Veteranclaims’s Blog

August 26, 2021

Larson v. McDonough, No. 2020-1647 (Decided: August 26, 2021); what constitutes a disability under 38 U.S.C. § 1110; Saunders v. Wilkie, 886 F.3d 1356 (Fed.Cir. 2018); We can find no statutory requirement—and the government points to none—that if the VA (or the Board or the Veterans Court) determines that a condition not listed on the rating schedule constitutes a disability under § 1110, it must modify the rating schedule; there are potential ancillary benefits to which a veteran with an unratable service-connected disability would be entitled that are unrelated to any compensation contemplated by the rating schedule, including priority access to VA health care, 38 U.S.C. § 1710(a)(1)(A), and preference in federal hiring, 5 U.S.C. §§ 3309, 2108;

Filed under: Uncategorized — Tags: — veteranclaims @ 7:26 pm

United States Court of Appeals for the Federal Circuit


GARY R. LARSON, JR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2020-1647


Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-744, Judge Amanda L. Meredith.


Decided: August 26, 2021


CHRIS ATTIG, Attig Steel, PLLC, Little Rock, AR, argued
for claimant-appellant.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
ELIZABETH MARIE HOSFORD, ERIC JOHN SINGLEY;
JONATHAN KRISCH, Y. KEN LEE, Office of General Counsel,
United States Department of Veterans Affairs,
Case: 20-1647 Document: 62 Page: 1 Filed: 08/26/2021
2 LARSON v. MCDONOUGH
Washington, DC.
CHERYL ZAK LARDIERI, Perkins Coie LLP, Washington,
DC, for amici curiae National Veterans Services Program,
National Organization of Veterans’ Advocates, Inc. Also
represented by ALEXANDER O. CANIZARES, BETSELOT
ZELEKE; JOHN D. NILES, Carpenter Chartered, Topeka, KS;
BARTON F. STICHMAN, National Veterans Legal Services
Program, Washington, DC.


