Tadlock v. McDonough

Case: 20-1762     Document: 40    Page: 1   Filed: 07/15/2021




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                HOWARD L. TADLOCK, JR.,
                   Claimant-Appellant

                             v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                        2020-1762
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 18-1160, Judge Joseph L. Toth.
                 ______________________

                  Decided: July 15, 2021
                  ______________________

     CARL RICHARD HENNIES, Quinn Emanuel Urquhart &
 Sullivan, LLP, Houston, TX, argued for claimant-appellant. Also represented by WILLIAM ADAMS, MATTHEW A.
 TRAUPMAN, New York, NY.

     RETA EMMA BEZAK, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by JEFFREY B. CLARK, TARA K. HOGAN, ROBERT
 EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK
 SCADDEN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
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 2                                     TADLOCK   v. MCDONOUGH



                   ______________________

     Before NEWMAN, LINN, and CHEN, Circuit Judges.
 LINN, Circuit Judge.
     This case presents the question of whether and to what
 extent the United States Court of Appeals for Veterans
 Claims (“Veterans Court”) may make findings of fact in the
 course of considering whether an error of the Board of Veterans Appeals (“Board”) was prejudicial. Because the Veterans Court’s jurisdiction to consider prejudicial error does
 not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate, we vacate
 the Veterans Court’s determination that Howard L. Tadlock, Jr. (“Tadlock”) is not entitled to presumptive service
 connection and remand for further proceedings consistent
 with this opinion.
                        BACKGROUND
     Tadlock served in the Army from 1982 until 2003, including service in the Persian Gulf. In 2010, he suffered a
 pulmonary embolism (“PE”) that resulted in a heart attack.
 Tadlock sought presumptive service connection for the PE
 and the heart attack under 

. Section 1117
 provides for presumptive service connection for a “qualifying chronic disability” for veterans who served in the Persian Gulf War. 

(a)(1)(A). A “qualifying
 chronic disability” is, inter alia,
     (2) . . . [A] chronic disability resulting from any of
     the following:
         (A) An undiagnosed illness.
         (B) A medically unexplained chronic multisymptom illness (such as a chronic fatigue syndrome, fibromyalgia, and
             irritable bowel syndrome) that is defined by a cluster of signs or symptoms.
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 TADLOCK   v. MCDONOUGH                                       3



         (C) Any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants a
             presumption of service-connection.
 

 at § 1117(a)(2). The statute expressly requires the Secretary to “prescribe regulations to carry out this section,”
 id. at § 1117(d)(1), including, inter alia, “[a] description of
 the illnesses for which compensation under this section
 may be paid,” id. at § 1117(d)(2)(B). In a regulation implementing the statute, the Secretary of Veterans Affairs limited the definition of “a qualifying chronic disability” to one
 that, “[b]y history, physical examination, and laboratory
 tests cannot be attributed to any known clinical diagnosis.”
 

(a)(ii).
      After several rounds of examinations, appeals, and remands, Tadlock underwent a final medical examination
 conducted in July 2017 by a Veterans Affairs (“VA”) physician (“examiner”). The examiner diagnosed Tadlock with a
 pulmonary embolism, noting that “Pulmonary Embolism
 (PE) is diagnosed and well documented by generally well
 accepted diagnostic procedure, that being pulmonary CT
 angiogram.” In re Tadlock, No. 13-15 547, at *9 (Bd. of Vet.
 App. 2019) (“VA Op.”) (quoting VA examiner’s opinion).
 The examiner explained that because Tadlock’s PE “is diagnosed, it is not an undiagnosed illness.” 

 The examiner also explained that Tadlock’s PE was not “medically
 unexplained.” 

. The examiner thus concluded that
 “[i]t is less likely as not that pulmonary embolism is related
 to his active service, to include exposure to environmental
 hazards in [] Southwest Asia during the Gulf War.” J.A.
 214.
     The Board explicitly adopted the 2017 examiner’s opinion and largely based its conclusion denying service connection on that opinion. 

. The Board ultimately
 held:
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 4                                    TADLOCK   v. MCDONOUGH



     [T]he pulmonary embolism has been competently
     and credibly associated with a known etiology and
     diagnosis, pulmonary embolism, and therefore service connection based on the law and regulations
     pertaining to undiagnosed illness incurred due to
     Persian Gulf service is not warranted.
 

