Spicer: Testing the Limits of Secondary Service Connection

Spicer v. McDonough, Case Number 18-4489, was decided September 14, 2021 and involves a claim for service connection for a leg disability secondary to service connected leukemia.    

The veteran sought service connection for a leg disability, weakness and instability in his knees due to arthritis.  The theory was that his service connected leukemia did not actually cause or aggravate his knee arthritis, but treatment for his leukemia prevent him from underlying surgery for his knees.

The Court began by noting “no statute expressly provides for secondary service connection, where compensation for a disability is not related directly to service but to problems that themselves stem from service. Instead, this theory of entitlement is set forth in a longstanding regulation, 38 C.F.R. § 3.310, which was first promulgated in 1930.2  Under this rule, VA recognizes that "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected" as "a secondary condition." 38 C.F.R. § 3.310(a).”  Id. at *2.

The veteran specifically noted a 2014 knee replacement surgery had been cancelled because chemotherapy for his leukemia had depressed his red blood cell level and it was unlikely his count would ever increase enough to allow the surgery.

The Board determined the "inability to undergo knee replacement surgery because of the effects of his service-connected leukemia is not contemplated by the applicable laws or regulations to fall within the meaning of secondary service connection."  Id. at *4.

The veteran focused on the word “disability” as a broad enough term to encompass his theory of service connection.  The veteran argued any worsening in functional impairment constituted a worsening disability under section 1110.  Id. at *5.  However, the Court focused on the “resulting from” language in Section 1110 and “conclude that "resulting from" requires actual causality and so does not encompass such disabilities.”  Id. at *5-6.  The Court reasoned:

Given that the phrase "resulting from" has for almost a century plainly expressed a causation requirement, we must reject Mr. Spicer's contention that section 1110 doesn't contain an etiological component. Although the veteran is not explicit, we understand him to use the word "etiology" to refer to "the cause(s) or origin of a disease." Allen, 7 Vet.App. at 445 (emphasis omitted). In this light, section 1110's "resulting from" language clearly requires an etiological nexus and that language imposes "a requirement of actual causality." Burrage, 571 U.S. at 211. Put another way, Congress's intention to provide compensation only in situations where there's an etiological link between service and a disability's onset or worsening is evident from its use of the phrase "resulting from."

Id. at *6. 

As to the facts of the case, the Court concluded:

Mr. Spicer's knee arthritis did not, in any reasonable sense of the phrase, "result from" his service-connected cancer or the chemotherapy provided to treat it. There is no contention on appeal that they caused the arthritis or that they made it worse. The current state of his knee functionality is not a consequence or effect of these service-related agents. At most, they interfered with his attempts through affirmative intervention to alter the arthritis's natural progress. Unless we can say that the current state of his arthritis would not exist in the absence of his cancer or chemotherapy, however, there is no actual but-for causation. And but-for causation is what Congress required in section 1110.

Id. at *7.

Judge Allen dissented, arguing:

In my view, however, the statute sets out a much broader, causation-based standard. And because that is so, I also believe that VA's regulation implementing section 1110, 38 C.F.R. § 3.310(b), improperly limits that language in a way Congress did not intend. Therefore, I would hold that the regulation is not a permissible construction of section 1110.

Id. at *12. He further explained:

the phrase "resulting from" in section 1110 provides for compensation when a disability is the consequence or effect of military service. Stated another way, the statute's language merely requires that one thing flow from another, namely that a disability flow from military service. Congress imposed no other limitations in connection with establishing service connection beyond this broad, causation-based principle that one thing be a consequence of another

Id. at *14.

This is an important case that effectively tested the limits of secondary service connection and found it at what I believe is too narrow a limit.  Judge Allen’s dissent is powerful. I would expect an appeal to the Federal Circuit and a possible reversal.

Decision by Judge Toth and joined by Judge Pietsch.  Dissent by Judge Allen.

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