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.

Case: 20-1762 Document: 40 Page: 1 Filed: 07/15/2021
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 38 U.S.C. § 1117. Section 1117 

provides for presumptive service connection for a “qualifying chronic disability” for veterans who served in the Persian Gulf War. 38 U.S.C. § 1117(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.

Case: 20-1762 Document: 40 Page: 2 Filed: 07/15/2021
TADLOCK v. MCDONOUGH 3

(C) Any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants a 

presumption of service-connection.

Id. 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.” 

38 C.F.R. § 3.317(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.” Id. The examiner also explained that Tadlock’s PE was not “medically 

unexplained.” Id. at 11. 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. Id. at 13. The Board ultimately 

held:

Case: 20-1762 Document: 40 Page: 3 Filed: 07/15/2021
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.

Id. (citing 38 C.F.R. § 3.317). 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 38 C.F.R. § 3.317 necessarily conflicts with 38 U.S.C. § 1117. 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 38 

U.S.C. § 1117(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, 

2019 WL 2707830, at *3 (Vet. App. June 29, 2019) (“Veterans Court Op.”). See also id. at *5 (“[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 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 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 

Case: 20-1762 Document: 40 Page: 4 Filed: 07/15/2021
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.” Id. at 4. It therefore held that “any error in the 

Board decision regarding whether his diagnosed illness 

could count as a MUCMI is harmless.” Id. 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, 2020 WL 738550, 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. Id. at *2. 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.” Id. 

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, 497 F.3d 

1298, 1302 (Fed. Cir. 2007) (“Newhouse II”) (holding that 

this court’s jurisdiction does not allow considering appellant’s “contentions regarding actual prejudice”); Pitts v. 

Shinseki, 700 F.3d 1279, 1286–87 (Fed. Cir. 2012) 

Case: 20-1762 Document: 40 Page: 5 Filed: 07/15/2021
6 TADLOCK v. MCDONOUGH

(applying Newhouse II in a similar circumstance); Conway 

v. Principi, 353 F.3d 1369, 1375 (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. 38 U.S.C. § 7292(c). “Whether the 

Veterans Court exceeded its jurisdiction is a question of 

law.” Sullivan v. McDonald, 815 F.3d 786, 789 (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., id. 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, 

229 F.3d 1369, 1377 (Fed. Cir. 2000); Hensley v. West, 212 

F.3d 1255, 1265 (Fed. Cir. 2000) (holding that the Veterans 

Court’s finding that a veteran’s claim was not wellgrounded 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 

Case: 20-1762 Document: 40 Page: 6 Filed: 07/15/2021
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., 318 U.S. 80 (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 38 U.S.C. § 7292(c). We review the question of law 

regarding the Veterans Court’s jurisdiction de novo. Sullivan, 815 F.3d at 789.

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, 444 

F.3d 1328 (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, 503 F.3d 1340 (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.” 38 U.S.C. § 7252(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 

Case: 20-1762 Document: 40 Page: 7 Filed: 07/15/2021
8 TADLOCK v. MCDONOUGH

provided in section 7261 of this title.” Id. 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, 704 F.3d 1370, 1380 (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, 229 F.3d at 1377. “The statutory 

provisions are consistent with the general rule that appellate tribunals are not appropriate fora for initial fact finding.” Hensley, 212 F.3d at 1263 (observing that “[a]ppellate 

courts can ‘review’ only that which has happened in the 

past”). See also id. (quoting Icicle Seafoods, Inc. v. 

Worthington, 475 U.S. 709, 714 (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,” 

38 U.S.C. § 7261(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.” 704 F.3d at 1380 (emphasis in original).

C

The Veterans Court, in deciding all cases before it, is 

also statutorily charged with taking “due account of the 

Case: 20-1762 Document: 40 Page: 8 Filed: 07/15/2021
TADLOCK v. MCDONOUGH 9

rule of prejudicial error.” 38 U.S.C. § 7261(b). Conway, 353 

F.3d at 1375 (“[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, 497 F.3d 

at 1302 (“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 

38 U.S.C. § 7261(b)(2)); Mlechick, 503 F.3d at 1345 (“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, 497 F.3d at 1302)).

In Newhouse v. Nicholson, 21 Vet. App. 65 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. Id. at *4. 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. Id. There was thus no 

space for the possibility of actual prejudice.

