Weight-Related Claims Denied ???

[broncovet]

Great question, Berta.  While most CAVC's are decided "by remand" (not affirmed or reversed), I guess that Remand with multiple judges suggests that, in a similar case, its supposed to likewise be remanded.  

Sometimes, its hard to "parse out dicta" from a multiple judge/panel decision, so the VA can argue that statement was dicta.  

I think the lawyers want/get job security, by re arguing similar cases arguing it was dicta.  Then, I speculate, the judge decides if that citation was dicta.  

Remember, Howell vs Nicholson was also a remand, but, I think that decision wound up in M21-Mr regulations, even tho the M21 "greatly watered down" the judges opininion.  Instead of SMC S being granted "when the Veteran is unable to leave the home to earn an income", the M21MR, waters that down to mean "that the Veteran can leave the home for doctors appointments".  

"leaving the home for doctors appointments" is vastly different than "unable to leave the home to earn an income".  

The later, suggests every tdiu Vet should get SMC S, because they are not leaving the home to earn an income.  Its one of the many which will likely take additional precedential decisions to finally settle the matter.  

The courts have stated, "when congress intent" can be determined, that settles the matter.  So, one would think Howell's citation of "congress intent" should settle the matter, but VA, instead "interprets" this to mean he cant leave the home for anything but doctor appointments.  

Unfortunately, Chevron deference gives VA great latitude in interpreting their own regulations. 

[Berta]

This link Re: Walsh V Wilkie holds a OGC Pres Op which I believe is critical to these types of claims.

G.C. Prec. Op. 1-2017, at 1. 

This article blog  is not ,in my opinion, well written, so I dont know where this statement comes from-

maybe someone here can provide that VA OGC Precedent Opinion.

Walsh v. Wilkie, docket no. 18-0495 (February 24, 2020)
"HELD: OBESITY MAY BE AN “INTERMEDIATE STEP” BETWEEN A SERVICE-CONNECTED CONDITION AND A NONSERVICE-CONNECTED CONDITION WHEN THE SERVICE-CONNECTED CONDITION AGGRAVATES THE OBESITY. THE SERVICE-CONNECTED CONDITION NEED NOT CAUSE THE OBESITY."

 

https://abkveteranslaw.com/blog/tag/Walsh+v.+Wilkie

[pacmanx1]

Finally, we address whether obesity could qualify as an "intermediate step" between a service-connected disability and a current disability, for example, whether a veteran could establish entitlement to service connection for hypertension if a veteran's service-connected back disability causes obesity due to lack of exercise, which leads to hypertension. Under 38 C.F.R. § 3.310(a), disability which is proximately due to, or the result of a service-connected disease or injury is service connected. "Proximate cause" is defined as a '"cause that directly produces an event and without which the event would not have occurred."' VAOPGCPREC 6-2003 (quoting Black's Law Dictionary 213 (7th ed. 1999)). When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing ·about the harm and the harm would not have occurred but for the action. Shyface v. Sec'yofHealth & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999) (citing RESTATEMENT (SECOND) OF TORTS§§ 430 cmt. d. and 433 cmt. d. (1965)). 15. A determination of proximate cause is basically one of fact, for determination by adjudication personnel. VAOPGCPREC 6-2003 and 19-1997. 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- 10. Executive in Charge, Board of Veterans' Appeals (01) connected back disability. If these questions are answered in the affirmative, the hypertension may be service connected on a secondary basis.6

VAOPGCPREC1-2017.pdf

Edited February 9, 2022 by pacmanx1

[Berta]

THANK YOU PACMANX1 !!!!

 

[Rivet62]

2 hours ago, Berta said:

"ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD), is granted.

FINDING OF FACT The evidence is in relative equipoise regarding whether the Veteran's PTSD caused or aggravated his OSA through obesity as an intermediate step."

https://www.va.gov/vetapp21/Files10/21066291.txt

"ORDER

Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to his right knee disability, is granted.

FINDING OF FACT

Giving the Veteran the benefit of the doubt the evidence is sufficient to show that the Veteran's service-connected right knee disability aggravated or caused his obesity which in turn was caused by his OSA, which would not have occurred but for the obesity caused or aggravated by the service-connected right knee disability."

https://www.va.gov/vetapp21/Files8/21049896.txt

"ORDER Service connection for obstructive sleep apnea (OSA) is granted.

FINDING OF FACT The Veteran's service-connected unspecified depressive disorder with anxious distress and service-connected cold weather injuries to the bilateral feet caused the Veteran to become obese, and obesity was a substantial factor in the Veteran developing OSA; and his OSA would not have occurred but for the obesity caused by his service-connected disabilities."

https://www.va.gov/vetapp21/Files9/A21015901.txt

These grants are all from 2021, and although there are many denials for OSA it also can be associated to a myraid of other SC disabilities, I am sure.

These claims can be won- but they depend on a strong medical rationale from an expert in the field of OSA.

 

This is gold.  THANK YOU.

[harry59]

Not sure of the medical terminology, but my lower back has bulging disc's, ruptured a disc a few years ago, DDD, disc narrowing, radiculopathy in both legs, and bone spurs. I've been told (in writing) by two doctors that I shouldn't be lifting more than 15 pounds. I'm also on SSDI because of my service-connected lower back and am currently waiting on my TDIU decision from the VA. My middle and upper back have about the same issues, but not as severe. 

Thank you for your replies. They've been very helpful.