Atencio: Gulf War and GERD and JMRs

Atencio v. O’Rourke, Case Number 16-1561, decided July 6, 2018 considers whether GERD is considered to be a medically unexplained chronic multisymptom illness (MUCMI) under 38 CFR 3.317.

Section 3.317 is a regulation implementing benefits for Gulf War veterans with unexplained chronic medical problems.  This case determined GERD does not qualify under the regulation for service connection.  The regulation specifically states it excludes structural gastrointestinal diseases and GERD is considered to be structural.  The veteran tried to argue the broader definition of a MUCMI could include GERD but the Court found the regulation is not ambiguous, specifically excludes GERD, and the more general definition could not overcome the specific exclusion of GERD.

More interestingly, the veteran argued the enabling statute (38 USC 1117) gave the VA power to include disabilities entitled to a presumptive service connection but did not give the power to exclude disabilities.  The argument was the note excluding GERD was not allowed by the statute.  The Court rejected such an argument determining Congress intended to give the Secretary broad authority to determine which disabilities should be compensated and that the Court read this authority to include the power to determine which disabilities are not to be compensated as well as those to be compensated.  Id. at*13.  The Court took pains to say they were merely holding this particular statute provides both inclusion and exclusion power.  Id. 

The Court also addressed an argument by the Secretary related to the law of the case related to a prior JMR from this Court.  Essentially, the Secretary argued a prior JMR concerned service connection of GERD on the presumptive basis allowed under Section 3.317 and so the Court could not now consider any further arguments related to service connection on a direct or secondary basis. 

The Court began by saying

it is not clear whether the traditional law of the case doctrine applies to a JMR and we need not reach that question here. The Court has held that a JMR "effectively moots the case or controversy" before the Court.  More specifically, the Court also has held that an order granting a joint motion for remand premised on the agreement of the parties, and not incorporated by reference into the order, "does not evaluate and adjudicate the arguments or positions of the parties prior to disposition on the merits, but merely dismisses the appeal."  One could view the Clerk's order here as "administrative rather than adjudicatory."  Because the law of the case doctrine applies only to judicial decisions, not administrative determinations, it may be that the doctrine does not apply at all in this case.  The Court need not resolve this question today, however, because even if the doctrine applies, the Court finds that the terms of the JMR did not limit the issues before the Board on remand and, therefore, the Court is not precluded from addressing direct and secondary service connection.

Id. at *14-15 (internal citations omitted).  Thus, the Court really questioned whether the law of the case applied at all.  But, it then analyzed the actual JMRs language and applied it to its previous decision on this issue in Carter v. Shinseki, 26 Vet. App. 534 (2014).  Id. at *15.  The court noted language “vacat[ing] the Board decision” without limiting that vacator and no language limiting the Board’s duties on remand.  The Court concluded the JMR did not limit the issues before the Board or remand and thus the veteran could raise any arguments related to GERD in this appeal, including whether it should be service connected on a direct or secondary basis.  Id. at *15-16.

The Court then found a prior C&P examination was not adequate in its opinion as to secondary service connection.  Id. at *17.  The Court noted “a specific inquiry directly addressing aggravation in a case raising that theory, separate from whether a service-connected disability caused the disability at issue, is necessary when an examiner addresses secondary service connection.”  Id.

The Court then held

the Board failed to provide an adequate statement of reasons or bases for its reliance on the April 2014 examiner's opinion as to aggravation. The examiner's opinion seems to rely on a reversed chronology of the appellant's symptoms, and the Board failed to address the adequacy of this rationale. Furthermore, it is unclear how and why the same rationale was applied to both the causation and aggravation elements of secondary service connection. As El-Amin made clear, examiners must address both in cases raising both theories.  However, the Board did not address the significance of the April 2014 examiner appearing to provide no such distinction between causation and aggravation. 

In this regard, the Court notes that the very structure of her opinion appears to indicate that the two may have been considered together. The examiner was presented with three questions arranged in an alphabetical listing as to whether the appellant's GERD "(A) began during service, (B) is proximately due to or the result of recurrent sinusitis, or (C) is aggravated (worsened) by recurrent sinusitis." In providing responses, the examiner used the same lettering to address each question. Significantly, however, in the section of the report labeled "Rationale," the examiner provided her explanation and references to the medical literature regarding sinusitis and GERD in a paragraph labeled "(B) and (C)." This appears to mix causation and aggravation, and without a more detailed explanation, it is unclear how the Board interpreted this opinion and whether the examiner clearly provided a rationale that dealt with causation and aggravation as independent concepts.

The Board's consideration of the examiner's report concerning aggravation raises the

question of whether aggravation, as opposed to causation, is being treated in an almost slapdash manner by both examiners and the Board. We reiterate that aggravation of a condition by a service connected disability is independent of direct causation. The Board must ensure that medical examinations are adequate on that question and explain the bases for its conclusion concerning aggravation. It did not do so here.

Id. at *18-19.

Judge Meredith issued a separate opinion interestingly making the point that the majority may have not fully addressed the appellant’s argument that the VA could not exclude disabilities, she stated “I do not agree with resolving a matter of this significance—to the veterans community and VA—without any briefing from either party. The majority compounds this by deciding the statutory interpretation question without addressing what, in my view, was the entirety of the argument presented—that 38 U.S.C. §§ 1117 and 1118, read together, do not authorize VA to categorically exclude disorders from

qualifying for Persian Gulf War presumptive service connection.”  Id. at *20. 

Frankly, the clear take away for most Gulf War veterans is that GERD is not covered as a presumptive illness under Section 3.317.  However, the case is also interesting due to its discussion of JMRs and as an example of reliance on an inadequate medical examination.

The decision was by Judge Allen, joined in by Chief Judge Davis.  Judge Meredith wrote a separate opinion.