Before NEWMAN, REYNA, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Gary R. Larson, Jr. appeals the decision of the Veterans
Court holding that it lacked jurisdiction to review a
Board determination of what constitutes a disability under
38 U.S.C. § 1110. Because this court has previously held
that the Veterans Court has jurisdiction to review a Board
determination that a claimed condition did not constitute a
disability for purposes of § 1110, we reverse the Veterans
Court’s jurisdictional finding and remand.
I
The relevant facts of this appeal are undisputed.
Mr. Larson served on active duty for training in the United
States Navy Reserves in 1988 and on active duty in the
Navy from 1989 to 1993. He gained a substantial amount
of weight before, during, and after his active service. In
2009, Mr. Larson filed a claim for service connection for
multiple conditions, including the two conditions at issue
in this appeal, obesity and dysmetabolic syndrome (DMS).
The VA denied the claims in 2010 and the Board affirmed
that denial in 2016, holding that neither DMS nor obesity
was a disability because neither condition is ratable under
the VA Schedule of Rating Disabilities (rating schedule).
Mr. Larson appealed to the Veterans Court.
Case: 20-1647 Document: 62 Page: 2 Filed: 08/26/2021
LARSON v. MCDONOUGH 3
As relevant here, the Veterans Court affirmed the
Board’s denial of service connection for DMS and obesity,
holding that it lacked jurisdiction to review a Board determination
of what constitutes a disability under § 1110. Relying
on this court’s decisions in Wanner v. Principi,
370 F.3d 1124 (Fed. Cir. 2004) and Wingard v. McDonald,
779 F.3d 1354 (Fed. Cir. 2015), and the Veterans Court’s
decision in Marcelino v. Shulkin, 29 Vet. App. 155 (2018),
the Veterans Court reasoned that such inquiry amounted
to a review of the ratings schedule, which is prohibited by
38 U.S.C. § 7252(b). This appeal followed.
II
This court may review a Veterans Court decision “with
respect to the validity of a decision of the Court on a rule of
law or of any statute or regulation . . . or any interpretation
thereof . . . that was relied on by the Court in making the
decision.” 38 U.S.C. § 7292(a). In reviewing a Veterans
Court decision, this court must decide “all relevant questions
of law, including interpreting constitutional and statutory
provisions,” and set aside any interpretation thereof
“other than a determination as to a factual matter” relied
on by the Veterans Court that we find to be “(A) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law; (B) contrary to constitutional right,
power, privilege, or immunity; (C) in excess of statutory jurisdiction,
authority, or limitations, or in violation of a statutory
right; or (D) without observance of procedure
required by law.” § 7292(d)(1). We review the Veterans
Court’s legal determinations de novo. Kyhn v. Shinseki,
716 F.3d 572, 575 (Fed. Cir. 2013).
Mr. Larson argues on appeal that the Veterans Court
legally erred when it held that the prohibition against review
of the rating schedule deprived it of jurisdiction to review
the Board’s determination that DMS and obesity were
not disabilities for § 1110 purposes. Specifically, Mr. Larson
asserts that in Saunders v. Wilkie, 886 F.3d 1356 (Fed.
Case: 20-1647 Document: 62 Page: 3 Filed: 08/26/2021
4 LARSON v. MCDONOUGH
Cir. 2018), this court considered the legal standard governing
what constitutes a disability under § 1110 and held
that the Veterans Court has jurisdiction to review a Board
determination of the same. Appellant’s Br. 38–39. The government
argues in response that this court held in Wanner
that review of the meaning of “disability” under § 1110 is
equivalent to a direct challenge to the rating schedule and
that Congress intended to include the type of challenge presented
here in the prohibition against judicial review expressed
in 38 U.S.C. § 7252(b). The government further
argues that Saunders is distinguishable from Mr. Larson’s
appeal.
III
A
We begin with the relevant statutory provisions.
38 U.S.C. § 1110 sets forth the basic entitlement for veterans’
disability benefits:
For 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, in the active military, naval,
or air service, during a period of war, the
United States will pay to any veteran thus disabled
and who was discharged or released under conditions
other than dishonorable from the period of
service in which said injury or disease was incurred,
or preexisting injury or disease was aggravated,
compensation as provided in this
subchapter.
38 U.S.C. § 1110 (1998).
38 U.S.C. § 7252 establishes the exclusive jurisdiction
of the Veterans Court to review decisions of the Board.
However, the Veterans Court “may not review the schedule
of ratings for disabilities adopted under § 1155 of this title
or any action of the Secretary in adopting or revising that
Case: 20-1647 Document: 62 Page: 4 Filed: 08/26/2021
LARSON v. MCDONOUGH 5
schedule.” § 7252(b). The legislative history of the Veterans’
Judicial Review Act, which created the Veterans
Court, adds further context to this jurisdictional limitation.
Senate Report 100-418 explains that, under the restriction,
a “court would not be permitted to direct or otherwise order
that any part of a disability rating schedule issued or
adopted by the Administrator be modified.” S. Rep. 100-418
at 53 (1988). House Report 100-963 similarly notes that the
prohibition was prompted by “apprehension . . . that the
VA schedule for rating disabilities . . . would be destroyed
by piecemeal review of individual rating classifications.”
H.R. Rep. 100-963 at 28 (1988). Thus, “[t]he language in
the legislative history is not limited to the percentages of
the disability ratings, . . . but matches the statutes in
broadly precluding judicial review of the contents of the
disability rating schedule in toto.” Wanner, 370 F.3d at
1130.
The question before us is therefore narrow: Does a
Board decision concerning what constitutes a disability under
§ 1110 necessarily implicate the content of the rating
schedule and thus trigger § 7252(b)’s restriction on the Veterans
Court’s jurisdiction?
B
We next turn to our precedent interpreting § 1110 and
the prohibition against judicial review of the rating schedule.
The government argues that this court held in Wanner
that a challenge to a Board determination of what constitutes
a disability under § 1110 is “‘indistinguishable’ from
‘direct review of the content of the rating schedule.’” Appellee’s
Br. 19 (quoting Wanner, 370 F.3d at 1131). We disagree.
In Wanner, the veteran “sought a compensable rating
because of an increase in the severity of his Tinnitus.”
370 F.3d at 1126. The VA maintained the non-compensable