 (citing 

). Neither the Board nor the
 examiner made any finding of fact that Tadlock’s condition
 was not a “medically unexplained chronic multisymptom
 illness . . . defined by a cluster of signs or symptoms,” colloquially referred to as a “MUCMI.”
     With the benefit of pro bono counsel, Tadlock appealed
 to the Veterans Court, arguing that the definition of a
 “qualifying chronic disability” in 

 necessarily conflicts with 

. He contended that
 the statute expressly includes not only “an undiagnosed illness” but also a “medically unexplained chronic multisymptom illness,” examples of which include diagnosed
 illnesses, “such as chronic fatigue syndrome, fibromyalgia,
 and irritable bowel syndrome.” (definition added). See 

(a)(2)(B).
     The Veterans Court, in a single-judge memorandum
 decision by Judge Toth, agreed with Tadlock: “Since a
 MUCMI, by definition, must be a diagnosed illness, denying this claim because the veteran’s illness is diagnosed
 was clearly erroneous.” Tadlock v. Wilkie, No. 18-1160,
 

, at *3 (Vet. App. June 29, 2019) (“Veterans Court Op.”). See also 

 (“[T]he Board denied his
 claim in part because this PE was a diagnosed illness, and
 this Court found this basis erroneous.”).
     The Veterans Court went on, however, to find that the
 error was not prejudicial. The Veterans Court noted that
 both 

 and 

 characterize a
 MUCMI as a condition “defined by a cluster of signs or
 symptoms.” Without citation to any findings by the Board
 or the VA, the Veteran’s Court found in the first instance
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 TADLOCK   v. MCDONOUGH                                     5



 that “[t]he acute PE that [Tadlock] suffered nearly 10 years
 ago is not characterized by overlapping signs and symptoms and unique features such as pain, fatigue, and disproportional disability when compared with physical
 findings.” 

. It therefore held that “any error in the
 Board decision regarding whether his diagnosed illness
 could count as a MUCMI is harmless.” 

 On that basis,
 the Veteran’s Court affirmed.
     The Veterans Court granted Tadlock’s subsequent motion for a panel decision. A split panel adopted the memorandum decision as the decision of the court. Tadlock v.
 Wilkie, 

, at *1–2 (Vet. App. Feb. 14, 2020).
 In dissent, Judge Pietsch noted that “the Court, under a
 prejudicial error analysis, applied a provision that the
 Board did not apply and made factual findings that the
 Board did not make,” characterizing this case as “the latest
 in a recent string of aggressive prejudicial error analyses”
 by the Veterans Court. 

. Judge Pietsch opined
 that the Veterans Court’s decision was based “on a record
 not developed to answer” whether Tadlock’s disability was
 a MUCMI, and “made medical findings despite its lack of
 medical competency.” 

     Tadlock timely appeals.
                          DISCUSSION
                               I
     As a preliminary matter, the government argues that
 we do not have jurisdiction to review the Veterans Court’s
 decision in this case because Tadlock’s arguments on appeal require consideration of whether the Board’s error was
 prejudicial, a factual determination outside this court’s jurisdiction to review. See Newhouse v. Nicholson, 

 (Fed. Cir. 2007) (“Newhouse II”) (holding that
 this court’s jurisdiction does not allow considering appellant’s “contentions regarding actual prejudice”); Pitts v.
 Shinseki, 

, 1286–87 (Fed. Cir. 2012)
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 6                                     TADLOCK   v. MCDONOUGH



 (applying Newhouse II in a similar circumstance); Conway
 v. Principi, 

 (Fed. Cir. 2004) (“[T]he ultimate conclusion of the effect of the rule of prejudicial error on this case is beyond our jurisdiction”).           The
 government proffers a rule that “when the Veterans Court
 has undertaken a review for prejudicial error and determined that an error is harmless, this court lacks jurisdiction to disturb that determination.” Appellee’s Br. at 13.
      The government’s proposed rule is overly broad and is
 expressly rejected. This court may review legal questions,
 including the validity of any statute or regulation or any
 interpretation thereof. 

