Fed Circ revives claim of army vet over secret chemical agent tests

  • Government is equitably estopped from invoking time bar
  • Tests took place in 1969

(Reuters) - A U.S. Army veteran who took part in secret tests of toxic chemical agents is entitled to disability benefits going back before 2007, when he was finally allowed to discuss the tests, a federal appeals court has ruled.

In a unanimous decision on Wednesday, the Federal Circuit U.S. Court of Appeals reversed a ruling by the U.S. Court of Appeals for Veterans Claims that Bruce Taylor was entitled to benefits beginning in February 2007, when he made a successful claim in connection with the secret tests, but not before.

"Mr. Taylor kept his word and did what was required; it is time for the government to do the same," Senior Circuit Judge Evan Wallach wrote.

The Department of Veterans Affairs said it was evaluating the decision. Taylor's lawyer, Kenneth Carpenter, did not immediately respond to a request for comment.

According to Wednesday's opinion, Taylor volunteered for tests of toxic chemical agents in 1969, and subsequently served two tours in Vietnam. As a result of his exposure to the toxic agents, Taylor suffered hallucinations, nausea, jumpiness, irritability, sleepiness, dizziness, impaired coordination and difficulty concentrating.

Because Taylor signed an oath of secrecy about the tests, he was not able to seek psychiatric help for post traumatic stress disorder stemming from them, or to raise them as an extenuating circumstance when he was court martialed, according to the opinion.

In 2006, the tests were declassified, and in February 2007 Taylor brought a claim for disability stemming from the tests to the Department of Veterans Affairs.

In June of that year, a VA medical examiner diagnosed Taylor with post-traumatic stress disorder and major depressive disorder related to the chemical tests and subsequent combat in Vietnam. The examiner noted that Taylor had sought treatment once before but had been turned away by the treating provider, who believed his story of participating in secret chemical tests was a fabrication.

The VA granted Taylor disability benefits with an effective date of February 2007, the date of his claim.

Taylor appealed to the Board of Veterans Claims and then to the Court of Appeals for Veterans Claims, arguing that he was entitled to benefits going back to 1971. However, the court concluded that it lacked the power to apply equitable tolling to Taylor's claim.

The Federal Circuit, reversing, found that the court had the authority to find that the government was equitably estopped from limiting Taylor's claims to post-February 2007, in light of his previous secrecy oath.

"Indeed, concluding otherwise would be contrary to the Veterans Court's statutory mandate," the judge wrote, citing the court's "purpose of ensuring that veterans were treated fairly by the government and to see that all veterans entitled to benefits received them."

The court remanded the case to the Board to determine the effective date in light of the ruling.

Wallach was joined by Circuit Judges Pauline Newman and Kathleen O'Malley.

The case is Taylor v. McDonough, U.S. Court of Appeals for the Federal Circuit, No. 19-2211.

For Taylor: Kenneth Carpenter, Law Offices of Carpenter Chartered

For the Department of Veterans Affairs: William Grimaldi of the U.S. Department of Justice Civil Division

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.