1993) (explaining that due process "forbids the government
to infringe certain 'fundamental' liberty interests at all . . . unless the infringement is narrowly tailored to serve a
compelling state interest."); see also Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir. 1983) (applying strict scrutiny to
a constitutional right-of-access claim).
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Under a strict scrutiny analysis, the Taylor plurality determined that the Edgewood
program's secrecy oath was not sufficiently narrowly tailored to achieve the government's
compelling interest in national security.128 According to the court, the government presented only
"generalizations about military secrecy," offering no "concrete reasons that this interest could not
have been protected while giving Edgewood veterans [access to] an adjudication."129 On its face,
the government's required secrecy oath contained no exceptions, nor did it so much as define who
was or was not "authorized to receive [the] information" protected under the oath.130 Beyond that,
the court pointed to procedural mechanisms within VA for dealing with secrets, special operations,
and classified records, none of which were available for Edgewood program participants, despite
the foreseeable health consequences for these veterans.131
As a final step, the Federal Circuit determined that section 5110 was unconstitutional as
applied to Mr. Taylor.132 And as to remedy, the court held that veterans in Mr. Taylor's position
are entitled "under ordinary remedial principles, to receive benefits for service-connected
disabilities from the effective date that the veteran would have had in the absence of the
government's challenged conduct."133 But the court also underscored that it was a remarkably rare
situation that would support ruling in a claimant's favor on an as-applied challenge to the
application of section 5110's effective date rules.134 Indeed, the court signaled that its decision was
essentially limited to the specific facts of Mr. Taylor's case and did not expand the scope of right-
of-access violations.135
To summarize: Showing a backward-looking constitutional right-of-access violation
requires appellant to show that his opportunity to litigate an underlying legal entitlement is no
longer available due to active interference on the part of the government that is undue. Appellant
must also identify a remedy that is within the Court's power and not available elsewhere or by
128
Taylor, 71 F.4th at 940-42.
129
Id. at 940.
130
Id. at 915-16, 939-42.
131
Id. at 941-42.
132
Id. at 917-18, 932-44.
133
Id. at 918.
134
Id. at 918, 932-942, 945-46.
135
Id. at 945-46.
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other means. Where unconstitutional interference is found, an asserted justification by the
government must pass strict scrutiny.
2. Appellant's Situation is Not One of the "Very Rare Set of Circumstances" in Which
Section 5110 is Unconstitutional As Applied.
Applying the test we have set forth for assessing a claim that government conduct has
denied access to an exclusive adjudicatory forum, we conclude that appellant's as-applied
constitutional challenge to section 5110 fails. We begin with some positive findings about
appellant's claim. His claim meets the initial requirements constituting a backward-looking right-
of-access violation.136 There is an underlying legal entitlement, his claim for benefits, and the
opportunity to adjudicate that entitlement between 2010 and January 2016 is no longer available.137
And unlike the plaintiff-respondent before the Supreme Court in Christopher, our appellant has
identified a specific remedy that flows from that entitlement, namely an effective date calculated
as if the alleged interference did not occur.138 And finally, appellant seeks a remedy that the Court
has the power to award, and we assume for the sake of this analysis that this remedy is no longer
available by other means.139
But that is as far as appellant gets. Even considering the facts in the record in the light most
favorable to appellant, he has not successfully established a violation of his constitutional right of
access under the test we set forth above.140 Recall, appellant's assertion is that the VA hematologist
misdiagnosis/withholding information prevented him from accessing the VA benefits system,
making the application of section 5110's effective date rules unconstitutional as applied to him.
We'll explain now why that claim fails, as well as why that outcome makes sense.
136
Christopher, 536 U.S. at 414-15.
137
Id. It is unclear based on appellant's argument when the alleged interference began. Appellant's Br. at 2-12. While
the Board found that appellant met the diagnostic criterion for CLL as early as 2010, appellant's theory of active
interference is based on an interaction with a VA hematologist in 2012. R. at 5-12, 565; Appellant's Br. at 7-12.
Because appellant's challenge is unsuccessful considered from any point in the relevant time period, determining the
precise date appellant alleges that the interference began is immaterial.
138
Christopher, 536 U.S. at 405-06, 412; Appellant's Br. at 7-12.
139
See 38 U.S.C. § 7261; Taylor, 71 F.4th at 917-18. We assume, without deciding, that appellant has no remedy
through another mechanism. That said, we note that appellant's failure to show that he was unable to pursue a tort
action that would allow him to collect the amount of VA payments he believes he missed out on would generally be
fatal to his appeal. See Christopher, 536 U.S. at 422.
