Cant be SC unless its listed in the schedule of rating disabilities? Think again

[broncovet]

Obesity, for example, CAN be SC.  (As always, you would need the Caluza elements).  

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The Federal Circuit issued a precedential opinion today in Larson v. McDonough. 

Bottom line up front:

The Veterans Court has jurisdiction to review BVA decisions that find conditions are not disabilities simply because they are not listed on the VA Schedule of Rating of Disabilities.

 

Overview of the Case

 

Mr. Larson argued his obesity and DMS were related to a series of vaccinations he received in the Desert Storm era, as well as his exposures to certain toxins while serving in the Middle East.

The VA and BVA both denied the claim, saying that obesity and DMS were not disabilities that could be service connected on the grounds that they were not listed in the VA Schedule of Ratings of Disabilities.

The Veterans Court, in a memorandum decision by Judge Meredith, concluded that the Court lacked jurisdiction to review BVA determinations of what does and does not constitute a disability.

The Federal Circuit reversed the decision of the Veterans Court, noting that the issue of what constitutes a disability for service connection purposes was defined and resolved by Saunders.

The Federal Circuit remanded the issue to the Veterans Court and BVA to address whether Mr. Larson's obesity and DMS were, as a matter of fact in his case, a disability and whether it was service-connected

This decision means a few things.

Bottom line up front: the clearest meaning of this precedent is that you can now service connect a veteran's obesity on a DIRECT service-connection basis.

All you have to show, in addition to the element of nexus, is that the veteran's obesity relates to something that happened in service (i.e., toxic exposures, certain vaccines that affect metabolism, particulate matter, etc.), and that it is causing a veteran a "functional impairment of their earning capacity."

The Federal Circuit's decision effectively over-rules the Veterans Court decision in Marcelino that said that the Court lacked jurisdiction to review BVA decisions that obesity was not a disability.

it does not guarantee that obesity or dysmetabolic syndrome (DMS) will always be disabilities for service connection purposes.

However, if you are a veteran with obesity or DMS (or if your client is), the VA cannot deny their claims for direct service connection for those conditions on the grounds that they aren't listed on the VA Schedule of Ratings of Disabilities.

The biggest impact of the Federal Circuit's decision is this:

It applies to any condition or disease or syndrome - if the record shows that there is a resulting functional impairment of earning capacity, the BVA must address whether it is a disability for VA purposes under 38 U.S.C. §111

This is a momentous decision that will help a lot of veterans.

Mr. Larson was represented by Attig Steele.  

 

20-1647.OPINION.8-26-2021_1825204.pdf

The above opinion from Chris Attig.

Edited August 28, 2021 by broncovet

[ranger11bv]

How can I show that obesity caused a financial loss? Thats what the VA is looking for. I tried 3 times, DENIED.

[broncovet]

Was your case before the one above?  (Likely, this is very recent)

Do you have Caluza elements?

yVA does not compensate us for FINANCIAL loss, but rather, LOSS of earnings ability  due to an event in service.  

My advice:  Start over, apply again, cite the above case if it applies.  If denied again, be ready to line up a lawyer and fight   retro.  

You could also submit new relevant evidence, if you have any to reopen that the va did not have earlier.  Your gonna need to do a complete review of your file to do this.  

[ranger11bv]

What my attorney told me 2 days ago:  

Hi Erich,

 

We would need to show that your obesity caused functional loss, and is related to your service. In addition, you are currently 100% disabled. While there are pending claims that may result in an earlier effective date for your 100% rating, getting your obesity service connected now will not have any effect on your overall rating or monthly payment. So, if we applied to have your obesity service-connected, it wouldn’t chance your current rating. However, if I can use this case for any of your other claims that might result in an earlier effective date for your permanent and total rating, I certain will.

 

[Berta]

This veteran claimed his obesity was due to diabete mellitus that he incurred in sercvice:

"ORDER Service connection for type II diabetes mellitus (with associated diabetic peripheral neuropathy of the lower extremities and erectile dysfunction), as secondary to service-connected major depressive disorder (MDD) with an adjustment disorder, is granted."

In Part the decision states:

"The Court most recently held that to reasonably raise the theory of secondary service connection via obesity as an intermediate step, there must be some evidence in the record that draws an association or suggests a relationship between a veteran's obesity, or weight gain resulting in obesity, and a service-connected disability.  Conversely, incidental references in the record to obesity, or weight gain resulting in obesity, are insufficient to reasonably raise this theory of entitlement.   The Court provided a list of six non-exhaustive considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step.  "

The decision, as well as Broncovet's citation contains other cases and an OGC precedent Opinion regarding this type of claim.

There are 2,582 claims regarding obesity, denid or granted by the BVA  or remanded, in 2021 so far.

https://www.index.va.gov/search/va/bva_search.jsp?QT=obesity&EW=&AT=&ET=&RPP=10&DB=2021

They all hold the most recent citations.

 

 

 

[broncovet]

You posted:  

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We would need to show that your obesity caused functional loss, and is related to your service.

This is lawyer speak for "you need an IMO to show the above".  Also, as your lawyer advised, "its not enough" for you to sc new disabilities, you should do so with respect to obtaining smc or not.  Example:  loss of use, functional loss of reproductive organ, or statuatory smc s.  (100 plus 60 seperate and distinct).  

Smc mostly boils down to loss of use, a and a, and housebound.  

I dont advise persuing va benefits for fun, if you want fun, do something more fun such as having all your teeth pulled and then put back in..  Persuing VA bennies is often as fun as going to the dentist

[ranger11bv]

I put this to my attorney who is out till the 5th of Oct.  

I have a service-connected knee conditions which results in me being unable to walk for more than a few feet, bend, or do any strenuous physical activity. Im not able to exercise with this condition and must spend most of my days inactive or else I experience severe pain. As a result of my inactivity, I have gained weight and is considered to be obese. My obesity then led to developing diabetes, a condition for which being overweight or obese can put a person at risk of developing.

My obesity was the result of a service-connected condition (my r-knee initially, dated 8/28/92), and then it led me to develop a non-service-connected condition (obesity).  

Edited September 30, 2021 by ranger11bv