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September 4, 2017

VAOPGCPREC 1-2017; Service Connection; Obesity

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Department of Veterans Affairs

Memorandum
Date: January 6, 2017 VAOPGCPREC 1-2017
From:
Subj:
To:
Acting General Counsel (022)
Service Connection Based on Obesity
Executive in Charge, Board of Veterans’ Appeals (01)
QUESTIONS PRESENTED:
1. Is obesity per se a “disease” for purposes of establishing entitlement to service
connection under38 U.S.C. §§ 1110 and 1131?
2. If obesity is a disease, may obesity be considered the result of a veteran’s willful
misconduct for purposes of line-of-duty determinations under 38 U.S.C. § 1 05(a)?
3. Is obesity per se a “disability” for purposes of secondary service connection under 38
C.F.R. § 3.310?
4. If obesity is not a disease, could it be an “in-service event” from which a serviceconnected
disability may result?
5. If obesity is not a disease, could it be an “intermediate step” between a serviceconnected
disability and a current disability that may be service connected on a
secondary basis under 38 C.F.R. § 3.310(a)?
HELD:
1. The longstanding policy of the Department of Veterans Affairs (VA), that obesity per
se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore
may not be service connected on a direct basis, is consistent with title 38, United States
Code.
2. Because obesity is not considered a disease for purposes of 38 U.S.C. §§ 1110 and
1131, we do not need to determine whether it may be considered the result of a
veteran’s willful misconduct for purposes of line-of-duty determinations under 38 U.S.C.
§ 105(a).
3. Obesity per se is not a “disability” for purposes of 38 C.F.R. § 3.310. If, in a
particular case, obesity resulting from a service-connected disease or injury is found to
produce impairment beyond that contemplated by the applicable provisions of VA’s
rating schedule, VA may consider an extra-schedular rating under 38 C.F.R.
§ 3.321(b)(1) for the service-connected condition based on that impairment.
VA FORM
MAR 1989 21 05
2.
Executive in Charge, Board of Veterans’ Appeals (01)
4. Obesity cannot qualify as an in-service event because it occurs over time and is
based on various external and internal factors, as opposed to being a discrete incident
or occurrence, or a series of discrete incidents or occurrences.
5. 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).
DISCUSSION:
1. These issues arise in the context of a remand to the Board of Veterans’ Appeals
(Board) by the United States Court of Appeals for Veterans Claims (Veterans Court).
A veteran who weighed 595 pounds as of July 2013 filed a claim for disability
compensation, seeking service connection for weight gain and obesity, including as
secondary to service-connected hypertension. He alleged that his obesity has caused
disabilities involving his back, heart, ankles, and a psychiatric disorder. In April2014,
the Board denied the veteran’s claim for service connection for weight gain and obesity,
to include as secondary to service-connected hypertension, in part based on its
conclusion that obesity was not a disability under VA disability compensation laws. The
veteran appealed to the Veterans Court, and the parties entered into a joint remand as
to the Board’s denial of service connection for weight gain and obesity, to include as
secondary to service-connected hypertension. On remand, the parties agreed that the
Board would address: (1) whether obesity is a disability that is compensable as
secondary to a service-connected condition under 38 C.F.R. § 3.310(a); and
(2) whether it is properly considered a disease or a defect.
2. “Obesity refers to an excess amount of body fat” as determined by height and
weight. Nat’llnst. of Diabetes & Digestive & Kidney Diseases, U.S. Dep’t of Health &
Human Servs., Overweight and Obesity Statistics, 1, available at
http://www. niddk. nih. gov/health-information/health-statistics/Documents/stat904z. pdf;
see also DORLAND’S ILLUSTRATED MED. DICTIONARY 1309 {32″d ed. 2012) {defining
“obesity”). Body mass index (BMI), which is calculated by dividing weight in kilograms
by height in meters squared (kg/m2
), is used most commonly to estimate obesity. /d.
A person with a BMI of 30 kg/m2 or more is considered obese.1 Nat’l Heart, Lung &
1 In 2013, 69% of U.S. adults were estimated to be overweight, which included 35% of
U.S. adults estimated to be obese. Managing Overweight and Obesity in Adults, at 4.
The prevalence of overweight is 2 to 3% more common in veterans, and obesity is
about equally prevalent in veterans, after adjusting for age, gender, and race/ethnicity.