140
Appellant's Br. at 7-12; Taylor, 71 F.4th at 932-35.
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Appellant's claim fails at the first step—was there active interference from the government
that prevented him from accessing the VA benefits system? The answer is a resounding "no."
Nothing the government did placed an affirmative barrier between appellant and VA's benefits
adjudication system.141 Appellant was referred to a VA hematologist after reporting fatigue and
presenting with elevated readings in his blood work.142 The hematologist diagnosed appellant with
monoclonal b-cell lymphocytosis and recorded that diagnosis in his report.143 At this point, given
his symptoms and diagnosis, appellant was free to file an initial claim for benefits for his diagnosis
and disabling symptoms, regardless of whether the hematologist's diagnosis was correct or
included the term leukemia. Accordingly, appellant's circumstance lacks the affirmative interfering
conduct and wholesale denial of meaningful access observed by the court in Taylor.
While appellant's brief asserts that only a CLL diagnosis would have signaled to him that
it was time to file a claim, the diagnosis he received is listed in the same rating provision alongside
CLL.144 Appellant's argument assumes that his ability to access the benefits system depended on
obtaining a particular diagnosis for a well-known and serious condition that comes with an
automatic 100% disability rating, but this is not so.145 Critically, this was never an all-or-nothing
scenario. At the time appellant left the hematologist's office in July 2012, there were no affirmative
barriers between appellant and the VA benefits system, and certainly none resulting from what the
hematologist did that day. This is even more apparent in light of the fact that appellant was
reporting disabling symptoms, a sign that he knew he was not well.146 Whether the hematologist
diagnosed CLL or monoclonal B-cell lymphocytosis, appellant's position relative to the benefits
system was unchanged. There simply is no evidence of affirmative interfering conduct on the part
of the government here. 147 Nothing about receiving one diagnosis versus another offends the
141
See R. at 27, 565.
142
R. at 565, 595, 598.
143
R. at 565.
144
See 38 C.F.R. § 4.117 (2024).
145
Id.; Appellant's Br. at 7-12.
146
R. at 22-42, 565, 595, 598.
147
In conducting this right-of-access constitutional analysis, we are making no determinations regarding the
appropriateness of appellant's diagnosis or medical care generally. If appellant believes he experienced medical
malpractice or similar conduct, he may pursue that claim. Indeed, the record shows he is doing just that through his
section 1151 claim. R. at 22-42; Secretary's Br. at 18-19. Additionally, conducting this analysis does not require the
Court to make factual determinations concerning appellant's medical care. See, e.g., Tadlock v. McDonough, 5 F.4th
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Constitution by preventing a veteran from filing a claim. Without any affirmative, active
interference frustrating his access, appellant's circumstance is far afield of the "very rare set of
circumstances" that could support us finding a constitutional violation.
This case stands in marked contrast to Taylor, a comparison that drives home the
conclusion that Mr. Ley's situation is nothing like the "very rare set of circumstances" that provided
Mr. Taylor relief under the Constitution. In Taylor, the government's interference was affirmative
and definitive.148 While our appellant had a ratable diagnosis from a VA physician in hand and no
government-imposed barriers to file, Mr. Taylor faced the affirmative threat of prosecution for
attempting to support his claim for benefits.149 The threat of prosecution was imposed by the
government and without exception.150 The plurality found that though the Edgewood oath did not
bar the filing of claim by its terms, the standing threat of prosecution was a sufficient deterrent,
such that no reasonable person would believe they were at liberty to file a claim. Second, had Mr.
Taylor decided to risk prosecution and filed, his claim would have been unable to succeed
substantively absent breaking his oath. The plurality accordingly found that filing a claim that
cannot succeed was not meaningful access in terms of what is guaranteed by the Constitution.
None of the affirmative, government-imposed barriers that stood between Mr. Taylor and
the benefits system are present in this case. While appellant has properly structured a right-of-
access claim in the abstract, the substance of the claim is wholly without merit. As explained
above, when appellant left the VA hematologist's examination, nothing on the part of the
government interfered or proceeded to interfere with his ability to access the benefits system. And
his ratable diagnosis, regardless of whether that diagnosis was correct or a complete picture of his
situation, was such that he not only had access, that access was meaningful.
