Veteranclaims’s Blog

September 18, 2017

Goodman v. Shulkin, No. 2016-2142(Decided: September 18, 2017); § 3.317; MUCMI; October 2010 Amendment;

Excerpt from decision below:

“The current version of § 3.317 specifies what does (and provides examples of what does not) constitute a MUCMI:
8 GOODMAN v. SHULKIN
For purposes of this section, the term [MUCMI] means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.
Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be
considered medically unexplained. Id. § 3.317(a)(2)(ii).”

================

“In October 2010, the VA published guidance on § 3.317 to expressly allow for medical professionals to “render medical opinions” to be utilized by VA adjudicators when assessing MUCMI determinations on a case-by-case basis. See Compensation for Certain Disabilities Due to Undiagnosed Illnesses, 75 Fed. Reg. 61,995, 61,995 (Oct. 7, 2010) (“October 2010 Amendment”). The October 2010 Amendment provides examples of conditions that do not constitute a MUCMI and gives further guidance “to enable medical professionals to render medical opinions on [a MUCMI]” and “enable VA adjudicators to decide [a MUCMI determination] when it arises in individual cases.” Id. The October 2010 Amendment also grants VA adjudicators “the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii) in the same manner as they make
GOODMAN v. SHULKIN 9
other determinations necessary in deciding claims.” Id. at 61,996 (emphasis added). The October 2010 Amendment thus gives VA adjudicators the same authority over MUCMI determinations as other claim determinations, id., such that the VA adjudicator ultimately may “interpret[] medical reports [provided by medical examiners] in order to match the rating with the disability,” Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev’d on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see id. (citing 38 C.F.R. §§ 4.2 and 4.10); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history . . . . Each disability must be considered from the point of view of the veteran working or seeking work.”); id. § 4.10 (“The basis of disability evaluations is the ability of the body as a whole . . . [and] imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological [and other] data required for ordinary medical classification, full description of the effects of disability upon the person’s ordinary activity.”). Therefore, we hold that VA adjudicators may rely on a medical examiner’s evaluation of whether a veteran’s condition qualifies as a MUCMI pursuant to § 3.317(a)(2)(ii).”

=====================

United States Court of Appeals for the Federal Circuit
______________________
PREZELL GOODMAN,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-2142
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-4329, Judge Bruce E. Kasold.
______________________
Decided: September 18, 2017
______________________
ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick,
Providence, RI, argued for claimant-appellant. Also
represented by JENNA ZELLMER, ROBERT VINCENT
CHISHOLM, MEGAN MARIE ELLIS; BARBARA J. COOK, Barbara
J. Cook, Attorney at Law, Cincinnati, OH.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; CHRISTOPHER O.
ADELOYE, BRIAN D. GRIFFIN, Office of General Counsel,
2 GOODMAN v. SHULKIN
United States Department of Veterans Affairs, Washington,
DC.
______________________
Before WALLACH, CHEN, and STOLL, Circuit Judges.
WALLACH, Circuit Judge.
Appellant Prezell Goodman appeals from a judgment
of the U.S. Court of Appeals for Veterans Claims (“Veterans
Court”) that affirmed the Board of Veterans’ Appeals’
(“Board”) denial of service-connected benefits for rheumatoid
arthritis to include as due to a medically unexplained
chronic multi-symptom illness (“MUCMI”) under 38
C.F.R. § 3.317 (2015). Goodman v. McDonald, No. 14-
4329, 2016 WL 852866, at *1 (Vet. App. Mar. 4, 2016).
We affirm.

