UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

No. 16-1561 

EVANIE E. ATENCIO, APPELLANT, 

V. 

PETER O'ROURKE, 

ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE. 

On Appeal from the Board of Veterans' Appeals 

(Argued April 26, 2018 Decided July 6, 2018) 

Christian A. McTarnaghan and Bradley W. Hennings, with whom Alexandra Lio was on 

the brief, all of Providence, Rhode Island, for the appellant. 

Catherine D. Vel and Edward V. Cassidy, Jr., with whom Meghan Flanz, Interim General 

Counsel; and Mary Ann Flynn, Chief Counsel, were on the brief, all of Washington, D.C., for the 

appellee. 

Before DAVIS, Chief Judge, and ALLEN and MEREDITH, Judges. 

ALLEN, Judge, filed the opinion of the Court. MEREDITH, Judge, filed an opinion 

concurring in part and dissenting in part. 

ALLEN, Judge: This case requires the Court principally to consider an important question 

concerning Persian Gulf War presumptive service connection. We are called on to address how 

veterans can establish a qualifying disability under that presumption, namely by having a 

medically unexplained chronic multisymptom illness (MUCMI). Specifically, this matter was 

submitted to a panel of the Court to address whether gastroesophageal reflux disease (GERD) is 

categorically excluded from consideration as a MUCMI because it is considered a "structural" (as 

opposed to a "functional") gastrointestinal disease that is prohibited from qualifying as a MUCMI 

under 38 C.F.R. § 3.317(a)(2)(i)(B)(3). As we explain, we hold that the plain language of § 3.317 

specifically bars GERD from being considered as a MUCMI. 

 The Court must also consider whether a prior joint motion for remand (JMR) that addressed 

presumptive service connection, but not alternative theories of direct and secondary service 

connection, limits the appellant's ability to raise those alternative theories in this appeal. Based on 

the language of the JMR, we hold that the Court is not precluded from considering the appellant's 
2 

arguments pertaining to direct and secondary service connection. Finally, while we reject the 

appellant's arguments concerning the Board of Veterans' Appeals' (Board) treatment of direct 

service connection, we agree with the appellant that the Board erred in its assessment of secondary 

service connection. Therefore, the Court will set aside the March 28, 2016, Board decision as to 

that issue and remand this matter for further proceedings consistent with this decision. 

I. RELEVANT FACTS AND PROCEDURAL HISTORY 

 The appellant, Evanie E. Atencio, appeals through counsel a March 28, 2016, Board 

decision that denied service connection for GERD, including as secondary to service-connected 

sinusitis. She served in the U.S. Air Force from March 1988 to May 1988 and from January 1991 

to July 1991, at which time she was part of Operations Desert Shield and Desert Storm. Record 

(R.) at 1701. Following service, in December 1998, she complained of a history of significant 

dyspepsia.1

 R. at 1642. She was diagnosed with significant GERD in January 1999, R. at 1648, 

and underwent a Nissen fundoplication procedure that same year in connection with that condition, 

R. at 1429. 

 In May 2000, a VA regional office (RO) denied her claim for service connection for GERD. 

R. at 1435-58. She failed to perfect an appeal of this issue. In February 2006, she requested that 

her GERD claim be reopened. R. at 1011. The Board eventually reopened her claim for service 

connection for GERD and remanded it for adjudication in a July 2013 decision. R. at 425-45. 

 In April 2014, the appellant underwent a VA examination for GERD. R. at 173-82. The 

examiner concluded that it was less likely than not that the appellant's GERD began in service or 

was due to or aggravated by her service-connected sinusitis. R. at 174. The examiner noted that 

service treatment records were silent as to symptoms of GERD. R. at 174. The examiner further 

noted that there was "[i]nsufficient [e]vidence to [d]etermine [w]hether an [a]ssociation [e]xists 

between . . . deployment to the Gulf War and [s]tructural gastrointestinal diseases." R. at 175. 

Finally, the examiner stated that asthma and sinusitis "are known to develop as a result of 

esophageal reflux" but that medical literature did not support a finding that sinusitis "commonly 

results in or aggravates" GERD. Id. The examiner commented that the appellant had sinusitis first 

 1

 "Dyspepsia" is the "impairment of the power or function of digestion." DORLAND'S ILLUSTRATED MEDICAL 

DICTIONARY 578 (32d ed. 2012). 
3 

and that "[s]he reports she did NOT have any improvement in her sinus or asthma symptoms 

following surgical treatment of the GERD cond[ition]." Id. (capitalization in original). 

 In March 2015, the Board denied service connection for GERD. R. at 94-104. The appellant 

appealed that decision to the Court, and the parties agreed to a JMR, agreeing that the Board erred 

by failing to consider whether presumptive service connection was warranted under § 3.317. R. at 

38. 

 In the March 2016 decision presently on appeal, the Board found that the appellant's GERD 

"cannot be an undiagnosed or chronic multisymptom illness and cannot fall under the presumptive 

service connection provisions of 38 C.F.R. § 3.317" because, although the regulation provides for 

presumptive service connection for certain functional gastrointestinal disorders, it "specifically 

excludes gastrointestinal diseases explainable by endoscopic signs of injury or disease which is 

how GERD was diagnosed." R. at 6 (emphasis omitted). The Board noted that the appellant's 

GERD was "diagnosed based on, for example, endoscopy (1999) and an upper GI series (2010)." 

R. at 7. 

 The Board also addressed service connection on a direct basis, concluding that service 

records were silent as to symptoms related to GERD and that the appellant's statements made at 

the time of service that she was in good health and reports of no symptoms, outweighed her later 

statements that she had heartburn symptoms in service. Finally, the Board relied on the April 2014 

VA examiner's opinion to conclude that the appellant's GERD was not the result of or aggravated 

by her service-connected sinusitis. This appeal followed. 

II. PARTIES' ARGUMENTS

 The appellant argues that the Board misinterpreted 38 C.F.R. § 3.317 in concluding that 

GERD, which is characterized as a structural gastrointestinal disease, is categorically precluded 

from the presumption of service connection afforded to MUCMIs. Appellant's Brief (Br.) at 6-9. 