(c). “Whether the
 Veterans Court exceeded its jurisdiction is a question of
 law.” Sullivan v. McDonald, 

 (Fed. Cir.
 2016). This court routinely exercises jurisdiction to consider whether the Veterans Court exceeded its jurisdiction
 in making de novo fact-finding. E.g., 

 at 792–93 (rejecting the government’s argument that determining whether
 the Veterans Court made an improper fact-finding in the
 first instance was outside this court’s jurisdiction because
 it required a factual comparison between the Veterans
 Court’s opinion and the Board’s opinion); Elkins v. Gober,
 

 (Fed. Cir. 2000); Hensley v. West, 

 (Fed. Cir. 2000) (holding that the Veterans
 Court’s finding that a veteran’s claim was not well-grounded was an improper de novo fact finding”). There is
 no basis for an exception to this well-settled rule in the case
 of a prejudicial error determination.
     Tadlock’s challenge here is not to the factual determination of the Veterans Court that his illness was not a
 MUCMI, but instead to the Veterans Court’s authority to
 make that fact-determination in the first instance in its
 consideration of prejudicial error. Although we cannot review and do not here decide whether the Veterans Court
 was correct to hold that Tadlock’s illness was not a
 MUCMI, we can review the question of law whether the
 Veterans Court exceeded its jurisdiction in making that
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 TADLOCK   v. MCDONOUGH                                      7



 determination in the first instance. Indeed, we made this
 distinction explicitly in Newhouse II. 497 F.3d at 1301–02
 (first considering whether the Veterans Court exceeded its
 jurisdiction in violation of Sec. & Exch. Comm’n v. Chenery
 Corp., 

 (1943), then holding that we could not
 consider the veterans challenge to the Veterans Court’s factual determination of no actual prejudice).
     We conclude that we have jurisdiction over this case
 under 

(c). We review the question of law
 regarding the Veterans Court’s jurisdiction de novo. Sullivan, 

.
                               II
                               A
     On the merits, Tadlock argues that the Veterans Court
 improperly engaged in de novo fact finding in making its
 determination of no prejudicial error. He argues that his
 case is analogous to Hensley in which we held that the Veterans Court had exceeded its jurisdiction in finding no prejudicial error on an insufficiently developed factual record.
 He also argues that the Veterans Court violated Chenery
 by substituting a different rationale in support of its finding of no prejudicial error, citing Mayfield v. Nicholson, 

 (Fed. Cir. 2006). The government argues in opposition that the Veterans Court was not only correct in
 reviewing the Board’s decision for prejudicial error, but
 was required to do so, and that this analysis allows the Veterans Court to go outside the facts found by the Board, relying on Mlechick v. Mansfield, 

 (Fed. Cir.
 2007) and Newhouse II.
                               B
     “The Court of Appeals for Veterans Claims shall have
 exclusive jurisdiction to review decisions of the Board of
 Veterans’ Appeals.” 

(a). The Veterans
 Court’s review is on “the record of proceedings before the
 Secretary and the Board” and “shall be limited to the scope
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 8                                    TADLOCK   v. MCDONOUGH



 provided in section 7261 of this title.” 

 at § 7252(b) (emphasis added). In authorizing such review, Congress expressly limited the Veterans Court’s jurisdiction to exclude
 de novo fact-finding: “In no event shall findings of fact
 made by the Secretary or the Board of Veterans’ Appeals
 be subject to trial de novo by the [Veterans] Court.” 38
 U.S.C.§ 7261(c). As we have recognized, the statute prohibits the court from making factual findings in the first
 instance.” Deloach v. Shinseki, 

 (Fed.
 Cir. 2013) (emphasis in original). “[F]act-finding in veterans cases is to be done by the expert [Board], not by the
 Veterans Court.” Elkins, 

. “The statutory
 provisions are consistent with the general rule that appellate tribunals are not appropriate fora for initial fact finding.” Hensley, 

 (observing that “[a]ppellate
 courts can ‘review’ only that which has happened in the
 past”). See also 

 (quoting Icicle Seafoods, Inc. v.
 Worthington, 

 (1986) for the proposition
 that appellate courts “should not simply [make] factual
 findings on [their] own”).
     While the Veterans Court is also empowered to “hold
 unlawful and set aside or reverse [a finding of material fact
 adverse to the claimant] if the finding is clearly erroneous,”
 

(a)(4), a determination by the Veterans
 Court that the Board clearly erred in making a fact finding
 is quite different from the Veterans Court finding facts in
 the first instance. The former is statutorily authorized by
 § 7261(a)(4).    The latter is statutorily foreclosed by
 § 7261(c) (prohibiting “trial de novo by the Court”). As we
 stated in Deloach: “The Court of Appeals for Veterans
 Claims, [even] as part of its clear error review, must review
 the Board’s weighing of the evidence; it may not weigh any
 evidence itself.” 

