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The Federal Circuit issued a precedential opinion today in Larson v. McDonough.
Bottom line up front:
The Veterans Court has jurisdiction to review BVA decisions that find conditions are not disabilities simply because they are not listed on the VA Schedule of Rating of Disabilities.
Overview of the Case
Mr. Larson argued his obesity and DMS were related to a series of vaccinations he received in the Desert Storm era, as well as his exposures to certain toxins while serving in the Middle East.
The VA and BVA both denied the claim, saying that obesity and DMS were not disabilities that could be service connected on the grounds that they were not listed in the VA Schedule of Ratings of Disabilities.
The Veterans Court, in a memorandum decision by Judge Meredith, concluded that the Court lacked jurisdiction to review BVA determinations of what does and does not constitute a disability.
The Federal Circuit reversed the decision of the Veterans Court, noting that the issue of what constitutes a disability for service connection purposes was defined and resolved by Saunders.
The Federal Circuit remanded the issue to the Veterans Court and BVA to address whether Mr. Larson’s obesity and DMS were, as a matter of fact in his case, a disability and whether it was service-connected
This decision means a few things.
Bottom line up front: the clearest meaning of this precedent is that you can now service connect a veteran’s obesity on a DIRECT service-connection basis.
All you have to show, in addition to the element of nexus, is that the veteran’s obesity relates to something that happened in service (i.e., toxic exposures, certain vaccines that affect metabolism, particulate matter, etc.), and that it is causing a veteran a “functional impairment of their earning capacity.”
The Federal Circuit’s decision effectively over-rules the Veterans Court decision in Marcelino that said that the Court lacked jurisdiction to review BVA decisions that obesity was not a disability.
it does not guarantee that obesity or dysmetabolic syndrome (DMS) will always be disabilities for service connection purposes.
However, if you are a veteran with obesity or DMS (or if your client is), the VA cannot deny their claims for direct service connection for those conditions on the grounds that they aren’t listed on the VA Schedule of Ratings of Disabilities.
The biggest impact of the Federal Circuit’s decision is this:
It applies to any condition or disease or syndrome – if the record shows that there is a resulting functional impairment of earning capacity, the BVA must address whether it is a disability for VA purposes under 38 U.S.C. §111
This is a momentous decision that will help a lot of veterans.
Mr. Larson was represented by Attig Steele.
20-1647.OPINION.8-26-2021_1825204.pdf
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