Goodman v. Shulkin, 870 F.3d 1383 (Fed. Cir. Sept. 18, 2017)

HELD: VA adjudicators may rely on a medical examiner’s opinion as to whether a condition is a medically unexplained multi-symptom illness (MUCMI). However, these decisions are not precedential and do not prevent other veterans from establishing entitlement to service connection for the same condition as a MUCMI under 38 C.F.R. § 3.317. 

SUMMARY: Prezell Goodman served in the U.S. Army from 1972 to 1992, including service in Southwest Asia during the Persian Gulf War. His service medical records were negative for rheumatoid arthritis and he did not report joint pain at separation. In 2007, he was treated for hand stiffness and knee pain, which he said began in service. Shortly after this treatment, he filed a claim for service connection for rheumatoid arthritis. The RO and the Board denied the claim. 

He appealed to the Veterans Court, and the parties entered into a Joint Motion to Remand the appeal for the Board to consider whether Mr. Goodman was entitled to presumptive service connection for rheumatoid arthritis as a MUCMI under 38 C.F.R. § 3.317. The parties agreed that the question of whether Mr. Goodman’s rheumatoid arthritis was a MUCMI is a medical determination. 

The Board obtained a medical opinion by a VA hospital’s Director of Rheumatology, who concluded that it was less likely that Mr. Goodman’s rheumatoid arthritis was a MUCMI under § 3.317 because “it has at least partially explained and widely accepted concepts in regards to etiology and pathogenesis that are well documented and established in the literature.” The examiner added that it was less likely that his rheumatoid arthritis was related to any in-service exposure event because he had no symptoms in service and it was diagnosed 15 years after his discharge. The Board relied on this opinion to deny the claim. 

Mr. Goodman appealed again to the Veterans Court, asserting that the Board erred in relying on the medical opinion because it did not “pinpoint a specific etiology or pathophysiology” for his arthritis. The Court found that the Board did not err in its interpretation of § 3.317 and found that the regulation allows “medical experts to identify which diseases . . . have at least a partially explained etiology and pathophysiology.” 

On appeal to the Federal Circuit, Mr. Goodman argued that the Veterans Court misinterpreted § 3.317 by “improperly delegate[ing] the authority for determining a qualifying disease to an individual physician.” He asserted that “a medical expert in an individual case cannot establish a general or precedential rule precluding rheumatoid arthritis from qualifying as a MUCMI.” 

The Federal Circuit rejected this argument. The Court first noted that 38 U.S.C. § 1117 provides Persian Gulf War veterans with presumptive service connection for a “qualifying chronic disability” that “cannot be attributed to any known clinical diagnosis.” The statute defines “qualifying chronic disability” as one that results from “[a]n undiagnosed illness” or “[a MUCMI] . . . that is defined by a cluster of signs or symptoms.” 38 U.S.C. § 1117(a)(2). The implementing regulation, § 3.317, contains a similar definition of “qualifying chronic disability”: “[T]he term [MUCMI] means a diagnosed illness without conclusive pathophysiology or etiology, that Is characterized by overlapping symptoms and signs . . . . Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.” 38 C.F.R. § 3.317(a)(2)(ii). 

The Court found that the regulation did not expressly “prohibit medical professionals from professing whether certain medical diseases may constitute a MUCMI.” However, because neither the statute nor the regulation “state who has the power to diagnose illnesses that may qualify as a MUCMI,” the Court considered the relevant statutory and regulatory history. In October 2010, VA published guidelines on the regulation to allow medical professionals to provide opinions that adjudicators could use in making MUCMI determinations on a case-by-case basis. The Court noted that this gave VA adjudicators the same authority in MUCMI determinations that they have in other disability claim determinations. See 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…”). The Court thus held 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).” 

With respect to Mr. Goodman’s argument that a medical examiner in a particular case cannot establish precedent regarding whether a condition is a MUCMI, the Court noted that Board decisions are not precedential (38 C.F.R. § 20.1303), and the medical opinion in this case only applies to Mr. Goodman’s rheumatoid arthritis. The Court held 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.” The Court further held that there is nothing in the regulation that “precludes a previously-denied, or future, rheumatoid arthritis claimant from seeking the presumptive service connection afforded pursuant to § 3.317.”  



Disabled American Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017)

HELD: The Federal Circuit can only review M21-1 provisions that are subject to 5 U.S.C. §§ 552(a)(1) and 553 of the Administrative Procedure Act (APA). VA altered the definition of what constitutes a “medically unexplained multisymptom illness” (MUCMI) in its procedure manual (M21-1), but the Court determined that it could not review this M21-1 change because it did not fall under either § 552(a)(1) or § 553.

SUMMARY: Section 552(a)(1) of the Administrative Procedure Act (APA) “refers to agency actions that must be published in the Federal Register.” Section 553 “refers to agency rulemaking that must comply with notice-and-comment procedures under the [APA].” VA regulation 38 C.F.R. § 3.317 defines “a medially unexplained multisymptom illness” (MUCMI) as “a diagnosed illness without conclusive pathophysiology or etiology.”

VA consolidates it policies and procedures into a manual called the M21-1. Any VA employee can request revisions to the M21-1. On the request of an employee, the Secretary revised the definition of MUCMI in the M21-1 from an illness with “no conclusive physiology or etiology” to one with “both an inconclusive pathology, and an inconclusive etiology.” The Secretary also added that sleep apnea cannot be presumptively service connected under 38 C.F.R. § 3.317 “since it is a diagnosable condition.”

Disabled American Veterans (DAV) petitioned the Federal Circuit to review these M21-1 changes, arguing that the changes were similar to cases where the Court had previously reviewed VA policy changes. The Federal Circuit distinguished its prior cases, noting that they fell under 5 U.S.C. § 552(a)(1) because they involved agency actions that had to be published in the Federal Register. See Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000) (reviewing a precedential General Counsel opinion); LeFevre v. Secretary of Veterans Affairs, 66 F.3d 1191 (Fed. Cir. 1995) (reviewing VA’s decision to not add certain conditions to the list of presumptive conditions related to Agent Orange exposure); Military Order of the Purple Heart v. Sec’y of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009) (reviewing a VA Fast Letter).

DAV argued that the Federal Circuit should review the M21-1 revisions because “the revisions announce substantive rules subject to § 553 which should be voided for failure to provide the required notice and comment.” The Court rejected this argument, finding that (1) “VA does not intend for the M21-1 Manual to carry the force of law” and (2) the M21-1 is not binding on VA or the courts.

The Federal Circuit noted that an individual veteran who is adversely affected by an M21-1 provision can challenge that provision by contesting “the validity of that provision as applied to the facts of his case” in the course of a direct appeal.  However, the Court dismissed this petition, holding that it lacked jurisdiction to review manual provisions that “are interpretations adopted by the agency, not published in the Federal Register, not binding on the Board itself, and contained within an administrative staff manual.”