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.
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.
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.”
Bailiff: All rise. Oyez, oyez, oyez! The United States Court of Appeals for Veterans Claims is now in session. The Honorable Robert N. Davis presiding. All who have business before this court draw near and you shall be heard. God bless the United States in this honorable court. Please be seated.
Judge Robert Davis: Good morning. I am Chief Judge Davis. To my right is Judge Schoelen, to my left is Judge Pietsch. We’re here today in the matter of Stewart against Shulkin, docket number 15-4458 and there are a number of issues involved in this case. Is the language of 38 USC 1117 ambiguous? How should the phrases without conclusive pathophysiology or etiology in the regulation 3.317 be interpreted? Does the phrase partially understood etiology pertain to the medical community at large or to the claim disability of a particular veteran? And is the determination of whether an illness is a partially understood etiology or pathophysiology a medical question requiring a medical opinion? All of these involving medically unexplained chronic multi symptom illnesses, MUCMI. Will the counsel for both parties, please note your appearance for the record?
Emma Peterson: Good morning you Honors. Emma Peterson from Chisholm Chisholm & Kilpatrick, on behalf of the appellant. With me at counsel’s table is Zachary Stolz, also from the firm.
Judge Davis: Welcome. Thank you.
James Hiberd: James Hiberd, Your Honor, on behalf of Secretary with me at counsel table is Sarah.
Judge Davis: Thank you. Are both parties ready to proceed?
Emma: Yes, Your Honor.
Judge Davis: And each party will have 30 minutes to present your respective arguments. Counsel for the appellant, you wish to reserve any time for rebuttal?
Emma: 10 minutes please your Honor.
Judge Davis: 10 minutes. Thank you. You may proceed.
Emma: Good morning Chief Judge Davis, your Honors, and may it please the Court. The uncontroverted medical evidence of record states that the etiology of Mr. Stewart’s obstructive and restrictive respiratory disease is unknown. The Board of Veterans Appeals misinterpreted the law on page nine of the record, when it based its decision on general medical principles as opposed to the specific medical expert evidence of record, to deny this claim. Whether a condition is a medically unexplained chronic multisymptom illness or MUCMI, should be made on a case by case basis and will require a medical opinion. That is consistent with the regulatory history of 38 CFR § 3.317 with a Secretary’s interpretation that can be found in his training letter 10-01 and with case law.
Judge Davis: Ms. Peterson, the governing statute provides compensation for Persian Gulf veterans having a chronic qualifying disability. This is 1117 and the statute divides this up into three classes – an undiagnosed illness, a medically unexplained chronic multi symptom illness (MUCMI), and any diagnosed illness that the Secretary determines to warrant a presumption of service connection. Is the regulation 3.317 consistent with that statutory framework?
Emma: It is Your Honor. If you read it the way appellant has suggested you read it in our pleadings. So, the statute provides under section B, service connection for a medically unexplained illness. Now ‘medically unexplained’ is a term of art in the medical community. It means a condition for what the etiology or an organic cause cannot be found. Reading these regulations, in providing service connection for diseases without known etiologies, without conclusive etiologies or without pathophysiology is no pathophysiologies would be consistent with the statute.
Judge Davis: But the Secretary’s regulation also defines a MUCMI as a diagnosed illness. I don’t see the word diagnosed illness in section B of the statute. I’m just curious if you thought that was a consistent tracking of the statute itself?
Emma: It is, Your Honor. My understanding is that the first Section A of 1117 provide service connection for undiagnosed illnesses that manifest with certain signs and symptoms enumerated later in the statute. And that section B, it was expanded to allow for service connection for disabilities that are diagnosed but have an unknown etiology due to the fact that–
Judge Davis: In expanded by the regulation?
Emma: In the statute in 2003 —
Judge Davis: So the statute talks about diagnosed illnesses as well?
Emma: The joint statement that was in the Federal Register when they updated the statute in 2003 talks about the reasoning and adding that section for medically unexplained illnesses. It was to allow to expand service connection, to allow for service connection for disabilities that were diagnosed but did not have known pathophysiology or etiologies.
Judge Pietsch: Excuse me, the claimant was diagnosed with asthma, wasn’t he?
Emma: He was diagnosed with asthma, Your Honor, but also with obstructive and restrictive airway disease.
Judge Pietsch: So which of the conditions are we really concentrating on? The asthma or the respiratory?
Emma: I would say all three. The Board of Veterans Appeals only talked about his asthma but the medical expert evidence in this case, both the VA examination and also his private physician mentioned that he had obstructive and restrictive disease. Now, the medical evidence from his private physician that says the etiology of his disease is unknown, talks about it in terms of obstructive and restrictive respiratory disease. That’s on page 220 in the record.