BACKGROUND
Mr. Goodman served in the U.S. Army from 1972 to
1992, which included service in Southwest Asia during
the Persian Gulf War. J.A. 14–19, 107. During his service
and at his discharge from the Army, Mr. Goodman
underwent medical examinations that returned negative
for rheumatoid arthritis. J.A. 161, 164–65. In fact,
during a service separation examination, he denied having
any pain in his joints or arthritis. J.A. 162.
In 2007, Mr. Goodman sought treatment at a Department
of Veterans Affairs (“VA”) medical center for
hand stiffness and bilateral knee pain; the latter he said
had begun during service “since [the age of] 21 [years
old].” J.A. 22. Mr. Goodman filed a claim for VA benefits
for rheumatoid arthritis four months after this medical
examination. J.A. 30–31. The regional office and the
Board denied Mr. Goodman’s claim that this injury was
caused or further aggravated by his service in Southwest
Asia. J.A. 37–40, 64–70.
GOODMAN v. SHULKIN 3
Mr. Goodman appealed the Board’s decision to the
Veterans Court. J.A. 74. Following this appeal, both
parties entered a joint motion for remand, in which they
agreed that “[the Board’s] statement of reasons or bases
[was] inadequate” because it failed “to apply the provisions
of 38 C.F.R. § 3.317[] to [Mr. Goodman’s] claim for
entitlement to VA benefits based on service connection for
rheumatoid arthritis.” J.A. 76. Specifically, the parties
agreed that the Board failed to consider whether Mr.
Goodman’s rheumatoid arthritis may be entitled to a
presumptive service connection as a MUCMI under
§ 3.317.1 J.A. 77–79. The parties also agreed that “it is
solely a medical determination as to whether [Mr. Goodman’s]
illness qualifies . . . as a ‘[MUCMI].’” J.A. 78
(citation omitted).
On remand, the Board sought an independent medical
advisory opinion from the Veterans Health Administration,
see J.A. 107, which was conducted by a VA medical
center Director of Rheumatology in 2014 (“2014 Medical
Opinion”), J.A. 90–95. The 2014 Medical Opinion first
stated that “it is less likely than not” that Mr. Goodman’s
rheumatoid arthritis can be characterized as a MUCMI
within the meaning of § 3.317. J.A. 90 (“[R]heumatoid
arthritis has at least partially explained and widely
accepted concepts in regards to etiology and pathogenesis
that are well documented and established in the literature.”).
Second, the 2014 Medical Opinion stated that it
“is less likely than not that [Mr. Goodman’s] rheumatoid
arthritis is related to a specific exposure event experi-
1 Section 3.317(a)(2)(ii) defines a MUCMI as “a diagnosed
illness without conclusive pathophysiology or
etiology” and further states that “[c]hronic multisymptom
illnesses of partially understood etiology and pathophysiology,
such as diabetes and multiple sclerosis, will not be
considered medically unexplained.”
4 GOODMAN v. SHULKIN
enced by [Mr. Goodman] during service, including in
Southwest Asia.” J.A. 91. As support for this second
finding, the 2014 Medical Opinion noted Mr. Goodman’s
medical records, including his prior negative tests for
rheumatoid arthritis and denial of arthritis and joint pain
upon retirement. J.A. 91. The 2014 Medical Opinion
further noted that the onset of Mr. Goodman’s arthritis
“manifested historically and objectively long after” his
service and his “rheumatoid arthritis was diagnosed
[fifteen] years following discharge from active service.”
J.A. 91.
Based on the 2014 Medical Opinion, the Board again
denied Mr. Goodman’s claim for failure to satisfy the
requirements of § 3.317. J.A. 126. The Board found the
2014 Medical Opinion to be “highly probative and persuasive,”
prepared by “a medical expert in the field of rheumatology,”
and the “only competent medical evidence [on
record] as to the question [at hand].” J.A. 116. The Board
relied upon the 2014 Medical Opinion in finding that
“rheumatoid arthritis[, as] a chronic multi-symptom
illness . . . of partially understood etiology and pathophysiology[,]
will not be considered medically unexplained,”
such that Mr. Goodman was not entitled to a
presumptive service connection for a MUCMI. J.A. 116
(citation omitted).
Mr. Goodman appealed the Board’s decision to the
Veterans Court, alleging in part that the Board erred in
not granting him presumptive service-connection under
§ 3.317(a)(2)(ii) because the 2014 Medical Opinion “could
not pinpoint a specific etiology or pathophysiology for Mr.
Goodman’s [illness].” J.A. 2. The Veterans Court found
that the Board had not erred in its interpretation of
§ 3.317. Goodman, 2016 WL 852866, at *2. The Veterans
Court further held that the Board “assigned [the 2014
Medical Opinion] significant weight and . . . its assignment
of weight is plausible and not clearly erroneous.”
Id. The court went on to clarify that “[b]y using the
GOODMAN v. SHULKIN 5
phrase ‘such as’ when citing diabetes and multiple sclerosis
as diseases that are not MUCMIs, [§ 3.317] left it to
medical experts to identify which diseases . . . have at
least a partially explained etiology and pathophysiology.”
Id. Mr. Goodman appeals.

