Veteranclaims’s Blog

August 14, 2021

Single Judge Application; overlapping symptoms or signs; 38 C.F.R. § 3.317(a)(2)(i)(B); Tadlock v. McDonough; the Board made a legal error in failing to fully consider § 3.317(a)(1). Tadlock, 2021 WL 2964328, at *7. “Neither the Board nor the VA” in this case considered whether the appellant’s conditions were characterized by overlapping symptoms or signs or whether either the etiology or pathophysiology of those conditions was partially understood. Id.; see R. at 11-26; Tadlock, the Federal Circuit concluded that, where the Board failed to make relevant factual findings on matters open to debate because of a similar legal error, “[t]he proper course” was for the Court to remand for the Board to consider in the first instance whether the appellant’s illness “might be ‘defined by a cluster of signs or symptoms.'” 2021 WL 2964328, *8 (quoting 38 C.F.R. § 3.317(a)(2)(i)(B)). Accordingly, pursuant to Tadlock, the Court concludes that remand is required for the Board to make the relevant factual findings in the first instance. Id. at *7 (“Where additional findings of fact are necessary regarding matters open to debate, the proper action for the Veterans Court is to remand to the Board for consideration of those facts in the first instance.”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2679
MICKIE J. HUDSON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Mickie J. Hudson, through counsel appeals a March 4, 2020, Board of Veterans’ Appeals (Board) decision that reopened and denied a claim for benefit for a lumbar spine disability and denied entitlement to benefits for 10 other disabilities, including a sinus disability, asthma, radiculopathy of both lower extremities, and erectile dysfunction, both on a direct basis and a presumptive basis pursuant to 38 U.S.C. § 1117.1 Record (R.) at 2-28. On February 17, 2021, the Court issued a single-judge memorandum decision that affirmed the Board’s decision denying benefits for a lumbar spine disability, a sinus disability, asthma, radiculopathy of
both lower extremities, and erectile dysfunction. Hudson v. McDonough, No. 20-2679, 2021 WL 608348 (Vet. App. Feb. 17, 2021) (mem. dec.). In that decision, the Court concluded that the
1 The appellant raises no arguments with respect to the Board’s denial of claims for benefits for bilateral shin
splints, fibromyalgia, irritable bowel syndrome, and chronic fatigue syndrome, nor with respect to the Board’s denial
of special monthly compensation for loss of use of a creative organ. The Court therefore considers those matters
abandoned and will dismiss the appeal as to those matters. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015)
(en banc). The Board also reopened and granted a previously denied claim for benefits for headaches and granted a
claim for benefits for an acquired psychiatric disorder; those findings, as well as the Board’s decision to reopen the
previously denied claim for benefits for a lumbar spine disability, are favorable to the appellant, and the Court will
not disturb them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub nom.
Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) (“This Court’s jurisdiction is confined to the review of final Board . . . decisions which are adverse to a claimant.”).
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appellant’s arguments were undeveloped and that he had not asserted that the Board’s failure to consider whether his disabilities may be medically unexplained chronic multisymptom illnesses (MUCMIs) was prejudicial to him. Id. at *4.
The appellant filed a timely motion for reconsideration or, in the alternative, panel review, on March 10, 2021. In his motion, he contends that the Court overlooked relevant law regarding the requirements for medical examinations related to Gulf War veterans and applied an incorrect legal standard for prejudicial error. Motion for Reconsideration at 1-5. On July 15, 2021, he filed
a citation of supplemental authority, in which he avers that the recent decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Tadlock v. McDonough, _ F.4th _, No. 2020-1762, 2021 WL 2964328 (Fed. Cir. July 15, 2021), “is directly relevant to the legal arguments presented in the case at bar.” Supplemental Authorities at 2. Having reviewed the
matter, the Court will grant the appellant’s motion for reconsideration; withdraw the February 17, 2021, decision; and issue this decision in its stead.
