Taylor v. McDonough

Case: 19-2211   Document: 35     Page: 1   Filed: 06/30/2021




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  BRUCE R. TAYLOR,
                   Claimant-Appellant

                            v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS 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. Meredith.
                  ______________________

                 Decided: June 30, 2021
                 ______________________

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

     WILLIAM JAMES GRIMALDI, Commercial Litigation
 Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee.
 Also represented by JEFFREY B. CLARK, ROBERT EDWARD
 KIRSCHMAN, JR., LOREN MISHA PREHEIM; CHRISTOPHER O.
 ADELOYE, BRIAN D. GRIFFIN, Office of General Counsel,
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 2                                      TAYLOR   v. MCDONOUGH



 United States Department of Veterans Affairs, Washington, DC.
                ______________________

         Before NEWMAN, O’MALLEY, and WALLACH *,
                     Circuit Judges.
 WALLACH, Circuit Judge.
     Appellant, Bruce R. Taylor, appeals a decision of the
 U.S. Court of Appeals for Veterans Claims (“Veterans
 Court”). The Veterans Court affirmed the Board of Veterans Claims’ (“Board”) denial of entitlement to an effective
 date earlier than February 28, 2007, for the award of service-connected disability benefits for post-traumatic stress
 disorder (“PTSD”), concluding that equitable estoppel
 against the Government was unavailable to Mr. Taylor.
 Taylor v. Wilkie (Taylor IV), 

, 154–55
 (2019); J.A. 20 (Judgment).
     Mr. Taylor appeals. We have jurisdiction pursuant to
 

(a), (c). We reverse and remand.
                        BACKGROUND
                   I. Factual Background 1
      From 1955 to 1975, the Department of Defense (“DoD”)
 undertook “experiments . . . with a wide range of . . . chemical warfare agents” at various “military facilities,” including Edgewood Arsenal in Edgewood, Maryland. J.A. 34; see
 J.A. 34–37 (August 2006 U.S. Department of Veterans Affairs (“VA”) Information Letter).       The “experiments


     *
          Circuit Judge Evan J. Wallach assumed senior
 status on May 31, 2021.
     1    Because the parties do not dispute the relevant
 facts, see generally Appellant’s Br. 2–6; Appellee’s Br. 3–5,
 we cite to the Veterans Court’s decisions below unless otherwise noted.
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 TAYLOR   v. MCDONOUGH                                        3



 involved at least 6,700 ‘soldier volunteers’ exposed . . . to
 more than 250 different [chemical warfare] agents.”
 J.A. 35. Mr. Taylor was among those soldier volunteers.
 Taylor v. Shinseki (Taylor II), No. 11-0254, 

, at *1 (Vet. App. June 28, 2013).
      Mr. Taylor served on active duty in the U.S. Army from
 January 1969 through September 1971. J.A. 28 (DD-214).
 He was “an ammunition records clerk in Vietnam” and volunteered to “participa[te] in the testing of chemical and biological warfare agents as part of the Edgewood [Arsenal]
 testing project.” Taylor II, 

, at *1; see
 J.A. 31 (Edgewood Arsenal Consent Form).             In August 1969, upon reporting to Edgewood Arsenal, Mr. Taylor signed two documents. Taylor II, 

, at
 *1. First, he signed a secrecy oath providing that he would
     not divulge or make available any information related to U.S. Army Intelligence Center interest or
     participation in the Army Medical Research Volunteer Program to any individual, nation, organization, business, association, or other group or entity,
     not officially authorized to receive such information.
 S. REP. NO. 94-755, at 418 (1976). The secrecy oath further
 provided that Mr. Taylor
     [u]nderst[oo]d that any action contrary to the provisions of this statement w[ould] render [him] liable to punishment under the provisions of the
     Uniform Code of Military Justice [(“UCMJ”)].
 Id.; see 10 U.S.C. §§ 801–946 (codifying the UCMJ). 2 Second, he signed “a document regarding consent,” which



     2  The Central Intelligence Agency (“CIA”) “has never
 provided any of the oaths taken by the soldiers at Edgewood Arsenal.” Taylor IV, 31 Vet. App. at 156 (Greenberg,
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 4                                      TAYLOR   v. MCDONOUGH



 provided that “[t]he proposed experimental procedure
 ha[d] been explained to [him]” and that “[he] voluntarily
 agree[d] to participate in th[e] test.” J.A. 31 (Edgewood Arsenal Consent Form). 3




 J., dissenting) (citation omitted); see Taylor IV, 31 Vet.
 App. at 149 (“[T]here [is no] 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[.]”); Appellee’s Br. 3 n.1 (stating
 that, “[a]lthough the Veterans Court did not identify the
 document Mr. Taylor signed,” a “sample volunteer agreement” was quoted by the U.S. Senate Select Committee on
 Intelligence “in a 1976 report” (citing S. REP. No. 94-755 at
 418)).
      3   The Government was authorized to test chemical
 and biological weapons on human subjects pursuant to specific DoD directives and regulations “intended to govern
 th[e] experiments” and protect the human test subjects.
 Vietnam Veterans of Am. v. Cent. Intel. Agency (Vietnam
 Veterans I), No. C 09-0037 CW, 

, at *2
 (N.D. Cal. Nov. 19, 2013), aff’d in part, rev’d in part, 

 (9th Cir. 2016). “These requirements were codified in [Army Regulation (‘AR’) 70-25, Use of Volunteers as
 Subjects of Research (1962) (‘AR 70–25’)],” first “promulgated on March 26, 1962[,] and later reissued in 1974.” Id.;
 see id. at 3 (“Both versions set forth certain basic principles
 that must be observed to satisfy moral, ethical, and legal
 concepts.” (internal quotation marks, alterations, and citations omitted)). In addition to requiring consent of the soldier volunteers, AR 70–25 established the Army’s “[d]uty
 to warn,” specifically, that “Commanders . . . ensure that
 research volunteers are adequately informed concerning
 the risks involved with their participation” and “provide
 them with any newly acquired information that may affect
 their well-being when that information becomes
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 TAYLOR   v. MCDONOUGH                                        5



     In September and October 1969, Mr. Taylor was exposed to EA–3580 (a nerve agent akin to VX and sarin),
 EA–3547 (also called CR, a tear gas agent), and other
 chemical agents. See Taylor II, 

, at *1,
 *1 n.2, *1 n.3; see J.A. 31 (Volunteer Reports for September
 and October 1969) (noting that “[s]ixteen volunteers were
 used in testing the effects of a chemical agent,” “EA 3580A,”
 “on performance”). 4 Mr. Taylor “recalled being on the rifle


 available . . . even after the individual volunteer has completed his or her participation in research,” Vietnam Veterans of Am. v. Cent. Intel. Agency (Vietnam Veterans II), 

 (9th Cir. 2016) (quoting AR 70–25), and
 the Army’s “[d]uty to provide care,” specifically to provide
 “medical care for disabilities, injuries or illnesses caused by
 their participation in government experiments, not only
 during the course of the experiment but also after the experiment has ended,” 

.
     4    EA–3580 is an anticholinergic glycolic acid ester.
 Taylor II, 

, at *1, *1 n.2; see 

 at *1 n.2
 (“Anticholinergics include nerve agents such as sarin and[]
 cause toxic accumulation of the neurotransmitter acetylcholine.” (internal quotation marks and citation omitted)).
 Exposure may result in symptoms “consistent with acute
 cholinergic toxicity, including dizziness, frontal headache,
 blurred vision, lethargy, nausea, stomach pain, vomiting,
 rhinorrhea, chest tightness, wheezing, fasciculations,
 sweating on hands and feet, and significantly decreased
 red blood cell cholinesterase levels.” Id.; see also Evan J.
 Wallach, A Tiny Problem with Huge Implications—Nanotech Agents As Enablers or Substitutes for Banned Chemical Weapons: Is A New Treaty Needed?, 33 Fordham Int’l
 L.J. 858, 869 n.42 (2010) (discussing the physiological effects of anticholinergic nerve agents); 

 at 870 n.45 (discussing the production and classification of weaponized
 nerve agents), 888–923 (outlining the history of use of
 nerve agents as chemical weapons). EA–3547 “is a tear gas
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 6                                      TAYLOR   v. MCDONOUGH



 range at one point and thinking that he was killing people
 rather than shooting at targets” and “being exposed to
 some agent in a gas chamber while wearing a mask and
 having to give only his name, rank and serial number.”
 J.A. 57 (VA Initial Evaluation for PTSD); see J.A. 31 (Volunteer Reports for September and October 1969) (noting
 that, while exposed to EA–3580, “[m]easures of military
 performance and laboratory cognitive and psychomotor
 skills were employed,” including “[n]umber [f]acility and
 [r]ifle [a]ccuracy,” with “considerable· variation [in effect]
 among subjects”). Mr. Taylor reported experiencing “hallucinations, nausea, jumpiness, irritability, sleepiness, dizziness,      impaired     coordination,    and      difficulty
 concentrating.” Taylor IV, 31 Vet. App. at 155 (Greenberg,
 J., dissenting); see Taylor II, 

, at *1;
 J.A. 56–57 (VA Initial Evaluation for PTSD).
     Thereafter, Mr. Taylor returned to his unit and, in December 1969, was deployed to Vietnam. Taylor II, 

, at *1. Mr. Taylor “served two combat tours in
 Vietnam.” 