Thomas D. Koepsell eta/., Obesity, Overweight, and Their Life Course Trajectories in
Veterans and Non-Veterans, 20 OBESITY 434, 437 (2011); Nathaniel Almond eta/., The
Prevalence of Overweight and Obesity among U.S. Military Veterans, 173 MIL.
MED. 544, 544 (2008). The Veterans Health Administration (VHA) estimates that the
incidence of obesity and overweight among the veterans VHA serves is 76%. VHA
3.
Executive in Charge, Board of Veterans’ Appeals (01)
Blood lnst., Nat’llnsts. of Health (NIH), Managing Overweight and Obesity in Adults:
Systemic Evidence Review From the Obesity Expert Panel, 2013, 4 (2013), available at
http://www.nhlbi.nih.gov/health-pro/guidelines/in-develop/obesity-evidence-review; see
also 42 C.F.R. § 410.18(e)(3).
3. Pursuant to 38 U.S.C. §§ 1110 and 1131, VA is authorized to pay compensation to
veterans “[f]or disability resulting from personal injury suffered or disease contracted in
line of duty, or for aggravation of a preexisting injury suffered or disease contracted in
line of duty.” The term “disease” is not defined in title 38, United States Code.
Therefore, “Congress left it up to the VA to ‘fill the gap left by the statute with respect to
the question of what kinds of conditions qualify’ as diseases” for purposes of entitlement
to veterans benefits. O’Bryan v. McDonald, 771 F.3d 1376, 1378 (Fed. Cir. 2014)
(quoting Terry v. Principi, 340 F.3d 1378, 1383 (Fed. Cir. 2003)). VA has not defined
the terms “injury” and “disease” in regulations. However, in Terry, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) opined that “Congress could not have
intended to include every defect, infirmity, and disorder within the scope of
compensable disabilities.” 340 F.3d at 1386. In fact, 38 C.F.R. § 3.303(c) provides that
“[c]ongenital or developmental defects, refractive error of the eye, personality disorders
and mental deficiency as such are not diseases or injuries within the meaning of
applicable legislation” for disability compensation purposes. See also 38 C.F.R. § 4.9
(same). The court stated that “[t]he fact that [presbyopia] is due to developmental
problems associated with aging rather than due to trauma that was incurred during
military service is a reasonable basis for excluding ‘refractive error of the eye’ from the
construction of the terms ‘injury’ and ‘disease.”‘ /d. at 1384.
4. This office has previously considered the meaning of the terms “disease” and “injury”
as used in the statutes authorizing disability compensation. In VAOPGCPREC 82-90
and VAOPGCPREC 2-93, we indicated that the term “disease” has been broadly
defined by a medical dictionary as “any deviation from or interruption of the normal
structure or function of any part, organ, or system of the body that is manifested by a
characteristic set of symptoms and signs and whose etiology, pathology, and prognosis
may be known or unknown.” VAOPGCPREC 82-90 and VAOPGCPREC 2-93, para. 3
(citing DORLAND’S ILLUSTRATED MED. DICTIONARY 385 (26th ed. 1974) {defining
“disease”).2 In those opinions, we also noted that the term has been variously defined
in the case law as “a morbid condition of the body or of some organ or part; an illness;
[or] a sickness.” VAOPGCPREC 82-90; VAOPGCPREC 2-93, para. 3. In
VAOPGCPREC 86-90, we distinguished “disease” from “injury” by applying common
Directive 2010-007, para. 2.a. (Feb. 12, 2010); see Marian Tanofsky-Kraff eta/., Obesity
and the US Military Family, 21 OBESITY 2205, 2206 (2013) (72% of veterans are
overweight or obese).
2 DORLAND’S ILLUSTRATED MED. DICTIONARY 528 (32nd ed. 2012) contains essentially the
same definition of “disease.”
4.
Executive in Charge, Board of Veterans’ Appeals (01)
usage, which denotes injury as “harm resulting from some type of external trauma” and
disease as “harm resulting from some type of internal infection or degenerative
process.” See also VAOPGC 6-86 (Mar. 27, 1986) (referring to injury as resulting from
external trauma, i.e., application of external force or violence, and disease as a
response to environmental factors, infective agents, inherent defects, or a combination
of these factors). Although these opinions cite definitions of “disease” from various
authorities, they do not interpret VA statutes or regulations as establishing a single
specific definition of that term. To the extent these opinions describe a specific
standard for distinguishing “disease” from congenital defects or injuries, they do not
describe a standard for distinguishing disease from things, like obesity, that have not
traditionally been considered to fall within any of those categories.
