Case: 20-1762 Document: 40 Page: 1 Filed: 07/15/2021 United States Court of Appeals for the Federal Circuit ______________________ HOWARD L. TADLOCK, JR., Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2020-1762 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 18-1160, Judge Joseph L. Toth. ______________________ Decided: July 15, 2021 ______________________ CARL RICHARD HENNIES, Quinn Emanuel Urquhart & Sullivan, LLP, Houston, TX, argued for claimant-appel- lant. Also represented by WILLIAM ADAMS, MATTHEW A. TRAUPMAN, New York, NY. RETA EMMA BEZAK, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for respondent-appellee. Also repre- sented by JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK SCADDEN, Office of General Counsel, United States Depart- ment of Veterans Affairs, Washington, DC. Case: 20-1762 Document: 40 Page: 2 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 Vet- erans Appeals (“Board”) was prejudicial. Because the Vet- erans Court’s jurisdiction to consider prejudicial error does not give it the right to make de novo findings of fact or oth- erwise resolve matters that are open to debate, we vacate the Veterans Court’s determination that Howard L. Tad- lock, 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, in- cluding 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 “qualify- ing chronic disability” for veterans who served in the Per- sian 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 multi- symptom illness (such as a chronic fa- tigue syndrome, fibromyalgia, and irritable bowel syndrome) that is de- fined by a cluster of signs or symptoms. Case: 20-1762 Document: 40 Page: 3 Filed: 07/15/2021 TADLOCK v. MCDONOUGH 3 (C) Any diagnosed illness that the Secre- tary determines in regulations pre- scribed under subsection (d) warrants a presumption of service-connection. Id. at § 1117(a)(2). The statute expressly requires the Sec- retary 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 imple- menting the statute, the Secretary of Veterans Affairs lim- ited the definition of “a qualifying chronic disability” to one that, “[b]y history, physical examination, …
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