Veteranclaims’s Blog

January 11, 2022

Single Judge Application; VA Gen. Couns. Prec. 1-2017 (Jan. 6, 2017); Garner v. Tran; secondary basis; Walsh v. Wilkie; “[o]besity may be an ‘intermediate step’ between a service-connected disability and a current disability that may be service connected on a secondary basis.” Garner v. Tran, 33 Vet.App. 241, 247 (2021) (quoting VA Gen. Couns. Prec. 1-2017 (Jan. 6, 2017), https://www.va.gov/OGC/docs/2017/VAOPGCPREC1-2017.pdf). That is, “obesity, although itself not a disability for which compensation may be awarded, can constitute an ‘intermediate step’ in demonstrating service connection on a secondary basis for another condition.” Walsh v. Wilkie, 32 Vet.App. 300, 302 (2020).;

Filed under: Uncategorized — Tags: — veteranclaims @ 3:36 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2825
FRANK C. POLIZZI, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: U.S. Army veteran Frank C. Polizzi served from 1976 to 1980. Record (R.) at 1980. He appeals a February 6, 2020, Board of Veterans’ Appeals (Board) decision that denied service connection on a direct basis for a left heel disability.
Mr. Polizzi has been service connected for a heart condition (status post heart valve replacement with a resulting scar) since 2004. R. at 4045-48, 4052-56. On March 3, 2017, he asked for service connection for a left heel disability as well. R. at 1908-11. The next month, he underwent a VA medical examination and was diagnosed with plantar fasciitis. R. at 1872. Repeating to the examiner what he stated in his claim, he attributed his condition to a 100-mile road march conducted over 4 days during service and the roughly 1,000 miles walked in preparation of that event. R. at 1873, 1909. The examiner noted that the veteran was seen during service for calluses on his feet, but the examiner opined that, because calluses were not known to cause plantar fasciitis, his condition was less likely than not related to service. R. at 1882. She later issued an addendum to her opinion, finding that the veteran’s in-service heel injuries (a heel contusion and, separately, skin irritation not considered in her first opinion), resulted in transient symptomatology and would not have produced plantar fasciitis 40 years later. R. at 1191, 1193.
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Throughout the claims process and appeal to the Board, the veteran maintained that his condition was due to these in-service injuries. See R. at 1909 (original claim), 837-38 (Notice of Disagreement, disputing the examiner’s findings), 65 (formal appeal, offering no new arguments). He abandons that argument here, however, contending that a different theory of service connection was reasonably raised by the evidence of record and thus should have been discussed by the Board. See DeLisio v. Shinseki, 25 Vet.App. 45, 53 (2011) (“[T]he Secretary generally must investigate the reasonably apparent and potential causes of the veteran’s condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant’s filing.”); Robinson v. Peake, 21 Vet.App. 545, 555 (2008) (holding that the Board errs when it fails to adequately address all issues expressly raised by the claimant or reasonably raised by the evidence of record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). His position now is that the Board should have considered obesity or weight gain as the path to secondary service connection. Under this theory, “[o]besity may be an ‘intermediate step’ between a service-connected disability and a current disability that may be service connected on a secondary basis.” Garner v. Tran, 33 Vet.App. 241, 247 (2021) (quoting VA Gen. Couns. Prec. 1-2017 (Jan. 6, 2017), https://www.va.gov/OGC/docs/2017/VAOPGCPREC1-2017.pdf). That is, “obesity, although itself not a disability for which compensation may be awarded, can constitute an ‘intermediate step’ in demonstrating service connection on a secondary basis for another condition.” Walsh v. Wilkie, 32 Vet.App. 300, 302 (2020). Obesity must, of course, first be shown to be caused by or aggravated by a service-connected condition. Id. at 304.
Applied to Mr. Polizzi’s situation, the theory would go—as he presents it—that his heart condition caused obesity, and his obesity led to his plantar fasciitis. In support of that theory, he says that soon after he submitted his claim in March 2017, he sought medical attention for shortness of breath. He explained at the time to the treating physician that he “is an avid outdoorsman” who frequently hikes, and when “on flat ground, he tolerates exertion quite well.” R. at 1807. But, he continued, “when presented with an incline, he has been able to traverse shorter and shorter distances over the past few months [and] gets profoundly short of breath with chest tightness, occasional dizziness, and occasional nausea, which eventually passes with 10-15 minutes of rest.” Id. He added that “it [was] much harder for him to get out of bed in the mornings” and that he was also “experiencing general malaise . . . [,] decreased energy, increased sleep, decreased appetite, but increased weight gain.” Id. This evidence, he contends, shows mobility
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limitations and suggests “a link between [his] weight and his service-connected heart condition.” Appellant’s Brief (Br.) at 3-4.
