Veteranclaims’s Blog

October 4, 2018

Robinson v. Wilkie, No. 2017-1968 (Decided: October 4, 2018); effective date of award; § 3.400(o); staged rating;

Excerpt from decision below:

“Because there was no legal error in determining the effective date, we affirm the judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”).”

============

Dissent:

“Respectfully, the majority misunderstands the “effective date” determination that is the subject of this appeal. Mr. Robinson has not appealed the effective date of January
26, 2003, which is the date he sought treatment for a myocardial infarction. In the words of the Board, “[t]his effective date was awarded under the Nehmer case and 38 C.F.R. § 3.816(c)(2).” Bd. Op. at 7 (J.A.19). Instead, Mr. Robinson has appealed the effective date for an increase in compensation based on a 60 percent disability rating. See Robinson Br. at 4. Determining the effective date for such increase in compensation is governed by 38 U.S.C.
ROBINSON v. WILKIE 5
§ 5110 and 38 C.F.R. § 3.400(o)(2). The applicability of this statute and regulation is undisputed. See Secretary Br. at 9 (“Broadly speaking, section 3.816(c) concerns the
available effective date a veteran may be assigned under Nehmer . . . . This section, however, does not address the rating that must be assigned for the periods while service
connection is in effect, nor does it govern the procedures to address a veteran’s claim for increased compensation, which can be found at 38 U.S.C. § 5110 and 38 C.F.R.
§ 3.400(o)(2).”); Robinson Br. at 8 (“Once an award of benefits for a Nehmer-related condition is established and the original effective date is determined, 38 C.F.R.
§ 3.816(c) ceases to become applicable. If a staged rating is subsequently assigned, the effective date for any increased rating is subject to the provisions of 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2).”) (emphasis omitted); Bd. Op. at 17 (J.A.29) (citing 38 U.S.C.
§ 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) as providing “the proper effective date for increased rating claims”); Robinson v. Shulkin, No. 16-0427, 2017 WL 1046285, at *2 (Vet.
App. Mar. 20, 2017) (citing 38 U.S.C. § 5110(a) as a basis to deny an earlier effective date for the 60 percent disability rating) (“Vet. Ct. Op.”).
Section 3.816(c) sets forth the earliest effective date for disability compensation resulting from a covered herbicide disease. Its subsections (1–4) are directed to the timing of the claim and the earliest starting date for disability compensation. This regulation does not speak to determining the effective date for increased compensation resulting from a veteran’s worsening covered herbicide disease once service connection under Nehmer is
established. That is the role of § 3.400(o).”

==========

United States Court of Appeals for the Federal Circuit
______________________
BENNIE C. ROBINSON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1968
______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 16-427, Chief Judge Robert N. Davis.
______________________
Decided: October 4, 2018
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
Also represented by VIRGINIA A. GIRARD-BRADY, JAMIE
MARIE ATWOOD, ABS Legal Advocates, P.A., Lawrence,
KS.
MICHAEL ANTHONY RODRIGUEZ, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Represented by MELISSA BAKER, CHAD A. READLER,
ROBERT E. KIRSCHMAN, JR., CLAUDIA BURKE; BRIAN D.
ROBINSON 2 v. WILKIE
GRIFFIN, CHRISTOPHER O. ADELOYE, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
Before NEWMAN, LOURIE, and STOLL, Circuit Judges.
Opinion for the court filed by Circuit Judge STOLL.
Dissenting Opinion filed by Circuit Judge NEWMAN.
STOLL, Circuit Judge.
Mr. Bennie Robinson, a veteran who served in Vietnam as a member of the United States Marine Corps, appeals the effective date of his disability rating for coronary artery disease. Mr. Robinson’s effective date coincides with the date of his diagnostic testing results, but it took 14 months to schedule the tests. According to Mr. Robinson, he should be entitled to an earlier effective date because he did not cause the 14-month delay. Because there was no legal error in determining the effective date, we affirm the judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”).
