          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                            NO . 99-1048

                                 HOLLY P. ANDREWS, APPELLANT ,

                                                  V.


                                    ANTHONY J. PRINCIPI,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                          On Appeal from the Board of Veterans' Appeals


  (Argued May 8, 2002                                            Decided September 12, 2002 )

       Timothy L. Salvatore and Jeffrey Wood, both of York, Pennsylvania, were on the brief for
the appellant.

        Tim S. McClain, General Counsel; R. Randall Campbell, Acting Assistant General Counsel;
and Darryl A. Joe, Acting Deputy Assistant General Counsel, all of Washington, D.C., were on the
brief for the appellee.

       Before FARLEY, HOLDAWAY, and STEINBERG, Judges.

       STEINBERG, Judge: The appellant, through counsel, seeks review of a September 23, 1998,
Board of Veterans' Appeals (Board or BVA) decision that denied an effective date earlier than
June 14, 1991, for an award of Department of Veterans Affairs (VA) service connection for a
psychiatric disability. Record (R.) at 1-8. The appellant filed a brief asking the Court to apply the
doctrine of equitable tolling to the one-year post-separation filing deadline in 38 U.S.C. § 5110(b)(1)
and to reverse the Board's denial of an earlier effective date (EED) and remand the matter to the
Board for the assignment of an EED. The Secretary filed a brief and a substitute brief asserting that
equitable tolling is not appropriate in this case and requesting that the Court affirm the Board
decision. The appellant then filed a reply. This appeal is timely, and the Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will affirm the
Board decision.
                                   I. Relevant Background
       The appellant served on active duty from November 1973 to November 1976 and from June
to August 1980 in the U.S. Army and U.S. Army National Guard. R. at 143-44. She then served in
the U.S. Army National Guard from August 1981 to April 1990. R. at 145. Service medical records
reflect that, beginning in 1988, she underwent extensive treatment (inpatient and outpatient) for
psychiatric illness. R. at 183-84, 190, 348-49, 585-95, 650-54, 707-21. She was admitted to a
Brighton, Massachusetts, private hospital for inpatient treatment in January 1988, where she was
diagnosed as having and treated for major depression and panic disorder. R. at 650. She underwent
treatment at the Brighton Marine Public Health Clinic in the following months and was diagnosed
as having borderline personality disorder with histrionic features. R. at 709. She was readmitted to
the Brighton hospital for inpatient treatment in October 1988 and was then diagnosed as having
borderline personality disorder; she subsequently was transferred to Walter Reed Medical Center in
Washington, D.C. R. at 349. Upon her admission there, she was diagnosed as having dysthymia.
R. at 184. (Dysthymia is "a mood disorder characterized by depressed feeling (sad, blue, low, down
in the dumps) and loss of interest or pleasure in one's usual activities and in which associated
symptoms have persisted for more than two years but are not severe enough to meet the criteria for
major depression." DORLAND 'S ILLUSTRATED MEDICAL DICTIONARY 519 (28th ed. 1994).) In
November 1988, her treating physician assigned to her a Global Assessment of Functioning (GAF)
score of 55 and recommended that she be separated from service (R. at 182) in the U.S. Army
National Guard.
       Her commanding officer then requested that she undergo a psychiatric evaluation, and the
Army examining physician, Dr. Sheridan, diagnosed her as having an Axis I anxiety disorder and
an Axis II personality disorder and "strongly recommend[ed] expeditious administrative separation".
R. at 346-47. In February 1989, she received orders to remain on Active Guard Reserve status until
April 1990 "pending an MEB [(Medical Evaluation Board)]". R. at 529. In March 1990,
Dr. Sheridan stated in a document titled "consultation sheet" that the veteran's personality disorder
rendered her eligible for administrative separation but was "not compensable". R. at 179, 533. The
veteran underwent a psychological evaluation in March 1990 (R. at 628-39) and was discharged from
active service in the U.S. Army National Guard during the following month (R. at 145).

