UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 16-1561 E A P O ...

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-1561

EVANIE E. ATENCIO, APPELLANT,

V.

PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 26, 2018

Decided July 6, 2018)

Christian A. McTarnaghan and Bradley W. Hennings, with whom Alexandra Lio was on the brief, all of Providence, Rhode Island, for the appellant.

Catherine D. Vel and Edward V. Cassidy, Jr., with whom Meghan Flanz, Interim General Counsel; and Mary Ann Flynn, Chief Counsel, were on the brief, all of Washington, D.C., for the appellee.

Before DAVIS, Chief Judge, and ALLEN and MEREDITH, Judges.

ALLEN, Judge, filed the opinion of the Court. MEREDITH, Judge, filed an opinion concurring in part and dissenting in part.

ALLEN, Judge: This case requires the Court principally to consider an important question concerning Persian Gulf War presumptive service connection. We are called on to address how veterans can establish a qualifying disability under that presumption, namely by having a medically unexplained chronic multisymptom illness (MUCMI). Specifically, this matter was submitted to a panel of the Court to address whether gastroesophageal reflux disease (GERD) is categorically excluded from consideration as a MUCMI because it is considered a "structural" (as opposed to a "functional") gastrointestinal disease that is prohibited from qualifying as a MUCMI under 38 C.F.R. ? 3.317(a)(2)(i)(B)(3). As we explain, we hold that the plain language of ? 3.317 specifically bars GERD from being considered as a MUCMI.

The Court must also consider whether a prior joint motion for remand (JMR) that addressed presumptive service connection, but not alternative theories of direct and secondary service connection, limits the appellant's ability to raise those alternative theories in this appeal. Based on the language of the JMR, we hold that the Court is not precluded from considering the appellant's

arguments pertaining to direct and secondary service connection. Finally, while we reject the appellant's arguments concerning the Board of Veterans' Appeals' (Board) treatment of direct service connection, we agree with the appellant that the Board erred in its assessment of secondary service connection. Therefore, the Court will set aside the March 28, 2016, Board decision as to that issue and remand this matter for further proceedings consistent with this decision.

I. RELEVANT FACTS AND PROCEDURAL HISTORY The appellant, Evanie E. Atencio, appeals through counsel a March 28, 2016, Board decision that denied service connection for GERD, including as secondary to service-connected sinusitis. She served in the U.S. Air Force from March 1988 to May 1988 and from January 1991 to July 1991, at which time she was part of Operations Desert Shield and Desert Storm. Record (R.) at 1701. Following service, in December 1998, she complained of a history of significant dyspepsia.1 R. at 1642. She was diagnosed with significant GERD in January 1999, R. at 1648, and underwent a Nissen fundoplication procedure that same year in connection with that condition, R. at 1429. In May 2000, a VA regional office (RO) denied her claim for service connection for GERD. R. at 1435-58. She failed to perfect an appeal of this issue. In February 2006, she requested that her GERD claim be reopened. R. at 1011. The Board eventually reopened her claim for service connection for GERD and remanded it for adjudication in a July 2013 decision. R. at 425-45. In April 2014, the appellant underwent a VA examination for GERD. R. at 173-82. The examiner concluded that it was less likely than not that the appellant's GERD began in service or was due to or aggravated by her service-connected sinusitis. R. at 174. The examiner noted that service treatment records were silent as to symptoms of GERD. R. at 174. The examiner further noted that there was "[i]nsufficient [e]vidence to [d]etermine [w]hether an [a]ssociation [e]xists between . . . deployment to the Gulf War and [s]tructural gastrointestinal diseases." R. at 175. Finally, the examiner stated that asthma and sinusitis "are known to develop as a result of esophageal reflux" but that medical literature did not support a finding that sinusitis "commonly results in or aggravates" GERD. Id. The examiner commented that the appellant had sinusitis first

1 "Dyspepsia" is the "impairment of the power or function of digestion." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 578 (32d ed. 2012).

2

and that "[s]he reports she did NOT have any improvement in her sinus or asthma symptoms following surgical treatment of the GERD cond[ition]." Id. (capitalization in original).

In March 2015, the Board denied service connection for GERD. R. at 94-104. The appellant appealed that decision to the Court, and the parties agreed to a JMR, agreeing that the Board erred by failing to consider whether presumptive service connection was warranted under ? 3.317. R. at 38.

In the March 2016 decision presently on appeal, the Board found that the appellant's GERD "cannot be an undiagnosed or chronic multisymptom illness and cannot fall under the presumptive service connection provisions of 38 C.F.R. ? 3.317" because, although the regulation provides for presumptive service connection for certain functional gastrointestinal disorders, it "specifically excludes gastrointestinal diseases explainable by endoscopic signs of injury or disease which is how GERD was diagnosed." R. at 6 (emphasis omitted). The Board noted that the appellant's GERD was "diagnosed based on, for example, endoscopy (1999) and an upper GI series (2010)." R. at 7.

The Board also addressed service connection on a direct basis, concluding that service records were silent as to symptoms related to GERD and that the appellant's statements made at the time of service that she was in good health and reports of no symptoms, outweighed her later statements that she had heartburn symptoms in service. Finally, the Board relied on the April 2014 VA examiner's opinion to conclude that the appellant's GERD was not the result of or aggravated by her service-connected sinusitis. This appeal followed.

