Periodically, I have some veterans who would like to be service connected for obesity because of another service connected condition that prevents them from exercising. For example, being handicapped or having a bad back can substantially impede on the ability to maintain a healthy lifestyle for most. Even some mental health or gastrointestinal diseases can cause such lethargy that the veteran simply does not have the ability to exercise. But all of these problems still do not answer these underlying questions.
Is obesity a disease for the purpose of establishing the right to claim service connection to active duty military service?
Can obesity be related to active duty military service?
If none of the above are true, can obesity be an intermediate step between a service connected condition and a non-service connected condition?
These questions, finally, have been addressed by the Office of General Counsel for the U.S. Department of Veterans Affairs in their first precedential opinion of 2017, VAOPGCPREC 1-2017.
First, while most of the medical community accepts obesity as a medical disease, for VA Benefits purposes, obesity is not in of itself a disease. “While organizations and agencies that classify obesity as a disease reasonably may do so for purposes of promoting understanding, prevention, and treatment of conditions that jeopardize a person’s health, it does not necessarily follow that obesity must be considered a disease for purposes of title 38, United States Code, as a matter of law.” “While VA regulations recognize that the rating schedule is not exhaustive, see 38 C.F.R. § 4.20, we interpret the omission of obesity in the VA rating schedule to reflect the Department’s considered judgment that the condition is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131.” “Because obesity is a well-known and widespread condition, if VA had intended to consider obesity as a disease, it would almost certainly have included provisions in its rating schedule related to obesity.”
Since obesity is not a “disease” as defined by the VA, service connection cannot be granted either on a direct or secondary basis. The fact that obesity has not been designated as a disease renders the question moot as a key element of any claim is to have a recognized disease.
While the above is not palatable, there is one little slice of heaven. The Office of General Counsel has ruled that obesity can qualify as an “intermediate step” between a service connected condition and another disease that you want service connected. For example, a bad back or incapacitating migraine headaches could render the ability to exercise nearly impossible. Over time this could lead to obesity. This in turn could lead to a myriad of issues, including Diabetes Mellitus, Type II, high blood pressure and even sleep apnea. These are examples of course. And it should also be stated that these inter-relationships should always be connected by a competent medical opinion. “A determination of proximate cause is basically one of fact, for determination by adjudication personnel. VAOPGCPREC 6-2003 and 19-1997. With regard to the hypothetical presented in the previous paragraph, adjudicators would have to resolve the following issues: (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing hypertension; and (3) whether the hypertension would not have occurred but for obesity caused by the service-connected back disability. If these questions are answered in the affirmative, the hypertension may be service connected on a secondary basis.”
This development is significant for Veterans because there has been a longstanding question for advocates and VA employee’s alike regarding the relationship between obesity and service connected conditions. I can’t say I agree with the determination that obesity is not a disease, but it is within the purview and discretion of the VA to make that decision. And we at least are not barred completely from the issue. There are plenty of veterans who are service connected for conditions that, at a minimum, cause or enhance the possibility of developing obesity and thereafter direct cause another disease. While it is not a clear victory for veterans, it is certainly better than a hard denial by the VA on all facets of obesity.
If you or a loved one has been denied your Veterans Disability Benefits, our accredited attorneys are ready to help. Call Marcari, Russotto, Spencer & Balaban at 866-866-VETS or contact us online SHOULD VETERANS CHOICE ACT BE EXTENDED
The Veterans’ Access to Care through Choice, Accountability, and Transparency Act was considered controversial when it was passed in 2014 and has remained so during its implementation. This year, a key facet of the act, portability for veterans’ health benefits under the Choice program, is set to expire. The question is now whether Congress and the President should extend, amend or abandon the law in favor of other reforms.
The act was criticized early on in some quarters as a hasty and incomplete bit of political grandstanding. Two key provisions, seen as a carrot to vets and a stick to headstrong administrators, provided limited portability of benefits and enhanced power to fire poor performing managers.
These provisions spoke to the immense frustration veterans and politicians were feeling about apparent intransigence at the VA, but critics wondered if they could be implemented effectively.
The Choice program allowed veterans who lived more than 40 miles away from a VA facility and who were unable to get appointments within a reasonable time to use a “choice card” to access care at non-VA facilities. While advocates defended this measure as a common-sense strategy for dealing with the patient backlog, detractors feared portability would weaken the VA by spending funds outside the system and could shortchange vets by sending them to physicians who were not prepared to treat service-related disabilities. Critics of choice, who saw this provision as a step toward eventual privatization of VA healthcare, objected vociferously when Sen. John McCain introduced a bill in the spring of 2016 to expand the program.
The “get tough” provision also faltered in May 2016 when the Department of Justice held the law’s method of dealing with disciplinary appeals unconstitutional. Soon afterward, the VA decided it would no longer use the law’s expedited firing authority. Critics of the VA were livid, including Sen. Johnny Isakson of Georgia, who found it “outrageous and unconscionable that the VA is choosing to blatantly ignore all of the accountability reforms set in place by the Veterans’ Choice Act.”
According to the Daily Press, VA Secretary Bob McDonald, speaking in the fall of 2016, said the promised transformation of the VA into a high-performance organization that puts veterans first is well under way, but cannot proceed unless Congress acts. McDonald faults Congress for not moving on 100 proposals he sent to them with the VA budget early in 2016. He intimated that the bitter partisan divide that has made Congress so dysfunctional has made it difficult to focus on finding solutions.
If you have been denied VA benefits, our accredited attorneys are ready to help. Call Marcari, Russotto, Spencer & Balaban today at 866-866-VETS or contact us online.