Case: 20-1762 Document: 40 Page: 9 Filed: 07/15/2021
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, 497 F.3d at 1302 (quoting 38 

U.S.C. § 7261(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. Id. 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.” 503 

F.3d at 1345 (quoting Newhouse II, 497 F.3d at 1302).

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. 21 Vet. App. 65, 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 

Case: 20-1762 Document: 40 Page: 10 Filed: 07/15/2021
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, 497 F.3d 

at 1301 (“[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, 503 F.3d at 1345 (“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, 497 F.3d at 1302) (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”). 556 U.S. 396, 406 (2009). In 

reviewing agency action under the APA, “[t]he task of the 

reviewing court is to apply the appropriate APA standard 

of review, 5 U.S.C. § 706, to the agency decision based on 

the record the agency presents to the reviewing court.” Fla. 

Pwr. & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985). 

This review is limited to “the administrative record already 

in existence, not some new record made initially in the 

Case: 20-1762 Document: 40 Page: 11 Filed: 07/15/2021
12 TADLOCK v. MCDONOUGH

reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). 

The appellate courts “should not simply . . . [make] factual 

findings on [their] own.” Icicle Seafoods, 475 U.S. at 714.

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. 444 

F.3d at 1334. 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. 

Id. 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, 444 F.3d at 1337. 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. Id.

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, 444 F.3d at 1336 (“[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., 424 F.3d 1265, 1270 (Fed. 

Cir. 2015)); Fleshman v. West, 138 F.3d 1429, 1433 (Fed. 

Case: 20-1762 Document: 40 Page: 12 Filed: 07/15/2021
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. WymanGordon Co., 394 U.S. 759, 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, 95 F.3d 1094, 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, 264 F.3d 1150, 1157 (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, 537 U.S. 12, 16 (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, 562 

U.S. 428, 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

Case: 20-1762 Document: 40 Page: 13 Filed: 07/15/2021
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, 219 F.3d 1375, 1380 (Fed. Cir. 2000); Deloach, 

704 F.3d at 1381 (“[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, 670 F.3d 1202, 1205 (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.

Case: 20-1762 Document: 40 Page: 14 Filed: 07/15/2021
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,” 38 U.S.C. § 1117(a)(2)(B), is a question of fact delegated to the VA. 38 U.S.C. § 1117(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, 870 F.3d 1383, 1388 (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 38 C.F.R. § 3.317(a)(1)(ii). Tadlock, 2019 

WL 2707830, 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 

38 U.S.C. § 1117: 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, 2019 WL 2707830, at *2. It affirmed only by determining, in the first instance, that “Tadlock has not 

Case: 20-1762 Document: 40 Page: 15 Filed: 07/15/2021
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; Id. at 22 (“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 38 C.F.R. § 3.316(a) for lung disease due to exposure to mustard gas during World War II. 

212 F.3d at 1256. 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., 2019 WL 

2707830 at *2.

Case: 20-1762 Document: 40 Page: 16 Filed: 07/15/2021
TADLOCK v. MCDONOUGH 17

connection between heart disease and toxic gas exposure. 

Id. 

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. Id. The Board therefore did not consider 

the reports Hensley submitted. Id. 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. Id. at 1258. 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. Id. See also Hensley v. West, 16 

Vet. App. 284 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 38 C.F.R. § 3.316(a)], the 

[Board] did not consider the surrounding facts or the merits of the case that they might support.” Hensley, 212 F.3d 

at 1264. 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 wellgroundedness.” Id. at 1264. 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.” Id. 

Case: 20-1762 Document: 40 Page: 17 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. Id. at 1371. 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. Id. at 1372. 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. Id. at 1377. 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. Id. Relying on Hensley, we 

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

Like the Veterans Court’s determinations of wellgroundedness 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 

Case: 20-1762 Document: 40 Page: 18 Filed: 07/15/2021
TADLOCK v. MCDONOUGH 19

to Mr. Hensley,” 212 F.3d at 1258, 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., 

2019 WL 2707830 at *3, Fleshman, 138 F.3d 1429, and 

Mayfield, 444 F.3d at 1335); 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, 

2020 WL 738550, 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: 19 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 38 C.F.R. § 3.317(a)(1)(ii) is invalid 

as contradictory to its authorizing statute, 38 U.S.C. 

§ 1117. Veterans Court Op., 2019 WL 2707830 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 38 

C.F.R. § 3.317(a)(1)(ii) was not addressed by the Veterans 

Court, we need not and do not consider it in this appeal.

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