Hello from Chisholm Chisholm and Kilpatrick, this is Zach Stolz. I am here with my colleague attorney Emma Peterson
We are here today to talk about a case that recently became final and is therefore
precedent for our country's veterans.
It's a case called Stewart v Wilkie and it's a case that was argued a long time ago
Actually a couple years ago. Emma Peterson was the counsel who argued the case
It was a case that was argued in front of the Court of Appeals for Veterans claims
There is a lot of information including
The decision and some surrounding information about it for what we don't cover today in this brief Facebook live
at our website
CCK-law.com please visit it
and take a look at some of the content we have about this case about Gulf War Veterans and about veterans and their
Dependents in general, so please take a look at that. The case today
We are talking about it
Even though we talked a little bit about it when it first came out, because the United States government actually appealed. Mr
Stewart's case to the Court of Appeals for the Federal Circuit and
they looked at it for several months and just
very very recently, they filed a motion with the Court of Appeals for the Federal Circuit to dismiss it.
Which means they're going to no longer pursue the appeal. Which means the court's decision which was favorable to
Mr. Stewart and favorable to Gulf War Veterans nationwide is now a good law. It stands. It is not being challenged by the government anymore.
So we're gonna go through the case a little, bit tell you what it means for veterans, tell you what it means
For the interpretation of the statutes that pertain to Gulf War Veterans, how it interplays with the regulations, and all of that fun stuff.
Again, please check out some of the this gets really complicated really really fast
So please check out some of the materials we have on our website cck-law.com.
I'm going to let the attorney who argued the case start talking about it, Emma what happened with Mr. Stewart? Well,
Mr. Stewart was an Army veteran. He was part of Operation Iraqi Freedom.
He deployed from 2003 to 2005.
And upon his return from his deployment He developed some symptoms of asthma and was ultimately diagnosed with that disease
He made his way. He filed his claim was denied at the regional office level, was denied by the Board. We actually represented him in court
and got a joint motion for remand because the Board at that time had failed to discuss whether
The Gulf War presumptions under the regulations applied to Mr. Stewart. So the first time
So the first time through the government actually agreed
with us and said we're going to remand the case in what's a joint motion for remand, which is basically an agreement between
an attorney or a
Representative and the VA to send the case back to the board. Tell the board you've made an error here
Please fix it. Please re adjudicate the case. This happens all the time
And it happened for Mr. Stewart and what happened after that? So the board gets the case back they remand to the regional office
So send it back to the RO for a VA examination to address whether Mr. Stewart's
Asthma is something called a MICMI: a medically unexplained chronic multi-symptom illness, which is a tongue twister
And where does that come from? Why why do we need to call it a MUCMI?
So that's found in regulation 38 CFR
3.31 7
and it comes from the the Gulf War presumption statute that Congress enacted to
expand and give benefits to veterans who are coming back from the Gulf War with a variety of symptoms either undiagnosed illnesses, but
Something you might have heard of as Persian Gulf War Syndrome things like that, or they had a disease
But they just had no idea how that person ended up with that disability or disease. So the
regulation defines a MICMI as a
diagnosed condition without conclusive pathophysiology or etiology.
So the board sends the case back to the RO for an examiner a medical examiner to look at the case and
Opine on Mr. Stewart's asthma. Is it related to service? Is it a MICMI?
The examiner concluded that Mr
Stewart did not have asthma related to service and that it was in general less likely than not a MUCMI
We can get into the details a little bit more about what the examiner actually said later
But it's back to the board. The board again denies service connection
They mentioned the exam but really the board finds that because the etiology of asthma is known in general.
It's partially understood. So etiology is? Etiology, getting to that. So is understood. They're gonna deny the claim
So etiology is the cause of a disease whereas the pathophysiology
is the process by which it works in your body how it affects you and results in symptoms so a
Lot going on in this case a lot of moving parts, but the long and the short is that Mr
Stewart was deployed
Went to the Gulf, came back, had asthma, and the board denied because they found that his
Asthma in general might be understood. We know the reasons why some people have asthma. Okay, so
As I warned at the beginning it's pretty complicated pretty fast
so the way the Department of Veterans Affairs was reading this: is you lose if
If we understand essentially your pathophysiology
If we understand pathophysiology and
Etiology-- or one or the other right? Correct.
And so because they said that "hey we understand the etiology of Mr. Stewart's condition,
You're denied." Right. So what was our argument to court? So the regulation is very specific
It uses precise words and the key word here is or-- without conclusive
pathophysiology or etiology. Our position in this case really boils down to: does "or" mean "or"?
The Secretary's position was that because there's the word without there, the "or" magically turns to "and." And
That the second sentence which tells you what is not a MUCMI
the "and" that's included in that sentence magically turns into an "or."
Thankfully the court found that this was a really strained understanding of the regulation.