Judge Schoelen: In your briefing though, you focused only on the asthma and the Secretary and the ward’s treatment of asthma claim you didn’t argue bad reasons or bases for not addressing the obstructive or restricted airways?
Emma: That’s correct, Your Honor. It’s not clear from the medical evidence whether asthma is all encompassing for those two disabilities, but just knowing the inner record, he does have all three of these respiratory conditions.
Judge Schoelen: So, are you arguing that there’s any error related to the Board’s lack of discussion of that other evidence?
Emma: Not at this time, Your Honor. No. Back to Judge Davis’ question about whether the regulation is consistent with the statue, if you read the regulation the way appellant has proposed that the first sentence of 3.317(a)(ii) is an ‘or’ as opposed to ‘and the Secretary suggesting,’ that would make it consistent with the statute. If the first sentence is and ‘and’ that would be limiting beyond what Congress intended. So if we read it as ‘medically unexplained illnesses need to have both an unknown pathophysiology and an unknown etiology that we effectively eliminate folks who have just an unknown etiology,’ which is what Congress allowed for in 1117.
Judge Schoelen: The Secretary sites to some statutory and regulatory interpretation. I think the case from the seventh circuit and some treatise discussion by Justice Scalia, that when a ‘or’ is proceeded by a ‘not’ or a ‘neither’ that that can mean that it’s really an ‘and.’ How do you respond to that argument?
Emma: If that first sentence in 3.317(a)(ii) was in isolation, it might be a trick your analysis, but we have a second sentence. And when you’re reading regulations and statutes, you have to read them in context. The second sentence tells us definitively that a MUCMI is not, diseases that are going to be excluded. And those must have both an unknown pathophysiology and sorry, partially known pathophysiology and partial etiology together and the Secretary used an ‘and’ in that sentence. So, the only way that the regulation can actually make sense is if the first sentence is an ‘or’ and the second sentence is an ‘and.’
Judge Schoelen: They’re actually not parallel construction – parallel but opposing constructions in the first sentence with the ‘or’ talks about ‘without conclusive pathophysiology or etiology’ but the second sentence of what is not a MUCMI is ‘partially understood etiology and physiology.’ So does the fact that one says conclusive and one says partially understood, does that undermine your argument?
Emma: No, Your Honor because if you read the second sentence in isolation for example, which tells you that a MUCMI is not, we have both of those requirements, both partially understood etiology and partially understood pathophysiology. In there that means if you didn’t have one of those components you wouldn’t be excluded. So I think that reading both sentences together with the first sentence being an ‘or’ and the second sentence being an ‘and’ is the way the statute makes sense. Additionally, reading it the way the Secretary reads it would take it to perhaps an absurd result in the sense that what other conditions than the three enumerated of examples, and they’re supposed to be examples in 3.317 would qualify as medically unexplained illnesses. Now, there may be some, but in preparing for oral arguments, we certainly couldn’t find any. So, the intent was to allow for service connection beyond just undiagnosed illnesses and to allow for service connection the on just the three and now for conditions that are enumerated in 3.317. So reading the first sentence as ‘and,’ just doesn’t make sense. It’s not consistent with the regulation with exact plain language of the regulation and of the statute.
Judge Davis: Is the statute ambiguous?
Emma: No, Your Honor, the statute is not ambiguous. The statue is plain. It provides for service connection for medically unexplained illnesses which as I’ve mentioned before means a disease without known etiology and then Section C is for whatever other disabilities the Secretary determines should be qualified for presumptive service connection. Which is how he could, you know, allow how we could add into the regulation pathophysiology, that it would be an expansion something that in his considered view, should also warrant service connection. But limiting it to just diseases with both elements would be restrictive, it would be less than the statute allows for.
Judge Schoelen: I’d like to talk a little bit about the argument regarding whether it has to be known or understood generally in the medical community or pertaining to a particular veteran. Can you explain to me how the argument that things have to be done on a case by case basis translates to understanding a particular veteran’s cause of disease?
Emma: So looking at the regulatory history of 3.317, when the regulation was updated in 2010, and the training letter that was issued just prior to that update explains that these decisions, these MUCMI determinations, must be made on a case by case basis. And they will require a medical opinion that is in both the training letter and in the final rule promulgated in 2010. And then most recently, in the Federal Circuit decision in Goodman, they assumed without holding that it, again, would be on a case by case basis. They talked about how these would be made based on a claimant’s unique set of symptoms. So, it must be based on Mr. Stewart’s set of symptoms here. The Board misinterpreted the law when they decided that, –well asthma in general can’t be a MUCMI, as opposed to saying, well, “Mr. Stewart may have one of these etiologies that we found in Dorland’s or in a medical treatise and therefore his asthma is not a MUCMI.
Judge Schoelen: So taking your argument further, would that mean any disease, like cancer, we know what causes some cancers. But we may not know what caused your cancer, that would be a MUCMI?
