Jones v. United States ( 2022 )

Case: 20-2298 Document: 50 Page: 1 Filed: 03/31/2022
United States Court of Appeals
for the Federal Circuit
______________________
LEWIS B. JONES,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-2298
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00520-MMS, Judge Margaret M. Sweeney.
______________________
OPINION ISSUED: August 11, 2021
OPINION MODIFIED: March 31, 2022 *
______________________
JONATHAN HERSTOFF, Haug Partners LLP, New York,
NY for plaintiff-appellant. Also represented by JASON ARI
KANTER.
JAMES WILLIAM POIRIER, I, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellee. Also
* This opinion has been modified and reissued fol-
lowing a petition for rehearing filed by Appellant.
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2 JONES v. US
represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
FRANKLIN E. WHITE, JR.
______________________
Before NEWMAN, SCHALL, and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge SCHALL.
Dissenting opinion filed by Circuit Judge NEWMAN.
SCHALL, Circuit Judge.
Lewis B. Jones appeals the decision of the United
States Court of Federal Claims that dismissed his
amended complaint for lack of jurisdiction. Jones v. United
States, 149 Fed. Cl. 703 (2020) (“Jones”). The Court of Fed-
eral Claims dismissed the amended complaint on the
ground that the claim stated therein was barred by the six-
year statute of limitations set forth at 28 U.S.C. § 2501.
For the reasons stated below, we affirm.
BACKGROUND
I.
There are two systems that provide disability compen-
sation to former members of the armed services. Both are
relevant to this case. First, Section 1201 of Title 10 pro-
vides that military personnel who become disabled in ser-
vice with at least 20 years of service or at least a 30%
disability rating are entitled to receive military retirement
pay (“disability retirement pay”) from the Department of
Defense. Under this system, a service member who is
physically disabled while “entitled to basic pay” is eligible
to apply for military disability retirement, which is based
on the service member’s fitness for military duty. 10 U.S.C.
§ 1201 (1988). Second, under Section 1110 of Title 38 (for-
merly § 310), veterans are also entitled to receive veterans
benefits if they can establish the existence of service-con-
nected disability. Under this system, after discharge, a for-
mer service member can seek compensation from the
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JONES v. US 1
Department of Veterans Affairs (“VA”). This system is
based upon a veteran’s capacity to function and be compen-
sated in the civilian world. See 38 U.S.C. § 355 (1988)
(“The ratings shall be based, as far as practicable, upon the
average impairments of earning capacity resulting from
such injuries in civil occupations.”); 38 U.S.C. § 1155(2018); see also McCord v. United States, 943 F.3d 1354,
1357–58 (Fed. Cir. 2019) (discussing the interplay between
military disability pay and the system of disability benefits
administered by the VA).
II.
The pertinent facts are not in dispute. Mr. Jones en-
tered active-duty service in the United States Air Force
(“Air Force”) on January 29, 1981. Jones, 149 Fed. Cl. at
705. Subsequently, in 1982, while serving in Germany, he
was struck in the eye by the door of an armored personnel
carrier. Id. As his service continued, this injury resulted
in a number of sequelae, including intense headaches. Id.
In addition, over time, as a result of the injury, it became
increasingly difficult for Mr. Jones to perform his duties.
See id.
In October of 1988, Mr. Jones was referred to a Medical
Evaluation Board (“MEB”). 1 A “Narrative Summary (Clin-
ical Resume)” dated October 16, 1988, which was before the
MEB, reflects that Mr. Jones had developed “intermittent
right cranial nerve 4th palsy associated with chronic right
retro-orbital stabbing pain, usually occurring during the
late afternoon or night.” Suppl. App. 24. According to the
1 An MEB determines the nature of a service mem-
ber’s disability by reviewing the service member’s medical
records. Barnick v. United States, 591 F.3d 1372, 1375
(2010); see AFR 35-4 § 1-2.b (1985) (“The MEB is composed
of three physicians who review all medical records and
make appropriate recommendations.”).
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2 JONES v. US
summary, a psychiatric consultant felt that Mr. Jones suf-
fered from “psychological factors effecting a physical illness
and [the consultant had] recommended psychometric test-
ing.” Id. at 25. The summary also stated that, in the past,
Mr. Jones’s “[h]eadaches would occur three to four times a
year and last one to three days and were only relieved by
alcohol or sleep,” and that Mr. Jones had been prescribed a
variety of medications without relief. Id. at 24. The sum-
mary further stated that, in the three months prior to the
MEB proceedings, Mr. Jones “noted increasing frequency
and duration of headaches (up to two to three times a
day[ ]”), and that “[i]n the last two weeks, he noted a nearly
constant headache which was relieved only with repetitive
doses of intramuscular Demoral.” Id.
On November 18, 1988, the MEB issued a report refer-
ring Mr. Jones’s case to a Physical Evaluation Board
(“PEB”), to consider whether Mr. Jones’s medical condition
rendered him physically unfit to serve in the Air Force. See
Jones, 149 Fed. Cl. at 705–06 & n.2. 2 On November 22,
1988, Mr. Jones provided remarks on a “Statement of Rec-
ord Data,” in which he stated that he had been aware of the
MEB and the possibility of his discharge for over six years
and that his condition had “worsened even more since the
M.E.B. evaluation.” Suppl. App. 28–29. He indicated that
he had “constant temporal and eye pain which varie[d] in
severity several times a day that [was] incapacitating.” Id.
at 28. Mr. Jones expressed that “[p]sychologically,” he felt
“deformed, miserable” and possessed “zero tolerance to
stress or anxiety,” and that he had to “avoid stressful
2 A PEB determines a service member’s fitness for
duty and entitlement to disability retirement pay or sever-
ance pay after an MEB finds the service member does not
meet the military’s standards for retention under its regu-
lations. Chambers v. United States, 417 F.3d 1218, 1225
n.2 (Fed. Cir. 2005); see generally AFR 35-4 § 3 (1985).