or zero percent rating for his tinnitus because the relevant
Diagnostic Code, DC 6260, required that, to receive a
Case: 20-1647 Document: 62 Page: 5 Filed: 08/26/2021
6 LARSON v. MCDONOUGH
compensable rating, the tinnitus be a symptom of “head injury,
concussion, or acoustic trauma.” Id. The Veterans
Court addressed the merits of the veteran’s claim and concluded
that the trauma requirement of DC 6260 was invalid
because it conflicted with § 1110. This court reversed,
holding that the Veterans Court lacked jurisdiction to review
the content of the rating schedule. Id. at 1129–30. The
government argues that Wanner therefore stands for the
proposition that the Veterans Court is without jurisdiction
to review “what should be considered a disability,” including
for § 1110 purposes. Appellee’s Br. 7. But Wanner unambiguously
involved a direct challenge to the content of
the rating schedule: the Veterans Court had invalidated
the trauma requirement of DC 6260. See also Wingard,
779 F.3d at 1356 (holding that the Veterans Court did not
have jurisdiction over a challenge to the contents of the rating
schedule adopted by the Secretary). To the extent that
Wanner involved a challenge to the meaning of “disability,”
it did so in the narrow context of how a ratable disability
was defined by a specific Diagnostic Code. Section 1110
was only implicated in Wanner because the Veterans Court
had invalidated a provision of the rating schedule as inconsistent
with § 1110. See 370 F.3d at 1127–28.
The government further contends that even if our holding
in Wanner is confined to its context, we should nonetheless
extend that holding now because, based on the
statutory scheme, “review of what constitutes a § 1110 disability
is no different from review of what is entitled to a
§ 1155 disability rating—which directly implicates the content
of the rating schedule.” Appellee’s Br. 19. Again, we
disagree. We can find no statutory requirement—and the
government points to none—that if the VA (or the Board or
the Veterans Court) determines that a condition not listed
on the rating schedule constitutes a disability under
§ 1110, it must modify the rating schedule. And there are
potential ancillary benefits to which a veteran with an unratable
service-connected disability would be entitled that
Case: 20-1647 Document: 62 Page: 6 Filed: 08/26/2021
LARSON v. MCDONOUGH 7
are unrelated to any compensation contemplated by the
rating schedule, including priority access to VA health
care, 38 U.S.C. § 1710(a)(1)(A), and preference in federal
hiring, 5 U.S.C. §§ 3309, 2108.
See Amicus Br. 22 (listing
ancillary benefits). Thus, reviewing a determination by the
Board that a claimed condition does not constitute a disability
under § 1110, by itself, leaves the rating schedule undisturbed.
In Saunders, we specifically held that the Veterans
Court can review what constitutes a disability. There, the
Veterans Court affirmed a Board decision holding that a
veteran’s knee pain, “absent a specific diagnosis or otherwise
identified disease or injury, cannot constitute a disability
under 38 U.S.C. § 1110.” Saunders, 886 F.3d at 1358.
This court reversed, holding that the Veterans Court had
applied the wrong legal standard in determining that, for
an ailment to constitute a disability under § 1110, it must
be accompanied by a “diagnosis or identifiable condition.”
Id. at 1368. Instead, this court held that the legal definition
governing the term “disability” as used in § 1110 was “the
functional impairment of earning capacity, not the underlying
cause of said disability.” Id. at 1363. Whether the Veterans
Court had jurisdiction to review that Board
determination in light of § 7252(b) was not raised in that
appeal. See id. Nonetheless, Saunders articulated a definition
of “disability” for § 1110 purposes that is distinct from
and not coextensive with disabilities listed on the rating
schedule.
IV
Having established that this court’s holdings in Wanner
and Wingard are distinct from and not in conflict with
Saunders, the question before us becomes whether
Mr. Larson’s appeal is a challenge to the content of the rating
schedule, as in Wanner and Wingard, or whether he
seeks review of the Board’s determination of what constitutes
a disability for § 1110 purposes only, as in Saunders.
Case: 20-1647 Document: 62 Page: 7 Filed: 08/26/2021
8 LARSON v. MCDONOUGH
Although knee pain, DMS, and obesity can relate to ratable
disabilities, they do not appear as independent disabilities
on the rating schedule. Mr. Larson, like the veteran in
Saunders and distinct from the veterans in Wanner and
Wingard, seeks only to establish service connection for his
conditions under § 1110 and is not asking the Veterans
Court to invalidate or revise any portion of the rating
schedule. Accordingly, we conclude that Mr. Larson’s case
is analogous to Saunders.
Because Saunders controls the outcome of this appeal,
we hold that the Veterans Court legally erred when it determined
that it lacked jurisdiction to review the Board’s
denial of Mr. Larson’s claim for service connection for DMS
and obesity. Section 7252(b)’s restriction of the Veterans
Court’s jurisdiction is not implicated where, as here, a veteran
seeks only to establish that her conditions are serviceconnected
disabilities for § 1110 purposes. Mr. Larson does
not ask the Veterans Court to invalidate or modify a portion
of the rating schedule, nor does he ask the Veterans
Court to order the VA to assign him a rating for a condition
inconsistent with the rating schedule. Cf. Wingard,
779 F.3d at 1356–57 (explaining that the Veterans Court
lacked jurisdiction over a challenge to a regulation creating
a “zero-percent” disability rating). Thus, the Veterans
Court is not prohibited from reviewing Mr. Larson’s appeal
of the Board’s determination that DMS and obesity were
not disabilities under § 1110.1
1 We need not discuss at this juncture whether DMS
or obesity are properly considered disabilities for § 1110
purposes under Saunders, nor whether Mr. Larson’s DMS
and obesity—should they be deemed disabilities—are connected
to his service. These determinations must be made
by the VA in the first instance.
Case: 20-1647 Document: 62 Page: 8 Filed: 08/26/2021
LARSON v. MCDONOUGH 9
V
We have considered the parties’ remaining arguments
and find them unpersuasive. Because we agree with
Mr. Larson that 38 U.S.C. § 7252(b) does not bar the Veterans
Court from reviewing a Board determination of what
constitutes a disability for purposes of 38 U.S.C. § 1110, we
reverse that portion of the Veterans Court’s decision and
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
Case: 20-1647 Document: 62 Page: 9 Filed: 08/26/2021

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