II. PARTIES' ARGUMENTS The appellant argues that the Board misinterpreted 38 C.F.R. ? 3.317 in concluding that GERD, which is characterized as a structural gastrointestinal disease, is categorically precluded from the presumption of service connection afforded to MUCMIs. Appellant's Brief (Br.) at 6-9. She asserts that the Board should have considered whether her GERD qualified as a MUCMI under the definition provided in ? 3.317(a)(2)(ii) in addition to considering whether it was captured under ? 3.317(a)(2)(i). Id. at 7-8. The Secretary responds that the Board properly concluded that the appellant's GERD was precluded from qualifying as a MUCMI as a structural gastrointestinal disorder because it was categorically excluded from this classification under the plain language of the regulation. Secretary's Br. at 5-7.

3

Additionally, the appellant argues that the Board erred in relying on the April 2014 examiner's opinion for denying direct and secondary service connection. Appellant's Br. at 9-19. She asserts that the examiner inappropriately relied on the lack of any GERD symptoms documented in service, failed to explain why a lack of a GERD diagnosis until 1998 was dispositive as to nexus, and provided no explanation of the significance of finding that her prior doctors had not provided a positive nexus opinion. Id. at 10-14. She also argues that the VA examiner failed to provide an adequate rationale for finding that her GERD was not aggravated by her service-connected sinusitis. Id. at 17-19.

The Secretary responds that the "law of the case" doctrine prevents the appellant from raising arguments related to direct and secondary service connection.2 Secretary's Br. at 12-15. He argues that these matters were before the Court in November 2015 when the parties agreed to a JMR for the Board to consider the provisions of ? 3.317. Id. He continues that the JMR made "no mention of entitlement on a direct basis or as secondary to service-connected sinusitis" and therefore the appellant cannot raise these issues on appeal now. Id. at 13. The appellant disagrees because the JMR requested remand of the entirety of the prior Board decision without addressing any of the arguments raised at that time. Appellant's Reply Br. at 7-10. Thus, she argues, the law of the case doctrine does not apply and the JMR did not limit the Board's review on remand or her ability to raise these issues now. Id.

Alternatively, the Secretary responds to the appellant's assertions regarding the April 2014 opinion, arguing that it was adequate and the appellant merely disagrees with the examiner's medical judgment, which is not sufficient to demonstrate inadequacy. Secretary's Br. at 15-24. The Secretary argues that the VA examiner appropriately relied on medical literature and considered the record as a whole, including the appellant's statements about her medical history. Id.

2 At oral argument, counsel for the Secretary stated for the first time that she wished to clarify that the more appropriate doctrine was not the law of the case but rather issue exhaustion. Oral Argument (O.A.) at 43:50-44:32, Atencio v. O'Rourke, U.S. Vet. App. No. 16-1561 (oral argument held Apr. 26, 2018), . The Secretary failed to raise this argument in his brief or in any request to supplement his brief. As we discuss below in connection with an argument the appellant's counsel raised for the first time at oral argument, see infra at 12, this conduct is unacceptable. The Court will only address the Secretary's issue exhaustion argument to the extent that it implicates Carter v. Shinseki, 26 Vet.App. 534, 540 (2014), as argued in his brief.

4

III. ANALYSIS We begin our discussion by laying out the law governing presumptive service connection for those who served in the Persian Gulf and how GERD fits into that presumption. We then address the Secretary's argument regarding the law of the case doctrine and the November 2015 JMR. Next, we address the appellant's arguments related to direct service connection. Finally, we conclude by discussing secondary service connection.

A. Persian Gulf War Presumptive Service Connection 1. The Text and Structure of ? 3.317

Generally speaking, a veteran of the Persian Gulf War may be entitled to VA benefits on a presumptive basis if she exhibits a "qualifying chronic disability" that manifests to a certain degree before December 31, 2021, and that cannot be attributed to any known clinical diagnosis. 3 38 U.S.C. ? 1117; 38 C.F.R. ? 3.317(a)(1)(i)-(ii) (2018). Section 1117(a)(2) notes that a qualifying chronic disability means "a chronic disability resulting from any of the following": (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 or symptoms"; or (C) any "diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants a presumption of service-connection." The statute provides that the "Secretary shall prescribe regulations to carry out this section," including "[a] description of the illnesses for which compensation under this section may be paid." 38 U.S.C. ? 1117(d)(1)-(2)(B).

The Secretary implemented Congress's directive via 38 C.F.R. ? 3.317. This implementing regulation is complex. Understanding both the structure and content of ? 3.317 is critical to resolving this appeal. Accordingly, we describe the regulation in some detail.

Section 3.317(a)(1) sets the overarching framework for the veterans who may qualify for presumptive service connection regarding service in the Persian Gulf. This paragraph essentially mimics 38 U.S.C. ? 1117(a) in that it sets the basic requirements that a veteran must "exhibit[] objective indications of a qualifying chronic disability," 38 C.F.R. ? 3.317(a)(1), have that disability manifest during service in the Persian Gulf "or to a degree of 10 percent or more not later than December 31, 2021," 38 C.F.R. ? 3.317(a)(1)(i), and "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis," 38 C.F.R.

3 The parties agree that the appellant served in Operations Desert Shield and Desert Storm and therefore qualifies as a Persian Gulf veteran pursuant to 38 C.F.R. ? 3.317(e).

5

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download