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JONES v. US 3
situations and other things [that] aggravate [his] injury.”
Id. at 28–29. Mr. Jones also indicated that he had “ad-
justed much of the pain into [his] personality,” having be-
come “impatient” and “irritable.” Id. at 29. He stated: “My
injury has certainly hindered my Air Force career. In the
event of retirement, my injury will positively hinder civil-
ian employment. This undoubtedly creates a hardship.”
Id. at 28. In a report dated December 6, 1988, the PEB
recommended that Mr. Jones be discharged with severance
pay based on a 10% disability rating for “Post traumatic
pain syndrome manifest[ing] as headaches.” Jones, 149
Fed. Cl. at 706. Thus, the PEB did not award Mr. Jones a
30% disability rating, which would have qualified him for
disability retirement pay.
Mr. Jones agreed with the PEB’s recommendation,
and, on December 29, 1988, he was honorably discharged
from the Air Force with severance pay, but with no disabil-
ity retirement pay. In 1989, his discharge was amended to
reflect the fact that his injury was combat-related. Id.
In due course, Mr. Jones sought disability benefits from
the VA. As a result, over a period of fifteen years, the VA
issued various disability ratings or denials of disability
claims in response to claims brought by Mr. Jones. Id.
Eventually, effective December 8, 2017, the VA awarded
Mr. Jones a 100% disability rating based on a combination
of conditions, including headaches, traumatic brain injury
(“TBI”), Post-Traumatic Stress Disorder (“PTSD”), and a
number of other physical and mental limitations. Id.
Upon receiving this 100% disability rating from the
VA, on February 26, 2018, Mr. Jones petitioned the Air
Force Board for Correction of Military Records
(“AFBCMR”) for changes to his record that would entitle
him to a disability retirement dating back to 1988, when he
was discharged. Id. Before the AFBCMR, Mr. Jones also
sought disability retirement pay and benefits pursuant to
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4 JONES v. US
10 U.S.C. § 1201. In January of 2020, the AFBCMR denied
Mr. Jones’s petition. Id.III.
On April 23, 2020, Mr. Jones filed a complaint in the
Court of Federal Claims seeking review of the AFBCMR
decision. Thereafter, on July 1, 2020, he filed an amended
complaint. Jones, 149 Fed. Cl. at 706.
On August 25, 2020, the Court of Federal Claims
granted the government’s motion to dismiss pursuant to its
Rule 12(b)(1). The court concluded that it lacked jurisdic-
tion because Mr. Jones’s claim for disability retirement pay
and benefits pursuant to 10 U.S.C. § 1201 was barred by
the six-year statute of limitations set forth at 28 U.S.C.
§ 2501. Id. at 707–08.
The Court of Federal Claims determined that Mr.
Jones’s claim for disability retirement pay and benefits ac-
crued on December 29, 1988, the date of his discharge from
the Air Force. Id. at 708. As noted above, Mr. Jones’s dis-
charge followed the determination of the PEB earlier in De-
cember that Mr. Jones should be separated, and not
retired, due to his disabling trauma manifesting as head-
aches. Having determined that Mr. Jones’s claim accrued
upon his discharge, the court ruled that it was time-barred.
The court stated:
[b]ecause Mr. Jones did not file suit in this court
within six years of his separation from the Air
Force in 1988, but instead filed suit more than
thirty years later, his claim for disability retire-
ment pay and benefits is barred by 28 U.S.C.
§ 2501.
Id. The court also ruled that Mr. Jones could not rely on
the accrual suspension rule, under which “the accrual of a
claim against the United States is suspended, for purposes
of 28 U.S.C. § 2501, until the claimant knew or should have
known that the claim existed.” Id. at 709 (quoting
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JONES v. US 5
Martinez v. United States, 333 F.3d 1295, 1319 (Fed. Cir.
2003) (en banc)). According to the court, the “amended
complaint establishe[d] a record of Mr. Jones’s knowledge
of his various health conditions in the months leading up
to his discharge,” and thus “[t]he facts of this case do not
show that Mr. Jones’s disabling health problems were in-
herently unknowable in 1988.” Id. In reaching its decision,
the court cited to Young v. United States, 529 F.3d 1380,
1385 (Fed. Cir. 2008), as supporting the proposition that
“accrual of a military pay claim should not be suspended
where the service member’s medical condition was not un-
knowable before his discharge, notwithstanding the fact
that examinations by the VA in later years provided more
information about his condition.” Jones, 149 Fed. Cl. at
710.
Based upon these findings, the court granted the gov-
ernment’s motion to dismiss and directed the entry of judg-
ment accordingly. Following entry of judgment, Mr. Jones
timely appealed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3).
DISCUSSION
I.
Whether the Court of Federal Claims has jurisdiction
over a claim is a question of law that we review de novo.
Biafora v. United States, 773 F.3d 1326, 1334 (Fed. Cir.
2014). We review the court’s findings of fact relating to ju-
risdictional issues for clear error. Id.II.