I
Mr. Robinson served in the Marine Corps in the late
1960s, and his service included a deployment in Vietnam.
After returning from deployment, he began to suffer heart
problems. Mr. Robinson saw his Department of Veterans
Affairs cardiologist, Dr. Ali Sadoughian, on February 23,
2006, for “evaluation of chest pain.” J.A. 71.
Dr. Sadoughian recommended that Mr. Robinson undergo
diagnostic testing, but the testing was not performed.
Nine months later, Mr. Robinson returned to
Dr. Sadoughian after spending a week in the hospital
with blood clots in his right leg. Dr. Sadoughian again
recommended that Mr. Robinson schedule diagnostic
testing “as planned in my previous consult.” J.A. 69–70.
Mr. Robinson finally received the prescribed diagnostic
ROBINSON v. WILKIE 3
testing on April 2, 2007—5 months after his follow-up
visit and 14 months after Dr. Sadoughian’s initial recommendation.
The record does not explain the cause of the
delay, but the test results indicated that Mr. Robinson
had “[c]oronary artery disease with prior inferior wall
myocardial infarction.” J.A. 67.
Mr. Robinson did not receive any disability benefits at
that time for his coronary artery disease because he could
not establish that it was service connected. That changed
in August 2010 when the VA amended its regulations to
add ischemic heart disease—including coronary artery
disease—to its list of conditions that are presumptively service connected for veterans who were exposed to certain herbicides. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010) (amending 38 C.F.R. § 3.309(e) to add coronary artery disease to list of diseases associated with certain herbicide agents); see 38 C.F.R. § 3.309(e) (creating presumption of service connection for veterans with coronary artery disease who were exposed to certain herbicide agents).
Then, in 2011, the VA retroactively granted disability
benefits to Mr. Robinson for his coronary artery disease
pursuant to a Nehmer1 review. See J.A. 38; J.A. 78–82.
1 In response to orders from the U.S. District Court
for the Northern District of California in Nehmer v. U.S.
Department of Veterans Affairs, the VA promulgated
special rules for determining the effective date of claims
for diseases that are presumed to be caused by exposure
to Agent Orange. See Nehmer v. U.S. Veterans’ Admin.,
712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. U.S. Veterans’
Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999). A
Nehmer class member is a Vietnam veteran who has a
“covered herbicide disease.” 38 C.F.R. § 3.816(b)(1)(i). A
“covered herbicide disease,” in turn, is “a disease for
ROBINSON 4 v. WILKIE
The VA assigned an initial disability rating of 10 percent
from January 18, 2005 and a 60 percent disability rating
from April 2, 2007—the date Mr. Robinson’s diagnostic
testing showed that he had coronary artery disease.
After Mr. Robinson filed a notice of disagreement, the
VA issued a new rating decision. That decision awarded
Mr. Robinson a 100 percent disability rating effective
January 26, 2003 and a 10 percent disability rating from
May 1, 2003 through April 1, 2007. The VA did not
change the effective date for the 60 percent disability
rating, however, and Mr. Robinson appealed that decision
to the Board of Veterans’ Appeals. The Board denied
Mr. Robinson’s claim because the April 2007 test results
were the earliest medical evidence demonstrating that he
satisfied the criteria for a 60 percent disability rating.
Mr. Robinson appealed the Board’s decision to the
Veterans Court. On appeal, Mr. Robinson argued for the
first time that the effective date for his 60 percent disability
rating should be the date Dr. Sadoughian ordered the
diagnostic testing rather than the date on which the
testing occurred. Although the cause of delay is not
reflected in the record, Mr. Robinson asserted that he
should not be penalized for the 14-month delay in scheduling
his test, and that he would have received an earlier
effective date for his 60 percent disability rating if the VA
had provided him with prompt treatment. The Secretary
asked the Veterans Court not to consider the argument
because Mr. Robinson did not raise it before the Board.
