Stewart: Medically Unexplained Chronic Multisymptom Illnesses (MUCMIs) Explained

Stewart v. Wilkie, Case Number 15-4458, decided December 20, 2018 considers the definition and exclusion of a MUCMI.

The veteran sought service connection for asthma as a MUCMI pursuant to 38 U.S.C. § 1117.  “Section 1117 of title 38 of the U.S. Code provides presumptive service connection to Persian Gulf War veterans who suffer from a ‘qualifying chronic disability.’  The statute states that a ‘qualifying chronic disability’ may result from (a) an undiagnosed illness; (b) a MUCMI ‘(such as chronic fatigue syndrome, fibromyalgia and irritable bowel syndrome) that is defined by a cluster of signs and symptoms’; or (c) any diagnosed illness that the Secretary determines by regulation warrants a presumption of service connection.”  Id. at *3.  The Board denied service connection, reasoning hat because the etiology of asthma is “partially understood” that it could not be considered a MUCMI.

The Court looked at the language regarding a MUCMIs and determined it is clear and unambiguous and “is a medically unexplained chronic illness.”  The Court then stated the term “medically unexplained” was not defined by Congress and in fact the authority to define it was delegated to the VA.  The Court then focused on the VA’s exercise of that authority, 38 C.F.R. § 3.317(a)(2)(ii).

Section 3.317(a)(2)(ii) states:

the term MUCMI is 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.

The Court then noted “It is clear that the regulation seeks to define the undefined statutory phrase ‘medically unexplained.’  To that end, VA has decided that  ‘pathophysiology’ and ‘etiology’ are decisive factors in determining whether an illness is ‘medically unexplained.’”  Id. at *4.

The Court then dissects the language of the regulation and explains:  “the Court

concludes that the plain meaning of the first sentence in the subsection is that a multisymptom illness is a MUCMI if either the etiology or the pathophysiology of the illness is inconclusive.”  Id. at *6.  And, “the plain meaning of the second sentence is that a multisymptom illness is not a MUCMI if both the etiology and the pathology of the illness are partly understood.”  Id.

Related to the case at hand,

Applying the plain meaning of § 3.317(a)(2)(ii) to this case, Mr. Stewart is correct that the Board misapplied the regulation. Under the proper interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Conversely, a multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Here, the Board concluded that Mr. Stewart's asthma was not a MUCMI because asthma has a "partially understood etiology." R. at 8. The Board did not make a finding that the pathophysiology of asthma was also "partially understood," as it was required to do under the law.

Id. at *7. 

The veteran also argued “that if the etiology of his individual asthma is  unknown, it may qualify as a MUCMI, even though the etiology of asthma as it generally affects the public has a partially understood etiology or pathophysiology.”  Id. at *7.  The Court noted  “Essentially, the parties disagree on whether the term ‘medically unexplained’ requires VA to identify the cause of a specific veteran's illness or whether the question may be resolved by general knowledge in the medical community about the illness.”  Id. at *7.  The Court relied on Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017) to determine that whether an illness is medically unexplained is particular to the claimant in each case.  Id. at *8.

The Court then asked whether the evidence was adequate to decide the veteran’s case, and determined the VA medical examination was inadequate and remanded for the examiner to address: the etiology and pathophysiology of the veteran’s asthma.

This was a split decision with Chief Judge Davis writing a persuasive concurrence and dissent that essentially argued the VA’s regulation is more restrictive than the statute.  It begins by arguing medically unexplained is defined by reading the entire statute.    

Judge Schoelen also separately weighed in to write and challenge the notion that “The majority concludes that if the etiology of a veteran's specific illness is unknown, the

illness may be considered a MUCMI, even though the etiology of the disease as it generally affects the public is known.:  Id. at *22.  She argues that “had Congress intended that the defining characteristic of a MUCMI was whether the etiology of a veteran's specific illness was understood, it would have clearly stated this in the statute.”  Id.

This is an important decision if you have Southwest Asia service between August 1990 and December 2021 and a disability that is not easily explained.  It rejects the VA’s argument that the if either etiology or pathophysiology are partially understood than the illness can’t be a MUCMI.

The decision was by Judge Pietsch with concurrences and dissents by Chief Judge Davis and Judge Schoelen.

To know more about whether Thomas Andrews can help you, please visit my website.