Finally, it makes sense that the facts appellant presents do not establish a constitutional
violation. Unlike the unique—and "very rare"—circumstances present in Taylor, we are dealing
with the bread-and-butter of the VA benefits and healthcare system. That system relies on trained
medical experts making reasoned, informed judgments about medical questions. Keep in mind that
1327, 1314 (Fed. Cir. 2021). We evaluate only the arguments, the decision of the Board below, and the evidence of
record to determine the extent to which, under law, the government actively, unduly interfered with appellant's right
of access to the benefits system. Taylor, 71 F.4th at 933-35.
148
Taylor, 71 F.4th at 915-18, 935.
149
Id. at 916-18; R. at 565.
150
Taylor, 71 F.4th at 915-18, 935-36.
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in Taylor, meaningful access to a benefits adjudication was foreclosed because appellant, even if
he had filed a claim, could not support his claim for benefits without risking criminal
prosecution.151 Looking at the examination report the hematologist provided in the present case,
we see a medical expert making an informed, expert medical judgment concerning a patient's
condition.152 Perhaps the hematologist made a mistake; perhaps not. But that a second medical
expert looking back years later would have reached a different reasoned conclusion, even if that
second opinion was the correct one, fails to describe a constitutional right-of-access violation.153
At the very worst, assuming the first doctor's judgment was wrong, or even unimaginably wrong,
we are still far from the type of active and undue interference with access to a judicial forum that
occurred in Taylor.154
Stated differently, if there is a constitutional violation here, then the narrow exception the
Taylor plurality described—and that we independently adopt today—would swallow the general
rule section 5110 provides. That simply can't be the case, and we won't convert VA's medical
system into what could become a breeding ground for constitutional violations. And that is
especially so because doing so would functionally usurp Congress' power to define the appropriate
means by which to assign effective dates for VA benefits.
III. CONCLUSION
After consideration of the parties' briefs, oral arguments, the record on appeal, and the
governing law, the Court AFFIRMS the December 8, 2022, Board decision denying appellant
entitlement to an effective date earlier than January 29, 2015, for CLL.
JAQUITH, Judge, dissenting: I admire, agree with, and join much of the majority opinion,
including that Taylor155 forecloses equitable estoppel overriding the effective date limits of 38
U.S.C. § 5110 and although Taylor does not establish a binding rule about as-applied constitutional
challenges under section 5110, the Taylor plurality demonstrates that section 5110 can be
151
Taylor, 71 F.4th at 915-18.
152
R. at 565.
153
R. at 20-24, 27; see Taylor, 71 F.4th at 932-39.
154
See R. at 5-12, 20-24, 565.
155
Taylor v. McDonough, 71 F.4th 909 (Fed. Cir. 2023) (en banc).
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unconstitutional as applied. However, I disagree with the majority's conclusion that section 5110
is not unconstitutional as applied to Mr. Ley, so I respectfully dissent. In my view, a VA doctor's
decision to deceive a patient about the nature and extent of his disability is (and should be) the
kind of extraordinarily rare circumstance that justifies ordering the assignment of an effective date
outside the parameters of section 5110.
The majority does not really make a contrary determination. Footnote 50 sets forth the
majority's analysis of the issue—and that’s where our roads diverge, and I take the road less
traveled, at least today.156 The majority embraces the Board's characterization of the veteran's
allegation of the doctor's conduct as a "misdiagnosis" and acknowledges that the veteran also
argued that the doctor deliberately withheld information and failed to properly inform him; but the
majority asserts that its analysis and conclusion are the same under each formulation.157 In my
view, if the hematologist "knew appellant should be diagnosed with CLL and chose not to convey
that diagnosis to him,"158 that hematologist—a VA doctor—foreclosed VA's use of section 5110
as a sword to cut off, from the effective date for his claim, the years until the veteran was told the
truth (by a forthcoming VA doctor) about the serious nature of his disability.
The Board found that the veteran's "entitlement to service connection [for CLL] arose on
July 7, 2010," the date that evidence of the veteran's CLL appeared in a pathology report.159 But
the Board denied an effective date earlier than January 29, 2015—1 year before the veteran filed
his CLL claim—based on section 5110 and 38 C.F.R. § 3.114.160 The Board "acknowledge[d] the
[v]eteran’s assertion that VA’s failure to properly inform him of his CLL diagnosis prevented him
from filing an earlier disability compensation claim"161 and did not question the credibility of that
assertion,162 instead finding "that the applicable regulations do not contain an exception to the
156
See Robert Frost, The Road Not Taken, https://www.poetryfoundation.org/poems/44272/the-road-not-taken (last
visited Dec. 27, 2024).
