Tadlock v. McDonough

• Decision Date: 15 July 2021
• Docket Number: 2020-1762
• Citation: 5 F.4th 1327
• Parties: Howard L. TADLOCK, Jr., Claimant-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

5 F.4th 1327

Howard L. TADLOCK, Jr., Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2020-1762

United States Court of Appeals, Federal Circuit.

Decided: July 15, 2021

Carl Richard Hennies, Quinn Emanuel Urquhart & Sullivan, LLP, Houston, TX, argued for claimant-appellant. Also represented by William Adams, Matthew A. Traupman, New York, NY.

Reta Emma Bezak, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Jeffrey B. Clark, Tara K. Hogan, Robert Edward Kirschman, Jr. ; Brian D. Griffin, Derek Scadden, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Newman, Linn, and Chen, Circuit Judges.

Linn, Circuit Judge.

This case presents the question of whether and to what extent the United States Court of Appeals for Veterans Claims ("Veterans Court") may make findings of fact in the course of considering whether an error of the Board of Veterans Appeals ("Board") was prejudicial. Because the Veterans Court's jurisdiction to consider prejudicial error does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate, we vacate the Veterans Court's determination that Howard L. Tadlock, Jr. ("Tadlock") is not entitled to presumptive service connection and remand for further proceedings consistent with this opinion.

BACKGROUND

Tadlock served in the Army from 1982 until 2003, including service in the Persian Gulf. In 2010, he suffered a pulmonary embolism ("PE") that resulted in a heart attack. Tadlock sought presumptive service connection for the PE and the heart attack under 38 U.S.C. § 1117. Section 1117 provides for presumptive service connection for a "qualifying chronic disability" for veterans who served in the Persian Gulf War. 38 U.S.C. § 1117(a)(1)(A). A "qualifying chronic disability" is, inter alia,

(2) ... [A] chronic disability resulting from any of the following:

(A) An undiagnosed illness.

(B) A medically unexplained chronic multisymptom illness (such as a chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms.

(C) Any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants a presumption of service-connection.

Id. at § 1117(a)(2). The statute expressly requires the Secretary to "prescribe regulations to carry out this section," id. at § 1117(d)(1), including, inter alia, "[a] description of the illnesses for which compensation under this section may be paid," id. at § 1117(d)(2)(B). In a regulation implementing the statute, the Secretary of Veterans Affairs limited the definition of "a qualifying chronic disability" to one that, "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis." 38 C.F.R. § 3.317(a)(ii).

After several rounds of examinations, appeals, and remands, Tadlock underwent a final medical examination conducted in July 2017 by a Veterans Affairs ("VA") physician ("examiner"). The examiner diagnosed Tadlock with a pulmonary embolism, noting that "Pulmonary Embolism (PE) is diagnosed and well documented by generally well accepted diagnostic procedure, that being pulmonary CT angiogram." In re Tadlock , No. 13-15 547, at *9 (Bd. of Vet. App. 2019) ("VA Op. ") (quoting VA examiner's opinion). The examiner explained that because Tadlock's PE "is diagnosed, it is not an undiagnosed illness." Id. The examiner also explained that Tadlock's PE was not "medically unexplained." Id. at 11. The examiner thus concluded that "[i]t is less likely as not that pulmonary embolism is related to his active service, to include exposure to environmental hazards in [ ] Southwest Asia during the Gulf War." J.A. 214.

The Board explicitly adopted the 2017 examiner's opinion and largely based its conclusion denying service connection on that opinion. Id. at 13. The Board ultimately held:

[T]he pulmonary embolism has been competently and credibly associated with a known etiology and diagnosis, pulmonary embolism, and therefore service connection based on the law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service is not warranted.

Id. (citing 38 C.F.R. § 3.317 ). Neither the Board nor the examiner made any finding of fact that Tadlock's condition was not a "medically unexplained chronic multisymptom illness ... defined by a cluster of signs or symptoms," colloquially referred to as a "MUCMI."

With the benefit of pro bono counsel, Tadlock appealed to the Veterans Court, arguing that the definition of a "qualifying chronic disability" in 38 C.F.R. § 3.317 necessarily conflicts with 38 U.S.C. § 1117. He contended that the statute expressly includes not only "an undiagnosed illness" but also a "medically unexplained chronic multisymptom illness," examples of which include diagnosed illnesses, "such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome." (definition added). See 38 U.S.C. § 1117(a)(2)(B).