 At the time, by its own regulation, the Army
 was required to provide necessary “medical treatment and
 hospitalization . . . for all casualties” of the Edgewood Arsenal testing program. Vietnam Veterans II, 

 (quoting AR 70–25). Nonetheless, “[t]he secrecy of the
 Edgewood [Arsenal] testing project prevented [Mr. Taylor]
 from obtaining psychiatric help on multiple occasions during service, and from showing mitigating or extenuating
 circumstances during a court-martial for his behavior.”
 Taylor II, 

, at *1 (citation omitted); see
 J.A. 45–47 (Statement in Support of Claim); cf. Vietnam



 agent that causes respirator[y] tract irritation . . . with
 choking, and sometimes dyspnea, and stinging and
 eryth[em]a at the exposure site.” Taylor II, 

, at *1 n.3 (internal quotation marks and citation
 omitted).
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 TAYLOR   v. MCDONOUGH                                       7



 Veterans II, 

 (noting the Army’s ongoing
 “[d]uty to provide [medical] care” “for disabilities, injuries
 or illnesses caused by . . . participation in government experiments”); S. REP. NO. 94-885, at 4 (1976) (finding that,
 at Edgewood Arsenal and in other such testing programs,
 “medical supervision was inadequate, medical backup was
 deficient, and long-term follow[-]up virtually nonexistent,”
 supporting the adoption of federal standards for the protection of human subjects of biomedical research).
                 II. Procedural Background
     In 2006, the DoD “declassified the names of the servicemen and women who had volunteered for the Edgewood
 [Arsenal testing p]rogram[.]” Taylor IV, 31 Vet. App.
 at 149. In June 2006, the VA sent letters to Edgewood Arsenal testing program participants, including Mr. Taylor,
 notifying them that the “DoD had given permission for
 those identified to disclose to health care providers information about their involvement in the Edgewood [Arsenal
 testing p]rogram that affected their health,” id.; see
 J.A. 32–33 (June 2006 VA Letter), and that participants
 should “speak to a VA representative about filing a disability claim” for any “chronic health problems as a result of
 [the Edgewood Arsenal] tests,” J.A. 33; see Taylor IV, 31
 Vet. App. at 149. “In August and September 2006, [the] VA
 sent training letters to the Veterans Health Administration and the regional offices . . . outlining the procedures
 for handling claims filed by Edgewood [Arsenal testing
 p]rogram veterans.” Taylor IV, 31 Vet. App. at 149; see
 J.A. 34–37 (August 2006 VA Information Letter). 5



     5   Subsequently, in 2011, the DoD issued its own
 memorandum “releasing veterans in part or in full from secrecy oaths that they may have taken in conjunction with
 [Edgewood Arsenal] testing.” Vietnam Veterans I, 

, at *6. The memorandum noted that “[s]uch oaths
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 8                                      TAYLOR   v. MCDONOUGH



      In February 2007, Mr. Taylor filed a claim for service-connected benefits for PTSD, which he asserted was
 “caused in service in 1969 at the chemical research program at Edgewood Arsenal[.]” J.A. 38 (February 2007
 Claim); see Taylor IV, 31 Vet. App. at 149. In June 2007, a
 VA medical examiner diagnosed Mr. Taylor with PTSD and
 major depressive disorder, with “[b]oth diagnoses . . . considered to be a cumulative response to his participation as
 a human subject in the Edgewood Arsenal experiments and
 subsequent re-traumatization in Vietnam.” J.A. 62 (VA Initial Evaluation for PTSD); see Taylor IV, 31 Vet. App.
 at 157 (Greenberg, J., dissenting). The examiner noted
 that, while Mr. Taylor had previously sought treatment for
 his PTSD, he was “‘turned away because the treating provider believed his story about being an experimental subject was a fabrication.’” Id. at 150 (quoting J.A. 58 (VA
 Initial Evaluation for PTSD)); see J.A. 62 (VA Initial Evaluation for PTSD) (indicating that Mr. Taylor “experienced
 unusual physical and psychological problems but there was
 no help available to him due to the secret status of the
 [Edgewood Arsenal] research,” that he was “forbidden to
 talk about his experiences,” and that “[o]n the one occasion
 he did seek help, he was treated as a liar and malingerer”).
 He also noted that, following discharge, Mr. Taylor had experienced continuing physical and psychological problems.




 or other non-disclosure requirements have reportedly inhibited veterans from discussing health concerns with
 their doctors or seeking compensation from the [VA] for potential service-related disabilities,” and provided that, “[t]o
 assist veterans seeking care for health concerns related to
 their military service, chemical or biological agent research
 volunteers are hereby released from non-disclosure restrictions, including secrecy oaths, which may have been
 placed on them.” Id.
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 TAYLOR   v. MCDONOUGH                                      9



 See Taylor II, 

, at *2; see also J.A. 62 (VA
 Initial Evaluation for PTSD).
      In July 2007, the VA granted Mr. Taylor’s claim for service-connected benefits for PTSD, with a 70 percent disability rating and, in October 2007, granted him entitlement
 to total disability rating based on individual unemployability (“TDIU”), both with an effective date of February 28,
 2007, the date of his PTSD claim. J.A. 38 (February 2007
 Claim), 64 (July 2007 Rating Decision), 73 (October 2007
 Rating Decision). Mr. Taylor appealed the VA’s Rating Decisions to the Board, “request[ing] an effective date of September 7, 1971, the day following [his] discharge from
 active duty military service,” for the “grant of service connection for [PTSD] and total disability benefits[.]” J.A. 77–
 78 (Notice of Disagreement). Mr. Taylor “argue[d] that entitlement arose on September 7, 1971,” but that he “was
 precluded from obtaining benefits because the . . . Government withheld necessary supporting evidence due to secrecy issues related to the Edgewood Arsenal experiments.”
 J.A. 78. Before the Board, he “asserted that he could not
 file for VA benefits until he received the letter from [the]
 VA in September 2006 regarding the Edgewood [Arsenal]
 project.” In re Taylor (Taylor I), No. 08-13 206, slip op. at
 3 (Bd. Vet. App. July 20, 2010). The Board concluded that
 “the earliest effective date assignable for grant of service
 connection” was February 28, 2007. 

 The Board explained that, because “[r]eview of the evidence show[ed]
 that [the] VA received an informal claim for service connection for PTSD on February 28, 2007,” with “no prior communication” that could be construed as a claim,
 February 28, 2007, was the “earliest effective date assignable[.]” 

 at 3–4 (citing 

; 

).
     Mr. Taylor appealed the Board’s decision to the Veterans Court. J.A. 114 (November 2012 Complaint). The Veterans Court vacated and remanded, instructing the Board
 to “obtain and account for the language of the secrecy oath
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 10                                     TAYLOR   v. MCDONOUGH



 in adjudicating [Mr. Taylor’s] claim.” Taylor II, 

, at *2. The Board remanded to the VA, In re Taylor (Taylor III), No. 08-13 206, slip op. at 1 (Bd. Vet. App.
 Apr. 14, 2017), and the VA “attempted,” but failed, “to obtain” “the language of [Mr. Taylor’s] secrecy oath,” as “the
 Edgewood Chemical Biological Center” did not respond to
 its inquiries, id. at 4. The VA and Board instead used “the
 language of the secrecy [oath] that,” it stated, “most [Edgewood Arsenal testing program] participants were required
 to sign” based on “a January 2009 complaint filed by Vietnam Veterans of America . . . against the [CIA][.]” Id.;
 see Compl. at 45, Vietnam Veterans of Am. v. Cent. Intel.
 Agency, N.D. Cal. No. 4:09-cv-00037-CW (Jan. 7, 2009),
 

. The Board maintained that the earliest
 assignable effective date for service-connected PTSD was
 February 28, 2007, the date of Mr. Taylor’s claim. Taylor
 III, No. 08-13 206, slip op. at 7. The Board reasoned, first,
 because Mr. Taylor’s PTSD diagnosis was based on multiple stressors, “nothing prevented [Mr. Taylor] from filing a
 claim for PTSD based on those stressors without having to
 divulge any information regarding the Edgewood experiments”; second, even if Mr. Taylor was under a secrecy
 oath, he had violated it when he sought medical care prior
 to 2006; and third, “the governing statute in this case,
 

,” precluded an earlier effective date. Id.
 at 8. 6



      6   While Mr. Taylor’s case was pending before the
 Board and Veterans Court, “veterans’ organizations and individuals who were subjects in [the Edgewood Arsenal] experiments” filed a class action in the U.S. District Court for
 the Northern District of California (“District Court”) “seeking declaratory and injunctive relief against” the DoD,
 Army, VA, and CIA. Vietnam Veterans II, 

;
 see 

 (providing that the “class comprises all current or
 former members of the armed forces, who, while serving in
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 TAYLOR   v. MCDONOUGH                                       11



      The case was referred to a panel of the Veterans Court.
 See Taylor IV, 31 Vet. App. at 149. A divided panel affirmed the Board’s decision. Id. The majority concluded
 that 

(a)(1) prevented assignment of an earlier effective date for Mr. Taylor’s service-connected PTSD.
 

