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Disabled American Veterans v. Secretary of Veterans Affairs

United States Court of Appeals, Federal Circuit

June 14, 2017

DISABLED AMERICAN VETERANS, Petitioner
v.
SECRETARY OF VETERANS AFFAIRS, Respondent

         Petition for review pursuant to 38 U.S.C. Section 502.

          Zachary Stolz, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for petitioner. Also represented by Robert Vincent Chisholm, Jenna Zellmer; Christopher J. Clay, Disabled American Veterans, Cold Spring, KY; Barbara J. Cook, Cincinnati, OH.

          Emma Bond, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Martin F. Hockey, Jr.; Brian D. Griffin, Brandon A. Jonas, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

          Before Moore, O'Malley, and Reyna, Circuit Judges.

          Moore, Circuit Judge.

         Disabled American Veterans ("DAV") petitions for review of provisions of the Department of Veterans Affairs' ("VA") Adjudication Procedures Manual M21-1 ("M21-1 Manual"). We dismiss for lack of jurisdiction.

         Background

         38 U.S.C. § 1117 provides presumptive service connection for veterans who served in the Persian Gulf War with a qualifying chronic disability. The statute articulates three types of qualifying chronic disabilities: (a) an undiagnosed illness; (b) a medically unexplained chronic multisymptom illness ("MUCMI"); and (c) any diagnosed illness as determined by the Secretary. 38 U.S.C. § 1117(a)(2). The VA's regulations define a MUCMI as:

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.

38 C.F.R. § 3.317(a)(2)(ii) (emphasis added). Both statute and regulation identify sleep disturbances and signs or symptoms involving the respiratory system as possible manifestations of a MUCMI. 38 U.S.C. § 1117(g)(8)-(9); 38 C.F.R. § 3.317(b)(8)-(9).

         The VA consolidates its policy and procedures into one resource known as the M21-1 Manual. The M21-1 Manual provides guidance to Veterans Benefits Administration ("VBA") employees and stakeholders "to allow [the] VBA to process claims benefits quicker and with higher accuracy." J.A. 81. Any VBA employee can request changes to the M21-1 Manual through submission of an online form.

         The M21-1 Manual discusses service connection for qualifying disabilities under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in section IV.ii.2.D. In September 2015, a VBA employee requested a change to this portion of the M21-1 Manual to specify that the language "without conclusive pathophysiology or etiology" in § 3.317 requires "there is 'both' an inconclusive pathophysiology 'and' an inconclusive etiology" for an illness to qualify as a MUCMI. J.A. 78. He also requested the M21-1 Manual specify that sleep apnea is not a qualifying chronic disability under § 1117 and § 3.317.

         On November 30, 2015, the VA adopted the requested revisions. The VA changed the definition of MUCMI from illnesses exhibiting "no conclusive physiology or etiology" to require "both an inconclusive pathology, and an inconclusive etiology." J.A. 60, 100-01. Under the subsection "Signs and Symptoms of Undiagnosed Illnesses or MUCMIs, " the VA added, "Sleep apnea cannot be presumptively service-connected (SC) under the provisions of 38 C.F.R. § 3.317 since it is a diagnosable ...


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