MILLARD W. ADAMS, APPELLANT, V. DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, APPELLEE.
No. 23-5064
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
Decided July 8, 2025
On Aрpeal from the Board of Veterans’ Appeals; Argued January 13, 2025
Gilles Sadak, with whom Richard J. Hipolit, Acting General Counsel; Mary Ann Flynn, Chief Counsel; and James B. Cowden, Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
Before PIETSCH, GREENBERG, and JAQUITH, Judges.
PIETSCH, Judge, filed the opinion of the Court. JAQUITH, Judge, filed an opinion concurring in part and dissenting in part.
PIETSCH, Judge: In 2017, VA‘s General Counsel (G.C.) issued a precedent opinion that prohibits service connection for obesity, both as directly related to service and as secondary to a service-connected disability, finding that it is neither a disability nor a disease for purposes of
In this timely appeal over which the Court has jurisdiction, see
Thus, we hold that the G.C. opinion‘s finding that obesity is not a “disease” for purposes of secondary service connection is an impermissible interpretation of the statute. We will vacate the part of the Board‘s decision that denied service connection for obesity as secondary to service-connected PTSD, and we will remand this matter to the Board for further prоceedings.
The May 2023 Board decision also dismissed a claim for a disability rating higher than 20% for diabetes mellitus, as well as claims for earlier effective dates for the awards of service connection for diabetic neuropathy of the right and left lower extremities. See R. at 9-10. Mr. Adams does not challenge the Board‘s dismissal of those claims; thus, the Court deems those issues abandoned and will dismiss those appeals. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
The Board decision also remanded the issue of entitlement to service connection for obstructive sleep apnea as secondary to PTSD. See R. at 10-13. Thus, that matter is not presently before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order) (stating that a Board remand is not a final decision over which this Court has jurisdiction).
I. BACKGROUND
A. Law and Regulations
Section 1110 provides VA compensation “[f]or disability resulting from personal injury suffered or disease contracted in the line of duty.”
VA‘s current policy is to prohibit service connection for obesity on the basis that it is not a disability, disease, or injury contemplated in section 1110. See G.C. Prec. 1-2017, at 1-7. The G.C.
The G.C. opinion also finds that obesity is not a “disability” for purposes of section 1110. Id. at 7. The opinion defines “disability” as the average impairment of earning capacity and finds that obesity is generally an excess accumulation of body fat and does not usually result in impairment. Id. But the opinion acknowledges evidence that “severe obesity, i.e., BMI [body mass index] greater than 40, impairs physical and social function.” Id.
Addressing secondary service connection specifically, the G.C. opinion finds that obesity is not a disability for purposes of
One year after the G.C. issued G.C. Prec. 1-2017, the Federal Circuit issued its decision in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), holding that the “plain language of [section] 1110,” as well as dictionary definitions of “disability,” compelled the conclusion that ” ‘disability’ in section 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability.” 886 F.3d 1356, 1361 (Fed. Cir. 2018), rev‘g Saunders v. McDonald, No. 15-0975, 2016 WL 3002862 (Vet.
B. Procedural History
The facts are not in dispute. Mr. Adams served in the U.S. Air Force from October 1966 to September 1970. R. at 14,868. He filed a claim for service connection for obesity as secondary to his service-connected PTSD in March 2016, R. at 12,496-506, submitting a November 2009 article that links cortisol, a hormone whose levels are said to increase with stress, with weight gain. R. at 12,478-81. VA denied Mr. Adams‘s claim in April 2016. R. at 12,354.
Mr. Adams filed a supplemental claim for service connection for obesity in December 2019. R. at 7585-86. Records obtained in connection with this claim include an August 2016 VA treatment record states that Mr. Adams has “core weakness and postural changes due to obesity.” R. at 3284. In a January 2020 rating decision, VA determined that Mr. Adams had not submitted new and relevant evidence to reopen his finally adjudicated March 2016 claim.2 R. at 6906-13. In August 2020, Mr. Adams filed a VA Form 10182 to appeal that decision, electing to have a hearing before the Board. R. at 6887. A July 2022 VA treatment record describes Mr. Adams as “obese, uses rollator.” R. at 144. Mr. Adams testified at a hearing before the Board in January 2023. R. at 2565.