157
Ante at 7, n. 50.
158
Id.
159
R. at 10.
160
R. at 9.
161
Id.
162
See Miller v. Wilkie, 32 Vet.App. 249, 261 (2020) (noting that in such circumstances, the Court “may reasonably
conclude that [the Board] implicitly found the veteran credible”).
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effective date rules based on misdiagnosis even if that misdiagnosis is due to VA’s error."163 And
that is where the Board veered off the statutory and regulatory road, by equating "VA’s failure to
properly inform [the veteran] of his CLL diagnosis" with misdiagnosis.164
A misdiagnosis is "[a] wrong or mistaken diagnosis."165 Here, there was a misdiagnosis—
by the July 2010 pathologist who erroneously said that the diagnostic criterion for lymphocytes
had not been met.166 The Board credited the February 2020 VA oncologist who noted that the July
2010 pathology report showed that the veteran even then had CLL, a cancer related to exposure to
Agent Orange.167 But the Board did not explain how or why it whitewashed an intentional decision
by the July 2012 VA hematologist not to tell the veteran that he had CLL168 as a misdiagnosis.
And the majority opinion shrugs off that shortcoming by accepting such distinct conduct as being
close enough.
In my view, the majority's suggestion that Taylor is limited to its facts169 is not supported
by the decision. The plurality did not say Taylor is so limited, only that it addressed what it “would
expect to be a very rare set of circumstances.”170 As the majority here acknowledges, Mr. Ley
claims a colorable right-of-access violation—he is entitled to disability benefits, his opportunity
to secure an earlier effective date is no longer otherwise available, and the Court has the power to
award an earlier effective date, as if the alleged interference did not occur.171 But the majority finds
that there was no active interference with the veteran’s claim.172 In my view, that conclusion is
wrong and contrary to Taylor.
163
R. at 9.
164
Id.
165
Misdiagnosis, STEDMAN'S MED. DICTIONARY 1215 (28th ed. 2006); see Misdiagnose, WEBSTER'S II NEW COLL.
DICTIONARY 700 (2001) (defining misdiagnose as "[t]o diagnose incorrectly.").
166
R. at 26.
167
R. at 22-23, 5 (“The competent evidence of record demonstrates that the [v]eteran met the criteria for a diagnosis
of chronic lymphocytic leukemia on July 7, 2010.”), 10 (“Therefore, entitlement to service connection arose on July
7, 2010.”)
168
R. at 27.
169
Ante at 18.
170
Taylor, 71 F.4th at 918. Only the dissenters saw such a limitation. Id. at 964.
171
Ante at 19; see Taylor, 71 F.4th at 917-18.
172
Ante at 20.
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First, it bears repeating that we are dealing with a “fundamental right of access to the
exclusive adjudicatory forum for vindication of [the veteran’s] legal entitlement to VA disability
benefits”—a foundational right in our legal system.173 I agree with my colleagues that the Taylor
plurality’s analysis is persuasive. Though plurality opinions are not binding, “they are persuasive
authority.”174 When a fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of a majority of the judges, the holding of the Court may be viewed as that
position taken by the judges who concurred in the judgments on the narrowest grounds.175 We look
for a common denominator on which a majority of judges agree.176 In Taylor, the plurality opinion
concludes with the common denominator: “[W]hen a veteran has been determined to be entitled
to benefits for one or more disabilities connected to participation in the . . . program at issue, the
required effective date of such benefits is the date that the veteran would have had in the absence
of the challenged government conduct.” 177 As a veteran entitled to benefits denied an earlier
effective date because of a VA hematologist’s intentionally deceptive conduct, Mr. Ley should
receive the benefit of that Taylor holding.
As the majority acknowledges, Taylor requires affirmative conduct that unduly interfered
with the individual's access to adjudication.178 Since effective dates are substantive limitations on
the amount due, the statutory standards are subject to the same as-applied constitutional challenge
as effective dates for benefits.179 Contrary to the Secretary’s assertion,180 an intent to interfere is
173
Taylor, 71 F.4th at 932. The multiple roots for veterans’ right of access include their “constitutional right to have
[their] claim[s] for veteran[]s disability benefits decided according to fundamentally fair procedures.” Cushman v.
