Marcelino: Obesity is not a "disease" for VA compensation purposes

Marcelino v. Shulkin, 29 Vet.App. 155 (Jan. 23, 2018)

HELD: Because the Court is statutorily precluded from reviewing VA’s rating schedule, the Court lacks jurisdiction to consider whether obesity should be considered a disability under the rating schedule. 

SUMMARY: Mr. Marcelino was denied service connection for obesity because the Board stated that this condition was not a disability for purposes of service connection and VA compensation. 

The Court first noted that it does not have jurisdiction to review the content of VA’s rating schedule, nor can it review “what should be considered a disability.” There are three exceptions to this general principle – cases involving (1) a constitutional challenge, (2) interpretation of a regulation that relates to the rating schedule, and (3) a procedural challenge to VA’s adoption of schedule regulations. Because “obesity” is not listed in the rating schedule, the Court determined that the question of whether VA should include obesity in the schedule did not fall under one of the exceptions and “would require the Court to undertake the very review of the rating schedule that has been barred from its jurisdiction.”  

ADVOCACY NOTE: VA’s Office of the General Counsel issued a Precedent opinion in January 2017 that recognized that while obesity is not a disability for purposes of secondary SC under 38 C.F.R. § 3.310, it can be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOGCPREC 1-2017.

FULL DECISION

VETERAN CANNOT APPEAL DENIAL OF SPOUSE’S CLAIM FOR CHAMPVA BENEFITS

Braan v. McDonald, docket no. 14-4085 (Aug. 26, 2016)

HELD: Because the veteran did not have the right to appeal his spouse’s claim for CHAMPVA benefits, the Board did not have jurisdiction over this appeal and the appeal must be dismissed. 

SUMMARY: The veteran in this case was service connected under 38 U.S.C. § 1151, and rated 100% disabled. His wife applied for CHAMPVA benefits in March 2010. The following month, the VA Health Administration Center (HAC) issued a decision, addressed to Mrs. Braan, stating that she was not entitled to CHAMPVA benefits because “VA benefits granted under [section 1151] do not include CHAMPVA.”

In September 2010, Mr. Braan filed a “Privacy Release Form” with his congressional representative on behalf of his wife, requesting an appeal of the denial. The Congressman forwarded a memo and Mr. Braan’s Privacy Release Form to VA. In January 2011, the VA HAC issued a Statement of the Case, denying Mrs. Braan’s appeal, but the cover letter was addressed to Mr. Braan. In January 2012, Mr. Braan filed a VA Form 9, stating that as a 100% disabled veteran, he is entitled to CHAMPVA benefits on for his spouse – and that section 1151 claims are treated as service connected.

In October 2014, the Board identified the appeal as Mr. Braan’s, but concluded that Mrs. Braan was not entitled to CHAMPVA benefits because his disability was not “incurred or aggravated” in the line of duty. The Board supported this determination with a VA General Counsel Advisory Opinion stating that section 1151’s “quasi-service-connection” only provides for benefits under chapters 11 or 13 of title 38 of the U.S. Code – and entitlement to CHAMPVA is provided under chapter 17.

Mr. Braan appealed to the Court. The Court issued an order directing Mrs. Braan to file a motion to intervene as an appellant, if she wanted to do so. She never filed a motion to intervene.

The issue addressed by the Court was whether Mr. Braan had standing to bring this appeal to the Court on behalf of his wife. The Court held that he did not – and that the Board did not have jurisdiction to hear his appeal of her claim. The Court characterized Mr. Braan as an “interloper” in Mrs. Braan’s claim and stated that, as such, he did not have the right to pursue her claim – and the Board did not have jurisdiction to hear his appeal of her claim. The Court reiterated that “because Mr. Braan had not submitted a claim, the Board lacked the authority to decide his claim in the first instance” and “did not have jurisdiction to hear Mr. Braan’s appeal.

The Court never reached the relevant question of whether service connection under section 1151 entitles a recipient’s spouse to CHAMPVA benefits. The Court never even reached the question of “whether a CHAMPVA’s sponsor [i.e., the service-connected veteran] may ever be a proper claimant for CHAMPVA benefits that are otherwise due his or her spouse or other qualifying dependent,” stating that “it is undoubtedly improper for a CHAMPVA sponsor to wade into the appeals stream on behalf of a CHAMPVA beneficiary when that beneficiary has already filed the initial claim.”

Advocacy note: This is a very sad decision – and a monumental waste of time – that could have easily been prevented at several steps along the way by the veteran, his spouse, the congressional representative, and the VA officials who were issuing decisions on appeals over which they, allegedly, lacked jurisdiction. It is clear that Mrs. Braan applied for CHAMPVA benefits – and it is clear that she was denied these benefits based solely on the fact that her husband was service connected under section 1151. The standing/jurisdiction issues have nothing to do with the merits of this appeal – and all the Court is doing is guaranteeing that the Braans will wait another six years or more until it can address the relevant issue.

The lesson to take away from this case is that it is important to pay attention to who files the claim, the substance of the claim, and who is then entitled to appeal any adverse decision of that claim. It is a shame that the Court “punted” this one away. 

FULL DECISION