Spicer v. McDonough, Case Number 2022-1239, was decided March 8, 2023 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 undergoing surgery for his knees. 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 VA and Veterans Court denied service connection, with the Veterans Court concluding:
“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.”
Judge Allen at the Veterans Court 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.”
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.”
The Federal Circuit heard the case and agreed with Judge Allen’s dissent, explaining:
“The dispute is thus narrow: Whether the but-for causation requirement in § 1110 is limited, as the government contends, to bringing something about or the onset or etiological link, or whether, as Mr. Spicer contends, that language may encompass situations where the service connected disease or injury impedes treatment of a disability. For the reasons below, we adopt the latter view.”
Id. at *6.
The Court noted its analysis begins and ends with Section 1110 and noted Congress could have drafted a more narrow causation standard as it had done in another statute. The Court explained:
“Put together, § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability. This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the serviceconnected disability. Stated another way, § 1110 provides for compensation for a worsening of functionality—whether through an inability to treat or a more direct, etiological cause. Nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality.”
Id. at *8.
When I wrote my initial summary on this case two years ago, I wrote: “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.” It would appear that Judge Allen and I were correct.
Decision by Judge Stoll and joined by Judges Taranto and Chen.
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