Mr. Jones brought suit in the Court of Federal Claims
under the Tucker Act, 28 U.S.C. § 1491, which authorizes
certain actions for monetary relief against the United
States and waives the government’s sovereign immunity
for those actions. Fisher v. United States, 402 F.3d 1167,
1172 (Fed. Cir. 2005). Mr. Jones claims he is entitled to
disability retirement pay under 10 U.S.C. § 1201, a money-
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6 JONES v. US
mandating source of substantive law on which he may base
his Tucker Act suit. See id. at 1174. Section 1201 provides
that, upon the Secretary’s determination that a service
member is “unfit to perform the duties of [the member’s]
office, grade, rank, or rating because of physical disability
incurred while entitled to basic pay,” the Secretary may re-
tire the service member if the Secretary also makes certain
determinations. 10 U.S.C. § 1201 (1988). Relevant to the
facts here is a service member’s eligibility for disability re-
tirement pay upon the Secretary’s determination that “the
disability is at least 30 percent under the standard sched-
ule of rating disabilities in use by the Veteran’s Admin-
istration at the time of the determination.” Id. 3
To fall within the jurisdiction of the Court of Federal
Claims, a claim against the United States filed in that
court must be “filed within six years after such claim first
accrues.” 28 U.S.C. § 2501 (1988); see also John R. Sand &
Gravel Co. v United States, 552 U.S. 130, 132–35 (2008).
Generally, “[a] cause of action cognizable in a Tucker Act
suit accrues as soon as all events have occurred that are
necessary to enable the plaintiff to bring suit, i.e., when ‘all
events have occurred to fix the Government’s alleged liabil-
ity, entitling the claimant to demand payment and sue
. . . for [the plaintiff’s] money.’” Martinez, 333 F.3d at 1303(quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851
(Ct. Cl. 1966)). In military disability retirement cases,
however, claim accrual is delayed until mandatory admin-
istrative proceedings are completed under the so-called
“first competent board rule.” That rule provides that a ser-
vice member’s claim does not accrue until final action is
taken by the first board competent to decide the matter of
3 Section 1201 has since been amended to reflect the
change in name of the “Veteran’s Administration” to the
“Department of Veterans Affairs.” See 10 U.S.C. § 1201(2021). We refer to both as “VA.”
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JONES v. US 7
entitlement, or upon refusal of a service member’s request
for such a board. Friedman v. United States, 310 F.2d 381,
395–96 (1962). As our court explained in Real v. United
States, 906 F.2d 1557 (Fed. Cir. 1990):
The generally accepted rule is that claims of enti-
tlement to disability retirement pay do not accrue
until the appropriate board either finally denies
such a claim or refuses to hear it. The decision by
the first statutorily authorized board which hears
or refuses to hear the claim is the triggering event.
If at the time of discharge an appropriate board
was requested by the service member and the re-
quest was refused or if the board heard the service
member’s claim but denied it, the limitations pe-
riod begins to run upon discharge. A subsequent
petition to the corrections board does not toll the
running of the limitations period; nor does a new
claim accrue upon denial of the petition by the cor-
rections board. However, where the Correction
Board is not a reviewing tribunal but is the first
board to consider or determine finally the claim-
ant’s eligibility for disability retirement, the single
cause of action accrues upon the Correction Board's
final decision.
Real, 906 F.2d at 1560 (citing Friedman, 310 F.2d at 390,
396–98) (internal quotation marks omitted); accord Cham-
bers v. United States, 417 F.3d 1218, 1221, 1224–25, 1227
(Fed. Cir. 2005); Martinez, 333 F.3d at 1311–15.
A PEB is an appropriate board to make a final disabil-
ity determination, and its decision is adequate to trigger
the running of the statute of limitations. See Chambers,
417 F.3d at 1224–25 & n.2; Schmidt v. United States, 89
Fed. Cl. 111, 120 (2009) (“An ‘informal’ [Central Physical
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8 JONES v. US
Evaluation Board] decision is sufficient to start the run-
ning of the statute of limitations.”). 4
On December 6, 1988, the Air Force PEB recommended
severance pay based upon a 10% disability rating for Post-
traumatic pain syndrome manifesting as headaches. 5
4 The December 6, 1988 PEB report is marked “in-
formal.” Suppl. App. 26. A decision by an informal PEB
can start the running of the statute of limitations when a
plaintiff waives his or her appeal to a formal PEB. See
Schmidt, 89 Fed. Cl. at 120–21; Fuller v. United States, 14
Cl. Ct. 542, 544–45 (1988) (holding that the plaintiff’s claim
accrued when he waived his right to a hearing before a PEB
after a Navy Board of Medical Survey declared him unfit
for service); cf. Gant v. United States, 417 F.3d 1328, 1332
(Fed. Cir. 2005) (concluding that, by waiving his right to a
formal PEB hearing and accepting the findings of the pre-
liminary PEB, “Mr. Gant knowingly and voluntarily ac-
cepted the finding of unfitness for duty and the disability
rating assigned to him by the preliminary PEB[,] and that
he ha[d] not shown any reason that he should be permitted
to challenge those determinations in subsequent adminis-
trative or judicial proceedings”).
The record reflects that Mr. Jones “agreed with the
findings and recommended disposition of the [informal
PEB]” on December 20, 1988. Suppl. App. 80. Mr. Jones
does not argue on appeal, nor did he argue before the Court
of Federal Claims, that he did not waive his appeal to a
formal PEB, so that the informal PEB report could not trig-
ger the running of the statute of limitations. See id. at 9.
