Walsh: Obesity and Aggravation

Walsh v. Wilkie, Case Number 18-0495, decided February 24, 2020 discusses whether obesity can be caused or aggravated by a service connected disability.

The veteran suffered a service connected knee injury which led to a service connected hip and low back disability.  She then sought service connection for hypertension and a sleeping condition secondary to other service connected disabilities.  It was ultimately denied. 

During the course of the claim, VA General Counsel Opinion 1-2017 was released.  In summary it stated that "[o]besity may be an 'intermediate step' between a service-connected disability and a current disability that may be service connected on a

secondary basis under 38 C.F.R. § 3.310(a)."  Id. at *3.  The opinion explained in one example:

With regard to the hypothetical presented in the previous paragraph, adjudicators would have to resolve the following issues: (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing hypertension; and (3) whether the hypertension would not have occurred but for obesity caused by the service-connected back disability. If these questions are answered in the affirmative, the hypertension may be service connected on a secondary basis.

Id. at *3.  The Court noted: Thus, the first step asks about the connection between a service-connected disability and obesity, while the second and third steps ask about the connection (proximate and but-for causation) between obesity and the disability for

which secondary service connection is sought.”  Id. at *3. 

In the case at hand, the VA received a medical opinion which in part opined “she

couldn't state, based on the current evidence and medical literature, "that there is a cause-effect relationship between arthritis of the back or of the knee and obesity."  Id. at *4.    As a result the Board denied the claims for hypertension and sleep apnea. 

The Court began its analysis by noting:

we note that G.C. precedent opinions are issued by VA's chief legal officer and are binding on the Board. 38 U.S.C. § 7104(c). They are not, however, binding on the Court. Molitor v. Shulkin, 28 Vet.App. 397, 408 (2017). Instead, because such opinions lack the formalities of notice-and-comment rulemaking, the Court defers to them in accordance with their "'power to persuade.'"

Id. at *5.  The significance of this finding is important as it reaffirms that general counsel opinions are not binding on the Court and the Court still has a role besides simply deferring to the VA.  The Court then pivoted to the Section 3.310(a), which discusses secondary service connection and the Court noted recognizes a causal and aggravation theory.  The Court then noted: “In short, there is no permissible basis in the relevant regulation for concluding that obesity may be an "intermediate step" in a secondary-service-connection analysis when service-connected disability causes it, but not when service-connected disability aggravates it.”  Id. at *6. 

The Court then determined:

properly construed, G.C. Opinion 1-2017 does not purport to prohibit inquiry into whether a service-connected disability aggravates a veteran's obesity. And for good reason, as this would contradict VA's aggravation regulation. So, to be clear: Despite the G.C. opinion's silence regarding aggravation, the Board, in accordance with § 3.310(b), must consider aggravation in this context when the theory is explicitly raised by the veteran or reasonably raised by the record.

Id. at *7.

The Court then remanded the claim based on the fact the relevant C&P examination did not discuss the question of aggravation of obesity.

This is an important decision for clarifying that disabilities caused the obesity can be service connected if the veteran can show a service connected condition caused or aggravated obesity.  It is also interesting in that the Court rendered its opinion in such a way as to make it difficult to impossible for the VA to change its General Counsel Opinion to omit aggravation as a factor.  This is a well-reasoned case by Judge Toth demonstrating a deep analysis and understanding of regulatory interpretation. 

Decision by Judge Toth and joined in by Chief Judge Bartley and Judge Pietsch.

To know more about whether Thomas Andrews can help you, please visit my website.

Langdon: Lumbar and Thoracic Spine Conditions

Langdon v. Wilkie, Case Number 18-0520, decided February 5, 2020 discusses the intersection of lumbar and thoracic spine conditions and how they are interrelated and as such should be rated. 

The veteran sought service connection for lumbar and thoracic spine disabilities and was rated 10% for a thoracic spine disability for painful but denied service connection for the lumbar spine after a VA examination found the in-service lumbar strain did not have caused the current lumbar condition.  The lumbar spine denial was not appealed.  Instead,

Appellant argues that the Board incorrectly applied Diagnostic Code (DC) 5237 in denying a disability rating greater than 10% for his service-connected thoracic spine disability. He contends that the plain language of DC 5237 considers the thoracic and lumbar spine as a single unit and that the Board was required to consider them as such, rather than separating the symptoms associated with each. He asserts that under this interpretation, he is entitled to a 20% disability rating because the evidence of record shows forward flexion not greater than 60 degrees. He relies on a 2003 amendment to the general rating formula in which VA proposed to rate the thoracic and lumbar spine as the "thoracolumbar spine" on the basis that they generally moved as a single unit.  Based on this amendment, appellant argues that DC 5237 is clear that his thoracic and lumbar spine disabilities must be considered together.

Id. at *3.

The Court held:

This matter was submitted to a panel of the Court to address whether a non-service connected lumbar spine disability must be considered in rating a service-connected thoracic spine disability under 38 C.F.R. § 4.71a and the General Rating Formula for Diseases and Injuries of the Spine. Given the plain language of the rating formula, read in the context of the regulatory scheme as a whole, we hold that functional impairment caused by appellant's non-service-connected lumbar spine disability cannot be considered when rating his thoracic spine disability where there is medical evidence distinguishing between impairments caused by the thoracic and lumbar spine disabilities.

Id. at *1.

The Court framed the veteran’s argument as: “a contention that VA determined that the

thoracolumbar spine was to be treated as a single unit for all purposes and that it is no longer appropriate to consider the thoracic and lumbar regions separately.”  Id. at *7.  The Court then noted:

it is true that DC 5237 calls for the thoracic and lumbar spines generally to be rated as a

unit. But it does not mandate that they be rated together. DC 5237 provides for such unitary treatment only when both segments of the spine are injured as a result of military service, that is, only when they are both service connected, or when it is not possible to separate the functional limitations of an injury and assign them to each part of the spine and one part is service connected.

Id. at *7-8.  The Court then stated:

Here, we have unchallenged medical evidence attributing appellant's functional impairment solely to his non-service-connected lumbar section of the spine. In this situation–one that perhaps will not be common–the medical evidence is sufficient to carry

out the overall goal of the rating schedule to compensate for injuries that are "a result of or incident to military service."

Id. at *9.

The Court also considered a jurisdictional question.  Appellant argued the Court did not jurisdiction to determine DC 5237 allowed thoracic and lumbar spine disabilities to be rated separately because Congress precluded the Court from re-reviewing the disability schedule.  But, the Court noted it did have jurisdiction over cases involving interpretation of the regulations.  It noted:

appellant's challenge to the Board's decision involves the correct interpretation of DC 5237 when read in the context of the entire regulatory scheme–namely, what does "thoracolumbar" refer to when only one of the two conditions is service connected. Such question falls squarely in the exception permitting this Court to consider the rating schedule, that is, the Court may consider the rating schedule when the Court interprets regulatory language.

Id. at *6.

This is a fairly narrow case where the lumbar disability denial was not appealed and their was evidence separating the thoracic and lumbar spine disabilities.  The case has been appealed to the Federal Circuit.

Decision by Judge Allen and jointed in by Judges Pietsch and Toth.

To know more about whether Thomas Andrews can help you, please visit my website.

Rosinski: Payment of Attorney Fees Based on Amount Awarded Not Actually Recieved

Rosinski v. Wilkie, Case Number 17-3293, decided January 30, 2020 discusses a line of cases involving what happens when an attorney is to be paid 20% of past-due benefits owed the veteran, but what the veteran would be owed is reduced for other reasons, in this case military retirement pay.

The Court framed the issue as:

The discrete question is whether section 5904 requires VA to pay fees to an attorney who obtains a disability rating of less than 50 percent for a veteran receiving military retirement pay—or, whether section 5304 forecloses such payments to attorneys. In Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007), the Federal Circuit held that 38 U.S.C. § 5313, a statutory limitation on payments to incarcerated veterans, did not alter VA's obligation to pay attorneys fees under section 5904(d)(1) because section 5313 did not purport to change the monthly compensation awarded on the basis of the veteran's claim but merely served as a withholding device for full payment of benefits otherwise lawfully established. Because Snyder's reasoning—as explained in subsequent cases—applies equally to section 5304, the Court reverses the Board's ruling and directs the Secretary to pay Mr. Rosinski the fees to which he is entitled under section 5904(d)(1).

Id. at *1-2.

The Court noted:

This case marks the fourth in a line of attorneys fees decisions examining VA's obligations to pay attorneys fees under section 5904. The first and most significant of these cases is Snyder, in which the Federal Circuit defined various terms within section 5904 and examined whether VA's obligation to pay attorneys fees was countermanded by a separate statute, section 5313, which limited the monthly compensation payments that an incarcerated veteran could receive on a successful claim. 489 F.3d 1213. The next two decisions, Jackson v. McDonald, 635 F.App'x 858 (Fed. Cir. 2015), and Gumpenberger v. Wilkie, 31 Vet.App. 33 (2019), refined Snyder's interpretation of section 5904 and applied it to other scenarios.

Framed in the most general terms, the question on appeal is whether Snyder's reasoning applies equally to section 5304 and obligates VA to pay attorneys fees even where the veteran receives a rating below fifty percent and hasn't waived retirement pay. Insofar as this question involves interpretation of section 5904, our task is made easier by the fact that Snyder already set out what various terms mean, with Jackson and Gumpenberger providing an assist.

Id. at *4.

In summary, Snyder dealt with incarcerated veterans (finding attorneys were owed the amount that would have been paid if the veteran was not limited to a lesser amount by reasons or incarceration); Jackson dealt with a recently deceased veteran; Gempenberger dealt with a fugitive felon. 

The Court hashed through the Snyder and related analysis and ultimately determined:

What follows here is largely a restatement of our earlier analysis. Snyder established that

VA renders an award on a veteran's claim when it completes the non-mechanical  judgments of assigning a disability rating and effective date. Snyder clearly established that VA's obligations under section 5904 to pay attorneys fees are not affected by additional statutory limitations on a particular veteran's ability to receive payment as those do not affect the amount "awarded on the basis of the claim." VA, for example, may run afoul of the Appropriations Clause if it decided to disregard section 5304 and pay a veteran who hasn't waived retirement pay an award of less than 50 percent. However, the Snyder line of cases establishes that VA's obligations to attorneys under

section 5904 are to be determined by the amount awarded, not by the amount the veteran is actually entitled to receive. Under such reasoning, payment to attorneys does not fall afoul of the Appropriations Clause even where a separate provision limits payment to the claimant.

Id. at *16.

Judge Meredith dissented largely focusing on the fiscal impact on the Treasury.  She wrote:

by finding generally that "VA's obligations to attorneys under section 5904 are to be determined by the amount awarded, not by the amount the veteran is actually entitled to receive," the majority fails to give due meaning to the term "past-due." Ante at 16. The result here is that the veteran was paid 100% of the benefits that he was awarded and entitled to receive (albeit in the form of retirement pay) and VA must pay an additional 20% to the appellant—i.e., the United States will pay 120% for the period from May 2011 to January 2014.

Id. at *22-23. 

Both parties have asked for an en banc ruling in this case.  However, I cannot see how the case is not governed by the Federal Circuit decision in Snyder and do not foresee any change in the result.

Decision by Judge Toth and joined in by Judge Bartley with a dissent by Judge Meredith.

To know more about whether Thomas Andrews can help you, please visit my website.

Miller: Remand for New Medical Examination When Lay Evidence Not Discussed

Miller v. Wilkie, Case Number 18-2796, decided January 16, 2020 discusses what happens when a medical examiner does not discuss lay evidence and the Board does not address the credibility of the lay evidence.  The Court was asked whether the remedy was remand for credibility determination by the Board or remand for a new medical examination.  The Court determined a new medical examination was the proper remand. 

This case really was a battle over the proper remedy on remand and an attempt to clarify prior decisions in McKinney v. McDonald, 28 Vet. App. 15 (2016) and Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Secretary argued for a credibility determination by the Board whereas the veteran argued for a new examination. 

The Court noted

There is no question that adequately informing the Board of the veteran's disability while considering prior medical history requires addressing the veteran's lay reports of

symptomatology.39 Thus, a "VA examiner's failure to consider [the veteran's] testimony when formulating her opinion renders that opinion inadequate."  This is something that both Barr and McKinney agree on—an examination is inadequate if the medical professional fails to consider the veteran's own lay reports of symptoms.

Id. at *8.

The Court noted “it is the Board that must make a credibility determination, something it may not outsource to a medical examiner, we have held that the Board should consider whether a favorable medical opinion corroborates the veteran's assertions of an in-service injury.”  Id. at *10.  The Court explained:

The examiner can better inform the Board's understanding of the medical feasibility of the veteran's lay statements. If an examiner explains that the veteran's assertions are generally inconsistent with medical knowledge or implausible, the Board can weigh that when addressing the veteran's credibility. Or an examiner may explain that the veteran's reports about symptoms or an in-service injury align with how the disease or disability

is known to develop. Any way you look at it, the Board may benefit from this information in makings its credibility determinations. Thus, the examiner's obligation to address lay evidence cannot depend on a future finding of credibility. The examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion. And absent an indication that the Board found that lay evidence not credible, or had a reason not to address its credibility—such as in Barr where it found the veteran not competent to report the symptoms—we will conclude that the Board found the lay evidence credible and order a new examination that addresses this evidence.

Id. at *11-12

In reaching its conclusion, the Court noted it is not engaging in impermissible fact finding, but simply reviewing implicit factual determinations.  Id. at *12.  It explained the Board is considered to have reviewed all evidence (in this case the lay evidence) and since it did not discuss a problem with credibility, the veteran’s lay statements were considered credible.  The Court explained:

Put another way, when the record includes the veteran's lay reports, which the Board did not find to be not credible, we may ordinarily conclude that it made an implicit credibility

determination. If something as fundamental as the veteran's credibility were an issue, we would expect the Board to say something. And because a determination about credibility is a finding of fact, we should treat it like other findings of fact.

Id. at *13.

Decision by Judge Falvey and joined in by Judges Greenberg and Toth.

To know more about whether Thomas Andrews can help you, please visit my website.