The appellant does not challenge the Board’s decision to deny benefits for his disabilities on a direct basis; his arguments pertain only to the Board’s denial of benefits on a presumptive basis under section 1117. Accordingly, the Court will affirm the Board’s decision with respect to direct service connection for the disabilities on appeal. See Pederson, 27 Vet.App. at 285.
This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the
Board’s decision denying benefits for a lumbar spine disability, a sinus disability, asthma,
radiculopathy of both lower extremities, and erectile dysfunction on a presumptive basis under
38 U.S.C. § 1117 and remand those matters for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from July 1988 to July 1992, R. at
405, including service in the Southwest Asia theater of operations, see R. at 8, 306. In January
2018, he filed claims for benefits for, among other conditions, low back pain, bilateral lower
extremity sciatica, erectile dysfunction, dyspnea, and chronic sinusitis. R. at 430-33. In support
of his claims, he submitted a January 2018 “report of consultation and examination” from a private
physician, attributing each of his claimed conditions to service. R. at 426-29.
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The appellant underwent a series of VA medical examinations in June 2018. R. at 167-70
(sinus), 173-76 (erectile dysfunction), 176-83 (back conditions), 193-98 (peripheral nerve
conditions), 198-201 (respiratory conditions). The examiner indicated that the appellant suffered
from sinusitis but that the condition was not chronic. R. at 168. The appellant reported no
incapacitating or nonincapacitating episodes of sinusitis in the past year, id., and the examiner
stated that “[n]o clinical evidence of any sinus abnormality” was found upon examination, R. at
170.
Next, the examiner diagnosed the appellant with erectile dysfunction and stated that the
etiology of that condition was unknown. R. at 174. Under the heading “Remarks,” the examiner
wrote: “No clinical evidence or documentation [of] erectile dysfun[c]tion.” R. at 176.
The examiner confirmed the appellant’s diagnosis of lumbar strain with bilateral lower
extremity sciatica. R. at 177. The appellant reported that he injured his back in service “doing
regimented exercise.” Id. Range of motion testing revealed some limitation of motion in each
plane of motion. Id. The examiner noted disturbance of locomotion and interference with standing
as “[a]dditional factors contributing to disability.” R. at 179. The examiner diagnosed bilateral
lower extremity lumbar radiculopathy, but noted that there was “no clinical evidence of weakness.”
R. at 193. The examiner concluded that the appellant suffered from mild incomplete paralysis of
the sciatic nerve. R. at 196.
Finally, the examiner diagnosed the appellant with mild asthma, which he noted had
required two “courses or bursts” of systemic corticosteroids in the past year, as well as intermittent
use of oral bronchodilators. R. at 199. The examiner stated that the lung examination was clear,
with “no rales, ronchi[,] or wheeze.” R. at 200.
In his opinion, the examiner stated that the appellant had no “diagnosed illnesses for which
no etiology was established,” R. at 206, and that the appellant had not “report[ed] any additional
signs and/or symptoms not addressed” in the medical examinations for the claimed conditions,
R. at 207. The examiner stated that “[n]o undiagnosed Gulf War [i]llnesses” were found on
examination. Id. The examiner offered no opinion on the appellant’s claimed sinusitis because he
found no clinical evidence of that condition. Id. He determined that the appellant’s erectile
dysfunction was less likely than not related to service, explaining that there was no documentation
in the appellant’s service medical records or VA treatment records for the condition and that “[i]t
is [the] natural aging process for a 48[-year-old] male to develop decreased libido.” R. at 208.
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With respect to the appellant’s low back condition, the examiner stated that his review of the
appellant’s service medical records revealed “no documentation for any back abnormality to
substantiate [his] [history] that he was doing regimented exercise and sustained low back injury”
in service. Id. He further noted that lumbar strain and bilateral lower extremity sciatica “are very
common diagnosable illnesses world wide.” R. at 208-09. He concluded, therefore, that it was
less likely than not that the appellant’s condition was related to service. R. at 209. The examiner
offered the same conclusion with similar rationale for the appellant’s asthma. Id.