5 The schedule of rating disabilities in use by the VA
for migraines, available at 38 C.F.R. § 4.124a, reads now as
it did in 1988. It provides a 10% rating for migraines
“[w]ith characteristic prostrating attacks averaging one in
2 months over last several months,” a 30% rating for mi-
graines “[w]ith characteristic prostrating attacks occurring
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JONES v. US 9
Thereafter, on December 29, 1988, Mr. Jones was honora-
bly discharged with severance pay, but no disability retire-
ment pay. Under the controlling first board rule, Mr.
Jones’s claim for disability retirement pay would properly
be viewed as accruing in December of 1988. As a result, it
would be barred by the six-year statute of limitations be-
cause Mr. Jones did not file suit in the Court of Federal
Claims until April 23, 2020. Mr. Jones, however, contends
that his claim did not accrue in December of 1988 and that
his suit in the Court of Federal Claims was, in fact, timely
filed. We turn now to the arguments that Mr. Jones makes
in that regard.
III.
We understand Mr. Jones to make two main argu-
ments on appeal. First, he argues that his claim for disa-
bility retirement pay could not accrue until both (1) the Air
Force determined that he was entitled to a 30% disability
rating and (2) a competent board denied his request for dis-
ability retirement pay. Before those two conditions were
met, he asserts, he could not bring suit and obtain relief,
and therefore the statute of limitations did not begin to run
in 1988.
Mr. Jones’s second argument is that the Court of Fed-
eral Claims erred when it held the accrual suspension rule
did not apply to his claim. Mr. Jones asserts that the PEB’s
discharge decision in 1988 was founded solely on his head-
aches (post-traumatic pain syndrome), and that his later,
separate diagnoses of TBI and PTSD were not merely
“more information” about his headaches. See, e.g., Appel-
lant’s Informal Br. 4, 8–13, 16–17; Reply Br. 4–6; Jones,
on an average once a month over last several months,” and
a 50% rating for migraines “[w]ith very frequent com-
pletely prostrating and prolonged attacks productive of se-
vere economic inadaptability.” 38 C.F.R. § 4.124a.
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10 JONES v. US
149 Fed. Cl. at 710. He contends that, due to the state of
medical technology in 1988, his TBI and PTSD could not be
diagnosed or accounted for in his disability rating at the
time of his discharge, and therefore they were “inherently
unknowable latent injuries.” See Appellant’s Informal Br.
12–18, Reply Br. 1. Mr. Jones takes issue with the Court
of Federal Claims’s reliance on Young v. United States. Alt-
hough he admits that he “knew he had serious health is-
sues” in 1988, Appellant’s Informal Br. 15, Mr. Jones
asserts that he was not aware of his mental impairments
prior to discharge, id. at 14, and thus he had no reason to
question the Air Force medical professionals’ diagnosis of
headaches and his 10% rating until 2017, when he was di-
agnosed with TBI and PTSD. Id. at 10, 13–15. Accord-
ingly, we understand his second argument to be that
accrual of his claim should have been suspended because
in 1988 he could not reasonably have known that he was
suffering from, and would later be diagnosed with, ail-
ments that would provide him with a disability rating per-
centage sufficient to qualify him for disability retirement
pay. Id. at 15 (Only “[w]hen the plaintiff went through ex-
aminations, diagnosis and [received] treatment for TBI and
PTSD . . . and proper medications did the cause of action
reveal itself.”).
The government responds that Mr. Jones’s claim for
disability retirement pay under § 1201 accrued when he
was separated from service in 1988, and that the accrual
suspension rule does not apply. This is so, the government
argues, because in 1988 “Mr. Jones knew that he had been
injured during military service, knew that he had suffered
resulting symptoms that impaired his ability to work, and
knew both that a [PEB] had considered his eligibility for a
medical retirement, and that the Air Force had decided not
to award him a medical retirement.” Appellee’s Informal
Br. 15, 17–20. The government disagrees that the PEB
considered only Mr. Jones’s headaches, instead noting that
the PEB had before it evidence of both his physical and
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JONES v. US 11
psychological injuries. Id. at 12–16. There is no require-
ment, the government argues, that Mr. Jones be able to re-
fer to his psychological symptoms as “PTSD” to bring suit
in 1988. Id. at 20. Instead, he merely needed to show “that
he was injured during military service, and that, as a re-
sult, he qualified for a rating of 30 percent disability.” Id.
at 20–22.
We address Mr. Jones’s arguments in turn.
IV.
First, we agree with the government that Mr. Jones’s
claim accrued in December of 1988. The PEB, a board com-
petent to decide the issue of his disability, had before it ev-
idence pertaining to Mr. Jones’s injuries from being struck
in the head, including his headaches and his potential psy-
chological claims, and the Board discharged him with a
10% disability rating. See Real, 906 F.2d at 1560 (“The de-
cision by the first statutorily authorized board which hears
or refuses to hear the claim is the triggering event.”). Ac-
cordingly, it was in 1988 that all events necessary to fix the
government’s alleged liability occurred, entitling Mr. Jones
to bring suit and demand payment. Hence, his claim ac-
crued upon his discharge in December of 1988. See Mar-
tinez, 333 F.3d at 1303.