Instead, the Veterans Court “balance[ed] the competing
which the Secretary of Veterans Affairs has established a
presumption of service connection pursuant to the Agent
Orange Act of 1991 . . . as provided in § 3.309(e).” Id.
§ 3.816(b)(2). As discussed above, coronary artery disease
was added to the list of covered diseases in August 2010.
ROBINSON v. WILKIE 5
interests” and “determine[d] that it [wa]s appropriate to
remand this matter for the Board to address in the first
instance.” J.A. 39.
On remand, Mr. Robinson cited 38 C.F.R. § 17.33(a)(2)’s requirement that veterans receive “prompt and appropriate treatment” in arguing that his effective date should be the date on which Dr. Sadoughian ordered the testing. J.A. 27. The Board concluded that § 17.33
applies only to medical treatment and has “no bearing on the law or regulations governing effective date criteria.” J.A. 30. Moreover, the Board could not identify any
evidence in the record that would support an earlier effective date for Mr. Robinson’s 60 percent disability rating. Accordingly, the Board denied Mr. Robinson’s
claim.
The Veterans Court affirmed the Board’s decision.
Applying 38 C.F.R. § 3.816, the Veterans Court explained
that “the effective date of an award of disability compensation
will be the date the claim is received by [the] VA or
the date the disability arose, whichever is later.” Robinson
v. Shulkin, No. 16-0427, 2017 WL 1046285, at *1 (Vet.
App. Mar. 20, 2017) (citing 38 C.F.R. § 3.816(c)(1), (c)(2))
(“Veterans Court Opinion”). The Veterans Court agreed
with the Board that “an effective date earlier than April
2007 was not warranted because ‘[t]he treatment records
do not demonstrate that [Mr. Robinson] met the criteria
for a 60[%] rating for coronary artery disease until . . .
testing was accomplished on April 2, 2007.’” Id. at *2
(alterations in original) (quoting J.A. 30). And even if
§ 17.33 imposed on the VA a requirement that veterans be
treated in a timely manner, the Veterans Court detected
no clear error in the Board’s effective date determination
because no medical evidence prior to April 2007 supported
a 60 percent disability rating.
Mr. Robinson appeals. We have jurisdiction pursuant
to 38 U.S.C. § 7292.
ROBINSON 6 v. WILKIE
II
Our jurisdiction to review decisions of the Veterans
Court is limited. Martin v. O’Rourke, 891 F.3d 1338, 1342
(Fed. Cir. 2018). We have jurisdiction to “decide all
relevant questions of law, including interpreting constitutional
and statutory provisions.” 38 U.S.C. § 7292(d)(1).
But absent a constitutional issue, we “may not review
(A) a challenge to a factual determination, or (B) a challenge
to a law or regulation as applied to the facts of a
particular case.” Id. § 7292(d)(2).
Mr. Robinson contends that he is entitled to an earlier
effective date for his 60 percent disability rating for three
interrelated reasons. First, Mr. Robinson asserts that his
60 percent disability rating is a staged or increased rating
and therefore 38 C.F.R. § 3.816(c) does not apply. We do
not find this argument compelling because the April 2,
2007 effective date for Mr. Robinson’s 60 percent disability
rating was part of his initial grant of benefits in
March 2011. As the Secretary argues, “[t]his places his
claim within the ambit of section 3.816(c).” Appellee
Br. 13. Moreover, § 3.816 is titled “Awards under the
Nehmer Court Orders for disability or death caused by a
condition presumptively associated with herbicide exposure,”
and its express purpose is to “state[] effective-date
rules required by orders of a United States district court
in the class-action case of Nehmer.” 38 C.F.R. § 3.816(a).
Mr. Robinson acknowledges that he is a Nehmer class
member, see Appellant Br. 12, and so we see no reason
why § 3.816(c) would not apply here.