She asserts that the Board should have considered whether her GERD qualified as a MUCMI under 

the definition provided in § 3.317(a)(2)(ii) in addition to considering whether it was captured under 

§ 3.317(a)(2)(i). Id. at 7-8. The Secretary responds that the Board properly concluded that the 

appellant's GERD was precluded from qualifying as a MUCMI as a structural gastrointestinal 

disorder because it was categorically excluded from this classification under the plain language of 

the regulation. Secretary's Br. at 5-7. 
4 

 Additionally, the appellant argues that the Board erred in relying on the April 2014 

examiner's opinion for denying direct and secondary service connection. Appellant's Br. at 9-19. 

She asserts that the examiner inappropriately relied on the lack of any GERD symptoms 

documented in service, failed to explain why a lack of a GERD diagnosis until 1998 was 

dispositive as to nexus, and provided no explanation of the significance of finding that her prior 

doctors had not provided a positive nexus opinion. Id. at 10-14. She also argues that the VA 

examiner failed to provide an adequate rationale for finding that her GERD was not aggravated by 

her service-connected sinusitis. Id. at 17-19. 

The Secretary responds that the "law of the case" doctrine prevents the appellant from 

raising arguments related to direct and secondary service connection.2

 Secretary's Br. at 12-15. He 

argues that these matters were before the Court in November 2015 when the parties agreed to a 

JMR for the Board to consider the provisions of § 3.317. Id. He continues that the JMR made "no 

mention of entitlement on a direct basis or as secondary to service-connected sinusitis" and 

therefore the appellant cannot raise these issues on appeal now. Id. at 13. The appellant disagrees 

because the JMR requested remand of the entirety of the prior Board decision without addressing 

any of the arguments raised at that time. Appellant's Reply Br. at 7-10. Thus, she argues, the law 

of the case doctrine does not apply and the JMR did not limit the Board's review on remand or her 

ability to raise these issues now. Id.

Alternatively, the Secretary responds to the appellant's assertions regarding the April 2014 

opinion, arguing that it was adequate and the appellant merely disagrees with the examiner's 

medical judgment, which is not sufficient to demonstrate inadequacy. Secretary's Br. at 15-24. The 

Secretary argues that the VA examiner appropriately relied on medical literature and considered 

the record as a whole, including the appellant's statements about her medical history. Id. 

 2

 At oral argument, counsel for the Secretary stated for the first time that she wished to clarify that the more 

appropriate doctrine was not the law of the case but rather issue exhaustion. Oral Argument (O.A.) at 43:50-44:32, 

Atencio v. O'Rourke, U.S. Vet. App. No. 16-1561 (oral argument held Apr. 26, 2018), 

http://www.uscourts.cavc.gov/oral_arguments_audio.php. The Secretary failed to raise this argument in his brief or in 

any request to supplement his brief. As we discuss below in connection with an argument the appellant's counsel raised 

for the first time at oral argument, see infra at 12, this conduct is unacceptable. The Court will only address the 

Secretary's issue exhaustion argument to the extent that it implicates Carter v. Shinseki, 26 Vet.App. 534, 540 (2014), 

as argued in his brief. 
5 

III. ANALYSIS

 We begin our discussion by laying out the law governing presumptive service connection 

for those who served in the Persian Gulf and how GERD fits into that presumption. We then 

address the Secretary's argument regarding the law of the case doctrine and the November 2015 

JMR. Next, we address the appellant's arguments related to direct service connection. Finally, we 

conclude by discussing secondary service connection. 

A. Persian Gulf War Presumptive Service Connection 

1. The Text and Structure of § 3.317 

 Generally speaking, a veteran of the Persian Gulf War may be entitled to VA benefits on a 

presumptive basis if she exhibits a "qualifying chronic disability" that manifests to a certain degree 

before December 31, 2021, and that cannot be attributed to any known clinical diagnosis. 3

38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i)-(ii) (2018). Section 1117(a)(2) notes that a qualifying 

chronic disability means "a chronic disability resulting from any of the following": (A) an 

undiagnosed illness; (B) a MUCMI "(such as chronic fatigue syndrome, fibromyalgia, and irritable 

bowel syndrome) that is defined by a cluster of signs or symptoms"; or (C) any "diagnosed illness 

that the Secretary determines in regulations prescribed under subsection (d) warrants a 

presumption of service-connection." The statute provides that the "Secretary shall prescribe 

regulations to carry out this section," including "[a] description of the illnesses for which 

compensation under this section may be paid." 38 U.S.C. § 1117(d)(1)-(2)(B). 

 The Secretary implemented Congress's directive via 38 C.F.R. § 3.317. This implementing 

regulation is complex. Understanding both the structure and content of § 3.317 is critical to 

resolving this appeal. Accordingly, we describe the regulation in some detail. 

 Section 3.317(a)(1) sets the overarching framework for the veterans who may qualify for 

presumptive service connection regarding service in the Persian Gulf. This paragraph essentially 

mimics 38 U.S.C. § 1117(a) in that it sets the basic requirements that a veteran must "exhibit[] 

objective indications of a qualifying chronic disability," 38 C.F.R. § 3.317(a)(1), have that 

disability manifest during service in the Persian Gulf "or to a degree of 10 percent or more not 

later than December 31, 2021," 38 C.F.R. § 3.317(a)(1)(i), and "[b]y history, physical 

examination, and laboratory tests cannot be attributed to any known clinical diagnosis," 38 C.F.R. 

 3

 The parties agree that the appellant served in Operations Desert Shield and Desert Storm and therefore 

qualifies as a Persian Gulf veteran pursuant to 38 C.F.R. § 3.317(e). 
6 

§ 3.311(a)(1)(ii). For purposes of this appeal, § 3.317(a)(1) merely provides a gateway for the truly 

contested portion of the regulation: § 3.317(a)(2) and its definition of "qualifying chronic 

disability." 

 Because it plays such a significant role in this appeal, we reproduce § 3.317(a)(2) in its 

entirety (including a "note" adopted with the regulation): 

(2) 

(i) For purposes of this section, a qualifying chronic disability means a chronic 

disability resulting from any of the following (or any combination of the following): 

(A) An undiagnosed illness; 

(B) A medically unexplained chronic multisymptom illness that is defined by a 

cluster of signs or symptoms, such as: 

(1) Chronic fatigue syndrome; 

(2) Fibromyalgia; 

(3) Functional gastrointestinal disorders (excluding structural gastrointestinal 

diseases). 