5. The opinion request notes that several organizations, including the American
Medical Association (AMA), and Federal agencies have stated that obesity is a disease.
AMA Resolution 420, Recognition of Obesity as a Disease (June 2013), available at
https://download. am a-assn .org/resources/doc/hod/x-pub/a 13-resol utions. pdf; Social
Security Ruling, SSR 02-1p; Titles II and XVI: Evaluation of Obesity, 67 Fed.
Reg. 57,859, 57,860 (Sept. 12, 2002); Nat’l Heart, Lung & Blood lnst., NIH, Clinical
Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity
in Adults xi (1998); Rev. Rul. 2002-19, 2002-16 I.R.B. 778, 2002-1 C.B. 778;
Regulations on Statements Made for Dietary Supplements, 65 Fed. Reg. 1000, 1027
(Jan. 6, 2000); Jeffrey I. Mechanick, eta/., American Association of Clinical
Endocrinologists’ Position Statement on Obesity and Obesity Medicine, 18 ENDOCRINE
PRACTICE 644 (2012). However, these statements were made for a variety of purposes
other than disability compensation.
6. The findings of the AMA and some Federal agencies that obesity is a disease do not
compel the same result by VA. We note that, although the AMA voted to recognize
obesity as a disease, the decision was intended “to advance obesity treatment and
prevention.” AMA Resolution 420, Recognition of Obesity as a Disease. In fact, the
AMA decision was contrary to the recommendation of the AMA’s Council on Science &
Public Health (CSAPH) , /s Obesity a Disease?, CSAPH Report 3-A-13, available at
http://www.ama-assn.org/ama/pub/about-ama/our-people/ama-councils/council-sciencepublic-
health/reports/2013-reports.page?; see AMA Council on Scientific Affairs (CSA),
Recommendations for Physician and Community Collaboration on the Management of
Obesity, CSA Report 4-A-05, at 5-7, available at https://download.amaassn.
org/resources/doc/csaph/x-pub/a05csa4-fulltext.pdf. The AMA CSAPH concluded
in 2013 that “[w]ithout a single, clear, authoritative, and widely-accepted definition of
disease, it is difficult to determine conclusively whether or not obesity is a medical
disease state.” CSAPH Report 3-A-13, at 6; see James R. Hebert, eta/., Scientific
Decision Making, Policy Decisions, and the Obesity Pandemic, 88 MAYO CLINIC
PROCEEDINGS 593, 594-96 (2013). Also, the analysis by both the CSAPH and the CSA
indicates that, even with regard to the criteria contained in DORLAND’s definition of
“disease,” discussed in VA General Counsel opinions, there is disagreement as to
5.
Executive in Charge, Board of Veterans’ Appeals (01)
whether obesity satisfies these criteria. 3 CSAPH Report 3-A-13, at 11, Table 3; CSA
Report 4-A-05, at 6-7, 14. While organizations and agencies that classify obesity as a
disease reasonably may do so for purposes of promoting understanding, prevention,
and treatment of conditions that jeopardize a person’s health, it does not necessarily
follow that obesity must be considered a disease for purposes of title 38, United States
Code, as a matter of law. Rather, the question of whether obesity should be considered
a disease involves exercise of the gap-filling authority vested in VA under 38 U.S.C.
§ 501, which may include consideration of factual and policy considerations, such as
whether there is general consensus that obesity is a disease or continued divergence of
opinion.
7. Under 38 U.S.C. § 1155, the Secretary is authorized to “adopt and apply a schedule
of ratings of reductions in earning capacity from specific injuries or combination of
injuries” and the ratings must be based as far as practicable, “upon the average
impairments of earning capacity resulting from such injuries in civil occupations.” The
“rating schedule is primarily a guide in the evaluation of disability resulting from all types
of diseases and injuries encountered as a result of or incident to military service.” 38
C.F.R. § 4.1. VA has given meaning to the statutory terms “injury” and “disease”
through promulgation of the rating schedule codified in part 4 of title 38, Code of Federal
Regulations, which identifies specific conditions and categories of conditions for which
compensation is payable. There are more than 700 conditions in the rating schedule
that are compensable, but the schedule does not include obesity.4
8. The Department’s interpretation of the terms “disease” and “injury” may also be
reflected in administrative directives, forms, and publications discussing specific
conditions, but we are unaware of any administrative document discussing
3 The CSAPH stated that, rather than trying to decide whether “obesity meets arguably
arbitrary disease criteria, the more relevant question is ‘would health outcomes be
improved if obesity is considered a chronic, medical disease state?”‘ CSAPH
Report 3-A-13, at 4. Nonetheless, the Council stated that this question could not be
answered definitively. /d. at 4-5.
