This week we are previewing two cases being argued next week at the Federal Circuit that attracted amicus briefs. Today we highlight a veterans case, Larson v. McDonough. In this case, Larson asks the Federal Circuit to overrule what he characterizes as the Veterans Court’s prohibition of reviewing Board of Veterans Appeals decisions regarding the Department of Veterans Affairs Schedule of Disabilities. This is our argument preview.
Larson, a veteran, argues in his brief that “the Court should reverse the Veterans Court’s finding that [38 U.S.C.] §7252(b) barred the lower court from reviewing the BVA’s finding that obesity and [Dysmetabolic syndrome (‘DMS’)] are disabilities that cannot be service-connected.” Larson further argues the court should remand the case “to the BVA to fulfill the duty to assist Mr. Larson in developing the factual record, and re-adjudicate the appeal by applying the correct legal definition of disability as per Saunders v. Wilkie.” Finally, Larson requests “the Court hold that its decision in Saunders, or in this case, specifically over-rule the Veterans Court’s decision in Marcelino v. Shulkin.”
In its response brief, the Secretary urges the court to affirm the decision of the Veterans Court. The Secretary argues three primary points.
First, according to the Secretary, Federal Circuit precedent “held that section 7252(b) precludes judicial review over VA selections for ‘both the ratings and the injuries for which the ratings are provided‘ in the schedule.”
Second, the Secretary contends that “the statement . . . that forecloses Mr. Larson’s argument here was not dicta.”
Third, the Secretary argues that, “in Saunders v. Wilkie, this Court reviewed the Veterans Court’s legal interpretation of [a relevant statutory provision], not any VA choice as to the content of the schedule.” Therefore, the Secretary explains, “there is nothing to be learned about the operation of section 7252(b) from Saunders.”
In his reply brief, Larson contends the Secretary conceded that “Mr. Larson’s claims to service connect his obesity and DMS are at the current disability stage,” and so Larson argues the Saunders test “for what constitutes a current disability” should be used. In Saunders, he explains, “the Court expressly found it had jurisdiction to address the issue.” Further, Larson argues that, because “the parties do not seriously dispute that the sole issue in this case involves whether the BVA used the correct legal test for current disability, Saunders controls the outcome of this appeal.” Larson equates the arguments made in both cases, arguing “the BVA committed the same legal error in this appeal as it did in its decision underlying Saunders: it failed to make any findings of fact as to whether Mr. Larson’s obesity and DMS amount to functional impairments of his earning capacity.”
Larson, in his conclusion, “asks the Court to hold that its decision in Saunders, or its decision in this appeal, over-rule[s] the Veterans Court’s decision in Marcelino v. Shulkin.”
The National Veterans Legal Services Program and the National Organization of Veterans’ Advocates, Inc. filed an amicus brief supporting Larson. They argue the Veterans Court’s interpretation of 38 U.S.C. § 7252(b), that “the Veterans Court is unable to review any board denial of service connection of any condition not listed in the VA’s ratings schedule,” is incorrect. They contend (1) “it is contrary to the plain language of section 7252(b) and this Court’s precedent interpreting that provision;” (2) “it erroneously conflates the issue of service connection with the issue of compensation, thereby erroneously precluding judicial review for disabilities as to which the ratings schedule is silent;” and (3) “if left to stand, the Veterans Court’s ruling would prejudice veterans by denying them meaningful appellate relief regarding unlisted conditions and preclude them from obtaining valuable ancillary benefits.”
This case will be argued on Tuesday, July 6. We will report on developments.