Tadlock v. McDonough, Case Number 2020-1762, decided July 15, 2021 discusses the Veterans Court frequent application of harmless error to deny an appeal, and determined: “[b]ecause 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.” Id. at *2.
The veteran served from 1982-2003 including service in the Persian Gulf. He suffered a pulmonary embolism (PE) resulting in a heart attack in 2010. He sought service connection for the PE and heart attack pursuant to 38 USC 1117, which creates a presumptive status for qualifying chronic disabilities, which include those resulting from an undiagnosed illness, a medically unexplained chronic multi symptom illness, or a diagnosed illness that the Secretary determines by regulation warrants presumption of service connection. Id. at *2-3. In the subsequent regulation, the Secretary defined a “qualifying chronic disability” as on that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. Id. at *3.
The veteran was diagnosed with a PE and the VA examiner noted it was a diagnosed illness and not medically unexplained. The Board relied on this examination to deny service connection, holding because the PE was diagnosed and has a known etiology it is not a undiagnosed illness warranting a Persian Gulf presumption. The Federal Circuit noted: “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.”” Id. at *4.
The veteran argued the regulation conflicts with the statute because the statute “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.”” Id. at *4.
The Veterans Court agreed with the regulatory challenge, but found the error was not prejudicial. It found the acute PE suffered by the veteran nearly 10 years ago is not characterized by overlapping signs and symptoms and unique features such as pain, fatigue, and disproportional disabilities when compared with physical findings, thus the Veterans Court held any error was harmless. Id. at *5. Judge Pietsch dissented noting: “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 *5.
Initially, the U.S. argued when the Veterans Court has undertaken a review for prejudicial error and determined that an error is harmless, the Federal Circuit lacks jurisdiction to disturb that determination. However, the Federal Circuit expressly rejected that argument, stating the veteran’s challenge is not to the factual determination but to the Veteran’s Court’s authority to make the fact-determination in the first instance in its consideration of prejudicial error. Id. at *6.
As to the merits, the Federal Circuit noted that:
a determination by the Veterans Court
that the Board clearly erred in making a fact finding is quite different from
the Veterans Court finding facts in the first instance. The former is
statutorily authorized by § 7261(a)(4). The latter is statutorily foreclosed by
§ 7261(c).
Id. at *8.
After reviewing the case law and how the Veterans Court had begun to focus on harmless error, the Federal Circuit ultimately concluded:
the Veterans Court may affirm on a
ground not considered by the Board and the VA if it is clear that the factual
basis for such conclusion is not open to debate and the Board on remand could
not have reached any other determination on that issue.
Id. at *12.
It further reasoned:
When questions of fact are open to
debate, veterans are entitled to present whatever evidence and arguments they
have to the agency charged with administering veterans’ benefits and possessed
with the expertise to render informed judgments and to have that evidence and
those arguments considered by that agency in the first instance. “The rule of
harmless error cannot be invoked to allow the Court of Appeals for Veterans
Claims to decide a matter that is assigned by statute to the [VA] for the
initial determination,” nor can the rule be invoked to support an affirmance
that “may [] have required it to make improper de novo findings of fact.”
***
For the above reasons, we hold that §
7261(b)’s command that the Veterans Court “give due account of the rule of
prejudicial error” does not give it the right to make de novo findings of fact
or otherwise resolve matters that are open to debate. Affirmance in the face of
an error may be made by the Veterans Court only if the record already contains
findings made previously by the VA or the Board that support affirmance or the
entire record makes evident that the Board could not have reached any other
decision. 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.
Id. at *14.
In the case at hand, the Federal Circuit determined neither the Board nor the VA had ever considered whether the veteran’s condition was characterized by overlapping symptoms or signs. Id. at *15. It noted the Veterans Court found harmless error by determining that “Tadlock has not identified, any overlapping symptoms or signs related to his PE or any other features of his condition that would suggest it as a MUCMI.” Id. at *16.
The Federal Circuit noted the Veterans Court did not cite any fact finding by the VA or Board the record does not show such a determination. It determined:
the Veterans Court here sought to
consider in the first instance whether Tadlock’s symptoms constituted a MUCMI,
an inquiry delegated to the VA. As noted above, the Veterans court did not cite
to anything in the record to support its determination, nor did it contend that
its determination was the only possible outcome within the discretion of the VA
and the Board. The proper course for the Veterans Court here was thus to vacate
and remand for consideration by the VA or the Board in the first instance about
whether Tadlock’s illness might be “defined by a cluster of signs or symptoms”
characteristic of a MUCMI.
Id. at *18.
As Judge Pietsch noted in her Veterans Court dissent, the rule of harmless error has been used many times over the last several years to affirm a decision where there is otherwise a reason to remand. This reliance on harmless error always was used against veterans. The Federal Circuit has not entirely eviscerated the rule, but has circumscribed it. This is a good victory for veterans.
Decision by Judge Linn, joined in by Judges Newman and Chen.
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