The dissent likewise relies on the general effective
date statute, 38 U.S.C. § 5110(b)(3) (implemented by
38 C.F.R. § 3.400(o)(2)), which states that the “effective
date of an award of increased compensation shall be the
earliest date as of which it is ascertainable that an increase
in disability had occurred.” See Dissent at 3. The
dissent also cites Swain v. McDonald, 27 Vet. App. 219
ROBINSON v. WILKIE 7
(2015), and similar Veterans Court cases instructing that
the effective date of hearing loss disability is predicated
on when the increase in hearing loss can be ascertained—
not on when the audiological test warranting the increase
was performed. See Dissent at 3–4, 8–9. But the Veterans
Court in Swain based its decision on 38 U.S.C.
§ 5110(b)(3) and 38 C.F.R. § 3.400(o)(2). Dissent at 3–4.
Those provisions do not apply here because 38 U.S.C.
§ 5110(g) provides that where, as here, benefits are
“awarded or increased pursuant to any Act or administrative
issue,” the effective date of the benefits “shall not be
earlier than the effective date of the Act or administrative
issue.” Thus, under § 5110(g), Mr. Robinson would not be
able to obtain retroactive benefits with an effective date
earlier than that of the regulation that made his condition
compensable—August 31, 2010. In order to secure retroactivity
here, Mr. Robinson had to rely on the special
regulations applicable to Nehmer class members. The
effective date for a Nehmer class member is determined
by 38 C.F.R. § 3.816(c) and not by 38 U.S.C. § 5110(b)(3)
or 38 C.F.R. § 3.400(o)(2). This interpretation is supported
by 38 C.F.R. § 3.816(c)(4), which states that “[i]f the
requirements of paragraph (c)(1) or (c)(2) of this section
are not met, the effective date of the award shall be
determined in accordance with §§ 3.114 and 3.400.” Here,
Mr. Robinson does not dispute that the requirements of
paragraph (c)(2) are met. Thus, the provisions of
38 C.F.R. § 3.816(c)(2) apply.
Mr. Robinson next cites 38 C.F.R. § 17.33(a)(2) in arguing
that the VA violated its obligation to provide veterans
with prompt and appropriate treatment, and that this
violation should have been considered by the Veterans
Court in assigning his effective date. Had the VA complied
with its obligation to provide prompt treatment,
Mr. Robinson asserts that he would have been able to
establish an earlier effective date for his 60 percent
disability rating.
ROBINSON 8 v. WILKIE
Our review of § 17.33 indicates that it was not intended
to create rights that would impact the handling of
compensation claims, and Mr. Robinson has not directed
us to any evidence suggesting otherwise. Section 17.33 is
located in part 17 of chapter I of the VA’s regulations,
which governs the VA’s administration of medical treatment.
It lays out certain rights to which patients are
entitled, including the right to be treated with dignity, id.
§ 17.33(a)(1), the right to execute legal instruments, id.
§ 17.33(a)(4)(ii), the right to refuse visitors, id.
§ 17.33(b)(1)(ii), and the right to social interaction with
others, id. § 17.33(b)(5). The effective date of a claim for
benefits, on the other hand, is controlled by part 3 of
chapter I. Part 3 is entitled “Adjudication” and contains
§ 3.816, which establishes the effective date for Nehmer
class members. The phrase “effective date” does not
appear in § 17.33, and nothing else in the regulation’s text
suggests that it is linked to the effective date determination
in § 3.816. Therefore, we agree with the Veterans
Court that Ҥ 17.33(a)(2) is not related to the effective
date of an award of VA benefits.” Veterans Court Opinion,
2017 WL 1046285, at *2.
Finally, Mr. Robinson faults the Veterans Court for
not awarding equitable relief in the form of an earlier
effective date. The Veterans Court had stated that
“[a]lthough the Court is sympathetic to Mr. Robinson’s
plight and delays in the VA health system are concerning,
the Court is not a court of equity.” Id. Mr. Robinson
contends that the Veterans Court erred in finding that it
could not apply principles of equity. We have recognized
that “the Veterans Court has authority to grant certain
forms of non-substantive equitable relief required to
enable the court to carry out its statutory grant of jurisdiction,”
but it “cannot invoke equity to expand the scope
of its statutory jurisdiction.” Burris v. Wilkie, 888 F.3d
1352, 1361 (Fed. Cir. 2018).
