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CCK Court Win for Gulf War Veterans: Precedential Decision

Zach Stolz: Hello, from Chisholm Chisholm and Kilpatrick. This is Zach Stolz. I am here with my colleague, Attorney Emma Peterson. We’re here today to talk about a case that recently became final and is, therefore, precedent for our country’s veterans. It’s a case called Stewart v. Wilkie. And it’s a case that was argued a long time ago, actually a couple of years ago. Emma Peterson was the counsel who argued the case, it was a case that was argued in front of the Court of Appeals for Veterans Claims. There is a lot of information, including the decision, and some surrounding information about it for what we don’t cover today on this brief Facebook Live at our website, cck-law.com. Please visit it and take a look at some of the content we have about this case about Gulf War veterans and about veterans and their dependents in general. So please take a look at that. The case today we are talking about it, even though we talked a little bit about it when it first came out because the United States government actually appealed Mr. Stewart’s case to the court of appeals for the Federal Circuit. And they looked at it for several months. And just very, very recently, they filed a motion with the Court of Appeals for the Federal Circuit to dismiss it. Which means they’re going to no longer pursue the appeal, which means the court’s decision, which was favorable to Mr. Stewart and favorable to Gulf War veterans nationwide, is now good law. It stands. It is not being challenged by the government anymore. So we’re going to go through the case a little bit, tell you what it means for veterans, tell you what it means for the interpretation of the statutes that pertain to Gulf War veterans have been replaced with the regulations, and all of that fun stuff. Again, please check out some of the– this gets really complicated really, really fast. So please check out some of the materials we have on our website at cck-law.com. I’m going to let the attorney who argued the case start talking about it, Emma, what happened with Mr. Stewart?

Emma Peterson: Well, Mr. Stewart was an army veteran, he was part of Operation Iraqi Freedom. He deployed from 2003 to 2005. And upon his return from his deployment, he developed some symptoms of asthma and was ultimately diagnosed with that disease. He made his way, he filed his claim, was denied the regional office level, was denied by the board. We actually represented him in court and got a joint motion for remand, because the board at that time had failed to discuss whether the Gulf War presumptions under the regulation applies to Mr. Stewart.

Zach: So the first time through, the government actually agreed with us and said we’re going to remand the case. And what’s a joint motion for remand, which is basically an agreement between an attorney or a representative and the VA, to send the case back to the board, tell the board, “You made an error here, please fix it. Please readjudicate the case.” This happens all the time. And it happened for Mr. Stewart and what happened after that?

Emma: So the board gets the case back, they remand to the regional office, so send it back to the arrow for a VA examination to address whether Mr. Stewart’s asthma is something called a MUCMI, a Medically Unexplained Chronic Multisymptom Illness, which is a tongue twister. But it’s the–

Zach: Where does that come from? Why do we need to call it MUCMI?

Emma: So that’s found in regulation 38 CFR 3.317. And it comes from the Gulf War presumption statute that Congress enacted to expand and give benefits to veterans who are coming back from the Gulf War with a variety of symptoms, either undiagnosed illnesses, but something we might have heard of as Persian Gulf War syndrome, things like that, or they had a disease, but they just had no idea how that person ended up with that disability or disease. So the regulation defines a MUCMI as a diagnosed condition without conclusive pathophysiology or etiology. So, the board sends the case back to the arrow for an examiner and medical examiner to look at the case and opine on Mr. Stewart’s asthma. Is it related to service? Is it a MUCMI? The examiner concluded that Mr. Stewart did not have asthma related to service and that it was in general, less likely than not a MUCMI, we can get into the details a little bit more about what the examiner actually said later. But it gets back to the board. The board, again, denies service connection. They mentioned the exam. But really the board finds that because the etiology of asthma is known in general, as partially understood.

Zach: So, etiology is?

Emma: Etiology, get into that, is understood they’re going to deny the claim. So etiology is the cause of the disease. Whereas the pathophysiology is the process by which it works in your body, how it affects you and results and symptoms. So, a lot going on, in this case, a lot of moving parts. But the long and the short is that Mr. Stewart was deployed, went to the Gulf, came back, had asthma, and the board denied because they found that his asthma, in general, might be understood. We know the reasons why some people have asthma.

Zach: Okay. So, as I warned at the beginning, it’s pretty complicated, pretty fast. So the way the Department of Veterans Affairs was reading this is you lose if we understand essentially, pathophysiology, and etiology or one or the other, right?

Emma: Correct.

Zach: And so because they said that, “Hey, we understand the etiology of Mr. Stewart’s condition. You’re denied.”

Emma: Right.

Zach: So, what was our argument to court?

Emma: So, the regulation is very specific, it uses precise words, and the keyword here is ‘or’, ‘without’, ‘conclusive pathophysiology, or etiology’. Our position in this case really boiled down to just ‘or’ mean ‘or’. The Secretary’s position was that because there’s the word without there, the ‘or’ magically turns to ‘and’, and that the second sentence, which tells you what is not a MUCMI, and that’s included in that sentence magically turns into an ‘or’. Thankfully, the court found that this is a really strained understanding of the regulation, the regulation was clear on its face that ‘or’ means ‘or’. So, we won that day because Mr. Stewart’s etiology and pathophysiology, first of all, unique to him, weren’t necessarily in the record.