4We note that obesity is listed as a criterion for a 30% rating under 38 C.F.R. § 4.119,
Diagnostic Code (DC) 7907, Cushing’s syndrome, but this indicates that obesity is a
sign of another disease and does not indicate obesity is a disease in and of itself.
S. Heshka & D. B. Allison, Is Obesity A Disease?, 25 INT’L J. OF OBESITY 1401, 1403
(2001) (obesity is one of the signs of Cushing’s syndrome); see Hebert, supra at 596
(obesity is a “sign of underlying primary pathologic abnormalities”). DC 7903,
Hypothyroidism, at 38 C.F.R. § 4.119, includes weight gain as a criterion for a 60%
rating, but as VA explained when promulgating the rule, weight gain due to
hypothyroidism is largely due to fluid retention which distinguishes it from simple
obesity. Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed.
Reg. 20,440, 20,441 (May 7, 1996).
6.
Executive in Charge, Board of Veterans’ Appeals (01)
compensation for obesity. While VA regulations recognize that the rating schedule is
not exhaustive, see 38 C.F.R. § 4.20, we interpret the omission of obesity in the VA
rating schedule to reflect the Department’s considered judgment that the condition is not
a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131. See e.g., Schedule for
Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7,
1996) (laboratory test results of hyperlipidemia, elevated triglycerides, and elevated
cholesterol are not appropriate entities for rating schedule); see generally Cook v.
Principi, 318 F.3d 1334, 1339 n.6 (Fed. Cir. 2002) (citation omitted) (under expressio
unius est exclusio alterius canon of construction, “the expression of one thing is the
exclusion of another”). Because obesity is a well-known and widespread condition, if
VA had intended to consider obesity as a disease, it would almost certainly have
included provisions in its rating schedule related to obesity.
9. The analysis of the AMA Councils reflect that there are substantial bases for
concluding that obesity does not satisfy the elements of the definition of “disease” in
DoRLAND’s and other authorities, which generally contemplate an impairment or
deviation from normal functioning of a body part or system, identified by characteristic
signs or symptoms. CSAPH Report 3-A-13 at 11, Table 3 (summarizing arguments for
and against finding obesity to be a disease) and 10, Table 2 (discussing various
definitions of “disease”); CSA Report 4-A-05 at 5-7 (summarizing arguments for and
against finding obesity to be a disease). According to the AMA CSA, it can be argued
that the only identifiable sign of obesity is its defining characteristic, i.e., an excess
accumulation of fat in the body. CSA Report 4-A-05 at 6; S. Heshka & D.B. Allison,
supra at 1403. Other conditions such as high blood pressure often accompany a BMI of
30 or greater, but these conditions are not always present. S. Heshka & D.B. Allison,
supra at 1402. The excess accumulation of body fat, measured by BMI, is not
necessarily an impairment. CSA Report 4-A-05 at 6; S. Heshka & D. B. Allison, supra
at 1403. Although BMI is a screening tool used in conjunction with other tools such as
blood pressure to assess an individual’s risk for diseases such as diabetes and
arteriosclerosis, as for harm caused by obesity itself, research has not yet found a true
causal connection between obesity and morbidity and/or mortality.5 CSA Report 4-A-05
at 6; CSAPH Report 3-A-13, at 1; see Paul Campos, eta/., The Epidemiology of
Overweight and Obesity: Public Health Crisis or Moral Panic?, 35 INT’L J. OF
EPIDEMIOLOGY 55, 56-57 (2006). Thus, there is support for the conclusion that obesity
5 “The majority of epidemiological studies have shown that people who are overweight
or moderately obese live at least as long as normal weight individuals and often longer.”