DISCUSSION
I. Standard of Review
When reviewing appeals from the Veterans Court,
this court’s jurisdiction is limited by statute. We may
“review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof
. . . and . . . interpret constitutional and statutory
provisions, to the extent presented and necessary to a
decision.” 38 U.S.C. § 7292(c) (2012). Except to the
extent that a constitutional issue is presented, this court
may not review “a challenge to a factual determination,”
or “a challenge to a law or regulation as applied to the
facts of a particular case.” Id. § 7292(d)(2)(A)–(B).
Legal determinations of the Veterans Court are reviewed
de novo. See Cushman v. Shinseki, 576 F.3d 1290,
1296 (Fed. Cir. 2009). Because Mr. Goodman challenges,
in part, the Veterans Court’s interpretation of 38 U.S.C.
§ 1117 as implemented by 38 C.F.R. § 3.317, we have
jurisdiction to review pursuant to 38 U.S.C. § 7292(c).

II. The Veterans Court Properly Determined That the
Board Was Permitted to Rely upon the 2014 Medical
Opinion

Mr. Goodman asserts that the Veterans Court erred
in affirming the Board’s reliance upon the 2014 Medical
Opinion he alleges failed to assess properly his rheumatoid
arthritis. See Appellant’s Br. 13–14. The record does
not support Mr. Goodman’s argument.
While on remand from a previous appeal, the VA was
authorized to provide to the Board an independent advi6
GOODMAN v. SHULKIN
sory opinion from a medical expert in the field of rheumatoid
arthritis, the 2014 Medical Opinion, which evaluated
whether Mr. Goodman’s rheumatoid arthritis could qualify
as a MUCMI. See 38 C.F.R. § 4.10; see also J.A. 90–91.
The Board was authorized to review the 2014 Medical
Opinion and weigh it against the other evidence of record.
See 38 C.F.R. § 4.2; see also J.A. 113–16. Finally, the
Veterans Court was authorized to review the Board’s
factual findings to determine whether they were plausible
and not clearly erroneous. See J.A. 2–5. To the extent
Mr. Goodman challenges the findings in the 2014 Medical
Opinion or the high probative value that the Board assigned
it in denying Mr. Goodman presumptive serviceconnection
for a MUCMI under § 3.317, these are factual challenges that we are not permitted to review on appeal. See 38 U.S.C. § 7292(d)(2)(A)–(B); Prinkey v. Shinseki, 735
F.3d 1375, 1383 (Fed. Cir. 2013) (“[T]he sufficiency of a medical opinion is a matter beyond our jurisdictional reach, because the underlying question is one of fact.”).

