General Overview of the Medicine
Some terms you will hear in this argument:
GERD is Gastro Esophageal Reflux Disorder. GERD can often - but not always -result from a dysfunctional valve at the top of the stomach and bottom of the esophagus. Stomach acid that washes up into the esophagus can cause dangerous tissue damage.
A Functional Gastro-intestinal disorder is one that affects how the gastrointestinal functions, as opposed to one that affects how the gastrointestinal system is structured, or one that affects the biochemistry of the gastrointestinal system.
Counsel for the veteran tried to create an acronym for this: FIGD (or fidget). The Court, thankfully, put the kibosh on that.
General Overview of the Law
38 C.F.R. §3.317 might be one of the VA's most significant "nods" to complexity ever written. I strongly encourage you to read it, and, if you have a client affected by this regulation, take the time to map out the sequence of this regulation.
The regulation purports to derive from 38 USC §§ 1117 and 1118, which are much more direct and simple in their instruction. Congress passed these statutes to give Gulf War Veterans an easy path to prove service connection when they exhibited the symptoms of a condition known as Gulf War Syndrome.
That easy path has turned into a labyrinth of red-tape, and if there was ever a regulation that is Exhibit A in the arguments against Auer deference to Agency interpretations of their own regulations, this is it.
The argument in this case is, at its core, a statutory interpretation case. However, neither party briefed this issue, and so the Court is finding it difficult to navigate how to interpret the regulation when, in my opinion, the real issue is whether the regulation lawfully follows from the statute.
That said, here is the crux of the issue: under 38 C.F.R. 3.317(a)(2)(i), the VA specifically excludes structural gastrointestinal diseases from the definition of a qualifying disability, because GERD is largely though to be a structural gastrointestinal disease, it is disqualified.
However, 38 C.F.R. §3.317(a)(2)(ii) specifically includes in the definition of "MUCMI" (click here to download the VA's M21-1MR guidance on MUCMIs) a diagnosed illness without conclusive pathophysiology or etiology.
Thus, the question becomes: notwithstanding the Secretary's exclusion of GERD as a disability that qualifies for the Gulf War Syndrome presumption, is it still able to afford the presumption for a Veteran with GERD if there is no conclusive pathophysiology or etiology?
My personal take is that the whole question is a red herring: the Secretary may only regulate that which Congress specifically allows, and because Congress did not exclude GERD from consideration for the Gulf War Syndrome presumption, neither can the VA.
However, assuming for the sake of argument that the regulation is lawful, then Appellant's arguments make a lot of sense. If GERD is caused by a failure of the valve between the esophagus and the stomach, as it often is, then it is indeed structural and likely not the manifestation of symptoms of GWS. If, however, the veteran's GERD has no known etiology (cause) or pathophysiology (disease mechanism), then there is a really good possibility that, diagnosed or not, it is not a structural GI disease and is in fact functional.
Again, this is MY opinion, the parties don't necessarily argue this, which is fine. As I "Monday morning quarterback" this argument and case, I have the luxury of thought and time that judges and advocates don't necessarily have while in the heat of oral arguments.
HOWEVER, if you have a BVA decision in which the VA denies you presumptive service connection for GERD as a symptom of Gulf War Syndrome, stating that it is denying it because GERD is a structural GI disease excluded from the presumption, click here to upload the BVA decision so I can take a look to see if the BVA decision can be appealed and the exclusion of GERD from presumptive GWS service connection challenged.
That said, I don't want MY opinion to taint your perspective of this case. I only add it to give texture to what follows, which is an expose of the law surrounding the Gulf War Syndrome presumption and GERD.
38 C.F.R. 3.317 entitles a qualifying veteran with a qualifying condition to a presumption of service connection with a qualifying condition.
Now, let's turn to definitions.
A Persian Gulf veteran is one who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War.
The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.
To be entitled to this presumption, your qualifying condition must have first manifest itself during service in the Southwest Asia theater of operations, or manifest to a degree of 10 percent or more not later than December 31, 2021.
To have a qualifying condition, you must first have a chronic disability that results from one of the following: undiagnosed illness, or a MUCMI ("medically unexplained chronic multisymptom illness") that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, o ra functional gastrointestinal disorders (but excluding structural gastrointestinal diseases).