Emma: If it met the other requirements of the regulation and statute, if it manifested with the enumerated signs and symptoms, then yes, it could be. Here, I think we have a particularly strong argument in the sense that we have medical expert opinion in this record that says that this etiology is unknown. And that was never really acknowledged beyond just mentioned by the Board. They didn’t discuss the probative value or the credibility or the weight of that evidence.
Judge Pietsch: Is that pertaining to the asthma or is that pertaining to the restrictive or obstructive airway disease?
Emma: The exam, excuse me, –the medical expert was restraining to the restrictive and obstructive airway disease.
Judge Pietsch: So we don’t have medical evidence that says the asthma is of unknown etiology.
Emma: That’s correct. And the VA examiner did not say that either. We just have the Board citation to Dorland’s that asthma may have won several etiologies.
Judge Davis: Let’s assume that the veteran has asthma as a preexisting condition and the time in the Persian Gulf, and maybe the veteran hadn’t had any episodes in years. But once he’s in the Persian Gulf, things are exacerbated and he begins to have many episodes subsequent to his Persian Gulf time. Would that qualify as a MUCMI?
Emma: I’m not sure, Your Honor. I think that in that case, the veteran could certainly pursue service connection for sounds like aggravation of his preexisting asthma, but I don’t know that it would be a MUCMI because MUCMI’s are– as explained in the training letter and the regulatory history, are presumptive service connection for diseases that are due to possibly any one of a number of exposures during service from sulfur fires to oil fires, particulate matter, inoculations, the list goes on and on. So, whether that disability would be a MUCMI might depend on the specific medical evidence in the record. But that sounds more like service connection based on aggravation than a MUCMI.
Judge Davis: But either way, he would have to, –there has to be a medical opinion that would probe the impact of exposure in the Persian Gulf?
Emma: That’s correct.
Judge Davis: Specifically to this veteran?
Emma: Specifically to this veteran. And in fact, the training letter instructs that examiners are to answer a number of questions – one is it undiagnosed illness, two is it an unknown etiology and three and four, if it is known or you have a definitive diagnosis and etiology, move on to the next step which is to examine whether it’s due to an exposure in the Gulf specifically.
Judge Schoelen: A separate question also is the how and who makes the medical determination or makes the determination? I believe the Secretary has argued that although it is a medical determination and doesn’t require a medical exam, how do you think that would work?
Emma: I don’t think that works. I think if you take that proposition out to its conclusion, to what that could mean, that could mean, that could mean that anytime a veteran, not just in a 3.317 case, but anytime a veteran submits, let’s say favorable nexus evidence from his medical doctor saying that this veteran has – let’s use the example the Secretary used: arthritis, and it’s due to a trauma in service, an adjudicator at the RO can look at that and then pull out a medical treatise. It doesn’t have to be Dorland’s, it could be any medical treatise. We don’t know where it’s from, if it’s peer-reviewed, the quality of that. And comes with different conclusion and say in my opinion this arthritis is due to natural aging and I think that gets dangerously close to a colon violation so while medical treatise and medical dictionaries are helpful for the definitions of diseases – they can inform the Board, the regional office adjudicators and even medical examiners, it’s the interpretation of that information that requires expertise and how it relates to a specific veteran. So I can get a read Dorland’s for the understanding of what the definition of asthma is, but I don’t have the expertise or training to opine that that specifically mean that this veteran’s etiology is one thing or another. And in fact, the Board in this case said on page seven of the decision, the decision of the record that the veteran was not competent to render an etiology. And even in its prior decision in this case in 2013 court decision, they said that the etiology of asthma is a complex decision. And when you have a complex medical matter, we know from case law that you need a medical opinion. It cannot just be citation to a treatise or medical dictionary.
Judge Schoelen: Is the requirement that you’re asserting that a doctor make the assessment of what the actual etiology of the diseases is, because this isn’t the MUCMI context, because in a traditional service connection claim, they just have to say whether there’s a nexus to service or not? They don’t have to actually say “this is what caused the veterans condition.”
Emma: Yes, Your Honor. This is a unique set of circumstances where we need to know the etiology or not for lack of better term. And that has to be coming from a medical examiner. Treatise evidence and dictionaries may, they could possibly answer that question if it was tailored to a veteran’s unique circumstances. For example, in one, I believe that was the case the medical treatise evidence fit the unique circumstances of that veteran’s case. Here, we just have a generic broad statement from Dorland’s that asthma may have one of several conditions, but no application to this veteran, no correlation. Explaining that he himself might have these etiologies.
Judge Schoelen: Still struggling with the idea that there might be diseases that perhaps Congress didn’t intend to be included in the MUCMI context that medical science doesn’t necessarily understand the exact etiology of right now, but didn’t intend to be part of them, and how to reconcile over being overly inclusive as opposed under inclusive.