J.-P. Chaput, eta/., Obesity: a disease or a biological adaptation? An update,
13 OBESITY REVS. 681, 682 (2012). For example, despite an association between
obesity and overweight and increased prevalence of cardiovascular disease (CVD),
evidence now indicates that overweight and obese patients with the same CVS
diagnoses have better short- and long-term prognoses than do leaner patients. Hebert,
supra at 596.
7.
Executive in Charge, Board of Veterans’ Appeals (01)
does not satisfy the elements of a “disease” as defined by DORLAND’S or other
authorities. We therefore conclude that the Department’s policy, that obesity per se is
not a disease for purposes of establishing entitlement to service connection under 38
U.S.C. §§ 1110 and 1131, is consistent with governing statutes and General Counsel
precedential decisions and supported by a number of scientific authorities discussed
above.
10. Obesity also generally cannot be service connected on a secondary basis as a
disability directly resulting from a veteran’s service-connected disability.
Section 3.31 O(a) of title 38, United States Code, provides that “disability which is
proximately due to or the result of a service-connected disease or injury shall be service
connected.” Section 3.310 further provides that secondary service connection may be
warranted when a service-connected condition causes an increase in the severity of a
“nonservice-connected disease or injury.” 38 C. F. R. § 3.31 O(b). For the reasons noted
above, obesity is not a “disease or injury” within the meaning of section 3.310(a) or (b).
Further, the fact that VA has not included obesity or weight gain as ratable conditions in
its schedule for rating disabilities indicates that VA does not view obesity or weight gain
itself as constituting a “disability” within the meaning of section 3.310(a). VA is
authorized to pay compensation under 38 U.S.C. §§ 1110 and 1131 for “disability” that
results from an injury suffered or disease contracted in line of duty or for aggravation of
a preexisting injury suffered or disease contracted in line of duty. The meaning of the
word “disability” in 38 U.S.C. §§ 1110 and 1131 may be gleaned from 38 U.S.C. § 1155,
which requires the Secretary of Veterans Affairs to “adopt and apply a schedule of
ratings of reductions in earning capacity from specific injuries or combination of injuries”
and that the rating in the rating schedule must “be based, as far as practicable, upon the
average impairments of earning capacity resulting from such injuries in civil
occupations.” Obesity is generally described as an excess accumulation of body fat,
measured by dividing weight in kilograms by height in meters squared. While there is
evidence that severe obesity, i.e., BMI of greater than 40, impairs physical and social
function, “impairment is not inevitable or even usual in most persons who meet the
present BMI or percentage fat criteria for obesity … many obese persons suffer no
impairment as a consequence of their obesity.” S. Heshka & D.B. Allison, supra
at 1402-03. Accordingly, VA generally has not considered, and need not consider,
obesity itself as meeting the criteria to be considered a “disability” for purposes of
relevant statutes and regulations.
11. The fact that obesity generally is neither a disease nor a disability does not,
however, preclude a finding, in a particular case, that obesity resulting from a serviceconnected
disease or injury contributes to disability and therefore should be considered
in assigning a disability evaluation for the service-connected condition. If appropriate,
such consideration may be given in a particular case under the provision in 38 C.F.R.
§ 3.321(b)(1) concerning extra-schedular ratings. The criteria in VA’s rating schedule
are generally considered adequate for purposes of rating disability due to serviceconnected
diseases. 38 C.F.R. § 4.1. Because obesity, per se, does not impair earning
8.
Executive in Charge, Board of Veterans’ Appeals (01)
capacity, VA’s rating schedule generally does not identify obesity as a relevant factor in
evaluating disability due to specific diseases or injuries, with the exception of Cushing’s
syndrome, as to which the rating schedule provides that the existence of obesity in
conjunction with certain other manifestations warrants a compensable disability rating.
38 C.F.R. § 4.119, DC 7907. However, 38 C.F.R. § 3.321 (b)(1) recognizes that VA’s
rating schedule may in some instances be inadequate and allows for assignment of an
“extra-schedular” rating if a particular case “presents such an exceptional or unusual
disability picture with such related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical the application of the regular
schedular standards.” 38 C.F.R. § 3.321 (b)(1). Accordingly, if the evidence in a
particular case shows that obesity results from a service-connected condition and under
the unique circumstances of the case, the resulting disability picture indicates marked
interference with employment, VA may assign an extra-schedular rating in accordance
with the standards and procedures in section 3.321(b)(1).