The Board issued the decision on appeal in May 2023. R. at 5-13. It found that “obesity is not a disease or disability for VA purposes and is not subject to service connection.” R. at 9 (citing Marcelino v. Shulkin, 29 Vet.App. 155, 158 (2018)). The Board then noted the G.C. opinion‘s conclusion that “obesity per se is not a disease or injury for purposes of
II. PARTIES’ ARGUMENTS
A. Appellant‘s Arguments
Mr. Adams argues that G.C. Prec. 1-2017‘s general prohibition on service connection for obesity on both direct and secondary bases is invalid in light of Saunders. First, Mr. Adams argues, Saunders invalidates the G.C. opinion‘s reliance on gap-filling authority to determine the sorts of conditions that qualify as a “disease” or an “injury” for purposes of section 1110. Appellant‘s Brief (Br.) at 12. Mr. Adams notes that in Saunders, the Federal Circuit arrived at its conclusion by characterizing the word “disability” as unambiguous; thus, he argues, there is no gap to fill. Id. He distinguishes O‘Bryan by arguing that O‘Bryan is limited only to those disabilities that the Secretary “has by regulation interpreted not to constitute a section 1110 disability, disease, or injury—such as congenital or developmental defects.” Id.
Second, Mr. Adams challenges the G.C. opinion‘s reliance on the absence of obesity from the rating schedule. Id. at 13 (citing G.C. Prec. 1-2017, at 5-6). Mr. Adams notes that pain is also not listеd in the rating schedule, but that Saunders still found that pain can be a disability under section 1110 if it causes functional impairment. Id. (citing Saunders, 886 F.3d at 1368). Thus, in his view, Saunders “reflects the understanding that has always been correct: whether [the rating schedule] lists a particular condition does not affect whether that condition is service-connectible.” Id. Instead, he argues, the question is simply whether a disability results in functional impairment. Id.
Mr. Adams acknowledges G.C. Prec. 1-2017‘s finding that obesity is not a disease or injury for purposes of section 1110, but he argues that under Saunders, “the operative language for service connection is ‘disability’ rather than its cause.” Id. (citing Saunders, 886 F.3d at 1362-63). Thus, Mr. Adams asserts, anything causing functional impairment can be service connected, and “whether a condition such as obesity is itself a ‘disease’ simply does not matter.” Id. at 13-14.
Third, Mr. Adams argues that the G.C. opinion is invalid because to support its conclusion that obesity is not a “disease” for purposes of section 1110, the G.C. opinion relies on medical literature stating that obesity does not cause “morbidity and/or mortality” in all patients. Id. at 14 (citing G.C. Prec. 1-2017, at 6-7). Mr. Adams argues that under Saunders, the only question is whether a disability causes functional impairment, not whether it results in morbidity or mortality. Id.
Mr. Adams finds additional support for his position in Spicer, because that decision affirms that “disability” for purposes of section 1110 means “functional impairment.” Id. (citing 61 F.4th at 1363-64). He also asserts that Spicer affirms that Saunders found section 1110 unambiguous. Id. (citing Spicer, 61 F.4th at 1363). Additionally, he asserts that Spicer holds that claims for secondary service connection, such as the claim under consideration, arise under section 1110. Id. (citing Spicer, 61 F.4th at 1366). In Mr. Adams‘s view, Spicer confirms that “[section] 1110 is unambiguous and leaves no gap” for VA to fill as to whether obesity can be service connected. Id. All that matters is whether obesity results in functional impairment. Id.