                                                 2
       From April 1990 to May 1992, she received psychiatric treatment (inpatient and outpatient)
at various VA Medical Centers (VAMCs) in Massachusetts. R. at 599-617, 262-94. On May 6,
1991, a VAMC clinician referred her "to social services about general relief, VA . . . or SSI". R. at
286. On May 16, 1991, a VAMC physician noted that the veteran had reported that she was applying
for disability benefits but did not specify whether those benefits were VA or SSI benefits. R. at 284.
In June 1991, more than one year after her April 1990 discharge, she filed a claim for compensation
with a VA regional office (RO) for anxiety and depression. R. at 112-15. She asserted therein that
she had begun experiencing both conditions in 1984. R. at 113.
       In a July 2, 1991, "discharge summary", following a voluntary hospitalization, a VAMC
physician recorded her diagnosis as adjustment disorder, Axis I, and psychosexual disorder, Axis II.
R. at 149. On July 16, 1991, the veteran underwent a VA compensation and pension examination.
R. at 123-25. The examining physician diagnosed her as having schizoaffective disorder, Axis I, and
borderline personality disorder, Axis II. Ibid. In October 1992, the VARO granted service
connection for dysthymic disorder and assigned a 50% rating, effective June 14, 1991 (the date that
the RO had received her claim), for that disability. R. at 358-62. In that decision, the RO denied
service connection for her borderline personality disorder, which the RO found to be "a
constitutional or developmental abnormality". R. at 361.
       Also in October 1992, the veteran filed a claim for a VA rating of total disability based on
individual unemployability (TDIU) due to service-connected disability. R. at 364. That same month,
she filed a timely Notice of Disagreement (NOD) as to the October 1992 RO decision and expressed
disagreement with the 50% rating and the assigned effective date. R. at 374-76. At a May 1993
hearing at the RO, the veteran testified that she did not know, prior to May 1991, that she was
eligible for VA benefits. R. at 578. In December 1993, a VA hearing officer issued a decision that
assigned a 100% schedular rating for her service-connected psychiatric disability, found her claim
for a TDIU rating moot in light of that 100% schedular rating, and denied an EED. R. at 731-33.
The veteran then filed a timely NOD as to the denial of an EED. R. at 742. In that NOD, she
asserted that VA had failed to advise her that she was eligible for compensation and that she must
comply with the one-year application deadline if she wanted compensation to begin on the day after
the date of her discharge. Ibid. She then filed a Substantive Appeal to the Board. R. at 770. At an

                                                  3
October 1994 hearing before a VA hearing officer, she testified (1) that "the VA counseling [she]
received before [her discharge] was woefully inaccurate and incomplete"; (2) that "Dr. Sheridan . . .
told me that I could not get a medical discharge or anything for my disabilities"; (3) that she (the
veteran) had relied upon that "misinformation"; and (4) that "[she] was not rightfully and properly
informed of [her] rights and benefits". R. at 759.
       In the BVA decision here on appeal, the Board denied an effective date earlier than June 14,
1991, for the award of VA service connection for the appellant's psychiatric disability. R. at 1-8.
The Board determined, as a finding of fact, that "the veteran was not notified by VA of benefits to
which she might be entitled, including compensation based on service connection for her psychiatric
disability, at the time of her discharge from service." R. at 3. However, the Board then concluded
that VA's failure to notify "may not provide a basis for awarding retroactive benefits in a manner
inconsistent with the express statutory requirements of 38 U.S.C. § 5110(a), (b)(1)." R. at 6. The
Board relied on VA General Counsel Precedential Opinion 17-95 (June 21, 1995) for the latter
proposition. R. at 6-7.


                          II. Contentions on Appeal and Oral Argument
       The appellant asks the Court to apply equitable-tolling principles to the one-year filing
deadline in 38 U.S.C. § 5110(b)(1) based on an asserted failure to comply with 38 U.S.C. § 7722(b)
and (c). Brief (Br.) at 5-10. She argues that VA has a duty under 38 U.S.C. § 7721(a) to seek out
eligible veterans and provide them with outreach services, and that this duty includes a
responsibility, under section 7722, to provide, at the time of discharge or as soon as possible
thereafter, notice to each veteran regarding all benefits or services to which he or she may be entitled
under laws administered by VA. Ibid. She notes that these provisions or substantially similar ones
have been in effect since 1970. Id. at 5.
       In support of her equitable tolling argument, the appellant cites Smith (EF) v. Derwinski,
2 Vet.App. 429 (1992), in which this Court applied principles of equitable tolling to section
5110(b)(3) based on a failure to comply with section 7722(d). Br. at 7. She argues that Bailey v.
West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc), permits this Court to apply the doctrine of equitable
tolling where an appellant was misled or induced by VA conduct into allowing a filing deadline to

