On August 26 the Federal Circuit issued its opinion in Larson v. McDonough, a case we have been following because it attracted an amicus brief. The case was argued before Judges Newman, Reyna, and Hughes. The judges considered whether the court should overrule what Larson characterized as the Veterans Court’s prohibition of reviewing Board of Veterans Appeals decisions regarding the Department of Veterans Affairs Schedule of Disabilities. Judge Hughes authored the court’s opinion, which reversed and remanded the case back to the Veterans Court. This is our opinion summary.
Judge Hughes summarized the relevant background:
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. . . .
[T]he 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 [38 U.S.C.] § 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.
Judge Hughes began his analysis by noting that 38 U.S.C. § 7292(a) allows the Federal Circuit to “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.’” Judge Hughes then reviewed the “relevant statutory provisions,” 38 U.S.C. § 1110 and 38 U.S.C. § 7252(b). Section 1110 “sets forth the basic entitlement for veterans’ disability benefits,” while Section 7252(b) indicates that “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 schedule.'”
Given the governing statutory language, according to Judge Hughes the narrow question presented in this case was whether “a Board decision concerning what constitutes a disability under § 1110 necessarily implicate[s] the content of the rating schedule and thus trigger[s] § 7252(b)’s restriction on the Veterans Court’s jurisdiction.”
Judge Hughes next reviewed various precedential Federal Circuit cases, including Wanner v. Principi and Wingard v. McDonald. As explained by Judge Hughes, the government argued these cases support the contention 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.’” Judge Hughes, however, disagreed with the government’s argument. The court found “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.” Judge Hughes then noted the multiple ancillary benefits available to a veteran “unrelated to any compensation contemplated by the rating schedule.” Moreover, he indicated that “reviewing a determination by the Board that a claimed condition does not constitute a disability under § 1110, by itself, leaves the rating schedule undisturbed.” Further supporting the court’s holding, Judge Hughes noted that the Federal Circuit decision in Saunders v. Wilkie “articulated a definition of ‘disability’ for § 1110 purposes that is distinct from and not coextensive with disabilities listed on the rating schedule.”
Having reviewed the Federal Circuit’s precedent, the court held that “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.” Judge Hughes determined that “Mr. Larson’s case is analogous to Saunders” because Mr. Larson “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.” Thus, the Federal Circuit ruled that “the Veterans Court legally erred when it determined that it lacked jurisdiction to review the Board’s denial of Mr. Larson’s claim.”
As summarized by Judge Hughes, the court reversed and remanded the case to the Veterans Court because “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.”