Mr. Adams asserts that the Board‘s error was prejudicial because the record includes evidence that his obesity causes functional impairment. Id. at 15-18. Mr. Adams points to a VA treatment record describing “core weakness and postural changes due to obesity,” with “symptoms more pronounced with trunk extension.” Id. at 16 (citing R. at 144). He also argues that symptoms documented in clinical notes, such as “fatigability, weakness, and ... postural changes ... are all hallmarks of disability” that result from obesity. Id. (citing
B. Secretary‘s Arguments
The Secretary asserts that VA has the authority to determine what it will compensate as a service-connected disability under
The Secretary also argues that Saunders is distinguishable because it does not mention obesity, instead finding that pain can be a disability under section 1110 if it causes functional impairment.3 Id. at 8. Moreover, the Secretary asserts, Mr. Adams has not shown that his obesity causes pain that results in functional impairment. Id. at 9. The Secretary dismisses as “lay hypothesizing” Mr. Adams‘s argument that symptoms such as fatigability, weakness, and postural changes are hallmarks of disability, and the Secretary contends that the Board was not obligated to specifically address this evidence. Id. at 9-10. And even if Saunders does apply, the Secretary argues, the G.C. opinion “specifically found based on a review of scientific research, that obesity does not produce impairment resulting in reductions of earning capacity.” Id. at 11. The Secretary also asserts that Mr. Adams relies on Spicer only because Spicer cites Saunders with approval. Id. at 12. Additionally, the Secretary argues, VA properly exercised its gap-filling authority. Id. at 12.
C. Appellant‘s Reply to the Secretary
In his reply brief, Mr. Adams disagrees with the Secretary that Palczewski requires this Court to afford substantial deference to his determination as to what constitutes a disability for purposes of section 1110. Reply Br. at 9. First, Mr. Adams characterizes Saunders as holding that section 1110 is not ambiguous and he argues that ”Palczewski thus does not survive Saunders.” Id. Second, he points to the U.S. Supreme Court‘s recent decision in Loper Bright Enterprises v. Raimondo, and notes that its holding significantly affects the deference that courts are to afford agency determinations. Id. (citing Loper Bright, 603 U.S. 369, 412-13 (2024)). Thus, Mr. Adams argues, Palczewski deference is “no longer tenable.” Id.
At oral argument, Mr. Adams responded to the Secretary‘s argument that the G.C. opinion determined that obesity does not result in the functional impairment of earning capacity: Mr. Adams noted that the opinion does, in fact, appear to aсknowledge that obesity can functionally
III. ANALYSIS
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the present disability.
Under
A. The Court‘s Jurisdiction to Review the Question Presented
The Secretary noted in his brief that VA has the authority to determine the content of the rating schedule, and that this Court does not have the authority to review the content of the rating schedule. Id. at 5-6 (first citing Wanner, 370 F.3d at 1131; and then citing Palczewski, 21 Vet.App.
The Secretary‘s argument fails to account for the Federal Circuit‘s decision in Larson v. McDonough, 10 F.4th 1325 (Fed. Cir. 2021), holding that asking whether obesity can be a disability for purposes of section 1110 is not a request for the Court to review the rating schedule but is instead a request to establish service connection under that statute. 10 F.4th 1325, 1329 (Fed. Cir. 2021). Larson held that such questions are controlled by Saunders, rather than Wanner, and Larson reversed a determination by this Court that we lacked jurisdiction to review the Board‘s determination that obesity does not constitute a disability for purposes of section 1110. Id. at 1329-30.
Mr. Adams does not ask this Court to review the content of the rating schedule; instead, he challenges the G.C. opinion‘s finding that obesity is not a disability for purposes of section 1110. Thus, this matter is controlled by Saunders, rather than Wanner. See Larson, 10 F.4th at 1329-30. The Court is therefore satisfied that we may review the question that Mr. Adams has presented to us, and we reject the Secretary‘s arguments to the contrary.
B. The G.C. Opinion‘s Finding That Obesity Is Not a Disability
We turn now to the first question before us: In G.C. Prec. 1-2017, did the G.C., for purposes of VA compensation, persuasively interpret section 1110 as excluding obesity from those conditions that may be considered “disabilities.” See Wanless, 23 Vet.App. at 150. We find that the G.C. did not persuasively interpret the statute.