NOTE TO PARAGRAPH (a)(2)(i)(B)(3): 

Functional gastrointestinal disorders are a group of conditions characterized by 

chronic or recurrent symptoms that are unexplained by any structural, endoscopic, 

laboratory, or other objective signs of injury or disease and may be related to any 

part of the gastrointestinal tract. Specific functional gastrointestinal disorders 

include, but are not limited to, irritable bowel syndrome, functional dyspepsia, 

functional vomiting, functional constipation, functional bloating, functional 

abdominal pain syndrome, and functional dysphagia. These disorders are 

commonly characterized by symptoms including abdominal pain, substernal 

burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, 

constipation), indigestion, bloating, postprandial fullness, and painful or difficult 

swallowing. Diagnosis of specific functional gastrointestinal disorders is made in 

accordance with established medical principles, which generally require symptom 

onset at least 6 months prior to diagnosis and the presence of symptoms sufficient 

to diagnose the specific disorder at least 3 months prior to diagnosis. 

(ii) For purposes of this section, the term medically unexplained chronic 

multisymptom illness means a diagnosed illness without conclusive 

pathophysiology or etiology, that is characterized by overlapping symptoms and 

signs and has features such as fatigue, pain, disability out of proportion to physical 

findings, and inconsistent demonstration of laboratory abnormalities. Chronic 

multisymptom illnesses of partially understood etiology and pathophysiology, such 

as diabetes and multiple sclerosis, will not be considered medically unexplained. 

 Subparagraph 3.317(a)(2)(i) enumerates what constitutes a "qualifying chronic disability" 

for purposes of the Persian Gulf presumption. It lists two, and only two, conditions that can be 
7 

such a disability: an "undiagnosed illness," 38 C.F.R. § 3.317(a)(2)(i)(A), and a "[MUCMI] that is 

defined by a cluster of signs or symptoms," 38 C.F.R. § 3.317(a)(2)(i)(B). The regulation also 

provides a nonexhaustive list of conditions that automatically qualify as a MUCMI: chronic fatigue 

syndrome, fibromyalgia, and "functional gastrointestinal disorders (excluding structural 

gastrointestinal diseases)." 38 C.F.R. § 3.317(a)(2)(i)(B)(1)-(3). A note in the regulation defines 

functional gastrointestinal disorders as characterized by "chronic or recurrent symptoms that are 

unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease 

and may be related to any part of the gastrointestinal tract." 38 C.F.R. § 3.317(a)(2)(i)(B)(3), 

Note.4

 

Although § 3.317(a)(2)(i)(B)(1)-(3) lists three conditions that qualify per se as MUCMIs, 

that list is not a finite set.5 Additional disabilities may be deemed MUCMIs. The regulation 

provides a definition of a MUCMI in the next part of paragraph (a)(2) to augment the per se list. 

In relevant part, MUCMI "means 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." 38 C.F.R. § 3.317(a)(2)(ii). 

 The appellant does not assert that her GERD is a qualifying chronic disability because it is 

an "undiagnosed illness" under § 3.317(a)(2)(i)(A). Rather, the dispute here trains on whether 

GERD may be a MUCMI, the only other basis on which to qualify under paragraph (a)(2). The 

appellant agrees that the note to § 3.317(a)(2)(i)(B)(3) precludes GERD as qualifying as a per se 

MUCMI because it is a structural gastrointestinal disease.6

 Appellant's Br. at 6-9. Instead, she 

argues that her GERD can qualify as a MUCMI independent of subparagraph (a)(2)(i) solely 

 4

 The fact that this information comes in the form of a "note" contained in a validly adopted regulation does 

not diminish its legitimacy. "Notes" contained in statutes are deemed authoritative. See Conyers v. MSPB, 388 F.3d 

1380, 1382 n.2 (Fed. Cir. 2004). We see no principled distinction between a "note" codified in a statute or one 

contained in a regulation. See Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017) ("It is well established that 

'[t]he rules of statutory construction apply when interpreting an agency regulation.'" (quoting with citation omitted 

Roberto v. Dep't of Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006))). 

5

 It is clear that the Secretary intended the conditions set forth in subparagraph (a)(2)(i)(B) to be a nonexhaustive list. See 75 Fed. Reg. 61,995, 61,995 (Oct. 7, 2010) ("It is evident from Congress' use of the phrase 'such 

as' in section 1117(a)(2)(B) that Congress intended [the listed conditions] to be examples of [MUCMIs], rather than 

an exclusive list."). 

6

 The appellant does not dispute that GERD is, in fact, a structural gastrointestinal disorder. 
8 

through the definition of MUCMI under subparagraph (a)(2)(ii) and despite its specific exclusion 

in (a)(2)(i). Id. Put another way, the appellant sees two paths in the regulation leading to a MUCMI 

designation for GERD. The Secretary argues that GERD is precluded by the note in 

§ 3.317(a)(2)(i) and that is the end of the matter—there is only one path, and for GERD, it is 

blocked.7

 "Regulatory interpretation begins with the language of the regulation, the plain meaning of 

which is derived from its text and its structure." Petitti v. McDonald, 27 Vet.App. 415, 422 (2015); 

see Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) ("The starting point in interpreting

a statute [or regulation] is its language."). If the plain meaning of § 3.317 is clear from its text and 

structure, then that meaning controls and that is the end of the matter. Tropf v. Nicholson, 

20 Vet.App. 317, 320 (2006). When assessing the meaning of a regulation, words should not be 

taken in isolation but rather read in the context of the regulatory structure and scheme. King v. 

Shinseki, 26 Vet.App. 484, 488 (2014). The Court reviews the interpretation of regulations de 

novo. See Tropf, 20 Vet.App. at 320; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 

2004). 

 Although it is certainly complex, we hold that § 3.317(a)(2) is not ambiguous. After all, 

complexity and ambiguity are distinct concepts. We conclude that the regulation excludes GERD 

from consideration as a MUCMI and does not provide two paths to the presumption as the 

appellant claims. As we have described, the regulation provides that a "qualifying chronic 

disability" is "a chronic disability resulting from any of the following" and then lists undiagnosed 

illnesses and MUCMIs as the only two types of conditions that can be entitled to presumptive 

service connection. 38 C.F.R. § 3.317(a)(2)(i). Under MUCMI, the regulation lists three 

conditions that qualify per se, including functional gastrointestinal disorders. 38 C.F.R. 

§ 3.317(a)(2)(i)(B)(3). That same provision specifically excludes structural gastrointestinal 

diseases, which all agree include GERD. Id. After laying out what constitutes a qualifying chronic 

disability, the regulation then provides a definition of MUCMI, so that one may determine what 

 7

 The Court notes that the Secretary agreed to a JMR in November 2015 for the Board to consider GERD 

under 38 C.F.R. § 3.317, despite his position now that GERD is categorically precluded. Although that position 

appears to be inconsistent with the Secretary's arguments in this appeal, the Court interprets the Secretary's position 

in the JMR as deferring to the Board to address the matter in the first instance, rather than taking a definitive position 

concerning the meaning of the regulation at the time of the JMR. 
9 

conditions may be termed a MUCMI in addition to those specifically listed in the previous 

subparagraph. See 38 C.F.R. § 3.317(a)(2)(ii). 

The Court holds that § 3.317(a)(2)(ii) provides a definition of a MUCMI and not an 

alternative means to § 3.317(a)(2)(i) for establishing what is a qualifying chronic disability. The 

appellant's argument that GERD may be considered as a MUCMI under § 3.317(a)(2)(ii), 

notwithstanding its exclusion under § 3.317(a)(2)(i), is inconsistent with the very text and structure 

of the regulation. For the appellant's argument to be correct, the definition in subparagraph 

(a)(2)(ii) should instead be included in § 3.317(a)(2)(i) as a new subsection "(C)," suggesting it as 

an alternative to an undiagnosed illness or MUCMI under parts (A) and (B). After all, this is 

functionally what the appellant argues. She basically says: I don't fall under (A) and I don't fall 

under (B), yet my condition still qualifies even though there is not a (C). For the appellant's 

argument to succeed, the Court would need to rewrite the regulation. That is not what courts do. 

See Nat'l Ass'n of Mfr's v. Dep't of Def., 138 S.Ct. 617, 629 (2018); Mudge v. United States, 

308 F.3d 1220, 1231-32 (Fed. Cir. 2002). 

 Additionally, the Court notes that § 3.317(a)(2)(i) begins with the phrase "[f]or purposes 

of this section," indicating that what follows applies to all of the regulation. Therefore, the 

exclusion of GERD that follows that phrase should apply to all of paragraph (a)(2). If the Court 

were to adopt the appellant's approach, it would mean that GERD was specifically excluded from 

all of paragraph (a)(2) yet could somehow be read back into the regulation under § 3.317(a)(2)(ii). 

This is an absurd result, something courts should avoid in statutory and regulatory interpretation.8

See, e.g., McNeill v. United States, 563 U.S. 816, 822 (2011) (adopting an interpretation that 

"avoids the absurd results that would follow" from an alternate interpretation); United States v. 

Wilson, 503 U.S. 329, 334 (1992) ("[A]bsurd results are to be avoided."); Timex V.I., Inc. v. United 

 8

 The appellant argues that there would be an absurd result if the Secretary's reading of the regulation were 

adopted. See Appellant's Reply Br. at 4. The appellant is incorrect, and the reason for her error speaks to her misreading 

of the regulation. The appellant posits a person who has fibromyalgia. She argues that if the Secretary's interpretation 

(the one the Court essentially adopts today) were correct, he or she "would have to prove [that fibromyalgia was a 

MUCMI] twice before service connection was warranted under the regulation." Id. The reason, according to the 

appellant, is that the person would need to show the condition fit within subparagraph (a)(2)(i) and then again do so 

under (a)(2)(ii). Id. But that simply is not the case. Fibromyalgia is one of the conditions that are MUCMIs per se. 

38 C.F.R. § 3.317(a)(2)(B)(i)(2). Thus, the person would have no need to proceed to subparagraph (ii) because 

subparagraph (i) answers the question. There is nothing absurd about that result. Indeed, the appellant's situation is 

similar (although in a converse way) to the situation she posits about the person with fibromyalgia. The appellant also 

does not get beyond subparagraph (i)—not because GERD is included in (i), but because it is excluded. Just as the 

person with fibromyalgia never gets to subparagraph (a)(2)(ii), the person with GERD does not either. 
10 

States, 157 F.3d 879, 886 (Fed. Cir. 1998) (applying "the canon that a statutory construction that 

causes absurd results is to be avoided if at all possible"). 

 In sum, the text and structure of § 3.317(a)(2) make clear that GERD cannot be a 

"qualifying chronic disability." Subparagraph (a)(2)(i) provides only two bases on which a 

disability can qualify for presumptive service connection. GERD does not fit under either. It is 

clearly not an "undiagnosed illness." It can't be a MUCMI (even without a definition) because it is 

specifically excluded. The fact that there is a definition of MUCMI in subparagraph (a)(2)(ii) 

simply is not relevant here. That definition cannot be used to write out the exclusion in 

subparagraph (a)(2)(i). The text and structure of the regulation are clear and that ends the matter. 

See Goodman, 870 F.3d at 1386 ("If the regulatory language is clear and unambiguous, the inquiry 

ends with the plain meaning."); Tropf, 20 Vet.App. at 320 (same). 

2. Legislative and Regulatory History9

 As we have explained and as our dissenting colleague emphasizes, there is no need to 

consider anything other than the text and structure of § 3.317(a)(2) to resolve this appeal as it 

relates to presumptive service connection because we hold that the language of the regulation is 

unambiguous. However, although it is true that legislative and regulatory history cannot "trump[] 

clear text," Henry E. & Nancy Horton Bartels Trust ex rel. Cornell Univ. v. United States, 617 F.3d 

1357, 1361 (Fed. Cir. 2010), a court may appropriately consider such history to assess "whether 

there is [a] 'clearly expressed legislative intention' contrary to that language, which would require 

[a court] to question the strong presumption that Congress expresses its intent through the language 

it chooses." INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12 (1987) (citing United States v. 

James, 478 U.S. 597, 606 (1986)); see also Glaxo Operations U.K. Ltd. v. Quigg, 894 F.2d 392, 

395 (Fed. Cir. 1990) ("[E]ven when the plain meaning of the statutory language in question would 

resolve the issue before the Court, the legislative history should usually be examined at least 'to 

determine whether there is a clearly expressed legislative intention contrary to the statutory 

language.'" (quoting Madison Galleries, Ltd. v. United States, 870 F.2d 627, 629 (Fed. Cir. 1989) 

(emphasis added in Glaxo)). Thus, we proceed with a brief discussion of the legislative and 

regulatory history. 

 9

 Judge Meredith does not join in this part of the Court's opinion. 
11 

 Here, when one goes beyond the regulation itself, extrinsic evidence supports our 

conclusion. The legislative and regulatory history concerning the Persian Gulf War presumption 

is sparse as it concerns the matter at hand. However, what there is aligns with our interpretation of 

the regulation. 

 First, the background to the enactment of 38 U.S.C. § 1117, the authorizing statute for 

38 C.F.R. § 3.317, makes it clear that Congress intended to delegate significant authority to the 

Secretary to determine how to implement the Persian Gulf presumption and specifically to decide 

which diseases qualified for that presumption as MUCMIs. For example, the legislative history 

surrounding the Veterans Benefits Improvement Act of 1994 indicates that Congress granted 

authority to the Secretary to determine the disabilities for which compensation could be paid. 

140 Cong. Rec. E2299-02 (Oct. 7, 1994). Congress further emphasized its intent to leave the 

decision about what illnesses would warrant a presumption of service connection to the Secretary 

in the Veterans Education and Benefits Expansion Act of 2001. 147 Cong. Rec. S13227-01 (Dec. 

13, 2001). Congress's delegation of authority to the Secretary in this area would allow the Secretary 

to exclude GERD as a structural gastrointestinal disease from consideration as a MUCMI. In 

essence, the Secretary is doing precisely what Congress envisioned. 

 The regulatory history of § 3.317 also supports the Court's reading of the regulation. In an 

October 7, 2010, amendment, § 3.317 was revised to make it clear that the listed conditions were 

examples and not an exclusive list. 75 Fed. Reg. at 61,995. That amendment also emphasized that 

§ 3.317(a)(2)(ii) provided a definition of a MUCMI, not a separate method for obtaining the 

presumption. More significantly, a July 2011 amendment dealt with gastrointestinal disorders 

directly. 76 Fed. Reg. 41,696 (July 15, 2011). It cites an April 2010 National Academy of Sciences 

(NAS) report that found certain gastrointestinal disorders, like GERD, "are considered to be 

'organic' or structural diseases characterized by abnormalities seen on x-ray, endoscopy, or through 

laboratory tests." Id. Thus, the report concluded, there was "inadequate/insufficient evidence to 

determine whether an association exists" between service in Southwest Asia during the Gulf War 

and the development of such structural gastrointestinal diseases. Id. Of course, standing alone, the 

citation to this report would not mean that GERD could never be a MUCMI on a case-by-case 

basis. See cf. Goodman, 870 F.3d at 1386-87 (recognizing that medical professionals may 

determine that a condition qualifies as a MUCMI under subparagraph (a)(2)(ii)). The key is that 

the Secretary did more in response to the report: he categorically excluded structural 
12 

gastrointestinal disorders including GERD, as was within his authority to do.10 Given the clarity 

of the Secretary's exclusion based on the regulatory history concerning this section, GERD cannot 

qualify as a MUCMI. 

3. One Final Matter Concerning § 3.31711

Finally, the Court notes that the appellant suggested at oral argument that VA did not have 

the authority to categorically exclude any condition, including GERD, as a MUCMI in § 3.317. 

See O.A. at 49:30-50:05. Specifically, the appellant argued that in 38 U.S.C. § 1117 Congress gave 

the Secretary the power to include disabilities that automatically are entitled to the presumption 

but did not give him the power to exclude disabilities. 

First, this argument appears nowhere in the appellant's briefing in this matter. The 

appellant's counsel raised the argument for the first time at oral argument. This is not appropriate. 

Raising arguments for the first time at oral argument does not assist the Court and is unfair to 

opposing counsel. This Court has "repeatedly discouraged parties from raising arguments that were 

not presented in an initial brief to the Court." Norvell v. Peake, 22 Vet.App. 194, 201 (2008); see 

McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1263 (11th Cir. 2004) ("A party is not allowed

to raise at oral argument a new issue for review."); Pieczenik v. Dyax Corp., 265 F.3d 1329, 1332-

33 (Fed. Cir. 2001) ("It is well settled that an appellant is not permitted to make new arguments 

that it did not make in its opening brief."); Tarpley v. Greene, 684 F.2d 1, 7 n.17 (D.C. Cir. 1982) 

("Clearly, oral argument on appeal is not the proper time to advance new arguments or legal 

theories."). We could simply decline to address this argument entirely on this basis alone. 

However, we will exercise our discretion to consider it on the merits.12 Despite our dissenting 

colleague's disagreement with this exercise of discretion, we proceed to address the argument 

because, if Congress had not allowed the Secretary to exclude a disability such as GERD, the result 

 10 The appellant does not argue that the Secretary's decision to categorically exclude structural 

gastrointestinal disorders such as GERD in subparagraph (a)(2)(i)(B)(3) was not supported by sufficient evidence. As 

such, the Court need not, and does not, reach the issue of whether the Secretary's reliance on the NAS study's 

conclusion of "inadequate/insufficient evidence" appropriately supports a complete exclusion of structural 

gastrointestinal diseases as MUCMIs in the regulation. We leave that issue for another day in an appropriate case. 

11 Judge Meredith does not join in this part of the Court's opinion. 

12 Although the Court chose not to address the Secretary's issue exhaustion argument raised at oral argument 

but uses its discretion to address the appellant's argument regarding the Secretary's power to exclude conditions, the 

Court's exercise of discretion should not be viewed as an endorsement of the appellant's decision to raise new 

arguments for the first time at oral argument. On the contrary, "[a]dvancing different arguments at successive stages 

of the appellate process . . . hinders the decision-making process and raises the undesirable specter of piecemeal 

litigation." Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992). 
13 

in this case would have been different. In other words, although the appellant should certainly have 

been more direct in making this specific argument, the exclusion/inclusion issue is bound up as a 

practical matter with the issue certainly at play. 

Section 1117(a)(2)(C) provides that a "qualifying chronic disability" results from, in 

relevant part, "[a]ny diagnosed illness that the Secretary determines in regulations prescribed under 

subsection (d) warrants a presumption of service connection." Subsection 1117(d)(1) notes that 

the Secretary "shall prescribe regulations to carry out this section" including in subsection 

1117(d)(2)(B), "a description of the illnesses for which compensation under this section may be 

paid." 

The Court rejects the appellant's argument that Congress did not give the Secretary the 

power to exclude disabilities from the presumption. The language of the statute does not address 

the Secretary's authority in terms of including or excluding disabilities, see Chevron U.S.A., Inc. 

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984) (statutory interpretation 

begins by asking "whether Congress has directly spoken to the precise question at issue"). 

However, the statute is best read to allow VA to exclude disabilities as well as to include them. Id.

at 843 (when the Court reviews a regulation implementing a statute it must determine whether it 

is "based on a permissible construction of the statute"). As discussed above, Congress intended to 

give the Secretary broad authority to determine which disabilities were to be compensated. We 

read this authority to include the power to determine which disabilities are not to be compensated 

as well. We need not, and do not, hold that every grant of authority to include something also 

subsumes the power of exclusion. Rather, we hold that this particular statutory construct provides 

that authority.13 

Most tellingly, 38 C.F.R. § 3.317(a)(2)(ii) states that "[c]hronic multisymptom illnesses of 

partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will 

not be considered medically unexplained." Congress explicitly highlighted these two disabilities 

in legislative history as excluded from qualification as MUCMIs. See 68 Fed. Reg. 34,540 (June 

20, 2003) (quoting Joint Explanatory Statement for H.R. 1291, the Veterans Education and 

 13 Our dissenting colleague notes that the appellant also raises an argument about the interplay between 

sections 1117 and 1118, which requires that VA obtain scientific evidence to establish associations between disorders 

and service in the Gulf War. As discussed above, supra at FN 10, the appellant makes no argument about the scientific

evidence the Secretary used to exclude GERD, and it is beyond the scope of our decision here. We leave for another 

day the scope of the Secretary's obligation to obtain scientific evidence to support his regulatory exclusions under 

either Title 38 or the Administrative Procedure Act. 
14 

Benefits Expansion Act of 2001, Dec. 13, 2001, 147 CR 13,235 at 13, 238). However, Congress 

did not include this exclusion in section 1117 and the regulation's exclusion of these two 

disabilities was an exercise of authority by the Secretary, which the appellant accepts. There is no 

principled way to conclude that the Secretary has the power to exclude these two disabilities but 

not others. Nor does it make sense that the Secretary may exclude a condition if he does so in 

subparagraph (a)(2)(ii) but he cannot do so in subparagraph (a)(2)(i).14 That would be exalting 

form over substance. We also note that the U.S. Court of Appeals for the Federal Circuit has, at a 

minimum, implicitly reached the same conclusion. See Goodman, 870 F.3d at 1387 ("The current 

version of § 3.317 specifies what does (and provides examples of what does not) constitute a 

MUCMI."). 

4. Conclusion Concerning Presumptive Service Connection 

The Court holds that GERD is excluded from consideration as a MUCMI as a matter of 

law, as provided in § 3.317(a)(2)(i)(B)(3). The Court rejects the appellant's contention that the 

Board erred in not also considering whether GERD was a MUCMI under § 3.317(a)(2)(ii), as it 

was not required to do so. That section defines MUCMI to allow consideration of disabilities not 

explicitly included or excluded in § 3.317(a)(2)(i). Thus, the Court holds that the Board did not err 

in its discussion of the Persian Gulf War presumption and we will affirm that portion of the Board's 

decision. 

B. Direct and Secondary Service Connection 

We will now turn to the appellant's arguments centered on direct and secondary service 

connection. Before doing so, however, we first must address the threshold matter of the Secretary's 

argument concerning the law of the case doctrine. 

 The Secretary argues that the law of the case doctrine limits the appellant's appeal to only 

the issue of presumptive service connection pursuant to § 3.317 for GERD based on a November 

2015 JMR. Therefore, he asserts that the Court may not consider the appellant's arguments 

concerning direct and secondary service connection. The Court rejects this argument. 

To begin, it is not clear whether the traditional law of the case doctrine applies to a JMR 

and we need not reach that question here. The Court has held that a JMR "effectively moots the 

case or controversy" before the Court. Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per 

 14 The Secretary also interprets the statute as granting him authority to exclude disabilities. See 75 Fed. Reg. 

at 61,995. 
15 

curiam). More specifically, the Court also has held that an order granting a joint motion for remand 

premised on the agreement of the parties, and not incorporated by reference into the order, "does 

not evaluate and adjudicate the arguments or positions of the parties prior to disposition on the 

merits, but merely dismisses the appeal." Breeden v. Principi, 17 Vet.App. 475, 479 (2004) (per 

curiam order). One could view the Clerk's order here as "administrative rather than adjudicatory." 

Id.; see R. at 34. Because the law of the case doctrine applies only to judicial decisions, not 

administrative determinations, Pepper v. United States, 562 U.S. 476, 506 (2011) (holding that the 

law of the case doctrine "'posits that when a court decides upon a rule of law, that decision should 

continue to govern the same issues in subsequent stages in the same case'" (quoting Arizona v. 

California, 460 U.S. 605, 618 (1983))), it may be that the doctrine does not apply at all in this case. 

The Court need not resolve this question today, however, because even if the doctrine applies, the 

Court finds that the terms of the JMR did not limit the issues before the Board on remand and, 

therefore, the Court is not precluded from addressing direct and secondary service connection. 

In Carter v. Shinseki, the Court held that "the terms of [a JMR] can be considered a factor 

when determining the scope of the Board's duty to search the record for other issues that are 

reasonably raised by it." 26 Vet.App. 534, 536 (2014), vacated on other grounds, 794 F.3d 1342 

(Fed. Cir. 2015). The Court noted that it was up to the parties to "'enumerate[] clear and specific 

instructions'" in drafting a JMR. Id. at 541 (quoting Forcier v. Nicholson, 19 Vet.App. 414, 426 

(2006)). In Carter, the Court relied on the fact that the JMR included a citation to Fletcher v. 