That he was not yet assigned a 30% disability rating
does not mean Mr. Jones’s claim did not accrue. The Court
of Federal Claims hears cases where a service member
challenges a board’s rating with respect to disability retire-
ment. See, e.g., McCord, 943 F.3d at 1356 (noting that a
service member who was discharged with a 20% disability
rating brought suit in the Court of Federal Claims after he
unsuccessfully applied for a correction); Casiano v. United
States, 141 Fed. Cl. 528, 536–40 (2019) (considering a chal-
lenge to boards’ 20% ratings and denial of disability retire-
ment benefits by two plaintiffs); Rock v. United States, 112
Fed. Cl. 113, 132–33 (2013) (affirming a PEB’s decision
granting a service member a disability rating of 20%);
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12 JONES v. US
Colon v. United States, 35 Fed. Cl. 516, 520 (1996) (holding
that the plaintiff’s cause of action accrued upon his dis-
charge from the Army after a PEB made a final determina-
tion assigning him a 20% disability rating); Randolph v.
United States, 31 Fed. Cl. 779, 781–84 (1994) (remanding
to a PEB for reconsideration of the PEB’s assignment of a
10% rating).
We understand Mr. Jones’s argument that in 1988 the
Secretary had not determined that he was entitled to a 30%
rating to be a contention that his claim did not accrue be-
cause he could not possibly have received a 30% rating in
1988, given that his headaches were only rated at 10%. We
note, however, that the PEB had before it the MEB’s report
and Mr. Jones’s statements, which outlined the severity
and frequency of his headaches, as well as his other physi-
cal and psychological injuries. Mr. Jones argues that later
medical advances were necessary for the Board to make a
determination. While the Secretary may certainly consider
such advances as he “from time to time readjust[s the]
schedule of ratings in accordance with experience,” 38
U.S.C. § 1155, statute forecloses Mr. Jones’ argument by
requiring that eligibility for disability retirement be as-
sessed using “the standard schedule of rating disabili-
ties . . . at the time of the determination.” 10 U.S.C. § 1201.
Because, at the time of his discharge, an appropriate
board heard his claim but denied it, the limitations period
began to run upon Mr. Jones’s discharge. See Real, 906
F.2d at 1560. The VA’s later assignment of a higher disa-
bility rating, combined with his proceedings before the Cor-
rection Board, did not provide him with a new claim. Id.;
see also Friedman, 310 F.2d at 396 (“Once a final decision
is had, adverse determinations by other boards, including
the Correction Board, do not give rise to a new cause of ac-
tion.”).
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JONES v. US 13
V.
We turn now to Mr. Jones’s argument regarding the ac-
crual suspension rule. As noted above, that rule provides
that “the accrual of a claim against the United States is
suspended, for purposes of 28 U.S.C. § 2501, until the
claimant knew or should have known that the claim ex-
isted.” Martinez, 333 F.3d at 1319. A plaintiff who shows
that his or her injury was “inherently unknowable” at the
accrual date can obtain the benefit of such a suspension.
Id. (citation omitted). 6 The accrual suspension rule is
“strictly and narrowly applied.” Id. (quoting Welcker v.
United States, 752 F.2d 1577, 1580 (Fed. Cir. 1985)). The
party whose claim is otherwise barred by the statute of lim-
itations has the burden of proving that the facts underlying
its claim were inherently unknowable. Japanese War
Notes Claimants Ass’n v. United States, 373 F.2d 356, 359
(Ct. Cl. 1967). We agree with the Court of Federal Claims
that Mr. Jones did not make such a showing.
Mr. Jones’s remarks on the November 22, 1988 State-
ment of Record Data indicate not only that he understood
that his injuries were serious, but also that he understood
that his injuries were sufficiently severe that he was being
evaluated for discharge and retirement:
I’ve been aware of the Medical Evaluation Board
for over six years. I first learned about the M.E.B.
through threats from doctors. I was warned com-
plaining too much about my injury would lead to
M.E.B. discharge action. . . . My condition has
6 Alternatively, to achieve the benefit of the accrual
suspension rule, a plaintiff may show “that the defendant
has concealed its acts with the result that plaintiff was un-
aware of their existence or it.” Martinez, 333 F.3d at 1319(citation omitted). This aspect of the rule is not at issue in
this case.
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14 JONES v. US
worsened and has worsened even more since the
M.E.B. evaluation. Medicine and surgery are inap-
plicable in treating my injury. In the past I’ve
taken some types of medicine for pain. Presently,
I’m not taking anything and I suffer during the at-
tacks with no way to relieve the pain. I have con-
stant temporal and eye pain which varies in
severity several times a day that are incapacitat-
ing. I’m physically deformed at the neck, I have
diplopia and my equilibrium is off. Psychologically,
I feel deformed, miserable, and I possess zero toler-
ance to stress. I must avoid stressful situations
and other things which aggravate my injury such
as certain foods, arguments and other things which
may irritate me. . . . My injury has certainly hin-
dered my Air Force career. In the event of retire-
ment, my injury will positively hinder civilian
employment. This undoubtedly creates a hardship.
Suppl. App. 28; see also id. at 29.
In Young, our court affirmed the Court of Federal
Claims’s decision finding that a service member’s claim for
military pay was barred by the six-year statute of limita-
tions. 529 F.3d at 1382. We agreed with the Court of Fed-
eral Claims that Mr. Young could not take advantage of the
accrual suspension rule because, at the time of his dis-
charge, he “knew he had been treated for abdominal prob-
lems repeatedly during his Army service,” even if he did
not know at that time that his injury would render him dis-
abled four years later. Id. at 1385. Similarly, that Mr.