12. Having concluded that obesity is neither a disease nor a disability for purposes of
VA disability compensation, the next question is whether it may qualify as an “in-service
event” that can cause a disability. You inquire as to whether, for example, obesity
occurring during and continuing after service may be found to be the cause of
subsequently diagnosed diabetes for purposes of establishing service connection for
the diabetes. A disease that is diagnosed after service discharge may provide a basis
for service connection if the evidence establishes an in-service event, injury, or disease
caused the disease. See Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345
F.3d 1334, 1355-56 (Fed. Cir. 2003) (validating 38 C.F.R. § 3.159(c)(4)(i)(B), under
which one of the prerequisites for a VA medical examination or opinion is evidence
establishing an in-service event, injury, or disease). The term “event” is defined in 38
C.F.R. § 3.159(a)(4) to mean “one or more incidents associated with places, types, and
circumstances of service giving rise to disability.” See Duty to Assist, 66 Fed.
Reg. 17,834, 17,835 (Apr. 4, 2001) (proposing to define “event” to encompass “a
potentially harmful occurrence … associated with a particular duty assignment or place
of duty). VA derived that definition from 38 U.S.C. § 1154(a), which directs VA, in
claims for service connection, to consider “the places, types, and circumstances of [the]
veteran’s service as shown by [the] veteran’s service record, the official history of each
organization in which such veteran served, such veteran’s medical records, and all
pertinent medical and lay evidence.” Duty to Assist, 66 Fed. Reg. 45,620, 45,622
(Aug. 29, 2001 ). VA’s definition is consistent with other definitions relating the term
“event” to a discrete occurrence. See MERRIAM-WEBSTER, http://www.merriamwebster.
com/dictionary/event (last visited Nov. 29, 2016) (event is “something that
happens: occurrence” or “noteworthy happening”); see Event causing injury,
BALLENTINE’s LAw DICTIONARY (2010) (event causing injury means “accidental means by
which the effect on the body- the injury- is caused”). For VA purposes, the term
“event” encompasses exposure to environmental hazards as well as such activities as
parachute jumping. 66 Fed. Reg. at 45,622. It also encompasses a series of discrete
incidents or occurrences that may occur over a period of time and can be identified with
…. .
9.
Executive in Charge, Board of Veterans’ Appeals (01)
“places, types, and circumstances of service giving rise to disability,” such as working in
a smoke-filled environment or where hazardous substances are present, working in an
environment with long-term noise exposure, e.g., in an artillery unit, or having work
duties consisting of carrying heavy pieces of equipment. See, e.g., McLendon v.
Nicholson, 20 Vet. App. 79, 83 (2006) (exposure to noise from a rifle range, bombing,
artillery fire, trucks, and heavy equipment could establish the in-service event
requirement for service connection for a hearing disability).
13. We do not believe that obesity qualifies as an in-service event, as contemplated in
38 C.F.R. § 3.159(a)(4), which, as noted above, is derived from 38 U.S.C. § 1154(a).
Obesity is not itself a discrete incident or occurrence associated with the places, types,
and circumstances of service. 38 U.S.C. § 1154(a); 66 Fed. Reg. at 45,622. Rather,
obesity occurs over time and is based on various external and internal factors and
processes, many of which cannot be considered discrete events. See Scientific
Decision Making, Policy Decisions, and the Obesity Pandemic, 88 MAYO CLINIC
PROCEEDINGS at 596 (“Clearly, obesity arises from the dynamic interplay of the external
environment, inclusive of the social milieu, built environment, and food energy
availability; behavioral and developmental processes; and a variety of genes and
epigenetic effects that, in turn, control a myriad of metabolic systems and subsystems
that regulate body composition, energy intake (EI) and energy expenditure (EE), and
nutrient partitioning.”).
14. 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 serviceconnected
disability was a substantial factor in causing hypertension; and (3) whether
the hypertension would not have occurred but for obesity caused by the service10.
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
Richard J. Hipolit
6 In VAOPGCPREC 6-2003, the VA General Counsel held that 38 U.S.C. § 1103(a),
which prohibits service connection for disability resulting from injury or disease
attributable to the use of tobacco products during service, does not bar service
connection on a secondary basis for a disability related to use of tobacco after service if
the disability is proximately due to a service-connected disability that is not service
connected on the basis that is attributable to the veteran’s use of tobacco during
service.

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