5 F.4th 1327
Fed. Cir.2021Background
- Howard Tadlock, an Army Gulf War veteran, suffered a diagnosed pulmonary embolism (PE) in 2010 and sought presumptive service connection under 38 U.S.C. § 1117 for the PE and a resulting heart attack.
- Section 1117 covers (1) undiagnosed illnesses and (2) medically unexplained chronic multisymptom illnesses (MUCMI) “defined by a cluster of signs or symptoms”; the implementing regulation, 38 C.F.R. § 3.317, defines qualifying chronic disability as one that cannot be attributed to a known clinical diagnosis.
- A 2017 VA examiner diagnosed Tadlock’s PE (via pulmonary CT angiogram) and concluded it was not an undiagnosed or medically unexplained condition; the Board adopted that opinion and denied presumptive service connection under the regulation.
- The Veterans Court held the Board erred as a matter of law in treating a diagnosed illness as categorically ineligible for MUCMI status, but—without citation to Board or VA findings—concluded that any error was harmless because Tadlock’s PE did not display the overlapping signs/symptoms of a MUCMI.
- The Federal Circuit reviewed whether the Veterans Court may make de novo factual findings when assessing prejudicial error and determined the Veterans Court exceeded its authority by finding, in the first instance, that Tadlock’s condition was not a MUCMI.
- The Federal Circuit vacated the Veterans Court’s decision and remanded for the Board/VA to make the necessary fact findings about MUCMI characteristics in the first instance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veterans Court may make de novo factual findings when evaluating whether a Board error was prejudicial | Tadlock: Veterans Court exceeded jurisdiction by making initial factual findings (prohibited trial de novo) | Gov: Prejudicial-error review requires examining the full record and may go beyond Board findings | Held: Veterans Court may not make de novo fact findings on matters open to debate when reviewing prejudicial error; must remand for VA/Board factfinding unless record clearly forecloses any other outcome |
| Whether the Veterans Court properly concluded Tadlock’s PE was not a MUCMI in the first instance | Tadlock: MUCMI determination is factual and delegated to the VA; Veterans Court improperly made initial factual finding | Gov: Board/record supported conclusion; Veterans Court’s prejudicial-error inquiry could rely on the record | Held: Veterans Court improperly made the MUCMI factual determination in the first instance; remand required for VA/Board to address MUCMI factors |
| Whether the Veterans Court can affirm on alternative grounds the Board did not consider (Chenery concern) | Tadlock: Affirmance on new factual ground violates Chenery and appellate fact-finding limits | Gov: Prejudicial-error mandate and precedent (Newhouse, Mlechick) permit searching the record for nonprejudicial bases | Held: Veterans Court may affirm on an alternative ground only if the factual basis is not open to debate or the Board could not have decided differently; otherwise must remand |
| Whether the Federal Circuit has jurisdiction to review Veterans Court’s exercise of prejudicial-error analysis | Tadlock: Court can review whether Veterans Court exceeded jurisdiction as a legal question | Gov: Federal Circuit lacks jurisdiction over prejudicial-error factual determinations | Held: Federal Circuit has jurisdiction to review the legal question whether the Veterans Court exceeded its jurisdiction by making improper de novo fact findings; it need not resolve the underlying factual prejudice question |
Key Cases Cited
- Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir.) (prejudicial-error review must consider the administrative record)
- Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000) (Veterans Court exceeded jurisdiction by making first-instance factual findings)
- Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000) (appellate court may not weigh evidence or find facts in the first instance)
- Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir. 2013) (Veterans Court may reverse Board factual findings only under clear-error review, not by making new findings)
- Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007) (prejudicial-error inquiry must review the record and may go beyond Board findings but is limited)
- Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (appellate affirmance on a ground not considered by the agency is improper unless the agency had addressed the ground)
- Shinseki v. Sanders, 556 U.S. 396 (2009) (Veterans Court’s harmless-error mandate akin to ordinary harmless-error review)
- Camp v. Pitts, 411 U.S. 138 (1973) (review limited to the administrative record)
- Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709 (1986) (appellate courts should not make factual findings on their own)
- Goodman v. Shulkin, 870 F.3d 1383 (Fed. Cir. 2017) (individual MUCMI determinations are factual and for the VA to decide)
- Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000) (harmless-error rule cannot be used to permit appellate courts to decide matters assigned by statute to the VA)