What is the Deep Issue in the Case?

The Veteran in this case had evidence of weight gain in service. He claimed his obesity, which appears to have been diagnosed after service, was secondary to his service connected knee conditions. Citing to 38 U.S.C. §1110 and other cases which have considered the meaning of the words disease, disability and injury, the BVA found obesity is not a disease that can be service-connected.

Does the Court of Appeals for Veterans Claims (CAVC) have jurisdiction to decide whether the Secretary must list obesity as a disability on the schedule of ratings?

What did the CAVC Decide?

At the Court, the Secretary relied heavily on its own Office of General Counsel Opinion, an opinion not only contrary to the current body of medical authority but also not introduced as evidence before the BVA, that obesity is not compensable. (OGC Precedential opinions are binding on the BVA, but not the Court).

Marcelino argued the BVA did not apply the definition of disability properly and wrongly excluded obesity as a service-connectable disease, disability or injury under 38 U.S.C. §1110.

The Court held it could not entertain either of these arguments as it lacked jurisdiction: in 38 U.S.C. §7252(b), Congress deprived it of the ability to review the schedule of ratings and any action of the Secretary in adopting or revising that schedule of ratings.

The decision is - technically - not yet law. The Court must first issue its judgment (which I would expect to happen around mid-February unless one of the parties seeks reconsideration).

Once the Court issues its judgment, the parties have 60 days to appeal to the U.S. Court of Appeals for the Federal Circuit. Failing that, the CAVC mandate will issue and Marcelino will become law.

Takeaway Points for VSOs and Veterans Disability Lawyers:

1. Outcome aside, as a Veteran, Marcelino gave me confidence in the CAVC.

Marcelino is an important case for many veterans.

Obesity is one of the major diseases that plagues modern veterans - it kills us, it keeps us from working, and many would not be obese but for their military service.

There is an obesity epidemic among veterans - as much or more than the civilian population. At a minimum, veterans treated at the VHA - where there is substantial overlap with service connected disabilities - have a significantly higher likelihood of obesity. (Click here to read the study)

Because of its importance, I am troubled by the outcome of Marcelino.

Let me be clear: I am not troubled by the Court.

Nor am I troubled how the Court rendered or reached its decision. I am actually encouraged by the "how" of the court's decision, as noted below.

The Court decided the issue as it should - based on the arguments presented to it.

There's an old riddle for appellate lawyers: which side of any argument do you ALWAYS take? The answer: the side where I get to define the issue before the court.

The Court's job is not to hunt through the law to find arguments in a given case.

If you ask any judge, anywhere, they all have an example of a case where they spot an issue that would have won the case for one party or the other, if only it had been argued different, or argued at all.

Resisting the temptation to seek out arguments and issues is what makes a court objective and impartial - and what ensures that the law moves forward fairly.

With the same degree of fervor I believe Congress gave the CAVC jurisdiction over the dispute in Marcelino, I believe the decision demonstrates a noteworthy degree of objectivity in the particular panel of judges who heard and decided the case.

Marcelino was rife with opportunity for "judicial activism": any one of the judges could have fallen back on her own philosophy or belief system to deliver an outcome in either direction.

Had that happened and the CAVC held obesity should be a compensable disease based solely on the arguments presented to it in Marcelino, I believe trust in the Court would have been seriously undercut. The Court would have decided the law, not the dispute before it.

2. Appellate advocates can learn a lot from the Marcelino case.

Ultimately, the outcome of an appeal can be traced to how an issue is framed and argued to the Court. Marcelino proves that rule. Here's how the issue was presented to the Court:

Appellant (from his opening brief): "Did the Board misinterpret the term obesity and the law as stated in 38 U.S.C. § 1110, render a decision contrary to VA policy, and misinterpret the law governing the Board’s role and expert evidence when it determined that obesity is not a disease?"

Appellee, Secretary (from his response brief): "Should the Court should affirm the April 5, 2016, Board of Veterans’ Appeals (Board or BVA) decision that denied entitlement to service connection for obesity where the Board complied with the Agency’s longstanding policy that it does not consider obesity to be a disease for purposes of disability compensation, and Appellant fails to show any clear error therein?"

The Court, in a Briefing Order, directed the parties to be prepared to discuss the following issue at oral argument:

The Court's concern: Whether the Court has jurisdiction to review whether VA should consider obesity a disability under the rating schedule, in addition to the other issues raised in the parties' briefing. See, Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2009).

Jurisdiction is critical in appellate courts - it is the initial concern in any appeal.

Before the Court could even consider the parties' arguments whether obesity is or is not a compensable disease, it had to consider whether it had jurisdiction to decide the matter in the first place.

This was a problem for Marcelino for 3 reasons:

First, the Secretary's scant reference to Wanner is curious. The Secretary filed no motion to dismiss based on lack of CAVC jurisdiction, as he typically does. He concedes in his response brief that the CAVC does have "...jurisdiction under 38 U.S.C. § 7252(a), which grants the U.S. Court of Appeals for Veterans Claims (Court) exclusive jurisdiction to review Board decisions." Secretary's Response Brief, at page 2. It wasn't until the 15th page of his response, half a page before he closed, that he argued Wanner "barred" Appellant from relief. This is a hefty blow to Appellant's case, and it is disconcerting that it would appear 15 pages in, almost as a post-script.

Third, after the Secretary's closing reference to Wanner argues for a complete bar to relief, the Appellant did not respond to the attack in his reply.

Fourth, if you listen to oral arguments, you can hear the Court's frustration in the parties' unwillingness to dive into the jurisdictional issue. At approximately 12:25 of the oral arguments, the Court expresses that frustration to Appellant's counsel:

"You're almost saying we don't have a jurisdictional problem and you're not making an argument, but if you were going to make an argument as to jurisdiction and I think...umm....we want you to make an argument as to jurisdiction....".

The Secretary's attorney took some blows, too, on the jurisdictional issue.

It is always easier to look at cases from the outside, and to the extent I am critical of the argument of either party, it is because I have the luxury of watching the fight from the sidelines.

There is more to this case than briefs and arguments and as I say often on this blog, I can only talk about what is in the public record - there may be far loftier considerations at play in this appeal that I have no clue about.

It is from our losses that the Veterans' Bar brews future victories, so it is important that we distill every lesson we can from this case - particularly since this issue comes along so rarely.

Marcelino proves how important lawyers - and arguments that draw from the entire experience of the veterans' bar - are to the development of a coherent and consistent body of law.

We live to fight another day.

3. I believe the Court does have jurisdiction to decide whether the Secretary must service-connect and compensate veterans for obesity.

This was, at its core, a question of statutory interpretation of the Court's jurisdictional charge: 38 U.S.C. §7252.

The Court heavily considered the express mention of 38 U.S.C. §1155 as a limit on its jurisdiction in 38 U.S.C. §7252(b).

38 U.S.C. §1155 is not a stand-alone statute, and cannot be properly interpreted without looking at the body of law that comprises Title 38 and without considering other statute in pari materia.

The reference to 38 U.S.C. §1155 in the CAVC's jurisdictional charge appears to be a carve-out, a nod to the primacy of the Federal Circuit's jurisdiction over certain regulatory matters under the Administrative Practices Act. Even the legislative committee reports demonstrate the legislative compromise at play in 38 USC §7252: nobody wanted every comma in every diagnostic code of the schedule of ratings to be the subject of litigation before the CAVC but, at the same time, the Secretary shouldn't have "carte blanche" to publish unreviewable regulations. See, Wingard v. McDonald, 779 F.3d 1354, 1357-1359 (2015).

To interpret 7252(b) beyond this plain text meaning renders other portions of Title 38 irrelevant, and raises interesting constitutional questions.

While the Court was correct to consider the importance of §1155, and the Wanner and Wingard and Byrd cases are important to that consideration, the parties' failure to help the Court understand the express language of §7252(b) led to an incorrect outcome in this case: I believe the CAVC has jurisdiction to review a BVA decision which finds a specific disability is not compensable under Title 38.

4. Do you have a case with the following fact pattern?

I won't lay out the entire argument here, in a blog post, but I believe Marcelino can be overcome.

Not only is the Secretary statutorily and constitutionally obligated to service connect obesity, but that the CAVC has jurisdiction to review a BVA decision refusing to do so.

First, if you have a client with a BVA decision which denies service connection for obesity,please reach out to me, and we can discuss whether it is the right case to challenge Marcelino.

Second, if you are a VSO, agent or attorney with a client/veteran before the VARO or BVA whose claim or appeal presents the following fact pattern, please reach out to me:

a) Veteran diagnosed as obese, and the obesity is not the result of any other condition or disease (it need not be idiopathic, just not secondary to any medical condition);

b) There is an in-service history of weight gain that led to obesity - or an in-service diagnosis of obesity. The evidence of nexus of obesity to military service should be compelling, if not dispositive. Veteran need not have been discharged due to obesity but if so, it should be a qualifying discharge;

c) Evidence of the financial or economic harm Veteran has suffered due to his or her obesity - an ability to hold, procure or perform a job or a broad class of jobs noted in the record before the BVA decision, or where there remains time to include that evidence in the record.

Case Details

Link to the CAVC Panel Decision on the CAVC Website

Link to the BVA Decision on CAVC Website

CAVC Judge: Panel Decision (Precedential)

Judge Mary J. Schoelen - Opinion Author - (link to bio on CAVC website)

Judge Coral W. Pietsch (link to bio on CAVC Website)

Judge Margaret Bartley (link to bio on CAVC website)

OGC Attorney: Omar Yousaf

Veteran Representation at CAVC:

Zachary Stolz -Lead Counsel (Chisholm, Chisholm and Kilpatrick)

Dana Weiner - On the Briefs and Argument (Chisholm, Chisholm and Kilpatrick)

Board of Veterans Appeals Veterans Law Judge: A. Jaeger

Regional Office: Los Angeles, California VARO

Vets’ Rep at BVA:Disabled American Veterans (DAV)

Date of Decision: January 23, 2018