“As in any cаse of statutory construction, our analysis begins with the language of the statute.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). Saunders, which holds that “disability” in the context of section 1110 means “functional impairment of earning capacity,” extensively analyzes “disability” for purposes of section 1110 and guides our analysis here. Saunders, 886 F.3d at 1363. The G.C. opinion, issued before Saunders, defines “disability” for purposes of section 1110 as ” ‘average impairments of earning capacity resulting from such injuries in civil occupations.’ ” G.C. Prec. 1-2017, at 7 (quoting
But the G.C. opinion goes on to find that obesity does not meet the definition of “disability” because obesity does not impair most obese individuals. G.C. Prec. 1-2017, at 7. The opinion acknowledges “evidence that severe obesity, i.e., BMI of greater than 40, impairs physiсal and social function.” Id. The opinion then describes obesity as “excess accumulation of body fat” and cites medical studies finding that most obese people are not impaired as a result of their obesity. Id. Thus, the opinion concludes, VA “need not consider obesity itself as meeting the criteria to be considered a ‘disability’ for purposes of relevant statutes and regulations.” Id.
In its opinion the G.C. does not attempt to reconcile the apparent contradiction between acknowledging that obesity can physically and socially impair some people, and concluding that obesity does not meet the criteria to be considered a disability. It appears that the opinion interprets section 1110 as excluding obesity from the conditions that may be considered a disability under that statute, just because some, but not all, obese people are not functionally impaired by their obesity. This interpretation does not comport with Saunders‘s definition of “disability.” Nothing in Saunders, or in any subsequent authority that addresses Saunders, stands for the proposition that a condition is not disability for purposes of section 1110 when only some, but not all, people with that сondition are impaired by it.
Because the G.C. opinion does not reconcile its contradictory findings or comport with Saunders‘s definition of “disability,” we reject the opinion‘s interpretation of section 1110 as excluding obesity from the conditions that may be considered a “disability.” See Theiss v. Principi, 18 Vet.App. 204, 211 (2004) (rejecting a G.C. opinion‘s definition of a term for “faulty reasoning“). We hold that obesity may be a disability for purposes of section 1110 if it results in the functional impairment of earning capacity, see Saunders, 886 F.3d at 1362-63, and that deciding whether a claimant‘s obesity causes functional impairment requires an “individualized assessment” of the “degree of impairment” caused by a claimant‘s obesity, see Wait v. Wilkie, 33 Vet.App. 8, 16 (2020).
C. The G.C. Opinion‘s Finding that Obesity Is Not a Disease
i. Reliance on VA‘s Gap-Filling Authority
Before discussing the persuasive value of the G.C.‘s opinion that obesity is not a disease for purposes of section 1110 and § 3.310(a) and (b), we must first address Mr. Adams‘s challenge
The Court is not persuaded. The G.C. opinion cited gap-filling authority to ascertain whether obesity is a disease, not whether it is a disability for purposes of section 1110. See G.C. Prec. 1-2017, at 3. Mr. Adams does not explain how Saunders‘s analysis of the word “disability,” or Spicer‘s citation to that part of Saunders, has any bearing on VA‘s authority to fill the statute‘s gap in defining “disease.” Mr. Adams appears to believe that because Saunders interpreted the word “disability” as unambiguous, see Saunders, 886 F.3d at 1362, then all of section 1110 is unambiguous.
This reading of Saunders is far too broad. Saunders is concerned only with the definition of “disability“; it does not concern “disease” or “injury.” In fact, in Saunders the Federal Circuit expressly rejected authority this Court had relied on in deciding Ms. Saunders‘s appeal by finding that the authority “reads out the distinction Congress made in section 1110 between the requirement for a disability and the requirement for in-service incurrence or aggravation of a disease or injury.” Id. at 1366 (citing Sanchez-Benitez v. West (Sanchez-Benitez I), 13 Vet.App. 282, 285 (1999)). Saunders notes further that reading out the requirement for a disease or injury “eviscеrates the nexus requirement” and is therefore “illogical.” Id.