                                                   4
pass; she asserts that she did not file her claim until two months after the expiration of the one-year
section 5110(b)(1) deadline because (1) VA breached its duty under section 7722 by failing to
provide her with notice of her eligibility for benefits and (2) Dr. Sheridan (a non-VA physician
employed by the U.S. Army) told her that her condition was noncompensable. Br. at 11-12. Finally,
the appellant asserts that 38 U.S.C. § 503(a) constitutes a Congressional grant of authority for the
application of equitable principles to the provisions of section 5110, because section 503(a) provides
for equitable relief to remedy administrative error by employees of the Federal Government. Br. at
10.
       The Secretary opposes the Court's application of equitable-tolling principles in this case and
asks that the Court affirm the Board decision here on appeal. Substitute Br. (Subst. Br.) at 1-15. He
argues that 38 U.S.C. § 5110(a) unambiguously provides that where a claim is filed outside the
one-year post-separation period provided for in section 5110(b)(1), the effective date for
compensation may be no earlier than the date of receipt of that claim and that section 5110 is not
subject to equitable tolling. Subst. Br. at 7. The Secretary further asserts that VA's failure to comply
with section 7722 may not provide a basis for equitable tolling and cites Rodriguez v. West, 189 F.3d
1352 (Fed. Cir. 1999), reh'g denied (en banc), cert. denied, 529 U.S. 1004 (2000), in which the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit), according to the Secretary, held that
section 7722 does not create any enforceable rights. Subst. Br. at 9-10. The Secretary contends that
the appellant's reliance on Smith (EF) is misplaced because the equitable-tolling portion of that
opinion constituted dictum and conflicts with what he characterizes as the holding of the Federal
Circuit in Rodriguez. Subst. Br. at 11. He also argues that Bailey's holding is limited to the Court's
authority to toll the deadline for filing an appeal from an adverse BVA decision. Ibid.
       With regard to the appellant's argument regarding section 503(a), the Secretary reiterates that
Rodriguez prohibits the application of equitable-tolling principles where section 7722 is the basis
for such application. Subst. Br. at 12. The Secretary notes that, although section 503(a) permits the
Secretary to award equitable relief in certain circumstances, including where benefits have not been
provided due to administrative error, this Court may not review section 503(a) determinations.
Subst. Br. at 12.



                                                   5
        The Secretary then argues that, even if equitable tolling were an available remedy in the
instant case, the appellant would not be entitled to such remedy because the Secretary previously
(in 1976 when the appellant was discharged from active duty) complied with section 7722.
Subst. Br. at 12. The Secretary attaches to his brief a copy of a document that he asserts contains the
procedure that VA follows upon a veteran's discharge. Subst. Br. at Attachment (Att.) B. The
Secretary also attaches to his brief, and has submitted as the sole document in the supplemental
record on appeal, a copy of a document that he states shows that the veteran received notice in 1976
pursuant to the policy set forth in Attachment B to his substitute brief. Subst. Br. at Att. C. He
argues that, although the Board did not discuss the two documents in its decision, the Board had
constructive notice of them and that the documents were, under Bell v. Derwinski, 2 Vet.App. 611
(1992), part of the record before the BVA. Subst. Br. at 13. The Secretary further asserts that,
according to the policy set forth in Attachment B, the Secretary is not obligated to send notice under
section 7722 until VA receives a copy of the veteran's DD 214 (Subst. Br. at 13-14) and that it is
unclear both whether VA received the veteran's DD 214 upon her separations from service in 1980
and 1990 and whether the veteran or her unit bore the responsibility for forwarding that document
to VA (Subst. Br. at 13-14). The Secretary notes that if the Court finds equitable-tolling principles
potentially applicable in this case, a remand would be required for the Board to conduct initial
factfinding regarding these questions. Subst. Br. at 14.
        In her reply brief, the appellant asserts that the Secretary's reliance on Rodriguez is misplaced
for two reasons. First, she argues that Rodriguez dealt only with the application of subsection (d) of
section 7722, whereas the instant case pertains to subsections (b) and (c). Reply at 1. The appellant
notes that subsection (d) contains hortatory language ("to the maximum extent possible") not
contained in the subsections here at issue and asserts that where Congress includes language in one
section of a statute but omits it in another section, it is presumed that Congress did so intentionally.
Ibid. (citing Boyer v. West, 210 F.3d 1351, 1356 (Fed. Cir. 2000)).
        She also argues that Rodriguez is distinguishable because in that case the appellant, a widow
who filed a claim for entitlement to non-service-connected death pension, could (unlike the appellant
in the instant case who as a veteran can invoke the one-year post-separation exception contained in
subsection (b)(1) of section 5110) invoke no subsection in section 5110 that would provide for an