. The majority explained that, while Mr. Taylor
 had argued “that equity demands that the [Veterans]
 Court order [the] VA to establish a process by which he and
 other veterans like him may establish an earlier effective
 date for the award of benefits,” the Veterans Court’s “equitable powers . . . are not so broad.” 

 (citations omitted).
 The majority further explained that the “[Veterans] Court
 and the Federal Circuit have considered whether [§] 5110
 is subject to equitable tolling and have found that it is not.”


 the armed forces, were test subjects in [chemical and biological weapons] experimentation programs” (internal quotation marks omitted)); Vietnam Veterans I, 

, at *1. The Ninth Circuit affirmed the District
 Court’s conclusion that AR 70–25, first promulgated in
 1962, imposes on the Army “an ongoing duty . . . to provide
 former test subjects with newly available information relating to their health,” Vietnam Veterans II, 

; see 

 at 1076–78 (discussing the Army’s “duty to
 warn” under AR 70–25), and that “AR 70–25 entitle[d] [the
 p]laintiffs to medical care for disabilities, injuries or illnesses caused by their participation in government experiments, not only during the course of the experiment but
 also after the experiment ha[d] ended,” 

 (internal quotation marks omitted); see 

 at 1080–81 (discussing the Army’s “duty to provide care” under AR 70–25).
 The Ninth Circuit further concluded that AR 70–25’s duty
 to warn and duty of care were enforceable against the Army
 under 

(1). 

 at 1078–79, 1081–82; see 

(1) (providing that “[t]he reviewing court
 shall . . . compel agency action unlawfully withheld or unreasonably delayed”).
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 12                                     TAYLOR   v. MCDONOUGH



 

 at 154 (citing, inter alia, Andrews v. Principi, 

, 1137–38 (Fed. Cir. 2003); Noah v. McDonald, 

, 128–29 (2016)).
      In contrast, the dissent would have reversed because
 all three of the Board’s “findings were wrong as a matter of
 law.” Taylor IV, 31 Vet. App. at 158 (Greenberg, J. dissenting). First, the dissent said the Board’s conclusion that Mr.
 Taylor was not entitled to an earlier effective date because
 “nothing prevented [Mr. Taylor] from filing a claim for
 PTSD based on [his other, non-Edgewood] stressors,” Taylor III, slip op. at 8, was “basic Board error,” “thoughtless,”
 and “a heartless attempt to dehumanize a veteran with an
 unsubstantiated medical opinion,” Taylor IV, 31 Vet. App.
 at 158 (Greenberg, J., dissenting). Second, the Board’s conclusion that Mr. Taylor was not entitled to an earlier effective date because he “appear[ed] to have divulged
 information regarding the Edgewood experiments despite
 the secrecy oath” in an attempt to get medical care, Taylor III, slip op. at 8, was of no apparent relevance, see Taylor IV, 31 Vet. App. at 158 (Greenberg, J., dissenting)
 (“Filing a claim for benefits with the Government under a
 cloud of prosecution is a wholly different proposition from
 divulging information to a medical provider.”). Third, the
 dissent “would have held that the Government [wa]s equitably estopped from finding that [Mr. Taylor] filed a claim
 after the date he was entitled.” Id. at 161. The dissent
 explained that “through affirmative misconduct followed
 by reckless inaction,” the Government had “stopped [Mr.
 Taylor] from filing a successful claim” for benefits, and
 that, under such “extreme” circumstances, “Congress could
 not have intended [Mr. Taylor] to be assigned [an] effective
 date of the date he filed [his claim].” Id. at 162. The dissent
 would have “assigned an effective date of 1971.” Id.; see id.
 (“[F]iat justicia, ruat caelum, let justice be done whatever
 be the consequence.” (quoting Somerset v. Stewart, (1772)
 98 Eng. Rep. 499 (K.B.) 509 (Lord Mansfield)).
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 TAYLOR   v. MCDONOUGH                                        13



                          DISCUSSION
          I. Standard of Review and Legal Standard
     Our jurisdiction to review decisions of the Veterans
 Court is defined by statute. Gazelle v. Shulkin, 

 (Fed. Cir. 2017). We may “review and decide
 any challenge to the validity of any statute or regulation or
 any interpretation thereof” and “interpret constitutional
 and statutory provisions, to the extent presented and necessary to a decision.” 

(c). “[W]e have authority to decide whether the Veterans Court applied the
 correct legal standard.” Sneed v. Shinseki, 

 (Fed. Cir. 2013) (internal quotation marks, citation,
 and footnote omitted). Further, “[t]he jurisdictional reach
 of the Veterans Court presents a question of law for our
 plenary review.” Maggitt v. West, 

 (Fed. Cir. 2000). We review the Veterans Court’s legal determinations de novo. Gazelle, 

.
      The Veterans Court is “an Article I tribunal,” created
 under the Veterans’ Judicial Review Act of 1988 (“VJRA”),
 Pub. L. No. 100–687, 

 (2000) (codified as
 amended at 38 U.S.C. §§ 7251–98), “to review Board decisions adverse to veterans.” Henderson ex rel. Henderson v.
 Shinseki, 

 (2011). Under the VJRA, the
 Veterans Court has “exclusive jurisdiction to review decisions of the Board,” with “power to affirm, modify,” remand, “or reverse a decision of the Board[.]” 

(a). The Board, in turn, has jurisdiction to review
 “[a]ll questions in a matter which under [38 U.S.C.]
 § 511(a) . . . is subject to decision by the Secretary [of Veterans Affairs (the ‘Secretary’)],” following the Secretary’s
 own review on appeal. Id. § 7104(a). The Secretary “decide[s] all questions of law and fact necessary to a decision
 by the Secretary under a law that affects the provision of
 benefits by the Secretary to veterans or the dependents or
 survivors of veterans.” Id. § 511(a); see id. § 511(a)–(b) (further providing that “the decision of the Secretary as to any
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 14                                     TAYLOR   v. MCDONOUGH



 such question shall be final and conclusive and may not be
 reviewed by any other official or by any court, whether by
 an action in the nature of mandamus or otherwise” except
 for “matters covered by,” inter alia, “[38 U.S.C.] chapter 72”). Veterans are entitled to benefits from the VA if
 they develop a disability “resulting from personal injury
 suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted
 in line of duty.” 

 (providing “[b]asic entitlement” for disabilities connected to wartime service),
 1131 (providing “[b]asic entitlement” for disabilities connected to “active military . . . service during other than a
 period of war”); accord Simmons v. Wilkie, 

 (Fed. Cir. 2020).
     “Estoppel is an equitable doctrine invoked to avoid injustice[.]” Heckler v. Cmty. Health Servs. of Crawford Cty.,
 Inc., 

 (1984). It provides relief where a party
 has reasonably “relied on its adversary’s conduct in such a
 manner as to change his position for the worse.” 