Emma: I think if we look at what Congress intended, which was to expand this to veterans beyond just those with undiagnosed illnesses, as science advances, we need to air on the side of being over inclusive as opposed to under inclusive. That’s consistent way of a pro-veteran friendly system. And I think that Congress at a minimum wanted service connection for medically unexplained illnesses which is our disease without known etiologies. And that’s the bare minimum and from there they gave room for the Secretary to add whatever other diseases in his opinion he thought should be granted service connection. But we have to start with those with unknown etiologies. And that’s exactly what we have here.
Judge Davis: Ms. Peterson, what specific remedy do you seek from this court?
Emma: We ask the court to hold that MUCMI determinations needs to be made on a case by case basis based on a claimant’s unique symptoms and circumstances and that presumptions of service connection under 3.317 apply when a disability has either an inconclusive pathophysiology or inconclusive etiology. I see that my time is almost up here. Thank you very much.
Judge Davis: Thank you.
James: Good morning and may it please the Court. The Court should affirm the Board’s October 20th, 2015 decision because the Board have plausible basis for determining that appellant’s asthma is not a medically unexplained multi symptom chronic illness under 38 CFR § 3.317(a)(ii). In that it does not have both an inconclusive etiology and pathophysiology. But it does have at least a partially understood etiology getting known pathophysiology. Accordingly, even under appellant’s interpretation of 3.317 that either condition be met in order to qualify as a MUCMI, asthma does not qualify as a medically unexplained illness. We have argued in our supplemental briefing that the statute 1117 is ambiguous. Arguably, of course, the Secretary’s interpretation– well, the Congress expressly delegated authority to the Secretary to define MUCMI. And we stand by our briefing on the issue and we do know however that at least the Federal Circuit in Goodman determined that the Secretary’s interpretation is owned. Regulations is entitled to our deference and would only be improper if plainly erroneous or inconsistent with the regulation.
Judge Schoelen: Do you– excuse me. Do you think that the regulation – the language is clear as to whether it’s both or an ‘or?’
James: Your Honor, we have argued that the negative terms without before ‘or’ effectively creates the conjunctive phrase that they both need to be required and certainly this was also briefed and argued before the Federal Circuit in Goodman. And our position is that the Federal Circuit implicitly accepted the Secretary’s position which found Goodman’s remaining arguments to be unpersuasive. So we believe that the interpretation is indeed —
Judge Schoelen: But is that an interpretation of your regulation or — am I to look at the language and just based on the plain language apply it to mean both or do I have to look to something else? Some other guidance, some other of your arguments here or whatever to tell me that ‘or’ means ‘and.’
James: Your Honor, I’m not an English major. But certainly, with regards to the reasoning that was outlined in the Shane case, explained this proposition of language construction, I think that would explain from that circumstance. Medically unexplained illness is without conclusive pathophysiology or etiology under 3.317(a)(ii) and stated that the interpretation being that both act as conjunctive phrase and that both conditions must be met. The Secretary’s position on this has been consistent, whereas diabetes and multiple sclerosis were specifically omitted by Congress, in its joint explanatory statement as being medically unexplained. And that they both have partially understood pathophysiology and etiology. The 2011 amendments to the regulation, including the functional gastrointestinal disorders were defined by having unknown etiologies and pathophysiologies but inflammatory bowel diseases were omitted such as ulcerative colitis and Crohn’s disease because they have a known pathophysiology. So, the interpretation has remained consistent and whereas the appellant’s interpretation that an illness is not medically unexplained only both the etiology and pathophysiology are partially explained is contradicted by those stated exceptions such as Crohn’s disease and ulcerative colitis where the etiology is not known but the pathophysiology is.
Judge Schoelen: Are you arguing that asthma has known both pathophysiology and etiology or only pathophysiology?
James: It has a known pathophysiology and at least a partially understood etiology. But it is not an inclusive etiology and pathophysiology.
Judge Pietsch: But the claimant has said that it’s not only just the asthma that they’re looking at, but also obstructive and restrictive air disease. So is it your opinion or position that the second disease, the restrictive airway has no etiology or no physio or pathophysiology? Which one? Or are you even acknowledging that there is that second claim?
James: Your Honor, looking at the medical examination, I believe that the indicate the asthma was first diagnosed in 2005. There were PFT results that indicated an obstructive disorder that was later determined to be asthma. So, our position is that the other diagnosis so to speak, because actually subsumed by the actual asthma diagnosis which is certainly reflected by that 2015 medical examination so we do not believe that it actually stands as a separate diagnosis. We are only dealing with asthma in this circumstance.
Judge Pietsch: And so then it’s your position that the asthma has some known etiology and some known, or nonconclusive at least, pathophysiology.
James: Correct Your Honor. In terms of a general sense of medical knowledge.