Shinseki, 576 F.3d 1290, 1302 (Fed. Cir. 2009); see id. at 1298 (“[E]ntitlement to [veterans] benefits is a property
interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution”). Indeed,
“[t]he entire thrust of []VA's nonadversarial claims system is predicated upon a structure which provides for notice
and an opportunity to be heard at virtually every step in the process.” Thurber v. Brown, 5 Vet.App. 119, 123 (1993).
174
Barbour v. Haley, 471 F.3d 1222, 1229 (11th Cir. 2006).
175
Marks v. US., 430 U.S. 188, 193 (1977).
176
Whole Woman's Health v. Paxton, 10 F.4th 430, 440 (5th Cir. 2021), abrogated on other grounds by Dobbs v.
Jackson Women's Health Org., 597 U.S. 215 (2022).
177
Taylor, 71 F.4th at 946. Compare id. at 934-35 (the plurality writing that VA's "affirmative conduct unduly
interfered with [Mr. Taylor's right to] access to the adjudication" of his benefits.) with id. at 955 (the concurrence
declaring that "equitable estoppel . . . is premised on [VA']s misconduct").
178
Id. at 935.
179
Id. at 926.
180
Secretary’s Br. at 18.
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not required, only that interference was the foreseeable consequence of the conduct 181 or its
“natural, predictable effect.” 182 The veteran is entitled to “access to meaningful adjudicatory
processes.”183 So the interference need not completely foreclose filing a claim; the opportunity to
file a minimal or placeholder claim is insufficient access.184
The record reflects that the VA hematologist actively interfered in July 2012. The
hematologist noted that the veteran had an absolute lymph count greater than 5000 since 2010185—
the criterion the VA oncologist later found conclusive proof that Mr. Ley had CLL from that time
forward.186 But the hematologist said “this would/will be stage ZERO and warrant only an annual
[complete blood count differential];” he “did not use the term leukemia” and told Mr. Ley “that
maybe in 20 y[ea]rs he would need further investigation . . . not now;” and said he could only label
Mr. Ley’s condition as “monoclonal B-cell lymphocytosis.”187 The hematologist added, “I did no
tests nor scheduled any return to [hematology],” and the accompanying nurse’s note reflects that
no laboratory tests were done and the veteran’s condition was listed as not service connected.188
Stating “I did not use the term leukemia” when explaining Mr. Ley’s condition to him, the
VA hematologist highlighted that he affirmatively chose his words, as he did when he told Mr.
Ley “that maybe in 20 y[ea]rs he would need further investigation [but] not now,” and noted his
corresponding intentional decision not to do any tests or schedule further treatment. And the
hematologist’s affirmative conduct reportedly had an effect. Afterward,
Mr. Ley continued to experience weakness and a lack of energy[,] [b]ut because the
VA oncologist deliberately “did not use the term leukemia[,]” Mr. Ley did not
realize what was happening to his body. He did not apply for any VA benefits
because he didn’t know anything was wrong that would qualify him for benefits.189
181
Taylor, 71 F.4th at 939.
182
Id. at 935.
183
Id.
184
Id. at 938.
185
R. at 27.
186
R. at 23.
187
R. at 27.
188
Id.
189
Appellant’s Br. at 4.
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In a November 2022 statement, the veteran recounted the problems he and his family faced during
6 years of his care through the West Palm Beach VA (2009-15):
Not knowing what was happening to me physically and mentally. Feeling weak,
tired, lack of energy and strength caused tensions in the family, friends and at work.
Losing employment, jobs, feeling lazy having others help with my work and being
fired several times in those years is really had to handle. Financially we had to sell
our home in Florida that we all loved and moved to a smaller home in Tennessee
in 2015. Maybe the West Palm Beach VA was over worked or lacked staff to
address my problems or concerns for six years? . . . If I was correctly diagnosed in
2010, I would have filed for [m]ilitary [b]enefits that would have help my CLL
from getting worse.190
In another November 2022 statement, the veteran said that the hematologist’s July 2012 report,
“stopped anyone from evaluating or assessing me again until I moved to Tennessee and was tested
and evaluated in 2016. That is when l was first told I have CLL. I filed a claim.”191 And the record
includes reports of blood work between August 2009 and January 2016 showing increasing
lymphocyte levels above the reference normal range, but almost nothing else.192
Mr. Ley complained about the early misdiagnosis of his condition, but he also emphasized
that VA knew, hid, and did not tell him that he had CLL for 6 years.193 VA even admitted that the
veteran was not informed of his condition and apologized.194 Yet the December 2022 Board did
no more than respond to the “[v]eteran’s assertion that VA’s failure to properly inform him of his
CLL diagnosis prevented him from filing an earlier disability compensation claim” by noting “that
the applicable regulations do not contain an exception to the effective date rules based on
misdiagnosis.”195 But hiding, not telling, and preventing are not misdiagnosing.
Of course, the Board cannot adjudicate a constitutional challenge, but presentation of
supporting evidence to the Board falls within its record development and factfinding functions.196
190
R. at 42.
191
R. at 21.
192
See R. at 28-34.
193
R. at 21.
194
R. at 459. In 2019, VA’s Decision Review Officer wrote, in a Statement of the Case: “I extend my sincere apology
that you were not informed of your condition until a later date.” Id.
195
R. at 9.
196
Bowling v. McDonough, 38 F.4th 1051, 1059 (Fed. Cir. 2022).
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No meaningful development or factfinding happened here, only the misbegotten conflation of
misdiagnosis and active interference with the veteran’s access.
Perhaps the absence of meaningful development or factfinding explains why there is no
information of record regarding why the VA hematologist deceived the veteran about the nature
of his disability. Or the absence of any justification may be related to the statutory requirement
that “all patient care furnished under [title 38] shall be carried out only with the full and informed
consent of the patient.”197 The absence of any justification for not informing the veteran that he
had CLL—much less a justification that would withstand strict scrutiny—is a significant
counterbalance to the notion that different rules should apply to Mr. Ley because he wasn’t
threatened with prosecution if he filed a claim. The interference in Taylor was more egregious than
here, but the national security justification in Taylor was infinitely more than the complete zero
for justification here. And the veteran’s evidence that the interference here was a showstopper is
unrebutted. After all, a claim for disability compensation requires a service-connected disability.198
And the presumptive service connection Mr. Ley gained was based on his CLL, 199 per §
3.309(e).200 Moreover, the veteran submitted his claim for benefits for CLL on January 25, 2016,201
just 4 days after a VA oncologist told him he had CLL.202
The majority puts great stock in the veteran’s ability to file a claim for monoclonal B-cell
lymphocytosis, as a ratable diagnosis.203 However, the difference between what the veteran was
told and the CLL he was suffering from was particularly stark in 2012. At that time, § 4.117 did
not reference monoclonal B-cell lymphocytosis, which was not added to DC 7703 until 2018.204
And monoclonal B-cell lymphocytosis is still not on § 3.309(e)'s list of diseases subject to
presumptive service connection. In addition to Taylor’s express rejection of the placeholder
197
38 U.S.C. § 7331; see 38 C.F.R. § 17.32(c) (2024) (“Informed consent is the process by which the practitioner
discloses to and discusses appropriate information with a patient so that the patient may make a voluntary choice about
whether to accept the proposed diagnostic or therapeutic procedure or course of treatment.”).
198
See, e.g., 38 U.S.C. § 101(13).
199
R. at 1308, 1886.
200
R. at 6, 9.
201
R. at 2379-82.
202
R. at 2376.
203
Ante at 21.
204
38 C.F.R. § 4.117, DC 7703 (eff. Dec. 9, 2018).
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scenario,205 Mr. Ley’s ratable CLL was kept from him in favor of a condition neither ratable nor
presumptively service connected.
If this case was about two doctors disagreeing over the appropriate diagnosis, 206 there
would be no dissent. But that characterization of the facts ignores the inconvenient truth that the
VA hematologist decided to withhold the truth from the veteran, and that decision resulted in the
veteran’s claim and benefits being delayed several years. I agree with the majority that “the VA
benefits and healthcare system . . . relies on trained, medical experts making reasoned, informed
judgments about medical questions,”207 but I would add that it also relies on “communicating those
judgments to the affected patients” and “describing them in patients’ medical records.”208 The
hematologist’s unexplained decision to mislead Mr. Ley left him and VA caregivers in the dark
for several years and deprived Mr. Ley of benefits to which the truth entitled him. I respectfully
dissent.
205
Taylor, 71 F.4th at 938.
206
See ante at 22.
207
Id.
208
The financial impact of the deception of Mr. Ley is measurable, but there is no record information on whether that
deception diminished his subsequent care, which may be incalculable.
29