Jones could not have known in 1988 that he would later be
diagnosed with TBI and PTSD and therefore be eligible for
a higher rating under the VA’s rating schedule does not de-
tract from either (1) his understanding in 1988 that he was
suffering from significant physical and psychological inju-
ries resulting from the armored personnel carrier door in-
cident; or (2) his understanding in 1988 that his injuries
Case: 20-2298 Document: 50 Page: 17 Filed: 03/31/2022
JONES v. US 15
were sufficiently serious that he was being considered for
military retirement.
We do note that cases from our court and our predeces-
sor court illustrate that service members who never sought
review by a board before discharge because they did not
know or appreciate the progressive or serious nature of a
disability will not be precluded by the statute of limitations
from pursuing a late-discovered claim for disability retire-
ment. See Friedman, 310 F.2d at 402; Real, 906 F.2d at
1562–63 (“The [Friedman] court clearly contemplated that
there would be some inquiry into the extent of the veteran’s
understanding of the seriousness of his condition.”) (re-
manding for consideration of whether Mr. Real knew
enough about his condition to be held to have the right to
challenge the finding that he was not entitled to disability
benefits); Chambers, 417 F.3d at 1226–27 (holding that the
record lacked evidence that Mr. Chambers knew that he
was entitled to disability retirement at discharge and so his
cause of action did not accrue until a corrections board de-
nied his claim). Similarly, our predecessor court held that
a service member’s claim had not “ripened” even though he
was offered a retirement board because, at the time of his
discharge, his later-diagnosed serious injury, a herniated
disc, had been misdiagnosed as a sprain or strain, and be-
cause there had been no final adverse action by the govern-
ment. Harper v. United States, 310 F.2d 405, 406–08 (Ct.
Cl. 1962). To be clear, a disability that progressively wors-
ens over time is not a basis for suspending the accrual of a
claim for disability retirement. The only relevant point in
time for a disability retirement determination is “the time
of the determination.” 10 U.S.C. § 1201(b)(3)(B). The ac-
crual suspension rule is only implicated if the individual
was unaware of the nature of the disability at that time.
However, those are not the facts of this case.
Not only did Mr. Jones have a board hearing, but the
record demonstrates that he knew the serious nature of his
disability and that he was being considered for retirement.
Case: 20-2298 Document: 50 Page: 18 Filed: 03/31/2022
16 JONES v. US
See Purvis v. United States, 77 F. App’x 512, 514 (Fed. Cir.
2003) (“While a serviceman who did not appreciate the pro-
gressive or serious nature of his disability will not be pre-
cluded by the limitations period from pursuing his late-
discovered claim, . . . that scenario is not applicable here
because Mr. Purvis was sufficiently concerned about the
extent of his injuries to apply for disability in 1974.”). Mr.
Jones was aware of the “incapacitating” nature of his phys-
ical and psychological injuries and believed that they
would “positively hinder” his future employment. 7 Suppl.
App. 28. Accordingly, he had an understanding of the seri-
ousness of his condition that was sufficient to justify a con-
clusion that he could have sought earlier redress, and we
cannot say the facts underlying his claim were “inherently
unknowable.” See Real, 906 F.2d at 1561–62; see also
Young, 529 F.3d at 1385 (“It is a plaintiff’s knowledge of
the facts of the claim that determines the accrual date.”)
(first citing United States v. Kubrick, 444 U.S. 111, 122
(1979), then citing Catawba Indian Tribe v. United States,
982 F.2d 1564, 1572 (Fed. Cir. 1993)).
We thus agree with the Court of Federal Claims that
Mr. Jones cannot claim that his injury was “inherently un-
knowable.”
VI.
Mr. Jones, who reasonably understood his condition to
be disabling in 1988, cannot use his later diagnoses of TBI
and PTSD or his subsequent proceedings before the correc-
tions board to obviate the 1988 accrual of his claim and sus-
pend the running of the statute of limitations from that
time. To grant Mr. Jones relief in the circumstances of this
7 We note that, in 1988, disorders characterized as
“psychological factors affecting physical conditions” were
ratable as “psychoneurotic disorders” in the VA’s disability
rating system. See 38 C.F.R. § 4.150 (1988).
Case: 20-2298 Document: 50 Page: 19 Filed: 03/31/2022
JONES v. US 17
case would, we believe, impermissibly open the door to the
resurrection of previously decided disability retirement
claims simply because medical knowledge advanced after
the claims first were decided by the military service in-
volved. See 10 U.S.C. § 1201 (requiring that the Secretary
assess a service member’s eligibility for disability retire-
ment using the “standard schedule of rating disabilities in
use by the [VA] at the time of the determination.”) (empha-
sis added). In addition, we cannot escape the conclusion
that such an approach could have the unintended conse-
quence of undermining the careful balance that Congress
struck between the disability retirement systems of the
several armed services and the veterans benefit system ad-
ministered by the VA. See BACKGROUND, Part I, supra.
We have considered Mr. Jones’s additional arguments
and have found them all to be without merit.
CONCLUSION
For the foregoing reasons, we affirm the decision of the
Court of Federal Claims dismissing Mr. Jones’s amended
complaint for lack of jurisdiction.
AFFIRMED
COSTS
No costs.
