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