The Veterans Court, in a single-judge memorandum decision by Judge Toth, agreed with Tadlock: "Since a MUCMI, by definition, must be a diagnosed illness, denying this claim because the veteran's illness is diagnosed was clearly erroneous." Tadlock v. Wilkie , No. 18-1160, 2019 WL 2707830, at *3 (Vet. App. June 29, 2019) (" Veterans Court Op. "). See also id. at *5 ("[T]he Board denied his claim in part because this PE was a diagnosed illness, and this Court found this basis erroneous.").

The Veterans Court went on, however, to find that the error was not prejudicial. The Veterans Court noted that both 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 characterize a MUCMI as a condition "defined by a cluster of signs or symptoms." Without citation to any findings by the Board or the VA, the Veteran's Court found in the first instance that "[t]he acute PE that [Tadlock] suffered nearly 10 years ago is not characterized by overlapping signs and symptoms and unique features such as pain, fatigue, and disproportional disability when compared with physical findings." Id. at 4. It therefore held that "any error in the Board decision regarding whether his diagnosed illness could count as a MUCMI is harmless." Id. On that basis, the Veteran's Court affirmed.

The Veterans Court granted Tadlock's subsequent motion for a panel decision. A split panel adopted the memorandum decision as the decision of the court. Tadlock v. Wilkie , 2020 WL 738550, at *1–2 (Vet. App. Feb. 14, 2020). In dissent, Judge Pietsch noted that "the Court, under a prejudicial error analysis, applied a provision that the Board did not apply and made factual findings that the Board did not make," characterizing this case as "the latest in a recent string of aggressive prejudicial error analyses" by the Veterans Court. Id. at *2. Judge Pietsch opined that the Veterans Court's decision was based "on a record not developed to answer" whether Tadlock's disability was a MUCMI, and "made medical findings despite its lack of medical competency." Id.

Tadlock timely appeals.

DISCUSSION

I

As a preliminary matter, the government argues that we do not have jurisdiction to review the Veterans Court's decision in this case because Tadlock's arguments on appeal require consideration of whether the Board's error was prejudicial, a factual determination outside this court's jurisdiction to review. See Newhouse v. Nicholson , 497 F.3d 1298, 1302 (Fed. Cir. 2007) (" Newhouse II ") (holding that this court's jurisdiction does not allow considering appellant's "contentions regarding actual prejudice"); Pitts v. Shinseki , 700 F.3d 1279, 1286–87 (Fed. Cir. 2012) (applying Newhouse II in a similar circumstance); Conway v. Principi , 353 F.3d 1369, 1375 (Fed. Cir. 2004) ("[T]he ultimate conclusion of the effect of the rule of prejudicial error on this case is beyond our jurisdiction"). The government proffers a rule that "when the Veterans Court has undertaken a review for prejudicial error and determined that an error is harmless, this court lacks jurisdiction to disturb that determination." Appellee's Br. at 13.

The government's proposed rule is overly broad and is expressly rejected. This court may review legal questions, including the validity of any statute or regulation or any interpretation thereof. 38 U.S.C. § 7292(c). "Whether the Veterans Court exceeded its jurisdiction is a question of law." Sullivan v. McDonald , 815 F.3d 786, 789 (Fed. Cir. 2016). This court routinely exercises jurisdiction to consider whether the Veterans Court exceeded its jurisdiction in making de novo fact-finding. E.g. , id. at 792–93 (rejecting the government's argument that determining whether the Veterans Court made an improper fact-finding in the first instance was outside this court's jurisdiction because it required a factual comparison between the Veterans Court's opinion and the Board's opinion); Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ; Hensley v. West , 212 F.3d 1255, 1265 (Fed. Cir. 2000) (holding that the Veterans Court's finding that a veteran's claim was not well-grounded was an improper de novo fact finding"). There is no basis for an exception to this well-settled rule in the case of a prejudicial error determination.

Tadlock's challenge here is not to the factual determination of the Veterans Court that his illness was not a MUCMI, but instead to the Veterans Court's authority to make that fact-determination in the first instance in its consideration of prejudicial error. Although we cannot review and do not here decide whether the Veterans Court was correct to hold that Tadlock's illness was not a MUCMI, we can review the question of law whether the Veterans Court exceeded its jurisdiction in making that determination in the first instance. Indeed, we made this distinction explicitly in Newhouse II, 497 F.3d at 1301–02 (first considering whether the...