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Oral Arguments

CCK’s Oral Argument Leads to Precedential Decision for Gulf War Veterans

Michael Lostritto

December 24, 2018

Updated: June 20, 2024

Oral Argument|Gulf War oral argument

Summary of the Case

Mr. Stewart served on active duty in the United States Army from December 2003 until February 2005, including service in Southwest Asia from February 2004 to January 2005.  During his time in service, Mr. Stewart was surrounded by burn pits and exposed to smoke from burning waste, as well as sand and dust.  In December of 2005, he was treated for and diagnosed with asthma.  Mr. Stewart initially filed for service-connected compensation for asthma in October of 2008.  However, the Board denied his claim for the first time in December of 2013.  Mr. Stewart appealed this denial to the Court of Appeals for Veterans Claims (CAVC) where his case was remanded back to the Board.  The Court agreed that the provisions of 38 CFR § 3.317 pertaining to presumptive service connection for veterans who served in Southwest Asia were potentially applicable to his claim.  Additionally, the Court held that the Board failed to consider whether Mr. Stewart’s asthma constituted a Medically Unexplained Chronic Multisymptom Illness (MUCMI).

In December of 2014, the Board remanded Mr. Stewart’s claim to the Regional Office in order to obtain an appropriate VA examination to determine the nature and etiology of any undiagnosed illness or respiratory infection.  The February 2015 examiner noted prior diagnoses of asthma dating back to 2005 and stated that he did not have multiple respiratory conditions.  The examiner relied on medical literature to discuss the nature of asthma and its symptomatology.  Ultimately, the examiner concluded that Mr. Stewart did not have any chronic respiratory illnesses caused by or as the result of service, and it was less likely than not that he had a MUCMI.  In light of these findings, the Board denied his claim again.

CCK Court Win for Gulf War Veterans: Precedential Decision

Board Denies Service Connection for Asthma

In October of 2015, the Board issued a decision that denied Mr. Stewart’s claim for service-connected compensation under 38 USC § 1117 for a MUCMI incurred during the Persian Gulf War.  In its decision, the Board reasoned that because the etiology of asthma is “partially understood”, it could not be considered a MUCMI.

What is 38 USC § 1117 and why is it important?

38 USC § 1117 provides presumptive service connection to Persian Gulf War veterans who suffer from a qualifying chronic disability, which may result from any of the following:

  • An undiagnosed illness
  • A MUCMI that is defined by a cluster of signs and symptoms; or
  • Any diagnosed illness that the Secretary determines by regulation warrants a presumption of service connection

Importantly, 38 USC § 1117 does not define what it means for an illness to be “medically unexplained.”  Therefore, VA implemented 38 CFR § 3.317(a)(2)(ii) to provide a definition.  The interpretation of this regulation comes into question later in Mr. Stewart’s case, following CCK’s appeal.

CCK Appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied Mr. Stewart entitlement to service connection for asthma under 38 USC § 1117.  CCK argued that the Board misinterpreted the law and relied on an inadequate VA examination to deny his claim.  Specifically, asthma in general may have a partially understood etiology, but it can also be without conclusive etiology too.  CCK further argued that the VA examination of record only discusses the signs and symptoms of asthma as opposed to the etiology of the disease.  Additionally, it was not clear that the examiner looked at the exposure fact sheets required for Persian Gulf War veterans.

Secretary’s Response

The Secretary responded to CCK’s argument asserting that etiology and pathophysiology in 3.317 “refers to the cause of the condition generally rather than a specific potential etiological link to a given claimant’s active duty service.”  Furthermore, defining the precise etiology of Mr. Stewart’s asthma is not what the examiner was asked to do.  The Secretary also tried to argue that the word “or” actually means “and” in the regulation so that 38 CFR § 3.317(a)(2)(ii) really means: “For the purposes of this section, the term MUCMI means a diagnosed illness without conclusive pathophysiology and etiology”.

CCK Delivers Oral Argument in Washburn, Kansas

On February 15, 2018, CCK delivered an oral argument in front of a panel of judges in Washburn, Kansas.  CCK argued against the Secretary’s interpretation of the regulation, contending that a MUCMI is a diagnosed illness that lacks either a conclusive pathophysiology or a conclusive etiology.  The Secretary continued to hold the position that a MUCMI is a diagnosed illness that lacks both a conclusive pathophysiology and a conclusive etiology.

Court Agrees with CCK’s Arguments

CCK argued, and the Court agreed, that the plain meaning of the first sentence in the regulation is that a multisymptom illness is a MUCMI if either the etiology or the pathophysiology of the illness is inconclusive.  The Court held that for the Secretary’s argument to be correct, the word “or” in the first sentence would have to be read as the conjunctive “and”.  However, doing so would be at odds with the plain reading of the regulation and the intent of Congress in including MUCMIs as presumptive conditions.  Additionally, the Court concluded that the determination of whether an illness is “medically unexplained” is particular to the claimant in each case.  The Court also agreed that the VA examination was inadequate because the examiner only discussed symptoms of asthma and identified events or substances that may trigger asthma attacks.  She did not address the etiology or pathophysiology of asthma, either partial or conclusive.  Accordingly, the Court vacated and remanded Mr. Stewart’s case back to the Board.

Impact for Gulf War Veterans

Gulf War combat veteran and Accredited VA Practitioner, Kerry Baker, comments on the first major Court decision regarding Gulf War Illness and what Stewart v. Wilkie means for Gulf War veterans:

“I have been fighting Gulf War issues for what seems like forever, long before I came to CCK.  I guess I’d be lying if I said it was not somewhat personal for me.  One could say I have been there from the beginning somewhat literally.  I landed in the first C-5 transporting the first Marines in the 130-plus degree heat of the Gulf on August 7th.  Saddam had only invaded Kuwait five days earlier on August 2nd.  I was the crew chief on one of the first Marine CH-46 helicopter across the border with the front-line Marine forces when the ground war started, and did not leave until Saddam’s forces had retreated.

Ever since the first statutes and regulations, VA has consistently restricted their application to the serious detriment of untold numbers of disabled Gulf War vets.  I’m sure VA will appeal this decision, but if it stands, this case may finally serve as the turning point for hundreds of thousands of veterans, millions when one considers vets from Iraqi Freedom as well.  For this still growing group of vets, I see this as the single biggest and most favorable event for these folks since the War began nearly 30 years ago.

I am absolutely honored to have even been a part of this effort, and all of CCK should be honored as well.  Thank you, Emma for an outstanding argument and thank you Robert and crew for your support.  Beyond this, I am simply speechless.”


To read the Court’s full decision, click here.


About the Author

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael