Veteranclaims’s Blog

October 14, 2021

Single Judge Application; Tadlock remand from Federal Circuit; overlapping signs or symptoms; Veterans of the Gulf War can establish entitlement to service connection on a presumptive basis for “a qualifying chronic disability” that arises during service or to a compensable degree before December 31, 2026. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i) (2021). A “qualifying chronic disability” is one that results from either an “undiagnosed illness” or a “medically unexplained chronic multisymptom illness [(MUCMI)] that is defined by a cluster of signs or symptoms.” 38 C.F.R. § 3.317(a)(2)(i)(A)-(B). A MUCMI, in
turn, is defined as “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.” Id. § 3.317(a)(2)(ii);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-1160
HOWARD L. TADLOCK, JR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: This case is before the Court on remand from the Federal Circuit. Tadlock
v. McDonough, 5 F.4th 1327 (Fed. Cir. 2021). In accordance with the Federal Circuit’s decision,
the Court remands to the Board for further consideration.
Army veteran Howard L. Tadlock sought service connection for a pulmonary or respiratory condition as related to his service in the Gulf War. Veterans of the Gulf War can establish entitlement to service connection on a presumptive basis for “a qualifying chronic disability” that arises during service or to a compensable degree before December 31, 2026. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i) (2021). A “qualifying chronic disability” is one that results from either an “undiagnosed illness” or a “medically unexplained chronic multisymptom illness [(MUCMI)] that is defined by a cluster of signs or symptoms.” 38 C.F.R. § 3.317(a)(2)(i)(A)-(B). A MUCMI, in
turn, is defined as “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.” Id. § 3.317(a)(2)(ii)
.
In a 2018 decision, the Board denied service connection under the Gulf War presumptions
because Mr. Tadlock’s condition has a clear diagnosis of pulmonary embolism. In a 2019
2
memorandum decision, this Court held that a MUCMI by definition must be diagnosed and, thus,
the Board clearly erred in denying the veteran’s claim under the Gulf War presumptions because
he had a diagnosis. Nonetheless, we affirmed because the veteran did not demonstrate that the
error was prejudicial as he did not cite any facts suggesting that his pulmonary embolism met the
remaining MUCMI requirements—a diagnosed illness “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.” 38 C.F.R. § 3.317(a)(2)(ii).
Mr. Tadlock appealed to the Federal Circuit, which held that the Agency never considered
whether the veteran’s condition was characterized by overlapping symptoms or signs. Therefore,
the Federal Circuit continued, this Court “exceeded its authority in making a fact finding in the
first instance that [Mr.] Tadlock’s illness did not qualify as a MUCMI because of overlapping
symptoms.” Tadlock, 5 F.4th at 1340.
In accordance with the foregoing, the Court VACATES the Board’s February 13, 2018,
decision denying service connection for a pulmonary or respiratory disorder and REMANDS for
more factfinding as to whether the veteran’s condition is a MUCMI.
DATED: October 13, 2021
Copies to:
Matthew A. Traupman, Esq.
VA General Counsel (027)

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