A MUCMI is a "medically unexplained chronic multisymptom illness", and according to 38 C.F.R. §3.317, it 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.”
As noted above, §3.317 expressly excludes GERD (if it is a structural GI disorder) from consideration as a qualifying disability.
However, §3.317 also allows veterans to prove that a diagnosed condition is still a MUCMI, entitled to the presumption, if it lacks conclusive pathophysiology or etiology.
Facts & BVA Decision.
This case has been going on for some time. The veteran first sought service connection for GERD in 2006.
The case has been to the BVA at least 3 times, from what I can discern in the parties arguments. It has been remanded by the BVA twice, and remanded by the CAVC once.
The BVA found the veteran was diagnosed with GERD in 1998.
The Board denied Ms. Atencio’s claim, finding GERD was not a functional gastrointestinal disease and that as such, service connection under 38 C.F.R. § 3.317 could not be established.
Basically, the BVA found that while regardless of whether GERD is a “medically unexplained chronic multisymptom illness” which is diagnosed, and regardless of whether it does not have "conclusive pathophysiology or etiology,” 38 C.F.R. 3.317 specifically excludes “structural gastrointestinal diseases” from the presumption of service connection due to Gulf War Syndrome.
Because Ms. Atencio's GERD is, according to the BVA, an excluded structural gastrointestinal diseases and is not a functional gastrointestinal disorder as the symptoms are explained by the diagnostic test results, it cannot be considered for presumption service connection under 38 C.F.R. §3.317.
The BVA also found that the probative evidence of record weighed against a finding of either direct or secondary service connection.
The first presents an issue of first impression, whether GERD is categorically excluded by 38 C.F.R. § 3.317 (2017) from ever being considered a medically unexplained chronic multisymptom illness (“MUCMI”).
The veteran argues that under 38 C.F.R. 3.317(a)(2)(i), the VA specifically excludes structural gastrointestinal diseases from the definition of a qualifying disability, because GERD is largely though to be a structural gastrointestinal disease, it is disqualified.
However, he points out that under 38 C.F.R. §3.317(a)(2)(ii), the Secretary specifically includes in the definition of "MUCMI" a diagnosed illness without conclusive pathophysiology or etiology.
The question that the Veteran asks the Court to address is this: notwithstanding the Secretary's exclusion of GERD as a disability that qualifies for the Gulf War Syndrome presumption, is it still able to afford the presumption to a veteran with GERD if there is no conclusive pathophysiology or etiology?
The Secretary's argument is basic, but (with respect) lacks detail. He argues the veteran is misreading the regulation, and the veteran provides no legal support for the distinction. The Secretary does not, in my read, appear to engage the Appellant's legal theory, which makes it hard to explain their position beyond stating it.
The Secretary notes that he believes that the regulation is NOT ambiguous, but goes on to cite to the regulatory notice and comment as support for the Secretary's intent for excluding GERD as a structural GI disease.
As a general rule, if I mis-state a parties position in one of these posts, PLEASE reach out to me at [email protected] so that we can get it fixed. I work diligently to state the argument as clearly as I can, while at the same time objectively explaining each parties arguments. Obviously, I'm human, so I am going to fail in this endeavor from time to time. Please free to reach out to me if I fail to accurately state your parties position in a case summary or oral argument preview.
Court's Framing of the Issue:
There is no supplemental briefing order relevant to the issue argued in oral arguments, so I will borrow the Appellant's framing of the issue, as it seems to be largely adopted by all parties and the Court of Appeals for Veterans Claims:
"Is GERD is categorically excluded by 38 C.F.R. § 3.317 (2017) from ever being considered a medically unexplained chronic multisymptom illness (“MUCMI”)"
Chief Judge Robert N. Davis (link to bio on Court webpage)
Judge Amanda L. Meredith (link to bio on Court webpage)
Judge Michael P. Allen (link to bio on Court webpage)
Alexandro Lio, Attorney on the initial brief [Chisholm, Chisholm and Kilpatrick]
Christian A. McTarnaghan, Attorney on the Briefs and at Argument [Chisholm, Chisholm and Kilpatrick]
Catherine D. Vel, Attorney on the Briefs and at Argument