A VA regional office denied the appellant’s claims in July 2018, in part finding that new
and material evidence had not been submitted to reopen a lumbar spine claim that was denied in
March 2011. R. at 130-36. He filed a Notice of Disagreement with that decision, R. at 124-25,
and ultimately appealed to the Board, R. at 31, 35. The Board issued the decision on appeal in
March 2020, denying benefits for lumbar strain, bilateral lower extremity radiculopathy, a sinus
disability, asthma, and erectile dysfunction. R. at 2-28. This appeal followed.
II. ANALYSIS
The appellant raises two arguments on appeal. First, he contends that the Board
misinterpreted the law when it concluded that, because his disabilities have been attributed to
known diagnoses, he is not entitled to benefits under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317.
Appellant’s Brief (Br.) at 5-8. Second, he asserts that the Board erred in relying on the June 2018
VA examination report to deny his claims because the examiner did not address whether his
disabilities have either a partially understood etiology or a partially understood pathophysiology,
in violation of Stewart v. Wilkie, 30 Vet.App. 383 (2018). Appellant’s Br. at 8-11. The Secretary
disputes these arguments and urges the Court to affirm the Board decision. Secretary’s Br. at 7-14.
Service connection for a disability may be established on a presumptive basis for veterans
with a qualifying chronic disability that became manifest during service in the Southwest Asia
theater of operations during the Persian Gulf War or to a degree of 10% or more not later than
December 31, 2021. See 38 U.S.C. § 1117(a); 38 C.F.R. § 3.317(a)(1)(i) (2021). A qualifying
chronic disability may result from an undiagnosed illness or a MUCMI “that is defined by a cluster
of signs or symptoms.” 38 U.S.C. § 1117(a)(2)(A), (B); see 38 C.F.R. § 3.317(a)(2)(i). Pertinent
to this case, a MUCMI is “a diagnosed illness without conclusive pathophysiology or etiology,
that is characterized by overlapping symptoms and signs and has features such as fatigue, pain,
5
disability out of proportion to physical findings, and inconsistent demonstration of laboratory
abnormalities.” 38 C.F.R. § 3.317(a)(2)(ii); see Stewart, 30 Vet.App. at 390 (“Under the proper
interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of
the illness is inconclusive. Conversely, a multisymptom illness is not a MUCMI where both the
etiology and the pathophysiology of the illness are partially understood.” (first and second
emphases added)).
“[O]nce the Secretary undertakes the effort to provide an examination [or opinion,] . . . he
must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical
examination or opinion is adequate “where it is based upon consideration of the veteran’s prior
medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes
the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability
will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and
“sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the
essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (per
curiam).
In the case of veterans seeking benefits under section 1117, the Court has held that, where
an examiner does not address the etiology or pathophysiology of the claimant’s conditions, the
resulting examination report is inadequate. Stewart, 30 Vet.App. at 392. Moreover, the law does
not impose any reasons-or-bases requirements on medical examiners, and the adequacy of medical
reports must be based upon a reading of the report as a whole. Monzingo, 26 Vet.App. at 105-06.
Whether a medical examination or opinion is adequate and whether a disability is service
connected are findings of fact that the Court reviews under the “clearly erroneous” standard.
D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam); Russo v. Brown, 9 Vet.App. 46, 50
(1996). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence,
“is left with the definite and firm conviction that a mistake has been committed.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
As with any material issue of fact or law, the Board must provide a statement of the reasons or
bases for its determination “adequate to enable a claimant to understand the precise basis for the
Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517,
527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
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In denying benefits for each of the disabilities on appeal—with the exception of
radiculopathy—the Board essentially offered the same rationale: because the appellant’s lumbar
strain, sinusitis, asthma, and erectile dysfunction are diagnosed conditions, they “cannot be
considered . . . undiagnosed illness[es] or . . . qualifying chronic disabilit[ies] for entitlement to
service connection based on the [appellant’s] service in the Persian Gulf.” R. at 12 (back), 14
(sinusitis), 15 (asthma), 17 (erectile dysfunction). The Board determined that, because the
appellant’s radiculopathy had been attributed to his lumbar strain, that condition could not “be
considered an undiagnosed illness or a qualifying chronic disability for entitlement to service
connection based on the [appellant’s] service in the Persian Gulf.” R. at 13.