 (emphasis in original).
                               C
     The Veterans Court, in deciding all cases before it, is
 also statutorily charged with taking “due account of the
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 TADLOCK   v. MCDONOUGH                                    9



 rule of prejudicial error.” 

(b). Conway, 

 (“[W]e establish today that the Veterans
 Court must ‘take due account of the rule of prejudicial error’ in all cases addressing the notice requirements in section 5103(a).”). In reviewing the Board’s decision for
 prejudicial error, the Veterans Court is not limited to considering only the facts relied on by the Board and the VA
 but can—and indeed must—consult the full agency record,
 including facts and determinations that could support an
 alternative ground for affirmance. Newhouse II, 

 (“The [prejudicial error] statute does not limit the
 Veterans Court’s inquiry to the facts as found by the Board,
 but rather requires the Veterans Court to ‘review the record of the proceedings before the Secretary and the Board’
 in determining whether a VA error is prejudicial” (quoting
 

(b)(2)); Mlechick, 

 (“That
 statutory obligation permits the Veterans Court to go outside of the facts as found by the Board to determine
 whether an error was prejudicial by reviewing ‘the record
 of the proceedings before the Secretary and the Board’”
 (quoting Newhouse II, 

)).
      In Newhouse v. Nicholson, 

 at *5 (2006)
 (unpublished) (“Newhouse I”), the Veterans Court determined that the VA failed to provide Newhouse proper notice of the evidence he needed to submit to substantiate his
 claims. Newhouse alleged that with the required notice, he
 would have resubmitted a July 1985 examination or would
 have sought additional audiology examination to substantiate his claim, and that the proper course for the Veterans
 Court was to vacate the Board’s denial of benefits and remand. 

. The Veterans Court disagreed because it
 determined that the notice deficiency was not prejudicial
 because Newhouse “could not have been prejudiced” by the
 notice error because the July 1985 report was already in
 the record, and Newhouse had already requested additional VA audiological evaluations. 

 There was thus no
 space for the possibility of actual prejudice.
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 10                                   TADLOCK   v. MCDONOUGH



      This court, without considering whether Newhouse
 was actually prejudiced, endorsed the Veterans Court’s
 prejudicial error analysis, noting that the “[t]he statute
 does not limit the Veterans Court’s inquiry to the facts as
 found by the Board, but rather requires the Veterans court
 to ‘review the record of the proceedings before the Secretary and the Board’ in determining whether the VA error
 is prejudicial.” Newhouse II, 

 (quoting 

(b)(2)). The Veterans Court did not violate
 Chenery by affirming on a different ground than the Board
 because the Veterans Court was statutorily empowered
 and required to consider whether the VA’s error was prejudicial. 

 Reaffirming Newhouse II, this court in
 Mlechick held that the Veterans Court may not simply refuse to consider whether a notice failure was prejudicial to
 the veteran and, instead, must consider the “the entire ‘record of the proceedings before the Secretary and the Board’
 in determining whether an error was nonprejudicial.” 

 (quoting Newhouse II, 

).
     The government relies on Newhouse II and Mlechick for
 the broad proposition that prejudicial error review allows—
 indeed, requires—the Veterans Court to consider whether
 the Board’s error was prejudicial based on the record, unfettered by the particular fact-findings made by the VA or
 the Board. The government’s argument is overstated and
 its reliance on these cases is misplaced. The Veterans
 Court’s decision in Newhouse I was based on a determination that the record unquestionably revealed no prejudice
 from the VA’s notice error: the 1985 letter Newhouse alleged he would have submitted with proper notice was already in the record, and he had already requested the
 audiological examinations he alleged he would have sought
 with proper notice. 