Judge Pietsch: Now, to go to the argument of the appellant that it should have been done on a case-by-case basis as opposed to just generally speaking to terms of asthma. We know the etiology and the pathophysiology and their position is– that may be true, but as to the veteran, you do not know that.
James: That is correct, Your Honor. The issue on this was also for the Federal Circuit in Goodman where whether the issue of a medical examination could essentially have precedential authority and be basically the standard of a condition going forward, which the Federal Circuit to Goodman rejected that arguments and that’s not really what was going on. But the M21 is going to require a medical examination in every one of these kinds of cases, so the adjudicator will be operating from at least one medical examination in order to determine whether or not a condition is a MUCMI. And certainly, that is actually part of the instruction is to any examiner is to determine whether or not appellants’ or claimants’ symptoms would classify as such. But one thing that Goodman does indicate– well, the examiner in Goodman spoke to the etiology of rheumatoid arthritis generally, and not as to Mr. Goodman individually. This court in the memorandum decision rejected Mr. Goodman’s argument that the IMO is inadequate because it could not pinpoint a specific etiology or pathology for Mr. Goodman’s illness. The Federal Circuit implicitly affirmed that when the court determined that, this court had properly interpreted 3.317(a)(ii) in its decision. So, Goodman would indicate that even a case-by-case basis based on claimant’s unique symptoms, the examiner may still consider the etiology of a disorder based on what is known to the medical community at large rather than as far as just specific veteran. And this is also consistent with the exceptions that are stated where if a claimant has diabetes or multiple sclerosis, those conditions are excluded. So we would not be concerned with particular etiology of that claimant’s multiple sclerosis or diabetes because they are excluded illnesses and its illnesses such as those, which we argue asthma’s included, which would qualify therefore as not being MUCMIs because they have at least a partially known etiology.
Judge Pietsch: But if he didn’t have asthma before he went to the Gulf–
Judge Schoelen: Or allergies.
Judge Pietsch: –or allergies. How would you get around that?
James: We’re dealing with presumptive, presumptions on diseases whereas whether this particular veteran may have had these symptoms that he didn’t have beforehand it, goes more towards an issue of direct service connection rather than dealing with presumptions on diseases and their known qualities in terms of etiology and pathophysiology.
Judge Schoelen: If this is supposed to be based on a general understanding or general knowledge, why doesn’t the Secretary regulate every context that would be a MUCMI like the Secretary in Congress has an Agent Orange context or radiation context. If there isn’t room for an individual veteran to demonstrate that his condition should be a MUCMI, why would this regulation be left so broad and vague and include all these 13 different types of signs or symptoms that could be contemplated to be MUCMIs? I mean there is no regulated one by the Secretary about abnormal weight loss or sleep disturbances or headaches so these are all things that Congress said could be MUCMI and VA actually says could be MUCMIs, but VA hasn’t done anything about it and seems to indicate that they couldn’t be.
James: Your Honor, I think on a certain level it seems to be sort of left to the medical community to determine what ultimately qualifies. And certainly, when you have medical examinations available and every type of these claims, perhaps the medical community will shift the new medical literature that might change the opinion of the medical community. So there is a certain fluidity or flexibility that I think the current system allows for it that might not otherwise be —
Judge Schoelen: So does that create surplusage of Section B, where it talks about the signs and symptoms if in the regulation that it’s really going to be what ultimately is determined, it’s not necessarily these things?
James: Well, that may be a question for down the road, but those certain symptoms go towards perhaps what has not been diagnosed or if it has been diagnosed, there’s still no real knowledge behind what is behind that diagnosis in terms of what causes–
Judge Schoelen: But it sounds like you’re only going to be accepting what’s a MUCMI, those irritable bowel, whatever, and the additional– is it joint-related disorder or whatever that was added recently that the regulation, it doesn’t sound like you’re going to accept anything else as MUCMI, right?
James: Well, at least in terms of first part of that where there be it goes towards the symptoms that still indicates whether a claimant has those known symptoms that can’t really be addressed. The issue here was something like asthma, know what condition is, and in its –
Judge Schoelen: Well, you know what the condition is, otherwise you’re not in the MUCMI, you’re in an undiagnosed illness?
James: Correct. But at least in terms of the issue of whether or not you know, once you know what the disease is, what causes it and how it develops. That really is where it falls in terms of determination whether it’s medical unexplained or not.
Judge Davis: So your position is that because asthma is medically explained to some degree, it cannot fall within a MUCMI categorization.
James: Correct, Your Honor.
Judge Davis: Okay, what exactly is ambiguous about the statute?
James: Well, it does not specifically describe what medically unexplained is. The appellant’s argument gave us that that is a term apart. But you look at the joint statement from Congress which is essentially incorporated into the regulation, does not appear that Congress has specifically considered anything that might be considered a normal term of art for the term ‘medically unexplained,’ and offer its own examples. And so, the Secretary has utilized those examples in terms of promulgation of the regulation and has worked from that in order to determine what is or is not medically unexplained.