 (internal quotation marks and citation omitted). Further, for equitable estoppel against the Government, the party must
 show “some form of affirmative misconduct” by the Government “in addition to the traditional requirements of estoppel.” Zacharin v. United States, 

 (Fed.
 Cir. 2000); see Off. of Pers. Mgmt. v. Richmond, 

 (1990) (explaining that “some type of ‘affirmative
 misconduct’ might give rise to estoppel against the Government”); see also Schweiker v. Hansen, 

 (1981) (concluding that “failure to satisfy a ‘procedural requirement’” for benefits based on erroneous legal advice
 from a government employee “d[id] not justify estopping”
 the Government).
       II. The Veterans Court Erred in Concluding
      Equitable Estoppel is Unavailable to Mr. Taylor
     The Veterans Court denied Mr. Taylor an effective date
 earlier than his February 2007 informal claim, concluding
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 TAYLOR   v. MCDONOUGH                                      15



 that “[i]n the absence of an earlier claim, [38 U.S.C. §] 5110
 is clear: The effective date for the award of benefits is the
 date of the claim.” Taylor IV, 31 Vet. App. at 155. The
 Veterans Court explained that it lacked authority to apply
 equitable estoppel against the Government, and thereby
 grant Mr. Taylor an earlier effective date, because the Veterans Court has “expressly rejected the possibility of equitable estoppel in the absence of an ‘explicit statutory
 grant[]’ of that privilege.”       Id. at 155 n.4 (quoting
 Burkhart v. Wilkie, 

, 427 (2019), aff’d, 

 (Fed. Cir. 2020)) (alteration in original). The
 Veterans Court concluded that it could not “use equitable
 estoppel to authorize payment outside of the requirements
 set out in [38 U.S.C. §] 5110,” as the Supreme Court has
 “shut the door on all estoppel claims against the [G]overnment . . . when the claimant seeks monetary relief.” Taylor IV, 31 Vet. App. at 155 n.4 (citing Richmond, 

). On appeal, Mr. Taylor argues that the Veterans
 Court erred in denying him an earlier effective date because, “[b]ut for [his] secrecy [oath], and the risk of incurring the penalty of a court-martial or [criminal] prosecution
 if he failed to adhere to it, Mr. Taylor would have been able
 to apply for VA benefits and inform the VA about the disabilities he incurred as a result of his participation” in the
 Edgewood Arsenal testing program. Appellant’s Br. 15–16.
 Mr. Taylor argues the Veterans Court “should have . . . extend[ed] the utmost ‘flexibility’ when it considered what
 due process and procedural protections were required” for
 his claim. Id. at 11. Because the Veterans Court erred in
 concluding that equitable estoppel against the Government
 was unavailable to Mr. Taylor, we reverse and remand. 7



     7    While Mr. Taylor frames his argument in terms of
 Due Process protections, see Appellant’s Br. 8 (arguing that
 “[t]he secrecy agreement the Army required Mr. Taylor to
 sign ultimately resulted in a denial of his right to [D]ue
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 16                                      TAYLOR   v. MCDONOUGH



     The Veterans Court erred in concluding it lacked authority to hold the Government equitably estopped from
 denying Mr. Taylor’s claim for an earlier effective date.
 First, the Veterans Court “expressly rejected the possibility
 of equitable estoppel in the absence of an ‘explicit statutory
 grant[]’ of that privilege.” Taylor IV, 31 Vet. App. at 155
 n.4 (quoting Burkhart, 30 Vet. App. at 427). This is incorrect. The Veterans Court “cannot invoke equity to expand
 the scope of its statutory jurisdiction.” Burris v. Wilkie, 

 (Fed. Cir. 2018) (emphasis in original)


 [P]rocess”), as the Government acknowledges, his underlying argument is equitable, see Appellee’s Br. 9 (noting that
 “although Mr. Taylor asserts a constitutional issue . . . the
 Veterans Court correctly considered his appeal to be a request for equitable relief in the form of an effective date
 earlier than permitted by statute”). Accordingly, because
 “we may decide to apply the correct law even if the parties
 do not argue it, if an issue is properly before this court,” we
 address the question of equitable estoppel in Mr. Taylor’s
 case. Forshey v. Principi, 

 (Fed.
 Cir. 2002) (en banc) (superseded by statute on other
 grounds by Pub. L. No. 107–330, § 402(a), 

,
 2832 (2002)); see Kamen v. Kemper Fin. Servs., Inc., 

 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal
 theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”). Further, while there may be some
 merit to Mr. Taylor’s Due Process claim, because we resolve
 Mr. Taylor’s case on equitable estoppel grounds, we do not
 reach his constitutional arguments. See Ashwander v.
 Tenn. Valley Auth., 

 (1936) (Brandeis, J.,
 concurring) (“[I]f a case can be decided on either of two
 grounds, one involving a constitutional question, the other
 a question of statutory construction or general law, the
 [c]ourt will decide only the latter.”).
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 TAYLOR   v. MCDONOUGH                                       17



 (citing, inter alia, Comm’r of Internal Revenue v. Gooch M.
 & E. Co., 

 (1943)); see Bowles v. Russell,
 

 (2007) (explaining that a court “has no
 authority to create equitable exceptions to jurisdictional requirements”). This means that the Veterans Court may
 not create “monetary relief that [claimants] are not otherwise eligible to receive under substantive statutory law.”
 Burris, 

; see Richmond, 

 (“[J]udicial use of the equitable doctrine of estoppel cannot
 grant respondent a money remedy that Congress has not
 authorized.”). 8 Indeed, “it is well established that ‘[c]ourts


     8    For example: The Veterans Court cannot invoke
 equity to grant extended dependent educational benefits
 when the claimant has aged-out of eligibility for those benefits. Burris, 

; see 

(g)(1) (“[The] VA cannot grant an extension beyond age [thirty-one] to those children whose period of eligibility ending date . . . is subject to an age limitation”).
 Neither can the Veterans Court invoke equity to grant additional educational benefits erroneously promised by the
 VA and for which the claimant is not eligible. Burris, 

; see 

(a) (providing
 that, generally, “an eligible individual is entitled to a maximum of [thirty-six] months of educational assistance (or
 its equivalent in part-time educational assistance)”). Nor
 can the Veterans Court invoke equity to grant “home loan
 guaranty benefits” that the claimant was otherwise “not eligible for . . . under any . . . statute[].” Burkhart, 

 (explaining that, “as the surviving spouse of a veteran without a service-connected disability,” the appellant
 was “not eligible for home loan guaranty benefits under
 any of the statutes she relies upon,” and “the Veterans
 Court correctly determined that it lacked the power to
 grant her equitable relief”); see 

(b)(2)
 (providing that “[t]he term ‘veteran’” for purposes of home
 loan guaranty benefits “includes the surviving spouse of
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 18                                    TAYLOR   v. MCDONOUGH



 of equity can no more disregard statutory and constitutional requirements and provisions than can courts of
 law.’” INS v. Pangilinan, 

 (1988) (quoting
 Hedges v. Dixon Cty., 

 (1893)). 9
      This does not mean, however, that the Veterans Court
 lacks equitable authority absent an “explicit statutory
 grant.” Taylor IV, 31 Vet. App. at 155 n.4 (quoting
 Burkhart, 30 Vet. App. at 427). Rather, the Veterans Court
 may exercise such equitable powers, within the scope of its
 statutory jurisdiction, to ensure that “all veterans entitled
 to benefits receive[] them.” Barrett v. Nicholson, 

 (Fed. Cir. 2006); see Burris, 

 (recognizing that the Veterans Court has such equitable powers as “required to enable the court to carry out
 its statutory grant of jurisdiction”). In enacting the VJRA,
 “Congress legislate[d] against a common law background,”
 Lofton v. West, 

 (Fed. Cir. 1999), leaving
 common law adjudicatory tools at the Veterans Court’s disposal, 

(a)–(b), 7104(a), 7252(a); see Astoria
 Fed. Sav. & Loan Ass’n v. Solimino, 

 (1991) (in considering the availability of “administrative
 estoppel,” noting that “Congress is understood to legislate
 against a background of common-law adjudicatory principles” when enacting administrative adjudicative systems);
 Morgan v. Principi, 

 (Fed. Cir. 2003)



 any veteran (including a person who died in the active military, naval, air, or space service) who died from a service-connected disability”).
     9     Instead, Congress has delegated such authority to
 the Secretary. See 

(a) (providing that, “[i]f
 the Secretary determines that benefits administered by the
 [VA] have not been provided by reason of administrative
 error . . . the Secretary may provide such relief on account
 of such error as the Secretary determines equitable, including the payment of moneys”); 

 (similar).
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 TAYLOR   v. MCDONOUGH                                      19



 (“Congress is presumed to legislate against the backdrop of
 existing law.” (citing Cannon v. Univ. of Chi., 

,
 698–99 (1979))). “[W]here [a] common-law principle is well
 established, . . . the courts may take it as given that Congress has legislated with an expectation that the principle
 will apply except when a statutory purpose to the contrary
 is evident.” Astoria Fed. Sav. & Loan, 

 (internal quotation marks and citations omitted). Further,
 under the “All Writs Act,” “all courts established by Act of
 Congress,” including the Veterans Court, “may issue all
 writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of
 law.” 