Separately, the veteran says that he submitted medical treatise evidence indicating that plantar fasciitis “disproportionately affects those who are overweight.” R. at 834. He argues that the record therefore contained evidence of a link between his obesity and his plantar fasciitis, thus closing the loop and reasonably raising the theory of secondary service connection based on obesity or weight gain having caused or aggravated by his service-connected heart condition. Appellant’s Br. at 4-5.
In Garner, the Court gathered “a broad array of factual circumstances” from a series of cases that collectively “illuminate the type and quality of evidence that may be sufficient to reasonably raise a theory of secondary service connection via obesity as an intermediate step.” 33 Vet.App. at 248. Among the relevant factual considerations listed, which included “mobility limitations” and “treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition,” the Court found a “critical commonality.” Id. at 248-49. “[I]n each case, there is some evidence in the record which draws an association or suggests a relationship between the veteran’s obesity, or weight gain resulting in obesity, and a service-connected condition.” Id. at 249.
In response to all this, the Secretary first objects to the veteran’s decision to raise this issue now, despite having several opportunities to do so below. Indeed, this Court and the Federal Circuit have repeatedly explained that when an appellant has the assistance of an attorney at the administrative level and an alleged error is of the sort more easily remedied by VA or the Board (such as a violation of the duty to assist), this Court is justified in declining to consider that alleged error when it is presented for the first time on appeal because VA’s institutional interests outweigh the interests of the appellant. See generally, e.g., Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Massie v. Shinseki, 25 Vet.App. 123 (2011). The considerations include the justification for a particular veteran not raising an issue earlier and the systemic interest in efficiency in adjudicating veteran’s claims to achieve better results faster. See generally Massie, 25 Vet.App. at 127-28; Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990) (“Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation.”). Given that Mr. Polizzi has been
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represented by counsel throughout the course of proceedings, see R. at 882, and pursued decidedly different contentions, the Court would be justified in declining to entertain the veteran’s novel arguments now. Yet two things encourage the Court to exercise its discretion to reach the merits here.
First, VA issued its precedent opinion as to this theory of service connection in 2017, in the midst of proceedings below. See G.C. Prec. 1-2017. Consequently, this Court has only recently explored how to apply its guidance. See Marcelino v. Shulkin, 29 Vet.App. 155, 157-58 (2018) (holding that this Court lacked jurisdiction to consider a challenge to VA’s determination that obesity is not a disability for purposes of compensation); Walsh, 32 Vet.App. at 306 (finding “no permissible basis in the relevant regulation for concluding that obesity may be an ‘intermediate step’ in a secondary-service-connection analysis when service-connected disability causes it, but not when service-connected disability aggravates it”); Garner, 33 Vet.App. at 249 (requiring some evidence of a connection between obesity and the veteran’s current disability or his service-connected condition).
Second, the veteran’s assertions here lack merit, so he’s no better off if the Court forgoes the sanctions prescribed by the Secretary. The veteran ignores that, “where . . . the record reflects only incidental references to the veteran’s weight or weight gain, the evidence of record is insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step.” Garner, 33 Vet.App. at 249. The single medical record that he relies on here captures his report of “increased weight gain” among numerous other symptoms. R. at 1807. And neither he nor the tending physician related that weight gain to his heart condition. To the contrary, the physician made various findings and noted, among other things, that a “cardiac cause for his symptoms [is] unlikely.” Id. And worse still for the veteran’s case, the physician opined that, in addition to a service-connected heart condition, the veteran had non-service-connected hypothyroidism, which “may be the cause of his general fatigue, weakness, and weight gain.” R. at 1808 (emphasis added).
Appellant takes no issue with the Board’s determination that his left heel condition was not directly related to service. He also fails to convince the Court that a different theory of service connection was reasonably raised by the record such that the Board erred by failing to consider it. Accordingly, the February 6, 2020, Board decision is AFFIRMED.
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DATED: August 31, 2021
Copies to:
Josef A. Loukota, Esq.
VA General Counsel (027)

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