                                                   6
exception to the general rule of subsection (a). The general rule in subsection (a) is that "[u]nless
specifically provided otherwise in this chapter, the effective date of an award . . . shall be fixed in
accordance with the facts found, but shall not be earlier than the date of receipt of application
therefor." 38 U.S.C. § 5110(a). Subsection (b)(1) provides that "[t]he effective date of an award of
disability compensation to a veteran shall be 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."
38 U.S.C. § 5110(b)(1). The appellant asserts that this distinction is significant because the instant
appellant's ability to invoke an exception "provides a substantive basis for the requested relief" that
"justifies contemplating the requested relief as a 'benefit' established by law" rather than relief that
is equitable in nature. Reply at 2 (citing Darrow v. Derwinski, 2 Vet.App. 303, 306 (1992),
regarding that distinction).
       At oral argument before the Court, there was extensive discussion regarding the Secretary's
discretionary authority under 38 U.S.C. § 503(a) to provide equitable relief based on administrative
error. In view of that discussion and in order to conserve judicial resources, on May 13, 2002, the
Court issued an order staying proceedings in this case in order to give either party the opportunity
to pursue this remedy. Andrews v. Principi, No. 99-1048, 2002 WL 1009667, at *1 (May 13, 2002).
On June 3, 2002, the appellant advised the Court that she had formally submitted an application for
equitable relief pursuant to 38 U.S.C. § 503(a). Appellant's Response (Resp.) at 1. On June 27,
2002, the Secretary submitted a response to the Court's May 13, 2002, order and asserted that the
appellant's application for administrative relief had been referred to the VA Veterans Benefits
Administration (VBA) for consideration (which would require up to five business days) and that if
the VBA made a favorable recommendation for consideration, "the ruling on the application may
take up to 90 business days". Secretary's June 2002 Resp. at 1. On August 2, 2002, the Secretary
advised the Court that the VBA had determined that referral to the Secretary of the appellant's
request for equitable relief was inappropriate at this time because the appellant, due to her pending
appeal in this Court, had an available adequate legal remedy. Secretary's August 2002 Resp. at 1,
Exhibit 1.




                                                   7
                                           III. Analysis
                                        A. Applicable Law
       1. Statutory Provisions. Subsection (a) of section 503 of title 38, U.S. Code, provides:
                       (a) If the Secretary determines that benefits administered by
               the Department have not been provided by reason of administrative
               error on the part of the Federal Government or any of its employees,
               the Secretary may provide such relief on account of such error as the
               Secretary determines equitable, including the payment of moneys to
               any person whom the Secretary determines is equitably entitled to
               such moneys.
38 U.S.C. § 503(a). Section 5110 of title 38, U.S. Code, provides in pertinent part:
                        (a) Unless specifically provided otherwise in this chapter, the
               effective date of an award based on an original claim, a claim
               reopened after final adjudication, or a claim for increase, of
               compensation, dependency and indemnity compensation, or pension,
               shall be fixed in accordance with the facts found, but shall not be
               earlier than the date of receipt of application therefor.

                      (b)(1) The effective date of an award of disability
               compensation to a veteran shall be 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.
38 U.S.C. § 5110.
       Subsection (a) of section 7721 of title 38, U.S. Code, provides:
                       (a) The Congress declares that the outreach services program
               authorized by this subchapter is for the purpose of ensuring that all
               veterans (especially those who have been recently discharged or
               released from active military, naval, or air service and those who
               are eligible for readjustment or other benefits and services under
               laws administered by the Department) are provided timely and
               appropriate assistance to aid and encourage them in applying for
               and obtaining such benefits and services in order that they may
               achieve a rapid social and economic readjustment to civilian life and
               obtain a higher standard of living for themselves and their
               dependents. The Congress further declares that the outreach services
               program authorized by this subchapter is for the purpose of charging
               the Department with the affirmative duty of seeking out eligible
               veterans and eligible dependents and providing them with such
               services.