III. The Veterans Court Properly Interpreted 38 C.F.R. § 3.317(a)(2)(ii)
Mr. Goodman’s principal argument on appeal concerns
who has the power to diagnose illnesses that may
qualify as a MUCMI. Specifically, he avers that the
Veterans Court’s decision misinterpreted the legal rule
articulated in § 3.317 by “expand[ing] the authority of the
medical expert beyond the facts of an individual case and
improperly delegat[ing] authority for determining a
qualifying disease to an individual physician.” Appellant’s
Br. 12; see id. at 9–12. That is so, he contends, because a medical expert in an individual case cannot establish a general and precedential rule precluding
rheumatoid arthritis from qualifying as a MUCMI. Id. at 14. We disagree with Mr. Goodman’s characterization of the Veterans Court’s interpretation of § 3.317.
GOODMAN v. SHULKIN 7
The Supreme Court has held that an agency’s interpretation of its own regulations is entitled to substantial deference by the courts. Auer v. Robbins, 519 U.S. 452,
461–62 (1997). It is well established that “[t]he rules of statutory construction apply when interpreting an agency regulation.” Roberto v. Dep’t of Navy, 440 F.3d 1341, 1350(Fed. Cir. 2006) (citation omitted). When construing a
regulation, it is appropriate first to examine the regulatory
language itself to determine its plain meaning. Meeks
v. West, 216 F.3d 1363, 1366 (Fed. Cir. 2000). If the
regulatory language is clear and unambiguous, the inquiry
ends with the plain meaning. Id.
The VA promulgated § 3.317 as an implementing regulation
for 38 U.S.C. § 1117. Section 1117 provides that a
Persian Gulf Veteran is entitled to compensation on a
presumptive basis if the Veteran exhibits objective indications
of a “qualifying chronic disability” that manifests
“during service on active duty in the Armed Forces in the
Southwest Asia theater of operations during the Persian
Gulf War” or that manifests to a degree of ten percent or
more as prescribed by regulation. 38 U.S.C. § 1117(a)–(b).
The current regulation requires, inter alia, that the
“qualifying chronic disability” manifest to a degree of ten
percent or more by December 31, 2021, and that it, “[b]y
history, physical examination, and laboratory tests cannot
be attributed to any known clinical diagnosis.” 38 C.F.R.
§ 3.317. By statute, a “qualifying chronic disability” may
be one that results from: “[a]n undiagnosed illness” or “[a
MUCMI] (such as chronic fatigue syndrome, fibromyalgia,
and irritable bowel syndrome) that is defined by a cluster
of signs or symptoms.” 38 U.S.C. § 1117(a)(2).
Section 3.317 provides a substantially similar definition
of the term “qualifying chronic disability.” See 38
C.F.R. § 3.317(a)(2). The current version of § 3.317 specifies
what does (and provides examples of what does not)
constitute a MUCMI:
8 GOODMAN v. SHULKIN
For purposes of this section, the term [MUCMI] means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized
by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent
demonstration of laboratory abnormalities.
Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be
considered medically unexplained.
Id. § 3.317(a)(2)(ii).
We do not read § 3.317 to prohibit medical professionals
from professing whether certain medical diseases may
constitute a MUCMI. Because neither § 1117 nor § 3.317
on their face state who has the power to diagnose illnesses
that may qualify as a MUCMI, we review the statutory
and regulatory history to interpret § 3.317. See Meeks,
216 F.3d at 1367 (explaining that we “look to the provisions
of the whole law, and to its object and policy” (quoting
Massachusetts v. Morash, 490 U.S. 107, 115 (1989)).
In October 2010, the VA published guidance on § 3.317 to
expressly allow for medical professionals to “render medical
opinions” to be utilized by VA adjudicators when
assessing MUCMI determinations on a case-by-case basis.
See Compensation for Certain Disabilities Due to Undiagnosed
Illnesses, 75 Fed. Reg. 61,995, 61,995 (Oct. 7, 2010) (“October 2010 Amendment”). The October 2010 Amendment provides examples of conditions that do not
constitute a MUCMI and gives further guidance “to enable medical professionals to render medical opinions on [a MUCMI]” and “enable VA adjudicators to decide [a MUCMI determination] when it arises in individual
cases.” Id. The October 2010 Amendment also grants VA adjudicators “the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii) in the same manner as they make
GOODMAN v. SHULKIN 9