Our reading of Saunders is also consistent with this Court‘s decision in Wait, 33 Vet.App. at 14, characterizing Saunders as drawing “a distinction between the term ‘disability’ and ‘disease or injury.’ ” Thus, the Court is not convinced that Saunders‘s interpretation of “disability” in section 1110 prevents the Secretary from exercising gap-filling authority to determine the conditions that may be a “disease” or an “injury” for purposes of section 1110.
ii. Direct Service Connection
The G.C. opinion notes that some medical authorities, including the American Medical Association (AMA), and other Federal agencies have described obesity as a “disease.” G.C. Prec. 1-2017, at 4. Yet the opinion goes on to find that “these statements were made for a variety of purposes other than disability compensation,” and that these statements “do not compel the same result by VA.” Id. The opinion then notes that there is no apparent consensus among medical authorities that obesity is a disease, and the opinion points out disagreement within the AMA that obesity is appropriately characterized as a disease. Id. Additionally, the opinion finds, classifying obesity as a disease “for purposes of promoting understanding, prevention, and treatment of conditions that jeopardize a person‘s health” does not also mean that obesity should also be classified as a disease for purposes of VA compensation. Id. at 5.
Critically, Mr. Adams does not challenge any of those findings. Instead, he argues that “whether a condition such as obesity is itself a ‘disease’ simply does not matter.” Appellant‘s Br. at 14. In his view, all that matters is whether a condition functionally impairs earning capacity. Id. at 13-14. If so, he believes, the condition should be compensated under section 1110. Id.
In the direct-service-connection context, Mr. Adams asks the Court to effectively read out of section 1110 its requirement that a disability—i.e., a condition resulting in functional impairment of earning capacity—result from a disease or injury that is contracted in the line of duty. This we cannot do. The Court must give effect to all terms and avoid rendering any “‘inoperative or superfluous, void or insignificant.’ ” Roper v. Nicholson, 20 Vet.App. 173, 178 (2006) (quoting 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 46:06 (6th ed. 2000)), aff‘d, 240 F. App‘x 422 (Fed. Cir. 2007); see Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013) (stating that the “canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme“). Additionally, the Federal Circuit has held that “[s]ection[] 1110 ... make[s] it clear that if a disability cannot be attributed to an ‘injury’ or a ‘disease’ incurred or aggravated in the line of duty, the disability is not compensable.” Terry, 340 F.3d at 1382 (emphasis added). Thus, in the context of direct service connection, Mr. Adams has not presented the Court with a valid reason to invalidate the Secretary‘s interpretation of section 1110 as excluding obesity from the conditions that may be considered a “disease.”
And in the absence of such an argument, the Court finds that the Secretary‘s interpretation of section 1110 as excluding obesity from the conditions that may be considered a “disease” is persuasive and entitled to respect. See Wanless, 23 Vet.App. at 150. The interpretation is supported by references to literature showing that there is no medical consensus that obesity should be classified as a disease,4 and Mr. Adams does not challenge the G.C. opinion‘s reliance on such literature. Moreover, the G.C. opinion‘s interpretation is not inconsistent with any other position taken by the Secretary on the question of whether obesity is properly classified as a “disease,” and the Secretary has the authority to fill the gap in section 1110 by determining which conditions may be considered a disease for purposes of that statute. See Skidmore, 323 U.S. at 140; see also Wanless, 23 Vet.App. at 150-51 (holding that the VA G.C. opinion interpreting section 5313 was entitled to respect where the interpretation was accompanied by supporting rationale and not inconsistent with previous VA positions); Osman, 22 Vet.App. at 259-60 (rejecting VA G.C. interpretation that was inconsistent with a prior interpretation).
iii. Secondary Service Connection
But in the context of secondary service connection, Mr. Adams is correct that whether obesity is itself a disease or an injury for purposes of section 1110 “simply does not matter.” Appellant‘s Br. at 14. This Court explained in Allen that
the term “disability” as used in [section] 1110 refers to impairment of earning capacity, and . . . such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated.