                                                  8
38 U.S.C. § 7721(a) (emphasis added). Statutory section 7722 provides in pertinent part:
                       (b) The Secretary shall by letter advise each veteran at the
               time of the veteran's discharge or release from active military,
               naval, or air service (or as soon as possible after such discharge or
               release) of all benefits and services under laws administered by the
               Department for which the veteran may be eligible. In carrying out
               this subsection, the Secretary shall ensure, through the use of
               veteran-student services under section 3485 of this title, that contact,
               in person or by telephone, is made with those veterans who, on the
               basis of their military service records, do not have a high school
               education or equivalent at the time of discharge or release.

                       (c)(1) The Secretary shall distribute full information to
               eligible veterans and eligible dependents regarding all benefits and
               services to which they may be entitled under laws administered by
               the Department and may, to the extent feasible, distribute
               information on other governmental programs (including manpower
               and training programs) which the Secretary determines would be
               beneficial to veterans.

                       (2) Whenever a veteran or dependent first applies for any
               benefit under laws administered by the Secretary (including a request
               for burial or related benefits or an application for life insurance
               proceeds), the Secretary shall provide to the veteran or dependent
               information concerning benefits and health care services under
               programs administered by the Secretary. Such information shall be
               provided not later than three months after the date of such
               application.

                      (d) The Secretary shall provide, to the maximum extent
               possible, aid and assistance (including personal interviews) to
               members of the Armed Forces, veterans, and eligible dependents with
               respect to subsections (b) and (c) and in the preparation and
               presentation of claims under laws administered by the Department.
38 U.S.C. § 7722 (emphasis added).
       2. Equitable-Tolling Caselaw. In Bowen v. City of New York, the U.S. Supreme Court
affirmed a lower court decision applying equitable-tolling principles to the filing deadline in
42 U.S.C. § 405(g) to permit individuals who had not filed timely claims seeking judicial review of
adverse Social Security Administration determinations to be members of a class in a class-action
suit. Bowen, 476 U.S. 467, 481-82 (1986). Under 42 U.S.C. § 405(g), a claimant seeking review

                                                  9
of an adverse determination by the Secretary had to file his or her claim within a 60-day filing period
or "within such further time as the Secretary may allow". 42 U.S.C. § 405(g). The Court concluded
that the filing period was not jurisdictional in nature but was a statute of limitations and held that the
time limit in section 405(g) could and, in that case, should be tolled. See Bowen, 476 U.S. at 478-80.
With regard to equitable-tolling principles, the Court stated in Bowen that, although the petitioners
argued "that equitable tolling is permissible only in cases in which the public treasury is not directly
affected", the Court "decline[d] to hold that the doctrine of equitable tolling is so limited." Id. at
479. The Court added: "When the application of the doctrine is consistent with Congress' intent in
enacting a particular statutory scheme, there is no justification for limiting the doctrine to cases that
do not involve monetary relief." Ibid. The Court noted that section 405(g) "is contained in a statute
that Congress designed to be 'unusually protective' of claimants", and that Congress expressly
authorized the Secretary to toll the 60-day limit. Id. at 480. The Court concluded that the tolling of
section 405(g) was (1) consistent with the overall Congressional purpose and (2) nowhere eschewed
by Congress. Ibid.
        Four years later, however, in OPM v. Richmond, the Supreme Court expressly declined to
apply equitable principles to compel payment of disability benefits to a claimant who claimed that
a federal employee's erroneous advice caused him to become ineligible for the benefits. Richmond,
496 U.S. 414, 416 (1990). The Court held that payments from the Federal Treasury are limited to
those authorized by statute and that it thus did not "have authority to order the payment [that the
claimant] seeks". Ibid. The Court then concluded that ordering the payment of public funds sought
by the respondent would violate the U.S. Constitution's Appropriations Clause, which provides: "No
money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."
Id. at 424 (quoting U.S. CONST . art. I, § 9, cl. 7). The Court noted that the very purpose of the
Appropriations Clause is “to assure that public funds will be spent according to the letter of the
difficult judgments reached by Congress as to the common good and not according to the individual
favor of Government agents or the individual pleas of litigants.” Id. at 428; see also Schweiker v.
Hansen, 450 U.S. 785, 788 (1981) (referring to “the duty of all courts to observe the conditions
defined by Congress for charging the public treasury”).