, at *5 (“[T]he appellant
 could not have been prejudiced by such notice.”). The Veterans Court thus did not need to make a factual determination that was open to debate in the first instance.
 Moreover, there is no indication in Newhouse II that the
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 TADLOCK   v. MCDONOUGH                                    11



 veteran even argued that the Veterans Court’s affirmance
 was based on new fact-findings. 497 F.3d at 1301–02.
 Newhouse II thus does not support the government’s position.
      Mlechick also does not support the government’s position. At best, both Newhouse II and Mlechick expressly and
 correctly recognized that the prejudicial error analysis
 must be performed in every case and must be done so on
 the record made before the agency. Newhouse II, 

 (“[T]he Veterans Court was required to examine
 whether any errors by VA were prejudicial and [] it must
 do so based on the administrative record” (emphasis
 added)); Mlechick, 

 (“The statutory obligation [to consider prejudicial error] permits the Veterans
 Court to go outside of the facts as found by the Board to
 determine whether an error was prejudicial by reviewing
 ‘the record of the proceedings before the Secretary and the
 Board’” (quoting Newhouse II, 

) (emphasis
 added)). While “the record of the proceedings before the
 Secretary and the Board” is broader than “the facts as
 found by the Board,” nothing in either case, however, requires or even suggests that considering the “record of the
 proceedings” authorizes the Veterans Court to make findings of fact in the first instance.
     In Shinseki v. Sanders, the Supreme Court explained
 that the Veterans Court prejudicial error mandate “requires the Veterans Court to apply the same kind of ‘harmless error’ rule that courts ordinarily apply in civil cases”
 and when reviewing agency action under the Administrative Procedure Act (“APA”). 

 (2009). In
 reviewing agency action under the APA, “[t]he task of the
 reviewing court is to apply the appropriate APA standard
 of review, 

, to the agency decision based on
 the record the agency presents to the reviewing court.” Fla.
 Pwr. & Light Co. v. Lorion, 

, 743–44 (1985).
 This review is limited to “the administrative record already
 in existence, not some new record made initially in the
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 12                                    TADLOCK   v. MCDONOUGH



 reviewing court.” Camp v. Pitts, 

 (1973).
 The appellate courts “should not simply . . . [make] factual
 findings on [their] own.” Icicle Seafoods, 

.
      Tadlock relies on Mayfield in arguing that the Veterans Court exceeded its jurisdiction by affirming on a
 ground other than the VA’s stated ground. In that case,
 the Veterans Court concluded that Mayfield did not receive
 adequate notice under the Veterans Claims Assistance Act
 (“VCAA”) via a series of statements and decisions that occurred after an initial decision by the VA but were statutorily required to be provided before such a decision. 

. Rather than remand, the Veterans Court
 held that a 2001 letter provided the necessary notice and
 therefore affirmed the Board’s denial of service connection.
 

 On appeal, we held that “the Veterans Court would
 have been in a position to decide whether the insufficiency
 in the notice was prejudicial” only if the Board “had considered the March 15, 2001, notice and found it sufficient, and
 if the Veterans Court had ruled that the March 15, 2001,
 notice was insufficient.” Mayfield, 

. Because the Board had not considered the March 15, 2001 letter, the Veterans Court could not affirm on prejudicial
 error grounds based on that letter. 

                               D
     Notwithstanding the foregoing, the Veterans Court
 may affirm on a ground not considered by the Board and
 the VA if it is clear that the factual basis for such conclusion is not open to debate and the Board on remand could
 not have reached any other determination on that issue.
 See Mayfield, 

 (“[T]his case is not one in
 which we can conclude that there was no violation of the
 Chenery doctrine on the ground that ‘it is clear that . . . the
 agency would have reached the same ultimate result under
 the court’s legal theory’” (alteration in original) (quoting
 Grabis v. Office of Pers. Mgmt., 

 (Fed.
 Cir. 2015)); Fleshman v. West, 

 (Fed.
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 TADLOCK   v. MCDONOUGH                                    13



 Cir. 1998) (affirming Veterans Court’s affirmance on a different legal rubric because “it seems clear to us that the
 agency would have reached the same conclusion if it had
 addressed the legal issue on which the Court of Veterans
 Appeals rested its judgment”). This is consistent with appellate review in APA cases. See, e.g., NLRB v. Wyman-Gordon Co., 