Judge Davis: And what is the Secretary’s addition to the alleged ambiguity in the statue?
James: I’m sorry, Your Honor?
Judge Davis: What’s the Secretary’s contribution to the alleged ambiguity in the statue? How do you fix the ambiguity?
James: Well, Your Honor our position is the regulation is certainly–
Judge Davis: 3.317.
James: Correct. Is not– otherwise plainly erroneous or inconsistent with that regulation or–
Judge Davis: With the statue?
James: At least in terms of the issue of share on deference, we believe that was expressively delegated to the extent that it was not where you can say that the Federal Circuit address the issue in Goodman case, indicating that certain our deference incorporating who need reputation 3.317(a)(ii).
Judge Schoelen: I’d like to talk a little bit about the issue of who makes the medical determination. If you are saying that the medical community at large is what’s going to determine what’s a MUCMI. How is it an individual Board member on a case-by-case basis could say, “I’m looking at treatise A, and it says there’s a known pathophysiology and, in your case, or known etiology and another Board member looks at treatise B, that does not indicate that.” How is there to be consistency in the system? And how’s a veteran going to achieve justice if it’s the Board member who’s making this call as opposed to a medical personnel?
James: Your Honor, as I’ve said the M21 will have a medical examination on all these types of cases so the adjudicator will be operating from the medical examination that goes to the issue whether or not be simply qualified as MUCMI.
Judge Schoelen: Then why did you argue that it doesn’t have to be?
James: Well, because that was before the Goodman’s decision came out and went through that. But–
Judge Schoelen: But the M21 was already in place.
James: That’s correct Your Honor, but in terms of what the adjudicators are working from, it will be the medical opinion. If you have the situation for certainly the as we said that Goodman indicates that a medical examiner may rely on what’s known to medical community at large in terms of determining the etiology with this. That’d be information for the adjudicator but you do have the issue then that if an adjudicator then does something completely different from the medical examiner, there could be issues. And I think it was also argued before the Federal Circuit on this if it somebody just rely on a medical treatise in determination, there were at least some identifiable issues. But our position is you’re not really going it end up having that many or much variants in these types of determinations, assuming you’ve got a medical examiner that’s going to be relying on what’s going to the medical community at large —
Judge Schoelen: So you think you’re never going to have Veteran A be granted asthma and Veteran B be denied asthma?
James: It could happen.
Judge Schoelen: Okay. Let’s say we don’t agree with your reading of the regulation that ‘or’ means ‘and.’ In this particular veteran’s case. Do you think the medical opinion that is before the Board is adequate and that it describes the pathophysiology of asthma but doesn’t actually describe the etiology?
James: I believe it only discusses it generally and not otherwise specifically–
Judge Schoelen: So it would inadequate for rating purposes if we did not adopt your interpretation of the regulation?
James: In terms of– yeah I think it only addresses that one issue. So essentially assumes that the position that it is partially understood etiology as a general.
Judge Schoelen: Thank you.
Judge Pietsch: So, what if it was remanded back for medical examination to determine what is the etiology of this particular person’s asthma? Because he was diagnosed with asthma but the medical examination just kind of went through the different symptoms of asthma and how the airways, and the lungs, and so on, but never really said what caused this particular patient’s asthma. Was it genetic? Was it environmental? It just said he had asthma.
James: Correct, Your Honor and with that goes again towards the issue of presumption. And if you have a disability that has the known partially understood etiology, that we’re not necessarily looking at its specific claimant’s. If you start to look this specific claimant’s etiology whether or not this was in incurring to go off again, I believe that goes more towards the issue direct service connection than a presumption.
Judge Davis: So if I have 10 veterans who serve in the Gulf, one of whom– well, nine of whom have had no asthma, one of whom has an early condition of asthma and they all come out of the Gulf with terrible cases of asthma, the nine might get the presumption under MUCMI but the one doesn’t. Is that where your logic takes me?
James: Well, the logic would be the MUCMI, I mean–
Judge Pietsch: None of them–
James: –itself would not qualify as MUCMI, I think it also– I think again that begins to look towards the issue of direct service connection.
Judge Davis: So none of them would get a MUCMI determination or presumption?
James: Well, since again the issue being that asthma was the partially understood etiology would not be classified as medically unexplained. But then if the issue is did this individual get asthma goes more towards the issue of direct service connection.
