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DAV v. Sec'y of Veterans Affairs

United States Court of Appeals for the Federal Circuit

June 14, 2017, Decided

2016-1493

Opinion

 [*1074]  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 [**2]  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 unex-plained.

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 [**3]  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.

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859 F.3d 1072 *; 2017 U.S. App. LEXIS 10528 **; 2017 WL 2561922

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

Prior History: Petition for review pursuant to 38 U.S.C. Section 502 [**1] .

Disposition: DISMISSED.

CORE TERMS

Manual, revisions, agency's action, regulations, Veterans, substantive rule, illness, disability, provisions, rulemaking, etiology, interpretations, announced, argues, administrative staff, pathophysiology, binding, chronic, letters

Military & Veterans Law, General Benefits, Compensation for Service Connected Death & Disability, Eligibility, Veterans, Appeals & Review, Administrative Law, Agency Rulemaking, Rule Application & Interpretation, Appeals & Review, US Board of Veterans Appeals