, 766 n. 6 (1969) (affirming agency
 action where “remand would be an idle and useless formality” because “the substance of the Board’s command is not
 seriously contestable” and “there is not the slightest uncertainty as to the outcome of a proceeding before the Board”);
 Koyo Seiko Co. v. United States, 

, 1100–01
 (Fed. Cir. 1996) (holding that Chenery was inapplicable to
 require remand where the court “would have had no choice
 but to reverse” a contrary ruling). But see, e.g., Ventura v.
 INS, 

 (9th Cir. 2001) (declining to remand a question to the Board of Immigration Appeals
 (“BIA”) because “it is clear that we would be compelled to
 reverse the BIA’s decision if the BIA decided the matter
 against the applicant”), rev’d, 

 (2002) (requiring remand and noting that appellate courts generally
 cannot make de novo fact findings on “a matter that statutes place primarily in agency hands”).
                              E
     It is well-settled that the veterans’ benefits system is
 intended to be pro-veteran. Henderson v. Shinseki, 

, 440–41 (2011). That does not mean, however,
 that the processing and resolution of a claim filed by a veteran should be open-ended and never-ending. To the contrary, it is in the interests of both the veteran and the
 government that all claims be brought to a full, just,
 prompt and efficient conclusion. To obviate unnecessary
 remands and unnecessarily protracted proceedings, Congress, while otherwise broadly supporting the rights of veterans, statutorily mandated consideration of prejudicial
 error in the determination of appeals before the Veterans
 Court. But obviating unnecessarily protracted proceedings
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 14                                   TADLOCK   v. MCDONOUGH



 does not suggest that Congress intended to override the
 statutory constraint imposed on the Veterans Court not to
 engage in de novo fact finding. When questions of fact are
 open to debate, veterans are entitled to present whatever
 evidence and arguments they have to the agency charged
 with administering veterans’ benefits and possessed with
 the expertise to render informed judgments and to have
 that evidence and those arguments considered by that
 agency in the first instance. “The rule of harmless error
 cannot be invoked to allow the Court of Appeals for Veterans Claims to decide a matter that is assigned by statute
 to the [VA] for the initial determination,” nor can the rule
 be invoked to support an affirmance that “may [] have required it to make improper de novo findings of fact.” Winters v. Gober, 

 (Fed. Cir. 2000); Deloach,
 

 (“[W]hen the Board misinterprets the law
 and fails to make the relevant initial factual findings, ‘the
 proper course for the Court of Appeals for Veterans Claims
 is to remand the case to the Board for further development
 and application of the correct law’” (quoting Byron v.
 Shinseki, 

 (Fed. Cir. 2012))).
     For the above reasons, we hold that § 7261(b)’s command that the Veterans Court “give due account of the rule
 of prejudicial error” does not give it the right to make de
 novo findings of fact or otherwise resolve matters that are
 open to debate. Affirmance in the face of an error may be
 made by the Veterans Court only if the record already contains findings made previously by the VA or the Board that
 support affirmance or the entire record makes evident that
 the Board could not have reached any other decision.
 Where additional findings of fact are necessary regarding
 matters open to debate, the proper action for the Veterans
 Court is to remand to the Board for consideration of those
 facts in the first instance.
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 TADLOCK   v. MCDONOUGH                                    15



                              III
                              A
      Turning to the present case, the determination of
 whether an illness is “defined by a cluster of signs or symptoms,” 

(a)(2)(B), is a question of fact delegated to the VA. 

(a)(1) (“The Secretary
 may pay compensation under this subchapter to a Persian
 Gulf veteran with a qualifying chronic disability” (emphasis added)); Goodman v. Shulkin, 

 (Fed.
 Cir. 2017) (“[I]n individual MUCMI determinations, the VA
 adjudicator may consider evidence of medical expert opinions and all other facts of record to make the final determination of whether a claimant has proven, based on the
 claimant’s unique symptoms, the existence of a MUCMI”
 (emphasis added)). Such fact-finding is delegated to the
 VA for consideration in the first instance.
     Neither the Board nor the VA here considered whether
 Tadlock’s condition was characterized by overlapping
 symptoms or signs. Rather, the Board’s decision denied
 service connection for Tadlock’s PE because his PE had a
 diagnosis and etiology, and thus did not qualify as an
 MUCMI under 