(a); see Cox v. West, 

 (Fed. Cir. 1998) (explaining that the All Writs Act “is
 a residual source of authority to issue writs which are not
 otherwise provided for by statute”). 10
     For example, the Veterans Court may issue an opinion
 nunc pro tunc, when a veteran dies after filing a benefits
 claim but before the court’s opinion issues. Padgett v. Nicholson, 

 (Fed. Cir. 2007); see 

 (explaining that “[i]n enacting the [VJRA], . . . Congress
 legislate[d] against a common law background,” and, therefore, “[i]t would be incongruous if the authority to provide
 nunc pro tunc relief were not available to the Veterans
 Court”). The Veterans Court may also issue a writ of mandamus to “confine [the VA] to a lawful exercise of its



     10  Similarly, while a waiver of sovereign immunity to
 suit “cannot be implied but must be unequivocally expressed,” United States v. Mitchell, 

 (1980) (internal quotation marks and citation omitted),
 where, as here, that waiver is clear, 

,
 7252, 7292, use of established common-law principles in
 adjudication of those suits “amounts to little, if any, broadening of the congressional waiver,” Irwin v. Dep’t of Veterans Affs., 

 (1990).
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 20                                    TAYLOR   v. MCDONOUGH



 prescribed jurisdiction” or to compel the VA to “exercise its
 authority when it is its duty to do so.” Cox, 

 (quoting Roche v. Evaporated Milk Ass’n, 

 (1943)); see 

(a)(2) (providing
 that the Veterans Court may “compel action of the Secretary unlawfully withheld or unreasonably delayed”); cf. 

(1) (providing that “[t]he reviewing court
 shall . . . compel agency action unlawfully withheld or unreasonably delayed”). Further, the Veterans Court may equitably toll time bars based on “misconduct by” the
 claimant’s “attorney” or “a VA official.” Sneed, 

, 726–27 (holding that “the Veterans Court employed
 an improperly narrow standard for equitable tolling under
 [38 U.S.C.] § 7266(a)” when it “improperly failed to consider whether attorney misconduct—as opposed to misconduct by a VA official—may constitute a basis for equitable
 tolling”); see Henderson, 

 (“Particularly in
 light of [the pro-veteran] canon, we do not find any clear
 indication that the 120–day limit [on filing appeals to the
 Veterans Court] was intended to carry the harsh consequences that accompany the jurisdiction tag.”). Moreover,
 the Veterans Court may “appl[y] equitable estoppel against
 the Secretary,” to prevent him from asserting that an “informal claim [wa]s not a ‘cognizable claim for effective date
 purposes,’” when the VA has failed to fulfill its statutory
 duty to provide a veteran with notice and an application
 form for a formal claim, after receiving the informal claim.
 Rosenberg v. Mansfield, 

 (2007) (Kasold,
 J., concurring), aff’d sub nom. Rosenberg v. Peake, 

 (Fed. Cir. 2008), (quoting Servello v. Derwinski, 

 (1992)); see Burris, 

 (explaining that the Veterans Court’s equitable authority includes “precluding the VA from asserting on remand that a
 claimant’s informal claim was ‘not a cognizable claim for
 effective-date purposes’” (quoting Servello, 

); see also Hodge v. West, 

 (Fed. Cir.
 1998) (“[I]n the context of veterans’ benefits where the system of awarding compensation is so uniquely pro-claimant,
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 TAYLOR   v. MCDONOUGH                                       21



 the importance of systemic fairness and the appearance of
 fairness carries great weight.”).
      Indeed, concluding otherwise would be contrary to the
 Veterans Court’s statutory mandate. Congress created the
 Veterans Court, through the VJRA, “for the [express] purpose of ensuring that veterans were treated fairly by the
 [G]overnment and to see that all veterans entitled to benefits received them[.]” Barrett, 

. “The solicitude of Congress for veterans is of long standing,”
 United States v. Oregon, 

 (1961), and is
 “plainly reflected in the VJRA, as well as in subsequent
 laws that place a thumb on the scale in the veteran’s favor
 in the course of administrative and judicial review of VA
 decisions,” Henderson, 

 (internal quotation
 marks and citations omitted). The veterans’ benefits system is “not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid
 claim[.]” Comer v. Peake, 

 (Fed.
 Cir. 2009). Rather, “[t]he VA has a statutory duty to assist
 veterans in developing the evidence necessary to substantiate their claims,” Henderson, 562 U.S. at 431–32; see 38
 U.S.C. § 5103A (“The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary
 to substantiate the claimant’s claim for a benefit under a
 law administered by the Secretary.”); 

(a)
 (providing that the VA has the “obligation” to “assist a
 claimant in developing the facts pertinent to the claim and
 to render a decision which grants every benefit that can be
 supported in law while protecting the interests of the Government”), and the Veterans Court is held to the “long applied . . . [‘]canon that provisions for benefits to members of
 the Armed Services are to be construed in the beneficiaries’
 favor,’” Henderson, 

 (quoting King v. St.
 Vincent’s Hosp., 

, 220 n.9 (1991)). Accordingly,
 the Veterans Court erred in concluding it lacked equitable
 authority absent an express statutory grant.
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 22                                     TAYLOR   v. MCDONOUGH



      Second, the Veterans Court held that it “cannot use equitable estoppel to authorize payment outside of the requirements set out in [38 U.S.C. §] 5110” for Mr. Taylor.
 Taylor, 31 Vet. App. at 155 n.4 (citing McCay v. Brown, 

 (Fed. Cir. 1997); see Appellee’s Br. 19–20
 (arguing similarly). This was error. The claim filing requirement of 

(a)(1) is not jurisdictional and
 therefore may be subject to equitable considerations, such
 as waiver, forfeiture, and estoppel. See Landgraf v. USI
 Film Prod., 

 (1994) (“[J]urisdictional statutes speak to the power of the court rather than to the
 rights or obligations of the parties[.]”); see also Nutraceutical Corp. v. Lambert, 

, 714 (2019) (explaining
 that a “mandatory” but “non-jurisdictional claim-processing rule” may be “waived or forfeited”); Reed Elsevier,
 Inc. v. Muchnick, 

 (2010) (applying the
 Supreme Court’s “general approach to distinguish ‘jurisdictional’ conditions from claim-processing requirements or
 elements of a claim,” to conclude that a statutory registration requirement was not jurisdictional and therefore subject to estoppel); Arbaugh v. Y&H Corp., 

 (2006) (providing that where a statutory “requirement relates to the substantive adequacy” of a claim, not the
 court’s “subject-matter jurisdiction” it may be waived);
 Zipes v. Trans World Airlines, Inc., 

 (1982) (explaining that, because a statutory filing requirement was “not a jurisdictional prerequisite to suit in federal court,” it was subject to common law equitable
 doctrines like estoppel). The Supreme Court has “adopted
 a ‘readily administrable bright line’ for determining
 whether to classify a statutory limitation as jurisdictional.”
 Sebelius v. Auburn Reg’l Med. Ctr., 

 (2013) (quoting Arbaugh, 

). “We inquire
 whether Congress has ‘clearly state[d]’ that the rule is jurisdictional; absent such a clear statement, we have cautioned, ‘courts should treat the restriction as non[-
 ]jurisdictional in character.” 

 (quoting Arbaugh, 546
 U.S. at 515–16); see Reed Elsevier, 

 (“[T]he
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 TAYLOR   v. MCDONOUGH                                     23



 jurisdictional analysis must focus on the legal character of
 the requirement, which we discern[] by looking to the condition’s text, context, and relevant historical treatment.”
 (internal quotation marks and citations omitted)).
      Section 5110(a)(1) provides no such clear jurisdictional
 statement. Rather, it provides without reference to the
 Veterans Court’s adjudicatory capacity, that “unless specifically provided otherwise in [38 U.S.C. Chapter 51], the effective date of an award based on an initial claim, or a
 supplemental claim, of compensation . . . shall not be earlier than the date of receipt of application therefor.”
 