Case: 20-2298 Document: 50 Page: 20 Filed: 03/31/2022
United States Court of Appeals
for the Federal Circuit
______________________
LEWIS B. JONES,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-2298
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00520-MMS, Judge Margaret M. Sweeney.
______________________
NEWMAN, Circuit Judge, dissenting.
I respectfully dissent. The court misapplies the princi-
ples of limitation statutes, and holds that Mr. Jones’ claim
became time-barred during the period when, by statute, he
could not have brought the claim. 1 A period of limitations
does not accrue when the claim could not have been
brought. “‘Accrue’ is ‘[t]o come into existence as an enforce-
able claim or right.’” Shoshone Indian Tribe of Wind River
Reserve, Wyo. v. United States, 51 Fed. Cl. 60, 67 n.8 (2001)
(quoting Black’s Law Dictionary 21 (7th ed. 1999). “The
1 Jones v. United States, 149 Fed. Cl. 703 (2020)
(“Fed. Cl. Op.”).
Case: 20-2298 Document: 50 Page: 21 Filed: 03/31/2022
2 JONES v. US
term accrue in the context of a cause of action means to
arrive to commence.” Id.By statute, Mr. Jones could not have established enti-
tlement to disability retirement at discharge in 1988 with
10% disability. From the court’s ruling that the statute of
limitations accrued from discharge, and that he is time-
barred from seeking disability retirement although 100%
disabled, I respectfully dissent.
A
Mr. Jones was rated 10% disabled and not eligible
for disability retirement at the time of his discharge
Lewis B. Jones was honorably discharged from the
United States Air Force in 1988 after eight years of service,
because of an eye/head injury and ensuing complications.
As recommended by an Air Force Physical Evaluation
Board (PEB) and Medical Evaluation Board (MEB), he re-
ceived severance pay and a 10% disability rating. By stat-
ute, he was not eligible for disability retirement with less
than 30% disability:
10 U.S.C. § 1201(b).
Required Determinations of Disability
***
(3)(B) the disability is at least 30 percent
under the standard schedule of rating dis-
abilities in use by the Department of Veter-
ans Affairs at the time of the
determination.
Air Force Instruction 36-3212 Physical Evaluation for Re-
tention, Retirement and Separation, implements the stat-
ute, and includes:
¶ 3.17. Recommended Disposition. Upon re-
view and evaluation of a disability case, the PEB
Case: 20-2298 Document: 50 Page: 22 Filed: 03/31/2022
JONES v. US 3
recommends one of the following dispositions. (See
Table 3.1 for recommended disposition decision
rules):
***
¶ 3.17.2. Permanent Disability Retirement.
Applies to service members who have been found
unfit, the condition is stable and permanent, and
the total disability rating is 30 percent or greater
or the service member has 20 years or more service
computed under 10 U.S.C. § 1208 regardless of the
combined compensable disability rating.
Mr. Jones did not appeal the 10% disability rating at dis-
charge. However, as the years passed his disability in-
creased, and in 2005 the VA rated him 50% disabled. In
2017 he was rated 100% disabled. In 2018 Mr. Jones filed
a petition with the Air Force Board for Correction of Mili-
tary Records (AFBCMR or “Board”), seeking disability re-
tirement.
The AFBCMR denied the petition, holding that an in-
crease in disability evaluation after discharge does not
warrant changing the compensation awarded at the time
of discharge, and thus that disability retirement benefits
are not available to Mr. Jones. The Board stated:
Under the DVA system (Title 38, U.S.C.), the mem-
ber may be evaluated over the years and their rat-
ing may be increased or decreased based on
changes in the member’s medical condition at the
current time. However, a higher rating by the
DVA, years following separation from the service,
does not warrant a change in the total compensable
rating awarded at the time of the member’s sepa-
ration.
AFBCMR Board Decision, Docket No. BC-2019-02820 at 3
(Jan. 2020).
Case: 20-2298 Document: 50 Page: 23 Filed: 03/31/2022
4 JONES v. US
Mr. Jones sought review of this decision in the Court of
Federal Claims. That court held that the claim is barred
by the Tucker Act’s six-year statute of limitations, stating
that “the court is powerless to reach the merits of Mr.
Jones’ claim because that claim is barred by the statute of
limitations.” Fed. Cl. Op. at 710.
My colleagues agree, holding that any claim for disa-
bility retirement benefits accrued at the time of Mr. Jones’
1988 discharge, although he was rated at only 10% disa-
bled at discharge. My colleagues hold that Mr. Jones
should have claimed disability retirement at discharge,
and that “Mr. Jones, who reasonably understood his condi-
tion to be disabling in 1988, cannot use his later diagnosis
of TBI and PTSD or his subsequent proceedings before the
corrections board to obviate the 1988 accrual of his claim
and suspend the running of the statute of limitations from
that time.” Maj. Op. at 16–17.
I cannot agree that the period of limitations accrues
while the claim is barred by statute, for there cannot be a
cause of action for a claim that is contrary to law.
B
The period of limitations cannot accrue until the
cause of action exists
The government argued that the Tucker Act statute of
limitations accrued from Mr. Jones’ discharge in 1988. The
Court of Federal Claims agreed, holding that “because Mr.
Jones did not file suit in this court within six years of his
separation from the Air Force in 1988, but instead filed suit
more than thirty years later, his claim for disability retire-
ment pay and benefits is barred by 28 U.S.C. § 2501.” Fed.
Cl. Op. at 708.
