Marcelino: Obesity

Marcelino v. Shulkin, Case Number 16-2149, decided January 23, 2018 considers whether the VA must consider obesity as a disability. 

The veteran was service connected for his at least one knee and argued that his reduced mobility and physical restrictions contributed to obesity, which had begun while still in service. 

The RO and Board denied service connection. The Board stating that “‘obesity, in and of itself, is not a disability for VA compensation purposes.’ The Board noted that the VA schedule for rating disabilities, title 38, Code of Federal Regulations, part 4, does not contemplate a separate disability rating for obesity and that VA's discretion over the rating schedule is insulated from judicial review.”  Id. at *2.

The veteran argued the Board erred when it did not adhere to the VA’s own definition of “disease” and determined based on the Board’s own medical speculation that obesity is  not a disease for disability compensation purposes.  He also argued “the Court has jurisdiction because whether obesity is a disease is a question of law that must be answered before turning to the second and separate policy question whether veterans may be compensated for obesity.” Id. at *3. 

The Court began its analysis by referring to Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004).  Wanner notes that Congress excluded from judicial review the content of the rating schedule and “[t]he [Federal Circuit] Court went on to state that direct review of the content of the rating schedule is "indistinguishable" from review of what should be considered a disability.”  While there are some exceptions to the rule in Wanner, these include a constitutional challenge, a case involving interpretation of a regulation, and cases involving a procedural challenge to the Secretary’s adoption of regulations, this case does not fit within the exceptions.  Id. at *4.

The Court noted:

Despite Mr. Marcelino's attempt to couch his arguments as a two-part inquiry involving a purely legal question and a policy determination on the part of VA, this argument is nothing more than a backdoor substantive challenge to the content of the rating schedule that this Court may not and will not entertain.

The Board did not dispute in this case that the appellant suffers from obesity; rather, the

Board found that obesity is not recognized by VA as a disease or disability for  compensation purposes. The Court does not have jurisdiction to entertain the argument that obesity should be considered a disability under the rating schedule.

Id. at *4. 

It might seem commonsense that a service connected leg disability could lead to it being harder to exercise and subsequent weight gain, but it is hard to escape the Court’s conclusion in light of the restrictive law found in Wanner.  It simply shows the power the VA has in creating the Diagnostic Code and the fact that it is very difficult to challenge such power.

Decision by Judge Schoelen and joined by Judges Pietsch and Bartley.