ROBINSON v. WILKIE 9
We agree with the Veterans Court that the facts of
this case are troubling. The 14-month delay for coronary
artery disease testing strikes us as excessive. But our
court’s jurisdiction generally is limited to reviewing legal
errors, 38 U.S.C. § 7292(d)(1), and we cannot say that the
Veterans Court committed legal error by not exercising its
equitable powers to find an effective date earlier than
April 2, 2007. Under the circumstances in this case,
where we do not know what caused the testing delay and
we do not know whether Mr. Robinson would have satisfied
the requirements for the 60 percent disability rating
had he received the testing at an earlier date, we see no
such error in the Veterans Court’s decision.
III
We have considered Mr. Robinson’s remaining arguments
and find them unpersuasive. No medical evidence
in the record supports his entitlement to an effective date
earlier than April 2, 2007. Although we are sympathetic
to Mr. Robinson’s plight, the Veterans Court did not err in
its analysis. The judgment of the Veterans Court is
affirmed.
AFFIRMED
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
______________________
BENNIE C. ROBINSON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1968
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-427, Chief Judge Robert N.
Davis.
______________________
NEWMAN, Circuit Judge, dissenting.
Mr. Robinson, a veteran of the war in Vietnam, experienced
heart problems including a heart attack in 2003.
By regulation adopted in August 2010, coronary and other
diseases were deemed service-connected for veterans who,
like Mr. Robinson, had been exposed to Agent Orange in
Vietnam:
38 C.F.R. § 3.309(e) (Disease associated with exposure
to certain herbicide agents)
If a veteran was exposed to an herbicide agent
during active military, naval, or air service, the
following diseases shall be service-connected . . . .
ROBINSON 2 v. WILKIE
Ischemic heart disease (including, but not limited
to, acute, subacute, and old myocardial infarction;
atherosclerotic cardiovascular disease including
coronary artery disease (including coronary
spasm) and coronary bypass surgery . . . .
Mr. Robinson then sought the statutory compensation for
his cardiac condition.
After various proceedings not here relevant, the VA
assigned Mr. Robinson an initial effective date of January
26, 2003, the date of Mr. Robinson’s heart attack, with
100 percent disability rating for the period between
January 26, 2003 and May 1, 2003. The VA then assigned
a 10 percent disability rating between May 1, 2003
and April 1, 2007, followed by a 60 percent disability
rating starting on April 2, 2007, the date of a cardiac test
that a VA cardiologist had first ordered 14 months earlier.
The issue on appeal is the start date of the 60 percent
rating, in view of the 14-month test delay.
Mr. Robinson states that he should not be prejudiced
by the VA’s inordinate delay in performing this test, and
that the effective date of the 60 percent rating should be
the date the test was first ordered, or a reasonable period
thereafter. The Secretary responds that the regulation
requires that the rating runs from the date the test was
performed, and offers no explanation for the 14-month
delay. The regulation states:
38 C.F.R. § 3.400(o)(2). (Disability compensation)
Earliest date as of which it is factually ascertainable
based on all evidence of record that an
increase in disability had occurred if a complete
claim or intent to file a claim is received within 1
year from such date, otherwise, date of receipt of
claim. When medical records indicate an increase
in a disability, receipt of such medical records may
be used to establish effective date(s) for retroacROBINSON
v. WILKIE 3
tive benefits based on facts found of an increase in
a disability only if a complete claim or intent to
file a claim for an increase is received within 1
year of the date of the report of examination, hospitalization,
or medical treatment. The provisions
of this paragraph apply only when such reports
relate to examination or treatment of a disability
for which service-connection has previously been
established.
My colleagues hold that Mr. Robinson’s increase in
compensation should be limited to the date of testing,
because there is no evidence of the extent of disability
during the 14-month period of delay in testing.