(a)(1). The Supreme Court has repeatedly
 “urged that a rule should not be referred to as jurisdictional,” “even if important and mandatory,” “unless it governs a court’s adjudicatory capacity[.]” Henderson, 

; cf. United States v. Kwai Fun Wong, 

 (2015) (explaining that “even when the time limit
 is important (most are) and even when it is framed in mandatory terms (again, most are) . . . Congress must do something special, beyond setting an exception-free deadline” to
 make a time-bar jurisdictional). “Nor does [

(a)(1)’s] placement within the VJRA provide such an
 indication.” Henderson, 

. It “appears in a
 separate provision” from the Veterans Court’s jurisdictional grant, Arbaugh, 

; see 

 (providing the “[j]urisdiction” of the Veterans Court); Henderson, 

 (noting that where “Congress
 elected not to place” a limitation “in the VJRA subchapter
 entitled ‘Organization and Jurisdiction,’” it indicated the
 limitation was not jurisdictional), with various exceptions
 under which a claimant may be entitled to an effective date
 earlier than that provided in 

(a)(1), see 

(b), (c), (g); Reed Elsevier, 

 (“It would be at least unusual to ascribe jurisdictional significance to a condition subject to these sorts of exceptions.”); see United States v. Cotton, 

 (2002) (noting that subject-matter jurisdiction “can never
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 24                                     TAYLOR   v. MCDONOUGH



 be forfeited or waived”). To the extent any question remains, “the singular characteristics of the review scheme
 that Congress created for the adjudication of veterans’ benefits claims,” Henderson, 

, namely Congress’s “long standing” solicitude for veterans “plainly
 reflected in the VJRA” and the “long applied” canon of construction “that provisions for benefits to members of the
 Armed Services are to be construed in the beneficiaries’ favor,” 

 at 440–41 (internal quotation marks and citations
 omitted), support the conclusion that Congress did not intend for 

(a)(1) to have the “consequences
 that accompany the jurisdiction tag,” id. at 441. Accordingly, 

(a)(1) is not jurisdictional and the
 Veterans Court erred in concluding that 

(a)(1) is not subject to common law equitable doctrines like estoppel. 11
      Third, the Veterans Court concluded that the Supreme
 Court has “shut the door on all estoppel claims against the
 [G]overnment . . . when the claimant seeks monetary relief.” Taylor, 31 Vet. App. at 154 n.4 (citing Richmond, 496



      11 As discussed at note 13, infra, our current precedent prohibits equitable tolling of the time limits in 

(b)(1). See Andrews, 

 (explaining that “principles of equitable tolling” do not apply
 to § 5110(b)(1), because “§ 5110 does not contain a statute
 of limitations”). Whatever the merits of this precedent, it
 has no impact on our conclusion regarding the availability
 of equitable estoppel in this context. See Nutraceutical,
 139 S. Ct. at 714 (providing that “a nonjurisdictional claim-processing rule” may be “waived or forfeited by an opposing
 party” even if it is not subject to equitable tolling, because
 unlike waiver and forfeiture, “[w]hether a rule precludes
 equitable tolling turns not on its jurisdictional character
 but rather on whether the text of the rule leaves room for
 such flexibility”).
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 TAYLOR   v. MCDONOUGH                                     25



 U.S. at 424); see Appellee’s Br. 19 (similar). This misreads
 Richmond. As we have explained, “Richmond [does not]
 stand[] for the proposition that equitable estoppel will not
 lie against the government for any monetary claim”—its
 “holding is not so broad.” Burnside-Ott Aviation Training
 Ctr., Inc. v. United States, 

 (Fed. Cir.
 1993). “Richmond is limited to ‘claim[s] for the payment of
 money from the Public Treasury contrary to a statutory appropriation.’” 

 (quoting Richmond, 

) (emphasis in original).      Richmond stands for the wellestablished proposition that an “agency is not estopped
 from reaching the correct result, even when an agency representative gave incorrect information to an employee”—it
 “does not excuse an agency’s violation of its duty, or apply
 an agency’s error in order to deny [a claimant’s] just entitlement.” Johnston v. Off. of Pers. Mgmt., 

,
 1342 (Fed. Cir.), opinion modified on reconsideration, 

 (Fed. Cir. 2005); see Falso v. Off. of Pers. Mgmt.,
 

 (Fed. Cir. 1997) (explaining that “the
 [G]overnment cannot be estopped from denying benefits
 that are not permitted by law even where the claimant relied on the mistaken advice of a government official or
 agency.”); cf. Wilber Nat. Bank of Oneonta, N.Y., v. United
 States, 

 (1935) (“Undoubtedly, the general
 rule is that the United States are neither bound nor estopped by the acts of their officers and agents in entering
 into an agreement or arrangement to do or cause to be done
 what the law does not sanction or permit.”).
      Mr. Taylor’s “claim[] of entitlement” is not, however,
 “contrary to statutory appropriations.” Burnside-Ott Aviation, 

. Rather, Mr. Taylor is entitled to
 service-connected disability benefits. See Taylor IV, 31
 Vet. App. at 149 (noting that Mr. Taylor was awarded benefits for PTSD and for TDIU). He suffers from PTSD as a
 result of an in service injury—specifically, as “a cumulative
 response to his participation as a human subject in the
 Edgewood Arsenal experiments and subsequent re-
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 26                                       TAYLOR   v. MCDONOUGH



 traumatization in Vietnam.” J.A. 62 (VA Initial Evaluation
 for PTSD); see J.A. 64 (July 2007 Rating Decision), 73 (October 2007 Rating Decision); see also Taylor IV, 31 Vet.
 App. at 150; Taylor II, 

, at *2. Congress
 has appropriated the funds and authorized their payment
 to Mr. Taylor. Richmond, 

 (“[T]he payment
 of money from the Treasury must be authorized by a statute.”); see 

 (providing that the “United
 States will pay to any veteran” compensation for “disability
 resulting from personal injury suffered . . . in line of
 duty . . . in the active military . . . service, during a period
 of war,” following “discharged or released under conditions
 other than dishonorable”); Simmons, 

 (explaining that “[v]eterans are entitled to compensation from
 the [VA]” where they meet the requirements of 

). Mr. Taylor “ha[s] not asked for anything that Congress did not intend for the statute to provide and for which
 [he] ha[s] not met all of the [substantive] requirements.”
 Brush v. Off. of Pers. Mgmt., 

 (Fed. Cir.
 1992); see 

 (concluding that Richmond did not preclude
 monetary relief where “all of the substantive qualifying requirements were met by the [appellant], and the only further act provided by the statute for the protection of both
 parties was omitted by the [G]overnment”); see also Martin
 v. O’Rourke, 

 (Fed. Cir. 2018) (“‘Veteran’s disability benefits are nondiscretionary, statutorily
 mandated benefits,’ and a veteran is entitled to such benefits if he or she satisfies the eligibility requirements.” (quoting Cushman v. Shinseki, 

 (Fed. Cir.
 2009)). Rather, he seeks an earlier effective date—his date
 of discharge—through a “long recognized” common-law adjudicatory tool, estoppel. Petrella v. Metro-GoldwynMayer, Inc., 

 (2014) (citing Wehrman v.
 Conklin, 

 (1894)); see Astoria Fed. Sav. &
 Loan, 

 (“Congress is understood to legislate
 against a background of common-law adjudicatory principles[.]”); see also Petrella, 

 (explaining that
 “estoppel does not undermine Congress’ [timing]
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 TAYLOR   v. MCDONOUGH                                       27



 prescription[s], for [estoppel] rests on misleading [conduct],
 whether engaged in early on, or later in time”); cf. 

(b)(1) (authorizing an “effective date” as early as “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”). “[T]he Appropriations
 Clause is no bar to recovery in a case like this one, in which
 ‘the express terms of a specific statute’ establish ‘a substantive right to compensation[.]’” Salazar v. Ramah Navajo
 Chapter, 

, 198 n.9 (2012) (quoting Richmond,
 

); see Burnside-Ott, 

 (explaining that “neither the holding nor analysis in Richmond is applicable” where the appellant does not “claim
 entitlement contrary to statutory eligibility criteria”). 12
      The Veterans Court similarly reads McCay as precluding use of equitable estoppel “to authorize payment outside
 of the requirements set out in [38 U.S.C. §] 5110” in all
 cases. See Taylor, 31 Vet. App. at 154 n.4 (citing McCay,
 

); see also Appellee’s Br. 19 (similar). This
 extends McCay past the limits of its language. In McCay,
 a panel of this court concluded that equitable estoppel was
 not available against 

(g). McCay, 106 F.3d
 at 1581–82. McCay stands for the proposition that,
 “[a]lthough equitable estoppel is available against the
 [G]overnment, it is not available to grant a money payment



     12  Cf. 

 (creating an exception to 

 by providing special “effective-date rules,” including retroactive disability benefits for certain veterans
 exposed to Agent Orange, as “required by orders of a
 United States district court in the class-action case of
 Nehmer v. United States Department of Veterans Affairs,
 No. CV–86–6160 TEH (N.D. Cal.)”); Nehmer v. U.S. Veterans Admin., 

 (N.D. Cal. 1999), aff’d sub
 nom. Nehmer v. Veterans’ Admin. of Gov’t of United States,
 

 (9th Cir. 2002).
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 28                                     TAYLOR   v. MCDONOUGH



 where Congress has not authorized such a payment or the
 recipient [is not] qualif[ied] for such a payment under applicable statutes.” 

 at 1581 (citing Richmond, 

); see Burris, 

; Burnside-Ott Aviation, 

. McCay expressly declined to “decide
 if the [Veterans Court] is devoid of equity powers in all
 cases,” because whatever those powers, “there [was] no
 need to reverse or to vacate and remand” in Mr. McCay’s
 case because his equitable estoppel claim did not “present[]
 a valid ground for relief.” McCay, 