                                                   10
       Later that same year, without reference to OPM v. Richmond, the Supreme Court in Irwin
v. Department of Veterans Affairs held that equitable-tolling principles that apply to private litigants
also apply to the United States and that tolling may be available, inter alia, "where the complainant
has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass".
Irwin, 498 U.S. 89, 95-96 (1990). In adopting a rule of general applicability of private-suit
equitable-tolling principles in suits against the Federal Government, the Court seemed to abolish
prior equitable-tolling caselaw distinctions between jurisdictional time limits and statutes of
limitations. See id. at 95 (stating that Supreme Court was "not persuaded" as to meaningful
difference, for purposes of availability of equitable tolling, between filing deadline tolled in Irwin,
supra, and type of deadline involved in Soriano v. United States, 352 U.S. 270 (1957), where Court
had held claim jurisdictionally barred). The Court concluded that equitable-tolling principles were
applicable to a filing deadline in an employment-discrimination suit against VA but declined to apply
those principles there, noting that they "do not extend to what is at best a garden variety claim of
excusable neglect." Id. at 96.
       In Bailey, supra, the Federal Circuit held that, absent a contrary Congressional expression,
this Court would be entitled to toll the 120-day period in 38 U.S.C. § 7266(a) for filing a Notice of
Appeal (NOA) in this Court. Bailey, 160 F.3d at 1365. Specifically, the Federal Circuit held that
that filing period could be tolled where a veteran was misled by a VA benefits officer into believing
that the officer would file his NOA for him. Ibid. The court noted the "particular" relationship
between veterans and the government in finding that that veteran "was misled by the conduct of his
adversary into allowing the filing deadline to pass." Ibid. The court held that, although there was
no suggestion of misconduct, such as tricking the veteran into missing the 120-day NOA filing
deadline, "a veteran's inducement by an adversary's conduct is akin to grounds sufficient to toll a
limitations period in a private suit." Ibid. (citing Irwin, supra).
       In Smith (EF), supra, upon which the appellant here principally relies, this Court concluded
in 1992 that where VA failed to comply with section 7722(d), such failure constituted a breach of
a duty owed to an individual veteran and warranted the equitable tolling of the one-year filing
requirement for a specific request for retroactive non-service-connected pension benefits. Smith
(EF), 2 Vet.App. at 429. The Court rejected the Secretary's characterization of section 7722(d) as

                                                  11
"merely a part of the general direction to . . . VA to develop large-scale veterans' outreach programs"
that "thus does not create any specific duties owed to individual veterans." Id. at 431. The Court
noted the existence in that case of the necessary causal relationship between VA's breach and the
veteran's failure to file a timely claim for retroactive benefits, because there was "every reason to
conclude from the appellant's pattern of communication with . . . VA that he would have made the
specific request well within the one-year time period." Id. at 435.
       Subsequent to this Court's decision in Smith (EF), the Federal Circuit decided Rodriguez,
supra. There, the court addressed whether VA's failure to comply with section 7722(d) (quoted
above) or with 38 U.S.C. § 5102 (providing that upon request, "the Secretary shall furnish such
person, free of all expense, all such printed instructions and forms as may be necessary in
establishing such claim") could provide the basis for the tolling of section 5110(a) and the
assignment of an EED; the court stated that it was "doubtful" that either provision created any
enforceable rights. Rodriguez, 189 F.3d at 1355. In so concluding, the court found it significant that
the provisions (1) did not prescribe any remedy for breach and (2) "appear[ed] to be hortatory rather
than to impose legal obligations upon the Secretary." Ibid. In the concluding paragraph of
Rodriguez, the Federal Circuit stated:
               In any event, nothing in those provisions indicates, or even suggests,
               that the Secretary's failure to provide assistance to a claimant
               justifies ignoring the unequivocal command in 38 U.S.C. § 5110(a)
               that the effective date of benefits cannot be earlier than the filing of
               an application therefor. . . . Rodriguez did not file a formal or
               informal application until 1990, and under the statute that – and not
               an earlier date at which the Secretary allegedly failed to provide her
               assistance in filing her claim – is the effective date of her benefits.
Ibid. (emphasis added) (internal citations omitted).
             B. Applicability of Equitable-Tolling Principles to Section 5110(b)(1)
       As a preliminary matter, the Court notes that it finds no merit in the appellant's argument that
section 503(a) lends support to her assertion that section 5110(b)(1) can be tolled. The appellant
argues that section 503(a) permits the equitable tolling of section 5110 when VA has committed
administrative error by not complying with section 7722. Br. at 9. The appellant further asserts that
the fairness concerns expressed by Congress in adopting section 503(a) weigh in favor of the Court's