7 Vet.App. at 448 (1995)(emphasis added). Additionally, Spicer holds that “[section] 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability,” including additional disability that results from “the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been
Before the Federal Circuit‘s decision in Spicer, secondary service connection was considered a product of regulation, rather than statute. See Frost v. Shulkin, 29 Vet.App. 131, 137 (2017) (observing that “[s]econdary service connection for VA benefit purposes is not addressed in any statute“). For that reason, the G.C. opinion addresses whether a disability can be a “disease” for purposes of secondary service connection in the context of
Referring to medical treatises and other evidence the G.C. opinion relied on to find that obesity is not a disease for purposes of section 1110, which the opinion calls “the reasons noted above,” the G.C. finds that obesity is not a disease for purposes of § 3.310(a). Id. We will not defer to the opinion‘s interpretation because it is inconsistent with the language of the regulation. The regulation provides for compensation for disabilities that are due to a service-connected disease or injury. See
The G.C. opinion also finds that obesity is not a disease for the purposes of §3.310(b), see G.C. Prec. 1-2017, at 7; yet in Spicer, the Federal Circuit held that §3.310(b) is “unlawful as inconsistent with [section] 1110.” Spicer, 61 F.4th at 1366. We therefore reject the G.C. opinion‘s finding that obesity is not a disease for the purposes of secondary service connection by aggravation, because the finding is inconsistent with Spicer.
D. Application to Mr. Adams‘s Appeal
Before the Board, Mr. Adams argued that his obesity is secondary to his service-connected PTSD. R. at 8. The Board found the record devoid of any evidence that Mr. Adams‘s obesity resulted in the functional impairment of earning capacity. R. at 9. Mr. Adams argues that the Board overlooked evidence that his obesity does, in fact, result in functional impairment of earning capacity. Appellant‘s Br. at 16. He points specifically to the August 2016 VA treatment record finding that he has “core weakness and postural changes due to obesity” that are “more pronounced with trunk extension.” R. at 3284. He also characterizes the July 2022 VA treatment record describing him as “obese” and reports that he “uses rollatоr” as evidence of fatigability, and argues that “[f]atigability, weakness, and manifestations leading to postural changes or symptoms more pronounced on movement are all hallmarks of disability.” Appellant‘s Br. at 16-17 (citing R. at 144).
The Board must provide a statement of its reasons or bases for its determinations that is adequate to enable an appellant to understand the precise basis for the Board‘s decision as well as to facilitate review in this Court.
To the extent that the Board also denied service connection for obesity on a direct basis, the Court leaves this finding, consistent with our findings above, undisturbed. See R. at 9. We remind the Board that “[a] remand is meant to entail a critical examination of the justification for the [Board‘s] decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991); see also Andrews v. McDonough, 34 Vet.App. 151, 161 (2021). Additionally, on remand the Board must treat this matter in an expeditious manner, in accordance with
IV. CONCLUSION
After considering the parties’ pleadings and reviewing the record, the Court VACATES the part of the Board‘s May 4, 2023, decision that denied service connection for obesity as secondary to service-connected PTSD, and REMANDS that matter for further proceedings consistent with this decision. The remainder of the appeal is DISMISSED.
My bottom line is that the Court should vacate the Board‘s May 4, 2023, decision that denied service connection for obesity—both secondary and direct service connection—in accordance with the Board‘s unitary treatment of service connection. The Board did not address secondary and direct service connection separately. Regarding obesity, the Board‘s order says only that “[e]ntitlement to service connection for obesity, to include as secondary to service connected post[-]traumatic stress disоrder (PTSD) is denied.” R. at 5. The Board‘s all-encompassing conclusion of law likewise says flatly that “[t]he criteria for service connection for obesity have not been met.” R. at 6. And the Board‘s reasons or bases for its order and conclusion assert that “[t]he general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection,” citing only Marcelino v. Shulkin, 29 Vet.App. 155 (2018), and G.C. Prec. 1-2017. R. at 9. But the Board‘s reliance on Marcelino is misplaced. In that case, the Court said nothing resembling the Board‘s assertion, instead holding only that the Court did not “have jurisdiction to entertain the argument that obesity should be considered a disability under the rating schedule.” 29 Vet.App. at 158.