The court and the VA have incorrectly constricted the
regulation, beyond its purpose and beyond the intent of
the veterans’ statutes. Mr. Robinson’s cardiac health
history and the results of this belated medical test
demonstrate cardiac illness of several years, in ready
conformity with the VA’s statutory obligation to assign
the earliest ascertainable effective date. From my colleagues’
contrary ruling, I respectfully dissent.
DISCUSSION
The VA is required to determine the effective date of
compensation “in accordance with the facts found.” 38
U.S.C. § 5110(a). The effective date “shall be the earliest
date as of which it is ascertainable that an increase in
disability had occurred,” id. § 5110(b)(3). The regulation,
cited ante, refers to “medical records,” but does not erase
the obligation to present a reasonable analysis of the
veteran’s disability.
The Court of Veterans Appeals has considered 38
U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2), Swain v.
McDonald, 27 Vet. App. 219 (2015), and held that the
effective date is, by statute, the “earliest” date the disabil

ROBINSON v. WILKIE

4
ity is “ascertainable,” not the date a particular test was
administered:
[T]he Secretary’s contention that § 4.85(a) requires
the effective date for an increased disability
claim to be set in accordance with the date a Maryland
CNC test is administered not only adds
words to the regulation that are not there, but it
also conflicts with the plain meaning of section
5110(b)(3), which requires the effective date of an
award of increased compensation to be ‘the earliest
date as of which it is ascertainable that an increase
in disability had occurred.’ Id. at 224 (emphasis in original); see also id. (“Therefore,
the effective date for an increased rating, indeed, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of hearing loss can be
ascertained.”) (citing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400). The present case reflects similar principles, for Mr. Robinson’s heart attack is direct evidence of cardiac
illness long before the 14-month delayed test of ejection fraction.
The panel majority disagrees with any relevance of 38
U.S.C. § 5110 and 38 C.F.R. § 3.400 because Mr. Robinson
is a Nehmer class member whose effective date should be
determined by 38 C.F.R. § 3.816(c). See Maj. Op. at 6–7.
Respectfully, the majority misunderstands the “effective
date” determination that is the subject of this appeal. Mr.
Robinson has not appealed the effective date of January
26, 2003, which is the date he sought treatment for a
myocardial infarction. In the words of the Board, “[t]his
effective date was awarded under the Nehmer case and 38
C.F.R. § 3.816(c)(2).” Bd. Op. at 7 (J.A.19). Instead, Mr.
Robinson has appealed the effective date for an increase
in compensation based on a 60 percent disability rating.
See Robinson Br. at 4. Determining the effective date for
such increase in compensation is governed by 38 U.S.C.
ROBINSON v. WILKIE 5
§ 5110 and 38 C.F.R. § 3.400(o)(2). The applicability of
this statute and regulation is undisputed. See Secretary
Br. at 9 (“Broadly speaking, section 3.816(c) concerns the
available effective date a veteran may be assigned under
Nehmer . . . . This section, however, does not address the
rating that must be assigned for the periods while service
connection is in effect, nor does it govern the procedures
to address a veteran’s claim for increased compensation,
which can be found at 38 U.S.C. § 5110 and 38 C.F.R.
§ 3.400(o)(2).”); Robinson Br. at 8 (“Once an award of
benefits for a Nehmer-related condition is established and
the original effective date is determined, 38 C.F.R.
§ 3.816(c) ceases to become applicable. If a staged rating
is subsequently assigned, the effective date for any increased
rating is subject to the provisions of 38 U.S.C.
§ 5110(b)(3) and 38 C.F.R. § 3.400(o)(2).”) (emphasis
omitted); Bd. Op. at 17 (J.A.29) (citing 38 U.S.C.
§ 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) as providing “the
proper effective date for increased rating claims”); Robinson
v. Shulkin, No. 16-0427, 2017 WL 1046285, at *2 (Vet.
App. Mar. 20, 2017) (citing 38 U.S.C. § 5110(a) as a basis
to deny an earlier effective date for the 60 percent disability
rating) (“Vet. Ct. Op.”).
