Long: Secondary service connection and extraschedular evaluations do not require a showing of direct causation

Long v. McDonough, 38 F4th 1063 (2022)

HELD: Neither 38 C.F.R. § 3.310(a) nor § 3.321(b)(1) require a showing of direct causation between the secondary symptoms and the primary service-connected disabilities.

Summary: Veteran was service connected for hearing loss. He testified that his hearing aids cause ear pain. The CAVC held that the Board did not need to consider ear pain in its extraschedular analysis because the pain was caused by the hearing aids, not the hearing loss. The Federal Circuit disagreed and found that the CAVC did not properly analyze the veteran’s ear pain under the extraschedular analysis.

The Court reiterated the Thun factors to state that “extra-schedular consideration is available to a veteran when (1) the schedular rating criteria are inadequate to describe the severity and symptoms of his disability; (2) the disability is exceptional or unusual, such as because of marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice.” The Court held that the CAVC “erred in holding that direct causation between a secondary condition and an original condition is required for extra-schedular consideration of the secondary condition.”

Walsh: Obesity as "intermediate step"

Walsh v. Wilkie, docket no. 18-0495 (February 24, 2020)

HELD: Obesity may be an “intermediate step” between a service-connected condition and a nonservice-connected condition when the service-connected condition aggravates the obesity. The service-connected condition need not cause the obesity.

SUMMARY: Veteran was service connected for bilateral knee, hip, and back conditions and sought service connection on a secondary basis for hypertension and sleep apnea. While her appeal was pending, VA issued a General Counsel Precedent Opinion (GC Prec. Op. 1-2017) stating that while obesity is not a disability for VA compensation purposes, obesity can serve as an “intermediate step” between a service-connected and nonservice-connected condition under 38 C.F.R. § 3.310(a). VA then sought a medical opinion to determine (1) whether the veteran’s service-connected conditions “caused” her to gain weight or become obese and, (2) if so, whether the obesity was a “substantial factor” in causing her hypertension or sleep apnea, and, (3) if so, whether those conditions would not have occurred but for the obesity that was “caused” by the service-connected condition. The examiner provided a negative opinion, focusing on the causation and “but-for” factors – and the Board relied on the opinion to deny the claim. 

On appeal to the Court, the veteran argued that the GC Opinion requires VA to determine whether the obesity was caused or aggravated by the service-connected conditions. The Court agreed, noting that the GC Opinion does not mention aggravation. Still, the Court found that “the principles contained in § 3.310 make any distinction in G.C. Opinion 1-2017 between causation and aggravation legally untenable.” 

The Court first noted that GC Opinions are binding on the Board, but not the Court. Turning to the language of the regulation: section 3.310(a) states that a “disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” Section 3.310(b) states: “Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.” The Court found that the “operative language in these provisions is essentially identical” because “[b]oth discus something that ‘is proximately due to or the result of a service-connected disease or injury’ and advise that this ‘shall [or will] be service connected.’” The Court found that “[n]othing in this language justifies a distinction between causation and aggravation in the first step of the analysis in G.C. Opinion 1-2017.” 

The Court thus held that “there is 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.” Regarding the absence of the word “aggravation” in the GG Opinion, the Court found that the opinion “does not purport to prohibit inquiry into whether a service-connected disability aggravates a veteran’s obesity” since “this would contradict VA’s aggravation regulation.” The Court clarified that “[d]espite the G.C. opinion’s silence regarding aggravation, the Board, in accordance with § 3.310(b), must consider aggravation in this context when the theory is explicitly raised by the veteran or reasonably raised by the record.” The Court remanded for the Board to obtain a new medical opinion that addresses whether the veteran’s service-connected conditions caused or aggravated her weight gain. 

Frost: Secondary service connection

Frost v. Shulkin, 29 Vet.App. 131 (Nov .30, 2017)

HELD: “[F]or a veteran to receive secondary service connection on a causation basis under § 3.310(a), the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.” 

SUMMARY: In 1980, during his active duty service, veteran John Frost was involved in a train accident, injuring his shoulder and leg. In 1982, following his separation from service, he got into a fight with a store proprietor and was shot in his neck. In 1985, he was awarded non-service-connected pension for left extremity paralysis due to the 1982 gunshot wound (GSW). 

In 2001, he filed a claim for service connection for PTSD related to the 1980 train accident. He reported that after the train accident, he received two Article 15 punishments for fighting, occasionally became violent, and that his wife filed for divorce shortly after his separation from service. A VA examiner diagnosed PTSD and noted recurring memories of the 1980 train accident. The Regional Office granted service connection for PTSD. 

A few years later, he filed a claim for the residuals of the 1982 GSW as secondary to his now service-connected PTSD. The RO denied the claim and he appealed, asserting that his PTSD caused him to become involved in the fight that resulted in the GSW. The Board denied the claim, finding that he was first shown to have PTSD in 2002, twenty years after the 1982 incident. 

On appeal to the CAVC, the Court examined the regulation governing service connection on a secondary basis, 38 C.F.R. § 3.310, and held: “Nothing in the text of the regulation specifies or indicates that the primary condition must be service connected, or even diagnosed, at the time the secondary condition is incurred.” Because there is no reference in § 3.310 to a temporal requirement, the Court rejected VA’s argument that Mr. Frost’s claim was barred as a matter of law. 

The Court recognized the “basic logic” that there must be a primary service-connected condition in order to establish secondary service connection, but clarified that “at the time that any decisionestablishing entitlement to secondary service connection is rendered, there must be a primary service-connected condition.” The Court concluded that “for a veteran to receive secondary service connection on a causation basis under § 3.310(a), the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.” The Court remanded the claim to the Board to determine whether a VA examination is necessary to determine whether the GSW residuals are proximately due to or the result of his service-connected PTSD. 

FULL DECISION