NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACK DAVIS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2239
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-4975, Judge William S. Green-
berg.
______________________
Decided: December 5, 2019
______________________
JACK DAVIS, St. Louis, MO, pro se.
MICHAEL DUANE AUSTIN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JOSEPH H. HUNT, JAMES PATRICK CONNOR,
ROBERT EDWARD KIRSCHMAN, JR.; CHRISTOPHER O.
ADELOYE, BRIAN D. GRIFFIN, Office of General Counsel,
2 DAVIS v. WILKIE
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before LOURIE, DYK, and CHEN, Circuit Judges.
PER CURIAM.
Jack Davis appeals from a decision of the Court of Ap-
peals for Veterans Claims (“Veterans Court”). The Veter-
ans Court affirmed a decision of the Board of Veterans’
Appeals (“Board”) that Mr. Davis is not entitled to effective
dates earlier than February 25, 2010, for his diabetes and
secondary erectile dysfunction claims and August 31, 2010,
for his coronary artery disease claim. We affirm.
BACKGROUND
Jack Davis served in the U.S. Army from August 1965
to May 1969. His service included a tour of duty in Thai-
land. Between 1995 and 1997, Mr. Davis suffered a heart
attack and was diagnosed with diabetes and erectile dys-
function. Although Mr. Davis “believed [he] was exposed
to toxic herbicides while serving in Thailand in 1966/67,”
Appellant’s Br. 2, he did not file a claim for these conditions
until February 25, 2011, because the VA had not recog-
nized that herbicide was used on bases in Thailand until
May of 2010.
After initially denying Mr. Davis’s claim in July 2012,
the Department of Veterans Affairs (“VA”) regional office
(“RO”) acknowledged in December 2014 that Mr. Davis was
exposed to herbicides during his service in Thailand and
assigned him disability ratings for all three of his service-
related health conditions with an effective date of February
25, 2011—the date his claim was received. After Mr. Davis
filed a Notice of Disagreement, the RO, in light of the stat-
utory provisions setting effective dates for clams affected
by liberalizing laws, granted him earlier effective dates of
February 25, 2010, for his diabetes and erectile
DAVIS v. WILKIE 3
dysfunction—one year before his claim was received—and
August 31, 2010 for his coronary artery disease—the date
that the VA recognized coronary artery disease as being
linked to herbicide exposure.
Mr. Davis appealed to the Board, arguing that the ef-
fective date for his coronary art disease should be the date
of his heart attack in 1995 and the effective date of his di-
abetes and secondarily-related erectile dysfunction should
be in 2001 “based on when that condition was added [by the
VA] to the list of diseases associated with certain herbicide
agents.” S.A. 43. 1 On November 13, 2017, the Board de-
nied Mr. Davis’s requests for earlier effective dates. For
the diabetes and secondary erectile dysfunction claims, the
Board explained that “[t]he [liberalizing] law adding diabe-
tes . . . to the list of diseases associated with exposure to
certain herbicide agents became effective May 8, 2001” and
that, under the statute and related regulations, Mr. Davis
was thus only entitled to an effective date of “1 year prior
to receipt of [his] claim,” i.e., February 25, 2010. S.A. 44
(citing 66 Fed. Reg. 23,166 (May 8, 2001) (amending 38
C.F.R. § 3.309(e)) and 38 C.F.R. § 3.114(a)(3)). As to the
coronary artery disease claim, the Board explained that the
liberalizing law adding this condition “to the list of diseases
associated with exposure to certain herbicide agents be-
came effective August 31, 2010” and, under the relevant
statute and regulations, this date is thus the earliest effec-
tive date that “is appropriate for the grant of service con-
nection for coronary artery disease.” S.A. 44–45 (citing 75
Fed. Reg. 53,202 (Aug. 21, 2010) (amending 38 C.F.R.
§ 3.309) and 38 C.F.R. § 3.114(a)(3)).
Mr. Davis appealed to the Veterans Court. The Veter-
ans Court found “no clear error in the Board’s findings that
the appellant was not entitled to earlier effective dates for
1 S.A. refers to the Supplemental Appendix attached
to Appellee’s brief.
4 DAVIS v. WILKIE
his service-connected condition.” S.A. 4. The Veterans
Court also noted that it did not have any equitable powers
to grant Mr. Davis an earlier effective date, but that “[t]he
effective dates assigned for the appellant’s herbicide-re-
lated conditions are . . . not equitable” because “a claimant
should not have to file claims in futility to receive the ben-
efit of earlier effective dates.”
Id.
Mr. Davis timely appealed to this court, and we have
jurisdiction pursuant to 38 U.S.C. § 7292. While we lack
jurisdiction as to “(A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case,” 38 U.S.C. § 7292(d)(2), we
consider this appeal to relate to the legal question of the
effect of liberalizing laws on effective dates.
