Case law refers to precedential (sets a precedent)1 opinions by federal courts of appeal, which for veterans disability claims are these three courts:
Precedential opinions by these courts are binding (must be followed) by lower courts and the Board of Appeals for Veterans Claims.
I created a new page for National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, which I had discussed here as a pending case, but the Federal Circuit issued its opinion on 8 December 2020.
For concise information on this very important case, please see the new page:
Veteran Ronald V. Garner appeals through counsel an August 31, 2018, Board of Veterans' Appeals (Board) decision denying service connection for obstructive sleep apnea (OSA), including as secondary to service-connected major depressive disorder (MDD).
This matter was referred to a panel of the Court, with oral argument, to address what is necessary to reasonably raise the issue of obesity as an intermediate step toward service connection in the causal chain between the veteran's service-connected disabilities and the claimed disability, OSA.
This is an issue of first impression, and today we provide guidance to the Board for adjudication of these types of claims.
The Court concludes that the record in this case does not reasonably raise the issue of obesity as an intermediate step toward secondary service connection.
Nevertheless, because the Board relied on examinations that were inadequate to allow the Board to make a fully informed decision as to any relationship between the OSA and the veteran's service-connected MDD, we will set aside the August 2018 Board decision and remand the matter for further development and readjudication consistent with this decision.
Mr. Garner argues that the Board erred in failing to consider the reasonably raised theory that his service-connected MDD, right ankle, or left knee conditions caused or aggravated his obesity, which in turn caused or aggravated his OSA.
In January 2017, VA's Office of General Counsel issued a precedential opinion addressing the status of obesity for the purposes of establishing entitlement to service connection. VA. Gen. Coun. Prec. 1-2017 (Jan. 6, 2017) ....
The General Counsel noted that obesity per se is not a disease or injury, and therefore, may not be service connected on a direct basis.
However, the General Counsel determined that "obesity 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)."
In Walsh, we held that the General Counsel opinion requires the Board to consider aggravation in addition to causation in the context of claims where a theory of secondary service connection, with obesity as an intermediate step, is explicitly raised by the veteran or reasonably raised by the record.
Taken together, our holding in Walsh and the General Counsel's opinion illustrate the mechanism by which obesity as an intermediate step could result in secondary service connection; however, they do not provide guidance regarding what factual circumstances would give rise to claims for secondary service connection via this theory.
Although the Court has not addressed that issue in a precedential decision, a survey of single-judge decisions reveals factors that the Court has considered relevant to this determination.
Review of a broad array of factual circumstances here will help to illuminate the type and quality of evidence that may be sufficient to reasonably raise a theory of secondary service connection via obesity as an intermediate step. ...
To that end, we note that considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step may include, but are not limited to:
We do not identify these factors in an attempt to limit any reasonably raised theory of obesity as an intermediate step to a circumscribed set of circumstances.
Rather, we note that these considerations encompass a diverse array of factual situations, but share a critical commonality: in each case, there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition.
We hold that, where, as here, the record reflects only incidental references to the veteran's weight or weight gain, the evidence of record is insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step.
B. Adequacy of the September 2015 and November 2017 VA Examinations as to the Relationship between MDD and OSA
2. Adequacy of VA Medical Examination
When the Secretary undertakes to provide a veteran with a VA medical examination or obtain an opinion, he must ensure that the examination or opinion provided is adequate.
A VA medical examination or opinion is adequate:
The Board did not expressly discuss its reasons for finding the VA examinations adequate. Rather, the Board, in relying on these examinations, implicitly found that they were adequate. In other words, the Court is able to discern the Board's reasons from its discussion of the relative probative value. The Court disagrees with the Secretary that the Board's reliance on the 2015 and 2017 examinations was appropriate.
These opinions provide no insight into the relevant inquiry, which is whether service-connected MDD aggravated any functional impairment associated with the veteran's OSA. Indeed, the Board's summary reveals, and the Secretary concedes, that the September 2015 opinion fails to address aggravation at all ....
Therefore, the Court concludes that the Board clearly erred in finding the VA examinations adequate to adjudicate the claim. Consequently, the Court holds that remand is warranted for a VA examiner to address whether the veteran's service-connected MDD caused a functional increase in the severity of his OSA.
The excellent Fed Circuit Blog recently published a case summary for Euzebio v. McDonough, a veterans case that considered the standard for what materials should be deemed constructively before the Board of Veterans’ Appeals.
The Federal Circuit found that the Veterans Court applied an erroneous legal standard by requiring a “direct relationship” between the evidence and the claim before the Board.
The court articulated the standard for the Board’s constructive possession as “relevance and reasonableness.”
According to the Federal Circuit Court: "Because the Veterans Court applied an erroneous legal standard when it concluded the Board did not have constructive possession of the NAS Update 2014 [National Academy of Sciences, Veterans and Agent Orange: Update 2014], we vacate and remand."
The Veterans Law Journal, published by the Court of Appeals for Veterans Claims Bar Association, also has an informative article on the case:
Case citation: Euzebio v. McDonough, No. 2020-1072 (Fed. Cir. Mar. 3, 2021).
This precedential, en banc2 Federal Circuit decision clarified the VA's obligation to demonstrate a medical examiner's competence, if a veteran raises the competency issue before the Board of Veterans Appeals.
The Court's opinion has three implications for VA examiners. [Read more ...]
This section lists historically important court opinions in veterans law.
Gilbert v. Derwinski (1990) is a Court of Appeals for Veterans Claims (CAVC) case decided in 1990, soon after the Court was created by Congress. The case is important for two reasons. [Read more ....]
1.Oxford English Dictionary, 3rd ed. (Oxford, UK: Oxford University Press, March 2007), https://oed.com/view/Entry/149579 ("precedential, adj. 1. Of the nature of or constituting a precedent; providing a guide or rule for subsequent cases.")
2. Oxford English Dictionary, 3rd ed. (Oxford, UK: Oxford University Press, September 2017), https://oed.com/view/Entry/56701627 ("en banc, adv. and adj., Law [chiefly U.S.]. A. adv. With all ... of the judges of a court present; before or by the full bench. A sitting en banc is typically held by an appeal court in order to review decisions made by a panel of its members. Some courts [e.g. the Supreme Court of the United States] traditionally hear all cases referred to them en banc.")
I highly recommend the Veterans Law Library, which is the best source of continually updated veterans law information—law review articles, case law, legislative proposals and new statutes, VA regulatory changes, and more.
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