Section 3.816(c) sets forth the earliest effective date
for disability compensation resulting from a covered
herbicide disease. Its subsections (1–4) are directed to the
timing of the claim and the earliest starting date for
disability compensation. This regulation does not speak
to determining the effective date for increased compensation
resulting from a veteran’s worsening covered herbicide
disease once service connection under Nehmer is
established. That is the role of § 3.400(o).
The panel majority argues that Mr. Robinson “had to
rely on the special regulations applicable to Nehmer class
members” and no other statutes or regulations are applicable.
Maj. Op. at 7. Yet no “special regulation” absolves
the VA for the 14-month delay in testing Mr. Robinson.
ROBINSON 6 v. WILKIE
No “special regulation” mandates that the effective date is
the date of testing and not the earliest ascertainable date
that an increase has occurred. The panel majority’s
“special regulation,” 38 C.F.R. § 3.816(c)(2), is silent on
these issues. On the other hand, § 3.400(o) expressly
addresses the effective date for an increase in disability
compensation and defines it as the earliest ascertainable
date. And it is this date—assigned by the Board pursuant
to § 3.400(o)—that is the subject of this appeal.
Per the majority’s interpretation of § 3.816(c)(2),
Nehmer class veterans suffering from a covered herbicide
disease, nearly all of which are chronic (see 38 U.S.C.
§ 1116), have no legal basis for an increase in compensation
for a worsening condition. Such an interpretation is
unconscionable, legally incorrect, and inconsistent with
the majority’s recognition that Mr. Robinson is entitled to
an increase in compensation based on the test results.1
38 C.F.R. § 17.33(a)(2) imposes a duty on the VA to
provide “prompt and appropriate treatment” to veterans:
(2) Patients have a right to receive, to the extent
of eligibility therefor under the law, prompt
and appropriate treatment for any physical or
emotional disability.
When the VA fails in the duty of promptness, the consequences
of such failure cannot be imposed on the veteran.
1 The panel majority writes that the Veterans Court
“cannot invoke equity to expand the scope of its statutory
authority.” Maj. Op. at 8. No statute, no constitutional
requirement, excludes equity from the scope of the Court
of Appeals for Veterans Claims. Here, equitable principles
are sought not to “expand the scope” of the court’s
jurisdiction, but to implement the statute in accordance
with its legislative purpose.
ROBINSON v. WILKIE 7
To summarize: Mr. Robinson consulted a VA cardiologist
on February 23, 2006, and the cardiologist ordered certain
tests. The tests were not performed. Mr. Robinson again
consulted the VA cardiologist on November 27, 2006, and
the tests were again ordered. The tests were performed
on April 2, 2007, showing an ejection fraction of 44%. The
VA measured the 60% disability rating from the date of
this test:
38 C.F.R. § 4.104 [Rating of 60%]: More than one
episode of acute congestive heart failure in the
past year, or; workload of greater than 3 METs
but not greater than 5 METs results in dyspnea,
fatigue, angina, dizziness, or syncope, or; left ventricular
dysfunction with an ejection fraction of 30
to 50 percent.
The BVA stated that “[t]he treatment records do not
demonstrate that [Mr. Robinson] met the criteria for a 60
percent rating for coronary artery disease . . . until
. . . testing was accomplished on April 2, 2007.” J.A.30.
The Veterans Court affirmed, stating that Mr. Robinson
“does not demonstrate clear error in the Board’s decision
because he does not identify any medical record prior to
the April 2007 testing that would support a 60% disability
rating.” Vet. Ct. Op. at *2. Mr. Robinson states that he
should not be penalized for the VA’s 14-month delay in
providing the ordered tests.
The BVA, the Veterans Court, and now my colleagues,
ignore the requirement of measuring disability compensation
from the earliest ascertainable date based on all the
evidence. The record includes the earlier heart attack
showing an existing cardiac condition and the consultations
with the VA cardiologist. The panel majority states
that “we do not know whether Mr. Robinson would have
satisfied the requirements for the 60 percent disability
rating had he received the testing at an earlier date.”
