This past Tuesday the court heard oral argument in Larson v. McDonough, an appeal from the Court of Appeals for Veterans Claims we have been following because it attracted an amicus brief. On appeal, 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. Judges Newman, Reyna, and Hughes heard Tuesday’s argument. This is our argument recap.
Chris Attig argued for Larson. Attig started by maintaining the Veterans Court “misinterpreted [38 U.S.C.] § 7252(b) when it barred the lower court from reviewing the BVA’s finding that obesity and [Dysmetabolic syndrome (‘DMS’)] are disabilities that cannot be service-connected.” Attig further argued that consideration by the BVA of Mr. Larson’s situation as development of its factual record is “not Secretarial action and also not adopting or revising the contents of the VA Schedule of Disabilities.”
Judge Hughes interjected, noting Saunders v. Wilkie could require the BVA to consider if there has been functional impairment. But he asked what the next step is for the BVA if the condition is not on the rating schedule. Attig contends the next step would be, if a connection is found, to rate the disability based on analogy because the conditions are not listed on the schedule.
Judge Hughes asked if the court orders BVA to consider the potential service connections of obesity and DMS, then isn’t the court in effect “ordering the VA to consider if something should be rated, which is contrary to the restrictions of courts looking at the ratings schedule?” Attig disagreed. He contended that a finding of a disability is not a requirement that the BVA then rate it on the disability schedule.
Judge Hughes then asked what happens if the BVA finds that obesity and DMS are a service-connected disability, but then at the end refuses to rate the condition at all. Attig answered, stating a finding of service connection would open the door for “ancillary or derivative benefits,” but the Veterans Court is limited in forcing the BVA to rate anything by the case law.
Switching gears, Judge Hughes finally asked if a “veterans group can ask the Secretary [of Veterans Affairs] to add obesity and DMS to the VA Schedule [of Disabilities] via rulemaking.” Attig responded that this is a possible route, but he doesn’t know of anyone who has asked for rulemaking on the subject.
Judge Reyna interjected, asking if “there first has to be a service connection before we go on and determine any rating?” Attig agreed. He stated that there must first be a disability that acts as a functional impairment and then a service connection before a rating is considered.
Judge Newman asked a final question for clarification as to whether the disability must first be on the rating schedule to be reviewed or if the VA is obliged to look at the particular case given that Saunders may leave this latter avenue open. Attig argues the latter avenue is appropriate.
Robert R. Kiepura argued for the Secretary. He first argued that the sole question of the case is whether “the court has jurisdiction to review what conditions are considered a disability.” Kiepura reasoned that the controlling statutory provisions show the court does not have jurisdiction.
Judge Hughes quickly interjected, asking whether Saunders is controlling here. He reasoned that the answer to the question of how a disability is rated is not necessary to decide the case, and so he inquired if “your discussion of rating [is] premature here?” Kiepura disagreed, contending that “if a disability is not on the schedule, then the rest of the question is moot because it cannot be service connected.”
Judge Reyna followed up by asking for Kiepura’s legal authority to back up his statement. Kiepura responded by arguing that the Veterans Court could not rule on anything related to the contents of the rating schedule. Kiepura asserted that the question here is not if a functional impairment is present, but if the impairment could be rated.
Judge Reyna asked if the government wants the court to overrule Saunders. Kiepura responded by arguing that Saunders is factually distinguishable. Judge Hughes, however, quickly interjected, asking if there any case law that “prohibits the Board from considering if a disability is service connected, not if it is ratable?” Kiepura responded that the connection to service requires the disability to be on the rating schedule, and so, he argued, “without it being on the schedule there is nothing to service connect to.”
Judge Hughes then asked a yes or no question to Kiepura: “If the Board found a disability with impact on earnings, could it find under the traditional factors [whether] a disability was service connected without regard to the rating schedule?” Kiepura responded that he didn’t think so. Judge Hughes then followed up, asking why the court could not just apply the regular test for service connection, which he doesn’t believe has anything to do with the rating schedule.
Kiepura finally conceded that service connection can be “found independent of the rating schedule,” but noted that any such finding would be moot because no benefits could be conferred without the disability being on the schedule.
Judge Hughes then noted Saunders requires consideration of whether a condition is a disability, and so he asked whether the case required BVA consider that question no matter whether the condition is on the schedule. Kiepura responded by arguing that Saunders is factually different because the case considered pain for an underlying knee condition that is on the rating schedule, compared to obesity, which by itself is not part of the schedule.
Judge Reyna interjected, asking whether a service connection had been established before Saunders. He asked if this case needs to be sent back to the Veterans Court or the Board to see if there is a service connection before court proceeds. Kiepura disagreed, indicating that approach would effectively tell the Board what to rate and not rate. Judge Reyna then asked, if BVA found a service connect, whether the Secretary could decide to change the rating schedule. Kiepura pointed to the existing process for rulemaking. Reyna noted the court cannot force the Secretary to act, but he indicating not having a determination of service connection may make this case premature.
Judge Newman asked whether the Secretary’s position is that VA will not consider a disability no matter the service connection if the disability is not on the rating schedule. Kiepura agreed that that is the Secretary’s position, and he argued the caselaw supports that position. Judge Newman, however, noted that Saunders seems to overrule those cases. Kiepura disagreed, and anyway argued that Saunders still cannot require the Secretary to place anything on the rating schedule.
In his rebuttal time, Attig focused on BVA not yet making any determination on whether Larson’s obesity and DMS are a disability. Attig then highlighted that the Board has numerous avenues if it finds in the affirmative that a disability exists and finds a service connection, including offering benefits by analogy to other conditions on the rating schedule, even if DMS or obesity are not listed on it.