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.

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