My colleagues agree. In this reconsideration decision
the court explains at length that Mr. Jones could have ar-
gued that he was at least 30% disabled at discharge,
Case: 20-2298 Document: 50 Page: 24 Filed: 03/31/2022
JONES v. US 5
despite the holdings of the Air Force’s PEB and MEB at the
time of discharge. My colleagues appear to rely on their
reconstruction of Mr. Jones’ disabilities to establish that
the statute of limitations has run, although my colleagues
provide no citations to contemporaneous findings of in-
creased disability. See e.g., Rotella v. Wood, 528 U.S. 549,
555 (2000) (“in applying a discovery accrual rule, we have
been at pains to explain that discovery of the injury, not
discovery of the other elements of a claim, is what starts
the clock.”). The accruing of a statutory bar requires that
the barring events were known or reasonably knowable. In
Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003)
(en banc) this court explained:
A cause of action cognizable in a Tucker Act suit
accrues as soon as all events have occurred that are
necessary to enable the plaintiff to bring suit, i.e.,
when ‘all events have occurred to fix the Govern-
ment’s alleged liability, entitling the claimant to
demand payment and sue here for his money.’
Id. at 1303 (quoting Nager Elec. Co. v. United States, 368
F.2d 847, 851 (Ct. Cl. 1966)). By statute, entitlement to
disability retirement requires at least 30% disability or 20
years of service. See ante. Since such events had not oc-
curred in 1988, the Tucker Act statute of limitations cannot
have accrued in 1988.
The authority cited by the court does not hold other-
wise. My colleagues cite Real v. United States, 906 F.2d
1557, 1560 (Fed. Cir. 1990) for the statement that a disa-
bility retirement claim accrues “[i]f at the time of discharge
an appropriate board was requested by the service member
and the request was refused or if the board heard the ser-
vice member’s claim but denied it, the limitations period
begins to run upon discharge.” However, the Physical
Evaluation Board and Medical Evaluation Board found
only 10% disability, well below the statutory threshold for
disability retirement.
Case: 20-2298 Document: 50 Page: 25 Filed: 03/31/2022
6 JONES v. US
This appeal does not turn on whether Mr. Jones was
correctly found to be only 10% disabled at the time of dis-
charge. The question is whether the Court of Federal
Claims is barred by the statute of limitations from review-
ing Mr. Jones’ claim for disability retirement, including
whether he became entitled to such benefit when he was
rated at 100% disabled in 2017. The age-related progres-
sion of service-connected disability is not unusual, and the
record before us shows no determinations of fact and law
for Mr. Jones’ concerns.
With no development of evidence, my colleagues accept
the government’s argument that Mr. Jones was required to
litigate disability retirement in 1988, and that his failure
to do so exposed all later actions to the bar of accrued limi-
tations. The government states that “[i]n 1988, Mr. Jones
could have filed suit to challenge the disability rating by
the Air Force as insufficient, and so could have sought a
medical retirement.” Gov’t Br. 20. My colleagues agree,
and hold that since Mr. Jones did not challenge his 10%
disability rating in 1988, he became forever barred alt-
hough his rating reached 100%. That cannot be an appro-
priate application of limitations principles to the facts
hereof.
The PEB and the MEB in recommending Mr. Jones’
discharge agreed that he was 10% disabled; they did not
“consider or determine finally the claimant’s eligibility for
disability retirement,” as in Real, 906 F.2d at 1560 (quoting
Friedman v. United States, 310 F.2d 381, 396 (Ct. Cl.
1962). Although my colleagues state that “an appropriate
board heard his claim” at discharge, Maj. Op. at 12, neither
Mr. Jones nor the government states that he received a
hearing on a claim for disability retirement at discharge.
Precedent is more rigorous; in Real the court explained
that “under Friedman if the service member had neither
requested nor been offered consideration by a retiring
board prior to discharge, the later denial of his petition by
Case: 20-2298 Document: 50 Page: 26 Filed: 03/31/2022
JONES v. US 7
the corrections board was the triggering event, not his dis-
charge.” 906 F.2d at 1560. That is the situation here, for
Mr. Jones went to the corrections board in 2018, and no
Tucker Act period of limitations has run.
Of concern is the court’s holding that because Mr.
Jones did not take legal action to challenge the 10% disa-
bility rating, there accrued a statutory bar to his claim af-
ter he became 100% disabled. This view of the law
contravenes the principles of limitations, for changing cir-
cumstances may change the claim. However, the majority
states its concern about “open[ing] the door to the resurrec-
tion of previously decided disability retirement claims
simply because medical knowledge advanced after the
claims first were decided by the military service involved.”
Maj. Op. at 17. I observe, first, that Mr. Jones’ claim based
on 100% disability was not “previously decided;” and sec-
ond, if medical knowledge indeed has advanced in a way
relevant to a veteran’s claim, surely the door should be
opened wider—not slammed shut. 2
The AFBCMR decision was not based on a theory of
limitations; it was a decision on the merits, and Mr. Jones
presented the Court of Federal Claims with challenges to
the merits of the decision. Mr. Jones has the right of judi-
cial review of the rulings of these governmental/military
agencies. The Court of Federal Claims, and now this court,
err in holding that such review is barred on limitations
principles accruing when there was no right of action. The
court has made a significant change in law and policy. I
respectfully dissent.
2 Veterans law accommodates changing circum-
stances and the passage of time, not by barring all claims
six years after discharge from service or some initial ruling,
but by limiting the compensation for meritorious claims to
the date the veteran applied for the benefit.