                                                  12
applying equitable-tolling principles in this case. Id. at 9-10. Section 503(a), however, permits only
the Secretary to grant equitable relief, "including the payment of moneys", upon a finding of
administrative error. 38 U.S.C. § 503(a). Congress did not extend this authority to the Court nor
provide for administrative (BVA) or judicial review of the Secretary's section 503 determinations.
See 38 U.S.C. §§ 511 (not including determinations under section 503 in list of Secretary's
determinations subject to further review), 7104(a) (RO determinations subject to one review on
appeal to BVA on behalf of Secretary). This Court has thus held that it does not have jurisdiction
to review those section 503 Secretarial determinations, see Zimick v. West, 11 Vet.App. 45, 50
(1998); Darrow, supra, and the Court now concludes that the existence of that provision, which
applies solely to the Secretary, lends no support to the appellant's contention that section 503 permits
the Court to apply equitable-tolling principles to section 5110.
       With regard to the Court's authority to apply equitable-tolling principles to section
5110(b)(1), the Court is bound by the Federal Circuit's controlling opinion in Rodriguez, supra, to
conclude that judicial tolling is not available in this case. Rodriguez, supra ("nothing in those
provisions indicates, or even suggests, that the Secretary's failure to provide assistance to a claimant
justifies ignoring the unequivocal command in 38 U.S.C. § 5110(a) that the effective date of benefits
cannot be earlier than the filing of an application therefor"). That opinion is binding on this Court.
See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (noting that Federal Circuit precedent is
binding on this Court); Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991) (per curiam order) (same).
Although the Federal Circuit's opinion in Rodriguez could have been more extensive, we are
convinced that the emphatic conclusion in the final paragraph of that opinion did indeed represent
a holding that section 5110's command as to effective dates is not subject to equitable tolling based
on a failure to follow section 7722(d) and that to the extent that Smith (EF) constituted binding
precedent to the contrary, it has not survived Rodriguez. Because the Court has declined above to
apply equitable-tolling principles to section 5110(b)(1) in this case, it need not reach the parties'
contentions as to whether the Secretary in the instant case complied with section 7722.




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                                            IV. Conclusion
        Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,
the Court holds that the appellant has not demonstrated that the BVA committed error that would
warrant reversal or remand. Therefore, the Court affirms the September 23, 1998, BVA decision.
        AFFIRMED.


                                            Separate Views
        The author judge writes these separate views to comment on two matters. First, although the
Court is bound by the Federal Circuit's opinion in Rodriguez, supra, to conclude that judicial tolling
is not available in this case, see Bethea and Tobler, both supra, it is noteworthy that Rodriguez did
not discuss any equitable-tolling caselaw; specifically, the court did not address Irwin, Richmond,
or Bowen, all supra. Additionally, the Rodriguez opinion's concluding paragraph, quoted in part
III.A.2. of this Court's opinion, ante at 12, came immediately after the Federal Circuit stated that the
appellant's contention regarding equitable tolling need not be discussed because it "involve[d] not
the interpretation of the statutory provisions, but their application to the particular facts of this case",
and that court concluded that equitable tolling in that case was "an issue beyond our jurisdiction."
Id. at 1354.
        Second, the appellant and the Secretary disagree as to whether subsection (b) or (c) of section
7722 creates any enforceable rights. The extent to which the Federal Circuit in Rodriguez made a
holding on that point is unclear. In its discussion of section 7722(d) and section 5102, the Rodriguez
opinion concluded that it was "doubtful" that either provision created any enforceable rights because
the provisions did not establish any remedy for breach and "appear[ed] to be hortatory rather than
to impose legal obligations upon the Secretary." Rodriguez, 189 F.3d at 1355. With regard to the
latter point, the Federal Circuit treated the two provisions as though they contained similar language.
Section 7722(d) does contain the hortatory language "to the maximum extent possible"; however,
section 5102 does not contain such a qualification and provided, at that time, that upon request "the
Secretary shall furnish such person, free of all expense, all such printed instructions and forms as
may be necessary in establishing such claim." 38 U.S.C. § 5102 (1999) (emphasis added). The
Federal Circuit did not discuss this difference between the two provisions, but, in any event, its

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conclusions as to both appear to be of doubtful binding effect because they are prefaced by the hedge
words "[i]t is doubtful" and "[t]he provisions appear", respectively.




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