10 F.4th 1325
Fed. Cir.2021Background
- Gary R. Larson, Jr. served on active duty (1988–1993) and later filed a 2009 VA claim asserting service connection for obesity and dysmetabolic syndrome (DMS).
- The VA and the Board denied service connection, finding neither condition is a "disability" under 38 U.S.C. § 1110 because they are not ratable under the VA Schedule of Rating Disabilities.
- Larson appealed to the U.S. Court of Appeals for Veterans Claims (Veterans Court); that court affirmed but concluded it lacked jurisdiction to review the Board’s § 1110 disability determination, relying on Wanner, Wingard, and Marcelino.
- Larson appealed to the Federal Circuit, arguing Saunders v. Wilkie establishes that the Veterans Court may review what constitutes a § 1110 disability.
- The Federal Circuit distinguished Wanner/Wingard (direct attacks on the content of the rating schedule) from Saunders (review of the legal standard for a § 1110 "disability") and held the Veterans Court does have jurisdiction to review the Board’s § 1110 determination when the veteran does not seek to alter the rating schedule.
- The Federal Circuit reversed the Veterans Court’s jurisdictional ruling and remanded for further proceedings; it did not decide whether DMS or obesity qualify as § 1110 disabilities or are service-connected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veterans Court has jurisdiction to review a Board determination that a claimed condition does not constitute a "disability" under 38 U.S.C. § 1110 | Larson: Saunders permits Veterans Court review of the legal meaning of § 1110 "disability." | Gov't: Wanner/Wingard treat such review as a prohibited attack on the rating schedule under 38 U.S.C. § 7252(b). | The Federal Circuit held the Veterans Court has jurisdiction where the veteran seeks only a § 1110 determination and does not seek to modify or invalidate the rating schedule. |
| Whether Wanner/Wingard bar review of § 1110 disability determinations in cases like Larson’s | Larson: Wanner is limited to direct challenges to a Diagnostic Code; Saunders controls here. | Gov't: Wanner’s principle should extend to deny review of what constitutes a § 1110 disability. | The court distinguished Wanner/Wingard as involving direct challenges to rating-schedule content; those cases do not bar review of a Board’s § 1110 disability determination absent a request to change the rating schedule. |
Key Cases Cited
- Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004) (Veterans Court lacked jurisdiction to invalidate a diagnostic code provision in the rating schedule)
- Wingard v. McDonald, 779 F.3d 1354 (Fed. Cir. 2015) (challenge to the contents of the rating schedule is not within Veterans Court jurisdiction)
- Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (defined § 1110 "disability" as functional impairment of earning capacity and recognized Veterans Court review of that legal standard)
- Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (de novo review applies to Veterans Court legal determinations)