The regulation was clear on its face that or means or, so we won the day because Mr. Stewart's
Etiology and pathophysiology, first of all, unique to him weren't necessarily in the record, right?
and
The court-- the board, excuse me, if they made any findings, it was about the etiology and not the pathophysiology so Mr.
Stewart could still win the day if he had an unknown pathophysiology and no one even talked about that.
So really it boils down to you need to have one or the other to win.
So the way the government was reading
38 CFR section 3.31 7 and the statute that Congress passed years ago now
to protect our Gulf War veterans, it's 38 United States Code
11.17-- the department was reading it essentially as narrowly as they could to avoid
granting service connection to wide swaths of veterans.
Whereas we challenged the the agencies reading of that by saying no, it's--Congress meant it to be much more broad
That's why they used the word "or" and not the word
"and." So now you can see how much fun lawyers have everyday.
We were really arguing and and this is kind of a law school thing. It is almost amazing to think about-- the difference between
what "or" means and what "and" means is the difference between the whole case and the difference of whether
wide swaths of veterans are going to be awarded service-connection, or if they are not. We think after this decision
It's become much easier for Gulf War veterans to be awarded service connection for these medically unexplained chronic multi-symptom
Illnesses, MUCMIS. We will see how that plays out. That was our goal going into the case.
That's how we think it has shaken out.
We believe that the court really did just look at the plain language of the regulation and the statute and came to its logical conclusion.
Like I said, like I said at the beginning the government has stopped pursuing this appeal
so for all intents and purposes the government now agrees to do this, although
there are still some things that they need to change and their manual, perhaps. Chisholm Chisholm and Kilpatrick will stay on the case
To make sure that this does actually happen. Right. At the agency level. So maybe stay tuned for some further updates
What do you think this means for Gulf War Veterans in general?
So the the first part, the big part, was "or" meaning 'or' because obviously and is little bit more restrictive
but I think the second big takeaway from the case too is that it has to be unique to your
circumstance. These cases have to be decided on a case-by-case
basis, so the examiner has to apply on your specific condition.
So you can't just have the RO or the Board in general saying "well
we know why this disease happens in some people so you're denied." No, it has to be unique to you.
So again, it really opens it up because there are so many unique circumstances that face Gulf War veterans-- the various things
they were exposed to are broad, many, and dangerous and can result in a wide number of conditions.
So the big takeaway is that you know, there's sort of two paths for finding that your condition is a
MUCMI and making sure that the medical evidence, unique to you, is considered by VA.
It's also worth pointing out as I mentioned at the beginning, Emma
argued this in front of three judges. It was actually a case that was argued at
Washburn law school, which is in Topeka, Kansas because the Court of Appeals for veterans claims
travels around too many law schools throughout the course of a year and this one was in Topeka and it was held
Almost two years ago, and it went even still even after the decision came out because VA decided that they maybe wanted to appeal this
It's been it's been really a long long fight
Right.
And even with that long of a fight, it is one of the first presidential
cases in all of veterans law that deal with Gulf War veterans
It is a case-- a lot of cases that you read on our website --and a lot of cases that come out
still really deal with a lot of the Vietnam-era and so this is something of a
generational shift almost amongst veterans
In that the court is now wrestling with some of the things that happened to our Gulf War
Veterans and we are just now beginning the fight on that.
So again, we encourage you to check out our website and check out CCK and what's going on with Gulf War veterans.
Any closing thoughts on MUCMIs, on Mr. Stewart's case on
Arguing the case or anything like that? Um arguing the case was fun
certainly, I felt the import of it because this, you know effects, as you mentioned, Gulf War veterans from Gulf War 1, 2 all the
Way up through today.
That are still deployed. So it certainly is an important case and
I
Think provides very clear language and clear instruction from the court to VA how this regulation is supposed to be used.
It's supposed to be used to help veterans who were deployed who are suffering from these conditions that we just don't know
why. Something to do with the deployment, but we're just not sure.
But I think that you know, it's it's great that it's now very clear that you could have one of two requirements
and
I think that since it is such a maybe a shift for what VA was doing, be sure to talk with your representative
Talk to your attorney or your VSO
So whoever you work with on these cases to make sure that you have the right evidence in the file-- evidence unique to you
Medical evidence, lays statements, whatever you need to do to push VA to apply this the right way. Absolutely.
It's worth talking to to whomever is helping you through this process
Because it gets very very complicated and the type of VA looks at it's complicated as well
So thank you very much Emma. Thank you all for watching and listening in today. This is not going to be the final word on
Gulf War
On Gulf War conditions and and disabled veterans from the Gulf War era
So, please stay tuned as we work our way through some of the many issues facing those veterans. Thank you very much.
This is Zach Stolz from Chisholm Chisholm & Kilpatrick. This was Emma Peterson. Thank you very much. Thank
You. Bye.