The Federal Circuit decided otherwise in Larson v. McDonough, holding that a veteran seeking to establish service connection for obesity under section 1110 is not asking the Court to
In my view, because the Board‘s decision addressed direct and secondary service connection together, citing Marcelino, the Court‘s remand here should require the Board to address whether Saunders and Larson undermine the continuing validity of G.C. Prec. 1-2017‘s categorical exclusion of obesity as a disease and disability permitting compensation. Although the G.C. opinion binds thе Board, that does not mean the Board‘s consideration of the issues is futile. See Wolfe v. McDonough, 28 F.4th 1348, 1358 (Fed. Cir. 2022). The factual setting is key to making correct decisions on the law, so the Board‘s consideration of all of the relevant record—including the veteran‘s testimony that his weight increased from 125 pounds to 230 pounds while he was on active duty, R. at 2574, his testimony that his weight gain was related to his PTSD, R. at 2567-75, the objective evidence of his height (72 inches), weight (276 pounds), and BMI of 38, R. at 93, and the VA physical therapist‘s assessment that the veteran‘s chronic lower back pain was related to his “core weakness and postural changes due to obesity,” R. at 3284—could be informative. Considering pertinent facts and governing law can make a difference!
G.C. Prec. 1-2017 suffers from the same shortcoming as the Board decision: G.C Prec. 1-2017 did not contemplate the holdings and analysis by the Federal Circuit in Saunders and Larson. Indeed, it would have required prescience, or at least unbiased foresight, for VA‘s General Counsel
Last year, the Supreme Court emphasized that courts must exercise their independent judgment to discern the best meaning of statutes and “may not defer to an agency interpretation of the law simply because a statute is ambiguous.” Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 412-13 (2024). At the same time, the Supreme Court said that “[c]areful attention to the judgment of the Executive Branch may help inform that [judicial] inquiry,” id., and the Court recalled that ” ’ [t]he weight of such a judgment in a particular case’ ” would ” ‘depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control,’ ” id. at 388 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). This Court has applied that Skidmore standard. See Ante at 9; see, e.g., Wanless v. Shinseki, 23 Vet.App. 143, 150 (2009), aff‘d, 618 F.3d 1333 (Fed. Cir. 2010). In my view, the significant shortcomings the majority has identified in G.C. Prec. 1-2017 demonstrate that G.C. Prec. 1-2017 does not have persuasive power.
G.C. Prec. 1-2017 acknowledges that although Congress left a gap in title 38 by not defining “disease,” VA has not filled the gap by defining “disease” in a regulation. G.C. Prec. 1-2017, at 3. The G.C. opinion also notes that VA has, in a regulation, specifically listed defects, disorders, and deficiencies that are not diseases. Id.; see
There is no evidence in the G.C. opinion, the Board decision, or the record of any such tradition or policy. Just as VA has not defined “disease” by regulation, VA has not regulated whether obesity is a disease. In this case, the regional office erroneously asserted that “[o]ur regulations state: 1) Direct basis—Obesity per se is not a disease or injury for the purposes of
G.C. Prec. 1-2017 does not acknowledge that since 2006,
G.C. Prec. 1-2017 does acknowledge that the American Medical Association, the Social Security Administration (SSA), the National Heart, Lung & Blood Institute, the Internal Revenue Service (IRS), and the American Association of Clinical Endocrinologists have stated that obesity is a disease.10 Id. Yet G.C. Prec. 1-2017 dismisses those statements as “made for a variety of purposes other than disability compensation” and says they “do not compel the same result by VA“—without explaining why, including why the medical determinations do not apply to disability compensation decisions. G.C. Prec. 1-2017 also relies heavily on two reports by AMA councils—without explaining why councils that “provide information and recommend policies” to the AMA11 are more persuasive than the decisions the AMA actually makes after considering such information and policies. In that regard, it is noteworthy that the AMA reaffirmed its recognition
Finally, Executive Order 14212, issued just a few months ago, listed obesity as a chronic disease, stating: “It shall be the policy of the Federal Government to aggressively combat the critical health challenges facing our citizens, including the rising rates of mental health disorders, obesity, diabetes, and other chronic diseases.” Exec. Order No. 14212, 90 Fed. Reg. 9833, 9834 (Feb. 13, 2025).
[j]udges have always been expected to apply their “judgment” independent of the political branches when interpreting the laws those branches enact. The Federalist No. 78, at 523. And one of those laws, the [Administrative Procedure Act], bars judges from disregarding that responsibility just because an Executive Branch agency views a statute differently.
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