Derwinski, 1 Vet.App. 394 (1991), and provided that "'the Board should fully assist [Mr. Carter] 

with his claim by reexamining the evidence of record and seeking any other evidence that is 

necessary to support its decision.'" Id. at 543 (quoting and adding emphasis to the JMR). Based on 

these facts, the Court concluded that the parties had not limited the Board's duties. Id.

The same is true here. First, the language of the JMR notes that "the parties respectfully 

move the Court to vacate the Board decision." R. at 39 (emphasis added). The parties did not limit 

the vacatur of the Board's decision in any respect. As such, the Court's order could not realistically 

be read to restrict the scope of the remand. 

Furthermore, the parties did not specifically limit the Board's duties on remand in the 

November 2015 JMR. In fact, the JMR contained the same citation to Fletcher that was found in 

the JMR at issue in Carter. R. at 38. Thus, the Court holds that the language of the November 2015 

JMR did not limit the issues before the Board on remand and the appellant may raise any arguments 
16 

related to her GERD, including direct and secondary service connection, in this appeal. Having 

rejected the Secretary's argument, the Court will next consider the appellant's arguments as to 

direct and secondary service connection, which focus on the adequacy of the April 2014 VA 

examination. 

C. Adequacy of April 2014 Examination Regarding Direct Service Connection 

 The appellant argues that the Board erred in finding the April 2014 VA examination 

adequate with respect to direct service connection for her GERD. She asserts that the VA examiner 

improperly relied on a lack of treatment or symptoms in service, a lack of diagnosis until 1998, 

and a lack of positive nexus opinions from prior treating physicians. Appellant's Br. at 9-14. The 

Court holds that the Board did not clearly err in finding the examination adequate. 

 The Secretary's duty to assist includes "providing a medical examination or obtaining a 

medical opinion when such an examination or opinion is necessary to make a decision on the 

claim." 38 U.S.C. § 5103A(d). When the Secretary elects to provide a medical examination in a 

service-connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet.App. 303, 

311-12 (2007); Stegall v. West, 11 Vet.App. 268, 270-71 (1998) (remanding where a VA medical 

examination was "inadequate for evaluation purposes"); see also Nieves-Rodriguez v. Peake, 

22 Vet.App. 295, 304 (2008) ("The Board must be able to conclude that a medical expert has 

applied valid medical analysis to the significant facts of the particular case in order to reach the 

conclusion submitted in the medical opinion."). A medical examination is adequate "where it is 

based upon consideration of the veteran's prior medical history and examinations and also 

describes the disability . . . in sufficient detail so that the Board's 'evaluation of the claimed 

disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting 

Ardison v. Brown, 6 Vet.App. 405, 407 (1994). Whether a medical examination is adequate is a 

question of fact, which the Court reviews under the "clearly erroneous" standard. See 38 U.S.C. 

§ 7261(a)(4); D'Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam). "A factual finding 'is 

"clearly erroneous" when although there is evidence to support it, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey 

v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 

395 (1948)). 

 The Court is not persuaded that the Board erred in finding that the April 2014 examination 

was adequate with respect to direct service connection. As the Board noted, R. at 10, the examiner 
17 

specifically addressed the appellant's service treatment records and her reporting of other 

symptoms and conditions at that time without mentioning GERD. R. at 174. As the Board further 

noted, R. at 10, the examiner also considered the lengthy period of time from service to when she 

first reported GERD symptoms. R. at 174-75; see Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. 

Cir. 2000) (Board may consider "evidence of a prolonged period without medical complaint . . . , 

along with other factors"). It is clear from the Board's summary of the examination report that the 

examiner discussed relevant evidence of record and provided a sufficient rationale to support her 

conclusions. See Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012) (per curiam) (stating that 

medical opinions must be read as a whole); see also Acevedo v. Shinseki, 25 Vet.App. 286, 293 

(2012) ("[T]here is no reasons or bases requirement imposed on examiners."). 

The appellant's other arguments regarding a lack of findings by prior doctors amount to 

nothing more than a mere disagreement with how the Board weighed the evidence. See Madden v. 

Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the "duty [of] the Board to analyze the 

credibility and probative value of evidence"); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (it is 

the province of the Board to weigh and assess the evidence of record). Therefore, the Court holds 

that the Board did not clearly err in relying on the April 2014 examination in denying direct service 

connection for GERD. See D'Aries, 22 Vet.App. at 104. 

D. Adequacy of April 2014 Examination Regarding Secondary Service Connection 

 Although the Court holds that the Board did not err in relying on the April 2014 examiner's 

opinion about direct service connection, the same cannot be said for the Board's explanation for 

relying on the opinion as to secondary service connection. 

A claimant is entitled to secondary service connection if a disability is proximately due to 

or the result of a service-connected disease or injury or aggravated by a service-connected disease 

or injury. See Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2018). 

Additional disability resulting from the aggravation of a non-service-connected condition by a 

service-connected condition is also compensable. Id. In El-Amin v. Shinseki, the Court emphasized 

that a specific inquiry directly addressing aggravation in a case raising that theory, separate from 

whether a service-connected disability caused the disability at issue, is necessary when an 

examiner addresses secondary service connection. 26 Vet.App. 136, 140-41 (2013). As with all of 

its material findings of fact and conclusions of law, "[t]he Board is required to provide a written 

statement of the reasons or bases for its findings and conclusions on all material issues of fact and 
18 

law presented in the record." Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. 

§ 7104(d)(1). This "statement must be adequate to enable a claimant to understand the precise basis 

for the Board's decision, as well as to facilitate review in this Court." Allday, 7 Vet.App. at 527. 

In the present case, the Board found the examiner's opinion adequate. R. at 12. As the 

Board decision reflects, R. at 10, the examiner noted support in the medical literature for GERD 

causing asthma and sinusitis but not the other way around. R. at 175. As the Board decision further 

reflects, R. at 10-11, the examiner relied on this to conclude that the appellant had sinusitis first, 

which did not improve with surgical treatment for GERD, and, thus, there was no causation or 

aggravation. Id. 