Maj. Op. at 9. However, the entirety of the record must
ROBINSON 8 v. WILKIE
be considered and reasonably evaluated based on sound
medical opinion. It is incorrect for the VA to automatically
resolve any gap in evaluation against Mr. Robinson;
this court has observed that a condition may have existed
before it was verified. See Collins v. Shinseki, 310 F.
App’x 393, 395 (Fed. Cir. 2009) (“it may be logical to
assume that the date of an injury precedes the date it is
verified by a physician”).
Mr. Robinson states that if the VA is authorized to
measure disability only from the date of a specific test,
despite sound evidence that the disability existed, then
the VA must conduct the test in a timely manner. Reply
Br. at 2–3. The Secretary does not argue that the 14
months’ delay is reasonable; the Secretary’s only response
is that Mr. Robinson could have gone to a private physician
for the test. Secretary Br. at 20 (“Mr. Robinson was
at liberty to obtain documentation of the status of his
condition on his own prior to April 2007 . . . .”) The record
does not show that Mr. Robinson was so advised when the
VA cardiologist ordered the VA to conduct the test.
38 U.S.C. § 5110 requires that the earliest ascertainable
effective date must be applied. The Veterans Court
has recently so recognized. See Cary v. Shulkin, No. 16-
3181, 2017 WL 5496167, at *6 (Vet. App. Nov. 16, 2017):
After concluding that Mr. Cary had sufficient
symptoms to warrant the 70 percent rating as of
June 17, 2011, the Board failed to take the next,
necessary, step to examine the record to determine
whether the increase in symptomology was
“ascertainable” before this.
It is error to mechanically limit the effective date for a
disability rating to the date of performance of a specific
test related to that disability. See id.; see also Blanchard
v. McDonald, No. 15-4290, 2016 WL 7473954, at *2 (Vet.
App. Dec. 29, 2016) (observing that a retrospective medical
opinion may be necessary and helpful); Thomas v.
ROBINSON v. WILKIE 9
McDonald, No. 15-3619, 2016 WL 6273232, at *3 (Vet.
App. Oct. 27, 2016); Pludeman v. McDonald, No. 13-2408,
2015 WL 369963, at *4 (Vet. App. Jan. 28, 2015).
Mr. Robinson’s situation is not of the unknown existence
of a disability until basic diagnostic tests were conducted.
His coronary illness had been manifested for
years; the only new event was the regulatory presumption
of service-connection based on herbicide exposure. With
presumptive service connection, and clear manifestation
of coronary illness, it is incorrect to ignore the entirety of
the medical record, and limit the effective date of compensation
to the date a specific symptom was measured. See
Thomas, 2016 WL 6273232, at *3 (a retrospective medical
opinion may be helpful).
To the extent that 38 C.F.R. §§ 3.400(o)(2) and 4.104
are applied to negate the statutory purpose, they are
invalid. “The VA is charged with the responsibility of
assisting veterans in developing evidence that supports
their claims, and in evaluating that evidence, the VA
must give the veteran the benefit of any doubt.” Henderson
v. Shinseki, 562 U.S. 428, 440 (2011). Although my
colleagues do state concern with this unreasonable delay,
Maj. Op. at 9, they place the consequences of delay on the
Veteran. The Secretary offers no explanation or excuse
for the delay. Contrary to the VA’s obligation to assist
veterans, and to give veterans the benefit of the doubt,
Mr. Robinson received neither.
“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 v. Nicholson, 466 F.3d 1038, 1044 (Fed.
Cir. 2006). This principle is here contravened, for there is
no fault attributed to Mr. Robinson. The statute and
regulations have been incorrectly construed to tie disability
compensation to the date a test is performed, no
ROBINSON 10 v. WILKIE
matter what other evidence exists. From my colleagues’
endorsement of this flawed ruling, I respectfully dissent.

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