Judge Davis: Well, would you– I’m having some trouble grasping some of this, counsel because if you leave the Persian Gulf with wheezing, and coughing, and having difficulty breathing, or maybe we don’t call that asthma. We call it a medically undiagnosed illness, right? And all those people had symptoms that are similar to asthma, it seems to me that you have a couple of options here. They can either fall under Category B in the statute as MUCMI, or as your position suggests because you know what asthma generally is which involves coughing, and sneezing, and wheezing, and difficulty with airways. Then none of them get the classification of a presumption under MUCMI. Something that doesn’t quite ring correct about that result to me.
James: Understood, Your Honor at least in terms of however a medical examiner review each of those types of patients presumably, if it’s asthma-like symptoms would be diagnosed as asthma and hopefully would be some level of uniformity in the level —
Judge Schoelen: Well, that was the whole point in Congress changing the statute, wasn’t it? Some veterans were going in to see their doctor and getting a diagnosis of headaches, but other ones were getting migraines. So then if the migraine folks couldn’t get service-connected because they now had a diagnosis. Because doctors are prone to want to diagnose. They do not want to say something it’s medically unexplained. When somebody walk in and say, “Yo, you’re tired.” The other would get chronic fatigue syndrome and so that person wasn’t going to be compensable, same Congress change the statute to add MUCMI. So, is the way the Secretary interpreting it, undoing Congress’ intention?
James: Your honor, we believe it is consistent and certainly with regards to the original three MUCMI examples and certainly the exceptions as well regarding the multiple sclerosis and diabetes. So, what you’re looking at here is simply– if you put a name on it, but if you still don’t know either what causes it or how it develops, then it would be medically unexplained. But I do think that a certain level of uniformity would occur when you have medical examiners looking towards known definitions or whatnot, or whatever may be claimants’ symptoms.
Judge Davis: So maybe it looks like asthma but maybe it’s not. And the doctors walk away saying, “It looks like asthma but maybe it’s not.” So where does that put you?
James: That hopefully would lead to adjudicator looking for a second examination to clarify ambiguity between the diagnoses.
Judge Pietsch: So, if the examiner would have said after examining this particular patient with all of his symptoms that would look like asthma to everybody else, but let’s say all the symptoms there but he says, “I just don’t know what it is.” Therefore, that’s medically unexplained and somebody else as Judge Schoelen was saying somebody– another physician would say, “Well, that’s asthma.” So, is it about the label?
James: Well on a certain level it would be. That is going to be up to the qualifications, the examiner and their medical expertise and there are certainly going to be in a better position in terms of what the condition is or isn’t. And certainly when you have an individual examinations whenever one of these types of cases, you’re not knowing the end of absolute uniformity but as we argue with it that Goodman indicates that certainly the examiner may rely on the medically understood etiology to the community to the whole particular disease, which could change over time, that it will not lead to a great disparity of the type of results you end up receiving.
Judge Davis: Counsel, what fundamentally– what do you understand as the purpose for the statute?
James: To compensate the veterans who acquired illnesses during the Gulf that simply were not understood, that nobody could really get a handle on what they had come down with, given all the environmental and other factors of it going on at the Gulf at that time.
Judge Davis: Okay.
James: If there are no further questions, Your Honor?
Judge Schoelen: I actually do have a question.
Judge Schoelen: Getting back to your response to Judge Davis’s question that was to compensate for servicemembers returning from the Gulf with conditions of people that didn’t understand. There’s very few medical conditions that there’s actually a diagnosis for that don’t have either pathophysiology or an etiology that are known. Otherwise, it wouldn’t have a label, right? Because if he doesn’t get a diagnosis, he’s in the undiagnosed illness rubric. So we’re only talking about people here who get a label. So, wouldn’t that make you think that if Congress is intending to address the folks who get a label that it might be broader than the Secretary’s interpretation of requiring both unknown pathophysiology and a known etiology or this partially known or whatever.
James: Well, Your Honor our position is that the regulation is consistent with the Congress’s intents in the joint statement. In terms of the regulations amendment, certainly was a situation just because you had a label on it that excluded it from being medically unexplained, but just putting a label on it does not really get to baffle physiology. So something like asthma which is not necessarily something just came out of Gulf, just a fairly common disability, again it is not unexplained to the medical community, so I don’t —
Judge Schoelen: My question is, do you think that that meant Congressmen unexplained to the veteran as opposed to unexplained to the medical community?
James: Your Honor, I think it did the joint statement does indicate with the exclusions of diabetes and multiple sclerosis and an indication that it meant to exclude conditions that were known etiology known to the medical community rather than as specific–
Judge Davis: Anything else?
Judge Schoelen: No.
James: May we request the Court affirm the Board’s decision, thank you.