(a)(1)(ii). Tadlock, 

, at *2 (discussing Board and examiner decisions). Because of this holding, neither the Board nor the
 VA had cause to consider whether Tadlock could satisfy the
 alternative prong for presumptive service connection under
 

: that he suffered from “a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel
 syndrome) that is defined by a cluster of signs or symptoms.” (emphasis added).
     Because “a MUCMI, by definition, must be a diagnosed
 illness,” the Veterans Court held that the VA’s denial of
 presumptive service connection was clearly erroneous.
 Tadlock, 

, at *2. It affirmed only by determining, in the first instance, that “Tadlock has not
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 16                                   TADLOCK   v. MCDONOUGH



 identified, any overlapping symptoms or signs related to
 his PE or any other features of his condition that would
 suggest it as a MUCMI.” Veterans Court Op. at 4. The
 Veterans Court did not cite any fact-finding by the Board
 or by the VA examiner and the record does not show such
 a determination by the VA examiner or the Board. 1 Indeed,
 the government readily admits that “the [B]oard had not
 addressed whether Mr. Tadlock’s PE met the additional
 [cluster of signs or symptoms] criteria to be considered a
 MUCMI.” Appellee’s Br. at 21; 

 (“Here, the board
 did not address the specific issue of whether Mr. Tadlock’s
 PE was characterized by overlapping signs and symptoms
 and had features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.”). The determination that
 Tadlock’s symptoms did not constitute a MUCMI because
 they did not feature such overlapping signs or symptoms
 was thus the Veterans Court’s alone.
                               B
     We agree with Tadlock that this case is substantially
 similar to Hensley. In Hensley, a veteran was awarded presumptive service under 

(a) for lung disease due to exposure to mustard gas during World War II.
 

. Hensley later sought service connection
 for heart disease—which was not included in the presumptive service connection list in § 3.316—as a secondary disability based on that lung disease. Id. at 1257. To link his
 heart and lung disease, Hensley submitted three personal
 medical reports and a VA report, all indicating a possible



      1  There is no dispute here that whether Tadlock’s
 conditions is a MUCMI is a question of fact. See Gov’t Br.
 at 12 (“This is a factual determination or, at most, an application of law to facts.”); Veterans Court Op., 

 at *2.
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 TADLOCK   v. MCDONOUGH                                      17



 connection between heart disease and toxic gas exposure.
 

     The Board held that Hensley’s claim for secondary service connection was not well-grounded because the absence
 of heart disease in the regulation precluded presumptive
 service connection for heart disease through a secondary
 disability route. 

 The Board therefore did not consider
 the reports Hensley submitted. 

 On appeal, the Veterans Court held that the Board’s construction was erroneous
 because the absence of heart disease in the regulation did
 not preclude service connection for heart disease as a secondary disability. 

. Nevertheless, the Veterans
 Court affirmed the Board’s holding that Hensley claim was
 not well-grounded after analyzing the reports in the first
 instance to conclude that Hensley failed to establish a
 nexus between his heart disease and his exposure to mustard gas during service. 

 See also Hensley v. West, 

 at *3–5 (1998) (Table).
      On appeal, this court held that the Veterans Court had
 exceeded its jurisdiction. We explained that “[a]s a consequence of [the Board’s erroneous determination with respect to the interpretation of 

(a)], the
 [Board] did not consider the surrounding facts or the merits of the case that they might support.” Hensley, 

. We further explained that the Veterans Court
 could not affirm based on the reports in the first instance
 because it would improperly require the Veterans Court to
 “review ‘de novo’ the [Board’s] determination of well-groundedness.” 

. Because the Board did not
 consider or analyze the reports as a result of its legal error,
 the Board’s decision led to “an insufficient factual development of the record” on well-groundedness, and “the proper
 course for the Court of Appeals for Veterans Claims would
 have been to remand the case to the [Board] for further development and application of the correct law.” 

Case: 20-1762    Document: 40     Page: 18    Filed: 07/15/2021




 18                                  TADLOCK   v. MCDONOUGH



      This court applied Hensley in Elkins. There, a veteran
 sought service connection for a headache condition due to
 a car accident in service. 