The Court holds that the Board failed to provide an adequate statement of reasons or bases 

for its reliance on the April 2014 examiner's opinion as to aggravation. The examiner's opinion 

seems to rely on a reversed chronology of the appellant's symptoms, and the Board failed to address 

the adequacy of this rationale.15 Furthermore, it is unclear how and why the same rationale was 

applied to both the causation and aggravation elements of secondary service connection. As ElAmin made clear, examiners must address both in cases raising both theories. 26 Vet.App. at 140-

41. However, the Board did not address the significance of the April 2014 examiner appearing to 

provide no such distinction between causation and aggravation. 

In this regard, the Court notes that the very structure of her opinion appears to indicate that 

the two may have been considered together. The examiner was presented with three questions 

arranged in an alphabetical listing as to whether the appellant's GERD "(A) began during service, 

(B) is proximately due to or the result of recurrent sinusitis, or (C) is aggravated (worsened) by 

recurrent sinusitis." R. at 174. In providing responses, the examiner used the same lettering to 

address each question. Id. Significantly, however, in the section of the report labeled "Rationale," 

the examiner provided her explanation and references to the medical literature regarding sinusitis 

and GERD in a paragraph labeled "(B) and (C)." R. at 175. This appears to mix causation and 

aggravation, and without a more detailed explanation, it is unclear how the Board interpreted this 

 15 At oral argument, the Secretary's counsel defended the April 2014 VA examiner's opinion by emphasizing 

the medical literature used to support it. O.A. at 47:31-48:42. The difficulty is that this was not offered by the Board. 

The Secretary cannot relieve the Board of its obligation to provide an adequate statement of reasons or bases for its 

decision. See Martin v. Occupational Safety Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L]itigating 

positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency 

action, advanced for the first time in the reviewing court."). 
19 

opinion and whether the examiner clearly provided a rationale that dealt with causation and 

aggravation as independent concepts. 

The Board's consideration of the examiner's report concerning aggravation raises the 

question of whether aggravation, as opposed to causation, is being treated in an almost slapdash 

manner by both examiners and the Board. We reiterate that aggravation of a condition by a serviceconnected disability is independent of direct causation. The Board must ensure that medical 

examinations are adequate on that question and explain the bases for its conclusion concerning 

aggravation. It did not do so here. 

Accordingly, remand is warranted for the Board to explain its reliance on the April 2014 

medical opinion addressing secondary service connection for GERD or obtain a new medical 

opinion or clarification. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is 

warranted "where the Board has incorrectly applied the law, failed to provide an adequate 

statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). 

 On remand, the appellant is free to submit additional evidence and argument, including the 

arguments raised in the briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 

369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or 

argument submitted, Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed 

expeditiously, per 38 U.S.C. §§ 5109B and 7112. 

IV. CONCLUSION

 After consideration of the parties' briefs, oral arguments, the record on appeal, and the 

governing law, the Court AFFIRMS the March 28, 2016, Board decision as to presumptive service 

connection under 38 C.F.R. § 3.317 and its decision concerning direct service connection for 

GERD. It SETS ASIDE the March 28, 2016, Board decision concerning secondary service 

connection for GERD and REMANDS the matter for further proceedings consistent with this 

opinion. 

 MEREDITH, Judge, concurring in part and dissenting in part: I join in the majority opinion 

except for parts III.A.2. and III.A.3. 

As for part III.A.2., the majority opinion acknowledges that, after concluding that 

gastroesophageal reflux disease (GERD) is categorically excluded from being considered a 
20 

medically unexplained chronic multisymptom illness (MUCMI) based on the unambiguous text 

and structure of 38 C.F.R. § 3.317(a)(2), that "ends the matter." Ante at 10. The majority opinion 

then proceeds to explore the legislative and regulatory history related to § 3.317. This, of course, 

is dicta, as the majority opinion appears to acknowledge. See id. ("[T]here is no need to consider 

anything other than the text and structure of § 3.317(a)(2) to resolve this appeal as it relates to 

presumptive service connection."); see also Lasovick v. Brown, 6 Vet.App. 141, 153 (1994) 

(Ivers, J., concurring in part and dissenting in part) (cautioning that, "although theoretically and 

technically not binding, practically, [dicta] give[s] the appearance of carrying the cloak of judicial 

acceptance"). 

In addition, the majority's examination of the legislative and regulatory history does not in 

fact shed light on the question the Court was called on to answer. Indeed, the majority does not 

(and perhaps cannot) correlate how VA having statutory authority to determine which diseases 

may qualify as MUCMIs or how regulatory history discussing a study showing a lack of evidence

as to whether structural gastrointestinal diseases, such as GERD, could be related to Gulf War 

service, inform the majority's decision as to whether VA, by the words it promulgated in 

§ 3.317(a)(2), intended to categorically exclude GERD as a MUCMI. 

As for part III.A.3., the majority addresses the question of whether VA is statutorily 

authorized to preclude disabilities from qualifying as a MUCMI, as opposed to being authorized 

only to identify conditions that do qualify. This issue was not raised in any written pleadings 

submitted to the Court. Rather, as the majority acknowledges, it was raised for the first time by the 

appellant's counsel at oral argument, a practice this and other courts have traditionally and properly 

discouraged. See ante at 12. Even if the majority wishes to depart from tradition to address this 

late-raised argument because of its potential effect on the outcome here, I do not agree with 

resolving a matter of this significance—to the veterans community and VA—without any briefing 

from either party. The majority compounds this by deciding the statutory interpretation question 

without addressing what, in my view, was the entirety of the argument presented—that 38 U.S.C. 

§§ 1117 and 1118, read together, do not authorize VA to categorically exclude disorders from 

qualifying for Persian Gulf War presumptive service connection. Compare Oral Argument at 

6:25-7:33, 8:19-11:02, Atencio v. O'Rourke, U.S. Vet. App. No. 16-1561 (oral argument held 

Apr. 26, 2018), http://www.uscourts.cavc.gov/oral_arguments_audio.php (appellant's counsel 

appearing to argue that the interplay between sections 1117 and 1118 leads to the conclusion that 
21 

the Secretary is precluded from categorically excluding a disability by name from Gulf War 

presumptive service connection), with ante at 12-14 (concluding, without addressing the interplay 

with section 1118, that section 1117 grants VA "broad authority," including the power to exclude 

diseases from the Persian Gulf War service connection presumption). 

For these reasons, I respectfully dissent in the majority's analyses in parts III.A.2. and 

III.A.3.