Emma: The Secretary’s argument today illustrates the flaw and the misinterpretation in the Board’s decision. He keeps referencing that there will be a medical examination that addresses etiology that this is required but we don’t have that here. We have the Board doing their own medical analysis and their own interpretation of what this veteran’s etiology may be and not even this veteran, just what asthma in general may be. He is effectively writing asthma out as being a MUCMI and Goodman certainly does not stand for the proposition that an adjudicator, in the first instance can make a policy decision to exclude a disease as a MUCMI, that’s a medical determination. Now, in Goodman, that case was different. We had a medical examiner who opined on the specific veteran, that’s not what appellant thought, that’s not what he argued but that is what the court found, that the examiner and Goodman specifically opined Mr. Goodman’s rheumatoid arthritis and that did not happen here.
Allowing an adjudicator to reach to Dorland’s or any medical treatise will lead to inconsistent results. You could have an Adjudicator A, deciding that asthma may have one of these etiologies but I don’t see that in these veterans files so he qualifies the MUCMI and you may have Adjudicator B saying, “Well, asthma has a known etiology and pathophysiology, therefore, you’re excluded.” This just does not make sense with the right to claim language of the regulation, language is tricky but reading it in conjunction, the first and second sentences, it makes sense, or with Congress’s intent in 11-17.
Judge Schoelen: I would like to interject. You are concerned about the lack of uniformity that might result if the Secretary’s interpretation is accepted, you just asserted that. But couldn’t there also be a lack of uniformity if we just– the Board implements what a doctor says that this has a known etiology or pathophysiology or not. Doctor A says, “Yes”, Doctor B says, “No”.
Emma: There could be inconsistent results but it would be based on that medical expert’s opinion and evaluation and that happens in any disability case today. Veterans can have strikingly similarly circumstances that based on the medical expert opinion in that medical expertise interpretation of the claims file and the treatment notes and the history, they might come to different conclusions, but it needs to be tailored to the specific veteran. Why instruct adjudicators to make case-by-case determinations? Why say based on a veteran’s unique symptoms if it’s not unique to the veteran? Where does the uniqueness come from if not from that individual? This position the Secretary has advanced today is not his considered view. This position that it is an ‘and’ and not an ‘or’ only came about in 2015 in a change to the M21, which is not binding on the Board it is not a force of law, but prior to that starting in 2010 up until 2015, he took position that an unknown etiology will get into the door that would get you a MUCMI, and you would grant service connection.
Judge Pietsch: How the Secretary has indicated that the obstructive and the restrictive airway disorder or disease has been subsumed by the asthma diagnosis. What do you– What is your opinion of that or your perspective on that?
Emma: This is not specifically in the pleadings, but this is just from my understanding that they’re different diseases. Obstructive airway disease and restrictive air disease, one of them prevents you from expelling air, one other prevents you from taking in air. So, to the extent that the VA examiner PFT results show both, but only with asthma and my understanding is that asthma is only one of those two. It seems to be incomplete in that sense, incomplete information. We don’t have an opinion on the etiology, or for example, what symptoms go to what disability or if it’s both, it’s simply just missing from the record.
Here we just have the Board looking at generic medical information, we don’t have the Board looking to the specific facts of the veteran’s case and I think that with their regulatory history and Congress’s intent, it was clear they wanted to be based on a veteran’s unique symptoms, and so, therefore, we would ask the court, all that MUCMI determinations are case-by-case unique to veterans, and that 3.317 the only way to read it and make sense in context, and that is how we read regulations is to make sure that they make sense within their context, is to have that first sentence to be an ‘or.’
Judge Davis: Counsel, if the appellant has a diagnosis of asthma, is there any way that the appellant would fall under MUCMI?
Emma: According to the Secretary, no. According to the Secretary, today, asthma is effectively gone. And that’s not based on a case-by-case basis, that’s just based on the fact that the Board, in this case, looked at Dorland’s and said that, “Asthma may have known etiologies.” Now Board decisions aren’t binding on other Board decisions, but sounds like today, anytime, any disability that may have a known etiology is now no longer going to be a MUCMI. Because it’s just MUCMI– excuse me, it’s just etiology in general, not etiology-specific to the veteran.
Judge Schoelen: Couldn’t case-by-case basis mean we looked at his condition and we came up with the determination that it was asthma?
Emma: No, Your Honor because it’s not just– in a sense every adjudication is case-by-case, we’re not preventing veterans from filing new claims, they don’t get to go down to the RO and are turned away, but I think that if you look further in the training letter and the regulation it says, you must get a medical examination so if you have a diagnosis in the record, why get a medical exam if not for examining that veteran? Why even sending veterans who get the exam, it seems like a waste of resources on everyone’s time? Why not just get an advisory opinion that– well these disabilities may have etiologies and pathophysiologies that are known or partially understood. If it’s not going to be based on that veteran’s symptoms in that veteran’s situation, why even go through that process? The only way it makes sense is if it is tailored to that veteran.
Emma: If there are no further questions, Your Honors? Thank you very much.
Judge Davis: Thank you, counsel. The case is considered for consideration, the court will now come down and greet counsel.
Bailiff: All rise.