other determinations necessary in deciding claims.” Id. at 61,996 (emphasis added). The October 2010 Amendment thus gives VA adjudicators the same authority over MUCMI determinations as other claim determinations,
id., such that the VA adjudicator ultimately may “interpret[] medical reports [provided by medical examiners] in order to match the rating with the disability,” Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev’d on other
grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed.Cir. 2009); see id. (citing 38 C.F.R. §§ 4.2 and 4.10); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history . . . . Each disability must be considered from the point of view of the veteran working or seeking work.”); id. § 4.10 (“The basis of disability
evaluations is the ability of the body as a whole . . . [and] imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological [and other] data required for ordinary medical classification, full description
of the effects of disability upon the person’s ordinary activity.”). Therefore, we hold that VA adjudicators may rely on a medical examiner’s evaluation of whether a veteran’s condition qualifies as a MUCMI pursuant to § 3.317(a)(2)(ii).
Although Mr. Goodman contends that the Veterans
Court improperly relied upon the 2014 Medical Opinion
as a “precedent-setting action” for all future rheumatoid
arthritis cases, Appellant’s Br. 11, this characterization is
inaccurate. As an initial matter, the VA’s regulations
clearly state that “Board decisions will be considered
binding only with regard to the specific case decided,” 38
C.F.R. § 20.1303, and the 2014 Medical Opinion expressly
limits the medical expert’s MUCMI recommendation to
only Mr. Goodman’s case of rheumatoid arthritis, see J.A.
90 (“It is my opinion that it is less likely than not that
[Mr. Goodman]’s rheumatoid arthritis can be characterized
as a . . . [MUCMI] . . . .”). Further, the parties agree
10 GOODMAN v. SHULKIN
that a Board opinion does not bind the Board in subsequent
cases. See Appellant’s Br. 11; Appellee’s Br. 22.
Mr. Goodman has offered no evidence of a subsequent
Board decision denying another claimant MUCMI compensation
by referencing either the Board decision or
referencing the 2014 Medical Opinion issued in Mr.
Goodman’s case. See generally Appellant’s Br. We hold
that, in individual MUCMI determinations, the VA adjudicator
may consider evidence of medical expert opinions
and all other facts of record to make the final determination
of whether a claimant has proven, based on the
claimant’s unique symptoms, the existence of a MUCMI.
See October 2010 Amendment, 75 Fed. Reg. at 61,995–96.
That is what the VA did here, and the Board and Veterans
Court appropriately reviewed such findings under the
correct interpretation of § 3.317(a)(2)(ii).
Moreover, we find nothing that precludes a previously-
denied, or future, rheumatoid arthritis claimant from
seeking the presumptive service connection afforded
pursuant to § 3.317. In the case of a previously-denied
claimant, should “new and material evidence” come to
light discrediting previous theories as to the etiology or
pathophysiology of rheumatoid arthritis, the claimant is
not without recourse to reopen their previously-disallowed
claim for review. See 38 U.S.C. § 5108 (“If new and material
evidence is presented or secured with respect to a
claim which has been disallowed, the Secretary shall
reopen the claim and review the former disposition of the
claim.”); 38 C.F.R. § 3.156(a) (“A claimant may reopen a
finally adjudicated claim by submitting new and material
evidence.”).2 Likewise, a future claimant will have an
2 Section 5108 has been amended by the Veterans
Appeals Improvement and Modernization Act of 2017,
Pub. L. No. 115-55, 131 Stat. 1105 (Aug. 23, 2017). However,
since the effective date for the amendment is set as
GOODMAN v. SHULKIN 11
opportunity, just as Mr. Goodman had in the present
appeal, to offer evidence relating to the totality of his
medical condition and seek a medical opinion relying on
the most up-to-date medical studies.
CONCLUSION
We have considered Mr. Goodman’s remaining arguments
and find them unpersuasive. For the foregoing
reasons, the judgment of the U.S. Court of Appeals for
Veterans Claims is
AFFIRMED
COSTS
No costs.
the later of 540 days after enactment (February 14, 2019)
or 30 days after the Secretary certifies that the VA is
ready and able to handle appeals under the new system,
id. at 1115, we must analyze § 5108 under the 2012
statute version that is still in effect.

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.