. The VA denied his
 claim and the Board affirmed, holding that Elkins had
 failed to submit a well-grounded claim because he did not
 provide competent medical evidence of a current headache
 condition. 

. The Veterans Court held that the
 Board had clearly erred in this determination and that
 Elkins had indeed provided sufficient medical evidence of
 a current headache condition. 

. Nevertheless,
 the Veterans Court affirmed, finding a lack of evidence of
 nexus between the headache condition and Elkins’s service
 based on its own initial review. 

 Relying on Hensley, we
 held that this was error because the Veterans Court’s affirmance “involve[d] finding facts in the first instance.” 

     Like the Veterans Court’s determinations of well-groundedness in Hensley and Elkins, the Veterans Court
 here sought to consider in the first instance whether Tadlock’s symptoms constituted a MUCMI, an inquiry delegated to the VA. As noted above, the Veterans court did
 not cite to anything in the record to support its determination, nor did it contend that its determination was the only
 possible outcome within the discretion of the VA and the
 Board. The proper course for the Veterans Court here was
 thus to vacate and remand for consideration by the VA or
 the Board in the first instance about whether Tadlock’s illness might be “defined by a cluster of signs or symptoms”
 characteristic of a MUCMI.
     The government attempts to distinguish Hensley and
 Elkins as based not on prejudicial error but clear error.
 What the government overlooks is that in each of Hensley
 and Elkins, the Veterans Court not only held that the
 Board’s denial of benefits was based on clear error, but
 went on to affirm for lack of prejudice on other grounds requiring additional fact finding. Indeed, in Hensley, we
 stated: “The Court of Appeals for Veterans Claims then
 held that the [Board’s] error was therefore not prejudicial
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 TADLOCK   v. MCDONOUGH                                     19



 to Mr. Hensley,” 

, a conclusion that we vacated as improperly dependent on fact-finding in the first
 instance. There is no basis to distinguish this case from
 Hensley and Elkins.
                               C
      Finally, the government argues that the Veterans
 Court’s determination that Tadlock’s condition was not a
 MUCMI was not based on its finding of facts in the first
 instance but was based “entirely on factual determinations
 made by the board” and that the “factual record here was
 sufficient.” Appellee’s Br. at 30 (citing Veterans Court Op.,
 

 at *3, Fleshman, 

, and
 Mayfield, 

); id. at 25. The government asserts that the Board “specifically noted that the PE was diagnosed and that it was not medically unexplained, and so
 it could not serve as the basis for a grant of service connection.” Id. at 25. This argument is inexplicable. As the government immediately thereafter recognizes, the Veterans
 Court found that determination to be clearly erroneous. Id.
 The basis for prejudicial error cannot be the identical determination the Veterans Court found to be erroneous.
 Contrary to the government’s argument, we agree with
 Judge Pietsch’s observation that the Veterans Court “applied a provision that the Board did not apply and made
 factual findings that the Board did not make.” Tadlock,
 

, at *2 (Pietsch, J., dissenting). Moreover,
 as noted above, the government admits that the Board did
 not rule on whether Tadlock’s condition was characterized
 by overlapping symptoms or signs.
                          CONCLUSION
     For the reasons discussed above, the Veterans Court
 exceeded its authority in making a fact finding in the first
 instance that Tadlock’s illness did not qualify as a MUCMI
 because of a lack of overlapping symptoms. We thus vacate
Case: 20-1762    Document: 40      Page: 20    Filed: 07/15/2021




 20                                   TADLOCK   v. MCDONOUGH



 the decision of the Veterans Court and remand for further
 proceedings consistent with this opinion. 2
                VACATED AND REMANDED
                            COSTS
      Each party shall bear its own costs.




      2   The Veterans Court’s decision expressly avoided
 the question of whether 

(a)(1)(ii) is invalid
 as contradictory to its authorizing statute, 

. Veterans Court Op., 

 at *3 (holding that “any inconsistency the veteran perceives between
 the definitions of qualifying chronic disability in the statute and the implementing regulation is immaterial to the
 circumstances of his appeal” because “Tadlock’s disability
 still doesn’t exhibit the characteristics and features of a
 MUCMI” in the statute itself). Because the validity of 

(a)(1)(ii) was not addressed by the Veterans
 Court, we need not and do not consider it in this appeal.