The appellant appears to concede that his conditions have been diagnosed and therefore
they cannot be “undiagnosed illness[es]” for the purposes of section 1117 and § 3.317. See
Appellant’s Br. at 7-8. He argues, however, that the Board did not consider the possibility that his
diagnosed conditions may have inconclusive pathophysiology or etiology, in which case they may
qualify as MUCMIs. Id. at 5-8.
Here, the Board made a legal error in failing to fully consider § 3.317(a)(1). Tadlock, 2021 WL 2964328, at *7. “Neither the Board nor the VA” in this case considered whether the appellant’s conditions were characterized by overlapping symptoms or signs or whether either the etiology or pathophysiology of those conditions was partially understood. Id.; see R. at 11-26.
Rather, the Board denied benefits for a lumbar spine disability, a sinus disability, asthma, and
erectile dysfunction solely because the appellant’s conditions had been diagnosed, and it denied
benefits for radiculopathy because it was associated with the lumbar spine disability. R. at 12, 13,
14, 15, 17. Because of these conclusions, the Board did not otherwise consider whether the
appellant suffered from a MUCMI.
In Tadlock, the Federal Circuit concluded that, where the Board failed to make relevant factual findings on matters open to debate because of a similar legal error, “[t]he proper course” was for the Court to remand for the Board to consider in the first instance whether the appellant’s illness “might be ‘defined by a cluster of signs or symptoms.'” 2021 WL 2964328, *8 (quoting
38 C.F.R. § 3.317(a)(2)(i)(B)). Accordingly, pursuant to Tadlock, the Court concludes that remand is required for the Board to make the relevant factual findings in the first instance. Id. at *7 (“Where additional findings of fact are necessary regarding matters open to debate, the proper action for the Veterans Court is to remand to the Board for consideration of those facts in the first
7
instance.”).
Given this disposition, the Court will not now address the remaining arguments and
issues raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that
“the Court will not ordinarily consider additional allegations of error that have been rendered moot
by the Court’s opinion or that would require the Court to issue an advisory opinion”); Best
v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to
submit additional evidence and argument on the remanded matters, including the specific
arguments raised here on appeal, and the Board is required to consider any such relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the
Board must consider additional evidence and argument in assessing entitlement to the benefit
sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court
reminds the Board that “[a] remand is meant to entail a critical examination of the justification for
the decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed
expeditiously, in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
The appeal of that part of the Board’s March 4, 2020, decision denying entitlement to
benefits for bilateral shin splints, fibromyalgia, irritable bowel syndrome, and chronic fatigue
syndrome, as well as to special monthly compensation for loss of use of a creative organ, is
DISMISSED. After consideration of the parties’ pleadings, including the appellant’s motion for
reconsideration, and a review of the record, the appellant’s March 10, 2021, motion for
reconsideration is granted; the Court’s February 17, 2021, memorandum decision is
WITHDRAWN; and the Court issues this decision in its stead. That part of the Board’s decision
denying benefits for a lumbar spine disability, a sinus disability, asthma, radiculopathy of both
lower extremities, and erectile dysfunction on a direct basis is AFFIRMED. That part of the
Board’s decision denying benefits for a lumbar spine disability, a sinus disability, asthma,
radiculopathy of both lower extremities, and erectile dysfunction on a presumptive basis pursuant
to 38 U.S.C. § 1117 is VACATED, and the matters are remanded for further proceedings consistent
with this decision.
DATED: July 27, 2021
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Copies to:
Michael S. Just, Esq.
VA General Counsel (027)

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