Zach: Right.

Emma: And the board, if they made any findings, it was about the etiology and not the pathophysiology. So Mr. Stewart could still win that day if he had an unknown pathophysiology. And no one even talked about that. So really, it boils down to you need to have one or the other to win.

Zach: So, the way the government was reading 38 CFR section 3.317. And the statute that Congress passed years ago now, to protect our Gulf War veterans, it’s 38, United States Code 1117. The department was reading it, essentially as narrowly as they could to avoid granting service connection to wide swath of veterans. Whereas we challenged the agency’s reading of that by saying, “No, it’s Congress meant it to be much more broad.” That’s why they used the word ‘or’ not the word ‘and’. So, now you can see how much fun lawyers have every day. We were really arguing and this is kind of a law school thing. It is almost amazing to think about the difference between what ‘or’ means and what ‘and’ means is the difference between the whole case and the difference of whether wide swath of veterans are going to be awarded service connection, or if they are not. We think after this decision, it’s become much easier for Gulf War veterans to be awarded service connection for these Medically Unexplained Chronic Multi-symptom Illnesses, or MUCMIs, we will see how that plays out. That was our goal going into the case. That’s how we think it has shaken out. We believe that the court really did just look at the plain language of the regulation and the statute and came to its logical conclusion. Like I said at the beginning, the government has stopped pursuing this appeal. So for all intents and purposes, the government now agrees to do this. Although there are still some things that they need to change in their manual, perhaps. Chisholm Chisholm and Kilpatrick will stay on the case, to make sure that this does actually happen at the agency level. So maybe stay tuned for some further updates. What do you think this means for Gulf War veterans in general?

Emma: So the first part of the big part was ‘or’ meaning ‘or’ because obviously, ‘and’ a little bit more restrictive but I think the second big takeaway from the case, too, is that it has to be unique to your circumstances. These cases have to be decided on a case by case basis. So the examiner has to apply on your specific condition. So you can’t just have the arrow or the board in general saying, “Well, we know why this disease happens in some people. So you’re denied.” No, it has to be unique to you. So again, it really opens it up. Because there are so many unique circumstances that face Gulf War veterans, the various things they were exposed to, are broad, many and dangerous, and can result in a wide number of conditions. So the big takeaway is that there’s sort of two paths for finding that your conditions are MUCMI, and making sure that the medical evidence unique to you, is considered by VA.

Zach: It’s also worth pointing out, as I mentioned, at the beginning, Emma argued this in front of three judges, it was actually a case that was argued in Washburn Law School, which is in Topeka, Kansas, because the Court of Appeals for veterans claims, travels around too many law schools throughout the course of a year. And this one was in Topeka until almost two years ago, and it may even still, even after the decision came out because VA decided that they maybe wanted to appeal this. It’s been really a long, long fight.

Emma: Right.

Zach: And even with that long of a fight, it is one of the first precedential cases and all the veterans law that deal with Gulf War veterans. A lot of cases that you reuse on our website, and a lot of cases that come out still really deal with a lot of the Vietnam era. And so this is something of a generational shift almost amongst veterans and the court is now wrestling with some of the things that happened to our Gulf War veterans. And we are just now beginning the fight on that. So again, we encourage you to check out our website and check out CCK and what’s going on with Gulf War veterans. Any closing thoughts on MUCMIs and Mr. Stewart’s case, on arguing the case or anything like that?

Emma: Arguing the case was fun. Certainly, I felt the importance of it. Because this, you know, affects, as you mentioned, Gulf War veterans from Gulf War one, two, all the way up through today that are still deployed. So it certainly is an important case and I think it provides very clear language and clear instruction from the court to VA how this regulation is supposed to be used. It’s supposed to be used to help veterans who are deployed, who are suffering from these conditions that we just don’t know why. Something to do with deployment, but we’re just not sure. But I think that it’s great that it’s now very clear that you could have one or two requirements. And I think that since it is such a maybe a shift for what VA was doing, be sure to talk with your representative, talk to your attorney or your VSO, whoever you work with on these cases to make sure that you have the right evidence and the file evidence unique to you. Medical evidence, lay statements, whatever you need to do to push VA, to apply this the right way.

Zach: Absolutely. It’s worth talking to whomever is helping you through this process, because it gets very, very complicated and the type of evidence VA looks at, it’s complicated, as well. So thank you very much, Emma.

Emma: Sure.

Zach: Thank you all for watching and listening in today. This is not going to be the final word on Gulf War, on Gulf War conditions, and disabled veterans from the Gulf War era. So please stay tuned as we work our way through some of the many issues facing those veterans. Thank you very much. This is Zach Stoltz from Chisholm Chisholm and Kilpatrick. This was Emma Peterson.

Emma: Hello.

Zach: Thank you very much.

Emma: Bye