.
     Further, McCay presented a meaningfully different
 case than that at issue here: In McCay, the veteran did not
 “immediately file for disability benefits” because “[a]t th[e]
 time” of diagnosis, “VA regulations denied connection between Agent Orange [exposure] and” his disability, “soft
 tissue sarcoma,” 

, and he believed “any . . . application would have been futile,” 

; see 

.311a(d)(2) (1985) (precluding service-connection based
 on dioxin exposure for soft tissue sarcomas). The Government did not prevent Mr. McCay from applying for benefits
 to which he was otherwise entitled; he elected to not apply
 for benefits because, under existing law, he was not qualified. See 

, 1131; Shedden v. Principi, 

 (Fed. Cir. 2004) (explaining that service
 connection—“a causal relationship between the present
 disability and the disease or injury incurred or aggravated
 during service”—is required for disability benefits). Subsequently, Congress created a presumptive service connection for soft tissue sarcoma for veterans exposed to Agent
 Orange in Vietnam, McCay, 

 (citing 

 (1994)); see 

(a)(2)(B), and
 Mr. McCay was granted benefits effective to “one year prior
 to his application filing date” in keeping with 

(g), McCay, 

; see 

(g)
 (providing that, when a disability benefit is awarded pursuant to a liberalizing “Act or administrative issue, the effective date of such award” shall not “be retroactive for
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 TAYLOR   v. MCDONOUGH                                        29



 more than one year from the date of application therefor or
 the date of administrative determination of entitlement,
 whichever is earlier”); Spencer v. Brown, 

 (Fed. Cir. 1994) (explaining that a “‘liberalizing’ law,” is
 “one which brought about a substantive change in the law
 creating a new and different entitlement to a benefit”).
 That is, unlike Mr. Taylor, Mr. McCay’s equitable estoppel
 claim did not “present a valid ground for relief,” McCay,
 

; see Richmond, 

 (noting
 the narrow “possibility . . . that some type of ‘affirmative
 misconduct’ might give rise to estoppel against the Government”), but rather sought retroactive benefits prior to the
 statute that created his entitlement, McCay, 106 F.3d at
 1581–82; see Richmond, 

 (“[J]udicial use of
 the equitable doctrine of estoppel cannot grant respondent
 a money remedy that Congress has not authorized.”); see
 also 

(g); S. REP. NO. 87-2042 (1962), reprinted in 1962 U.S.C.C.A.N. 3260, 3260–61 (explaining
 that, “[g]enerally, the [proposed revisions to effective date
 provisions] may be described as liberalizing,” with 

(g) specifically “provid[ing], for the first time,”
 a “uniform rule” “governing the effective dates of liberalizing laws or administrative issues” that “would, in many
 cases, obviate the necessity of a potential beneficiary filing
 a specific claim for the new benefit”).
     This is not to say that 

(a)(1) is without
 meaning or effect. “Equitable relief is not granted as a matter of course[.]” Salazar v. Buono, 

 (2010);
 see Beacon Theatres, Inc. v. Westover, 

 (1959) (“[I]n the federal courts equity has always acted only
 when legal remedies were inadequate[.]”). In nearly all
 cases challenging the effective date of a veteran’s disability
 benefits, 

(a)(1) and its enumerated exceptions will be dispositive. See Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 

 (1985)
 (“Although [the All Writs] Act empowers federal courts to
 fashion extraordinary remedies when the need arises, it
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 30                                     TAYLOR   v. MCDONOUGH



 does not authorize them to issue ad hoc writs whenever
 compliance with statutory procedures appears inconvenient or less appropriate.”). Equity remains a high bar—an
 “extraordinary remed[y]” predicated on “exceptional circumstances”—that most claimants will not meet. 

 The
 Veterans Court still lacks jurisdiction to craft equitable
 monetary relief for benefits that “have not been provided
 by reason of administrative error” or to beneficiaries who
 have “suffered loss as a consequence of reliance upon a [VA]
 determination . . . of eligibility or entitlement to benefits,
 without knowledge that it was erroneously made,” 

(a), (b)—that authority is expressly retained
 by the Secretary, 

; 

; see Burris, 

. Further, like all courts, the Veterans
 Court lacks authority to use “the equitable doctrine of estoppel [to] grant respondent a money remedy that Congress has not authorized.” Richmond, 

; see
 Burris, 

.
     However, here there is no administrative error to correct, no extra-statutory relief sought. Rather, the Government has affirmatively and intentionally prevented
 veterans such as Mr. Taylor from seeking medical care and
 applying for disability benefits to which they are otherwise
 entitled under threat of criminal prosecution and loss of the
 very benefits sought. Zacharin, 

 (explaining that, for equitable estoppel to apply against the Government, a party must show “some form of affirmative
 misconduct . . . in addition to the traditional requirements
 of estoppel”); see S. REP. NO. 94-755, at 418 (providing that
 breach of the Edgewood Arsenal secrecy oath would leave
 subjects “liable to punishment under the [UCMJ]”); 

 (UCMJ, providing that “[g]athering, transmitting or losing defense information” may result in fines,
 ten years imprisonment, or both), 892 (UCMJ, providing
 that “violat[ion] or fail[ure] to obey any lawful general order or regulation . . . shall be punished as a court-martial
 may direct”); 

(a) (providing that a veteran
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 TAYLOR   v. MCDONOUGH                                      31



 may “forfeit all accrued or future gratuitous benefits under
 laws administered by the Secretary” if “guilty of mutiny,
 treason, sabotage, or rendering assistance to an enemy of
 the United States or of its allies”). The Government has
 failed in its ongoing duty to warn affected veterans of the
 medical consequences of its chemical and biological weapons testing program and its duty to provide medical care to
 those veterans—two regulatory requirements upon which
 its authorization to conduct such a testing program was
 predicated. See Vietnam Veterans II, 811 F.3d at 1076–78
 (discussing the Army’s failure in its ongoing “duty to warn”
 Edgewood Arsenal volunteers under AR 70–25), 1080–81
 (discussing the Army’s failure in its “duty of care” to Edgewood Arsenal volunteers under AR 70–25); see also Vietnam Veterans I, 

, at *2 (explaining that
 the Government was authorized to test chemical and biological weapons on human subjects pursuant to AR 70–25).
 Under such circumstances, when the Government finally
 permits affected veterans to apply for disability benefits,
 the Veterans Court is within its authority to hold the Government equitably estopped from asserting that those veterans are not entitled to an earlier effective date because
 they filed their claims too late. “The applicable principle is
 fundamental and unquestioned. He who prevents a thing
 from being done may not avail himself of the nonperformance which he has himself occasioned[.]” R.H. Stearns
 Co. of Bos., Mass., v. United States, 

 (1934)
 (internal quotation marks and citation omitted). Therefore, it was within the Veterans Court’s authority to hold
 the Government estopped from asserting 

(a)(1) against Mr. Taylor’s claim for an earlier effective date. 13



     13   The Veterans Court also concluded that it lacked
 the authority to equitably toll 

(b)(1). Taylor IV, 31 Vet. App. at 154 (citing, inter alia, Andrews, 351
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 32                                     TAYLOR   v. MCDONOUGH



     Further, Mr. Taylor is entitled to equitable estoppel
 against the Government. See Dixon v. Shinseki, 

 (Fed. Cir. 2014) (“[W]here adoption of a particular legal standard dictates the outcome of a case based
 on undisputed facts, we may address that issue as a


 F.3d at 1137–38). The Veterans Court is correct that, under our current case law, as noted above, equitable tolling
 is unavailable to Mr. Taylor. We agree that, in Andrews, a
 prior panel of this court concluded that 

(b)(1) could not be equitably tolled, because Ҥ 5110
 does not contain a statute of limitations.” Andrews, 

. We think Irwin compels a contrary conclusion. Under Irwin, “the same rebuttable presumption of
 equitable tolling applicable” to “time requirements” in
 “suits against private defendants . . . appl[ies] to suits
 against the United States.” Irwin, 498 U.S. at 95–96. Contrary to Andrews, we understand the one-year filing requirement in 

(b)(1) to function as a statute
 of limitations, because it limits the relief available to veterans seeking service-connected disability benefits. See
 Lozano v. Montoya Alvarez, 

, 15 n.6 (2014);
 Young v. United States, 

 (2002). Further,
 we do not see any “good reason” in the statute’s text or context “to believe that Congress did not want equitable tolling
 to apply.” United States v. Brockamp, 