DISCUSSION
The question of how the VA should treat veterans who
were exposed to toxic herbicides while serving in Vietnam
has a long history. In 1991, Congress passed the Agent Or-
ange Act, which established a presumption of herbicide ex-
posure during service if the veteran suffers from a disease
listed in the statute that have been medically linked to
herbicide exposure. 38 U.S.C. § 1116(a)(1). The Act also
directed the Secretary, “[w]henever the Secretary [of Vet-
erans Affairs] determines, on the basis of sound medical
and scientific evidence, that a positive association exists
between (A) the exposure of humans to an herbicide agent,
and (B) the occurrence of a disease in humans” to “prescribe
regulations providing that a presumption of service connec-
tion is warranted for that disease.” 38 U.S.C. § 1116(b)(1).
To that end, the Secretary has added a number of diseases
to that presumptive list for Vietnam veterans, codified at
38 C.F.R. 3.309(e), including Type 2 diabetes on May 8,
DAVIS v. WILKIE 5
2001 (66 Fed. Reg. 23,166) and coronary heart disease on
August 31, 2010 (75 Fed. Reg. 53,202). 2
Section 5110(g) of title 38 prescribes the effective date
for a claim for benefits based on a new liberalizing regula-
tion, such as one adding a new presumption for service con-
nection to a disease. Under section 5110(g), the effective
date of an award under a liberalizing law “shall be fixed in
accordance with the facts found but shall not be earlier
than the effective date of the [liberalizing] Act or adminis-
trative issue.” Hunter v. Shinseki,
538 F. App'x 904 (Fed.
Cir. 2013) (alteration in original) (quoting 38 U.S.C.
§ 5110(g)). A “liberalizing law” is “one which brought about
a substantive change in the law creating a new and differ-
ent entitlement to a benefit.” Spencer v. Brown,
17 F.3d
368, 372 (Fed. Cir. 1994). Section 5110(g) imposes an ad-
ditional requirement concerning effective dates. It pro-
vides that “[i]n no event shall such award or increase be
retroactive for more than one year from the date of appli-
cation therefor or the date of administrative determination
of entitlement, whichever is earlier.” 38 U.S.C. § 5110(g).
The result is that if the application for benefits is made af-
ter the date of the liberalizing law, the effective date is one
year before the date of claim (but not before the date of the
liberalizing law). McCay v. Brown,
106 F.3d 1577, 1581
(Fed. Cir. 1997) (citing 38 C.F.R. § 3.114(a)(3) (1994)).
The Board made no error in denying Mr. Davis earlier
effective dates. The Board had no statutory authority to
grant an effective date for coronary artery disease earlier
than the date of the VA’s regulation creating a new
2 There appears to be no statute or regulation that
formally extended the presumption of herbicide exposure
to Thailand. This change was accomplished by a VA
amendment to the VA Adjudication Procedures Man-
ual M21-1 and an accompanying announcement in the VA
Compensation & Pension Service Bulletin in May 2010.
6 DAVIS v. WILKIE
presumption of service connection between exposure to
herbicides and coronary heart disease—namely, August
31, 2010. Mr. Davis was also not entitled to an effective
date of more than one year prior to his claim for his diabe-
tes and secondarily-related erectile dysfunction even
though the liberalizing law was earlier. 3 See
McCay, 106
F.3d at 1581–82.
The Veterans Court lacked equitable power to grant an
earlier date than authorized by the statute. That court
cannot “grant a money payment where[, as here,] Congress
has not authorized such a payment” and has, in fact “ex-
pressly foreclosed such payments” under 38 U.S.C. §
5110(g).
McCay, 106 F.3d at 1581–82; see also Burris v.
Wilkie,
888 F.3d 1352, 1361 (Fed. Cir. 2018) (“[T]he Veter-
ans Court cannot invoke equity to expand the scope of its
statutory jurisdiction.”); Taylor v. Wilkie,
31 Vet. App. 147,
153 (2019) (“[T]he Federal Circuit in Burris distinguished
the kind of equitable relief that the Court has authority to
grant—relief provided by other statutes such as the All
Writs Act and interlocutory, procedural relief—from the
kind it does not have jurisdiction to grant—'substantive,
monetary relief.’” (quoting
Burris, 888 F.3d at 1361)).
AFFIRMED
3 Mr. Davis also raises on appeal the issue of
whether his diabetes “could have aggravated [his] sleep ap-
nea.” Appellant’s Br. 3. The Veterans Court noted that
“the matter[] of service connection for . . . . sleep apnea”
was remanded by the Board. S.A. 1. The Veterans Court
thus lacked jurisdiction to address this issue. See Kirkpat-
rick v. Nicholson,
417 F.3d 1361, 1366 (Fed. Cir. 2005) (af-
firming Veterans Court dismissal because it “correctly
concluded that it lacked jurisdiction over Kirkpatrick’s ap-
peal [of a Board’s remand order]”).
DAVIS v. WILKIE 7
COSTS
No costs.