 (1997); see, e.g., Barrett, 

 (“Congress’ intent
 in crafting the veterans benefits system [wa]s to award entitlements to a special class of citizens, those who risked
 harm to serve and defend their country,” with the “entire”
 system “imbued with special beneficence from a grateful
 sovereign.”). However, as a panel, we are bound by Andrews, as were Mr. Taylor and his counsel when framing
 their arguments to us. Accordingly, we hold that the Veterans Court did not err in concluding that, under our current case law, equitable tolling is not available, even on the
 compelling facts presented by Mr. Taylor.
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 TAYLOR   v. MCDONOUGH                                       33



 question of law.” (citation omitted)). Equitable estoppel
 provides relief where a party has reasonably “relied on its
 adversary’s conduct in such a manner as to change his position for the worse.” Heckler, 

 (internal quotation marks and citation omitted); see CIGNA Corp. v.
 Amara, 

 (2011) (explaining that “equitable estoppel forms a very essential element in . . . fair dealing”). “There is no dispute that, during service,” Mr. Taylor
 “volunteered to participate in chemical agent exposure
 studies at the Edgewood Arsenal.” Taylor IV, 31 Vet. App.
 at 149. Nor is there any dispute that Mr. Taylor suffers
 from PTSD as a result of these studies and is, therefore,
 entitled to service-connected disability benefits. Taylor IV,
 31 Vet. App. at 149–50; Taylor II, 

, at *2;
 J.A. 61, 64 (July 2007 Rating Decision), 73 (October 2007
 Rating Decision). 14 It is also undisputed that Mr. Taylor


     14   The Board suggested that Mr. Taylor was not entitled to an earlier effective date because his PTSD diagnosis
 was based on multiple stressors, such that “nothing prevented [him] from filing a claim for PTSD based on those
 stressors without having to divulge any information regarding the Edgewood experiments.” Taylor III, slip op.
 at 8. As articulated by the dissent below, this “is basic
 Board error and thoughtless. It is nothing more than a
 heartless attempt to dehumanize a veteran with an unsubstantiated medical opinion.” Taylor IV, 31 Vet. App. at 158
 (Greenberg, J., dissenting). A Board decision premised on
 its own unsubstantiated medical opinion is contrary to law;
 Board decisions must be “upon consideration of all evidence
 and material of record,” not uninformed speculation. 

(a); see 

(c)(4)(i) (“A medical
 examination or medical opinion is necessary if the information and evidence of record does not contain sufficient
 competent medical evidence to decide [a disability benefits]
 claim.”); see also 

(c)(4)(i) (“Competent
 medical evidence means evidence provided by a person who
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 34                                    TAYLOR   v. MCDONOUGH



 “signed an oath vowing not to disclose his participation in
 or any information about the study, under penalty of court
 martial or prosecution,” Taylor IV, 31 Vet. App. at 149; see
 S. REP. NO. 94-755, at 418 (providing that breach of the secrecy oath “w[ould] render [Mr. Taylor] liable to punishment under the provisions of the [UCMJ]”), and that,
 despite the Government’s duty to warn and duty to provide
 medical care to Edgewood Arsenal testing program participants, Vietnam Veterans II, 811 F.3d at 1076–78, 1080–
 81, 15 neither the VA nor the DoD gave Mr. Taylor notice
 that he was allowed to seek medical care and apply for veterans benefits until June 2006, see Taylor IV, 31 Vet. App.
 at 149. It is also undisputed that Mr. Taylor did not apply
 for veterans benefits until after receipt of that notice, in
 February 2007. Id. at 155 (noting that Mr. Taylor “does
 not dispute that he did not file a claim until February
 2007”). 16 To do otherwise would have exposed him to risk


 is qualified through education, training, or experience to
 offer medical diagnoses, statements, or opinions.”); see also
 Colvin v. Derwinski, 

 (1991), overruled
 on other grounds by Hodge, 

.
      15   The Veterans Court states that Mr. Taylor cannot
 assert equitable estoppel in a VA proceeding because his
 secrecy oath was with the DoD. See Taylor IV, 31 Vet. App.
 at 153 n.2. This is inapposite—“[t]here is privity between
 officers of the same government.” Sunshine Anthracite
 Coal Co. v. Adkins, 

 (1940); cf. 

 (“Where a suit binds the United States, it binds its subordinate officials.”).
      16   The Board concluded, without legal support, that
 Mr. Taylor was not entitled to an earlier effective date because Mr. Taylor “appears to have divulged information regarding the Edgewood experiments despite the secrecy
 oath” in an attempt to get medical care. Taylor III, slip op.
 at 8 (citing J.A. 58). If the Board means to suggest that Mr.
 Taylor may not assert equitable estoppel against the
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 TAYLOR   v. MCDONOUGH                                       35



 of prosecution, 

, 892, and loss of the very
 benefits sought, 

(a). 17 The Government is,


 Government under a doctrine of unclean hands, the Board
 is incorrect. See McKennon v. Nashville Banner Pub. Co.,
 

 (1995) (noting the “maxim” that a party
 “who [has] engaged in [its] own reprehensible conduct in
 the course of the transaction at issue must be denied equitable relief because of unclean hands”). “Filing a claim for
 benefits with the Government under a cloud of prosecution
 is a wholly different proposition from divulging information to a medical provider.” Taylor IV, 31 Vet. App. at
 158 (Greenberg, J., dissenting). Further, the Board neglects that, at the time Mr. Taylor was trying unsuccessfully to obtain medical care, the Government—specifically,
 the Army—was failing in its legal obligation “to provide former test subjects,” such as Mr. Taylor, “with medical care
 for any injuries or diseases that were proximately caused
 by [the] Army experiments in which they participated.” Vietnam Veterans II, 

; see 

 (explaining that
 AR 70–25 authorizes “‘all necessary medical care for injury
 or disease that is a proximate result of [volunteers’] participation in research’”).
      17  Mr. Taylor appears to not have been alone in his
 understanding of the Edgewood Arsenal secrecy oath. See
 Vietnam Veterans I, 

, at *6 (quoting the
 DoD’s 2011 notice to Edgewood Arsenal program volunteers, stating that such notice was necessary because
 “[s]uch oaths . . . reportedly inhibited veterans from discussing health concerns with their doctors or seeking compensation from the [VA] for potential service-related
 disabilities”). Indeed, as early as 1979, in the face of
 “mounting public concern about the long-term effects of
 such experiments,” the Army’s General Counsel “concluded
 that, as a policy matter, some type of notification program
 is necessary” with “the legal necessity for a notification program . . . not open to dispute.” Vietnam Veterans II, 811
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 36                                     TAYLOR   v. MCDONOUGH



 therefore, estopped: It can neither assert that 

(a)(1) precludes Mr. Taylor’s claim for an earlier effective date, nor can it deny Mr. Taylor disability benefits
 retroactive to when he would have filed his claim had the
 Government not prevented him. CIGNA Corp., 

 (explaining that equitable estoppel “operates to
 place the person entitled to its benefit in the same position
 he would have been” had his reliance not been misplaced
 (citation omitted)); see 

(b)(1) (authorizing
 an “effective date” as early as “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”).
     If equitable estoppel is ever to lie against the Government, it is here—to preserve the “interest of citizens in
 some minimum standard of decency, honor, and reliability
 in their dealings with their Government.” See Heckler, 467
 U.S. at 60–61. “Men must turn square corners when they
 deal with the Government.” Rock Island, A. & L. R. Co. v.
 United States, 

 (1920). So too must the
 Government, mutatis mutandis. United States v. Nixon,
 

 (1974) (“So long as [a] regulation remains
 in force the Executive Branch is bound by it, and indeed
 the United States as the sovereign composed of the three
 branches is bound to respect and to enforce it.”). “The government’s interest in veterans cases is not that it shall win,
 but rather that justice shall be done, that all veterans so
 entitled receive the benefits due to them.” Barrett, 

. Mr. Taylor kept his word and did what was
 required; it is time for the Government to do the same.




 F.3d at 1073. The VA and DoD nonetheless waited until
 2006 and 2011, respectively, to notify Mr. Taylor and others of their rights to medical care and disability benefits.
 Taylor IV, 31 Vet. App. at 149.
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 TAYLOR   v. MCDONOUGH                                      37



                         CONCLUSION
      We have considered the Government’s remaining arguments and find them unpersuasive. We reverse the Veterans Court and hold the Government equitably estopped
 from asserting 

(a)(1) against Mr. Taylor’s
 claim. We remand to the Veterans Court to enter judgment
 accordingly and to remand to the Board for determination
 of effective date, rating(s) as appropriate, and award of service-connected disability benefits to Mr. Taylor. The Judgment of the U.S. Court of Appeals for Veterans Claims is
                REVERSED AND REMANDED
                            COSTS
 Costs to Mr. Taylor.