Citation Nr: 18147267 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 15-00 861 DATE: November 5, 2018 ORDER Entitlement to service connection for morbid obesity, including as due to service-connected degenerative joint disease of the lumbosacral spine, is denied. REMANDED Entitlement to service connection for ulnar neuropathy of the right wrist is remanded. Entitlement to an initial rating greater than 20 percent prior to March 24, 2015, and greater than 40 percent thereafter, for a lumbosacral spine disability is remanded. FINDING OF FACT Morbid obesity is not considered a disability for VA adjudication purposes. CONCLUSION OF LAW The claim of entitlement to service connection for morbid obesity, including as due to service-connected degenerative joint disease of the lumbosacral spine, is denied as a matter of law. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 3.303, 3.304 (2017); VAOPGCPREC 1-2017 (Jan. 6, 2017); Marcelino v. Shulkin, 29 Vet. App. 155 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1979 to September 1982. The Veteran appointed his current attorney to represent him before VA by filing a completed VA Form 21-22a at the Agency of Original Jurisdiction (AOJ) in December 2012. In a June 2016 rating decision, the AOJ assigned a higher initial 40 percent rating effective March 24, 2015, for the Veteran’s service-connected lumbosacral spine disability. Because the initial ratings assigned to the Veteran’s service-connected lumbosacral spine disability are not the maximum ratings available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to service connection for morbid obesity, including as due to service-connected degenerative joint disease of the lumbosacral spine The Board finds that the claim of service connection for morbid obesity, including as due to service-connected degenerative joint disease of the lumbosacral spine, must be denied as a matter of law. The Veteran essentially contends that he incurred his current morbid obesity during active service or, alternatively, his service-connected degenerative joint disease of the lumbosacral spine somehow caused or contributed to his current morbid obesity. The Board notes initially that it is bound by precedential opinions issued by VA’s Office of General Counsel (OGC) and, in a January 2017 precedential opinion, OGC held that obesity (or morbid obesity) is not considered a disability for which service connection is available, including on a secondary basis. See 38 U.S.C. § 7104(c) (West 2012); VAOPGCPREC 1-2017 (Jan. 6, 2017). OGC held in VAOPGCPREC 1 2017 that VA’s longstanding policy that obesity was not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 was consistent with Title 38, United States Code. Id. OGC also held in this precedential opinion that obesity per se was not considered a “disability” for purposes of 38 C.F.R. § 3.310. Id. OGC further held in this precedential opinion that obesity cannot be considered an in-service event for purposes of determining entitlement to service connection because it occurred over time and was based on various internal and external factors unique to every Veteran. Id. Similarly, in Marcelino v. Shulkin, 29 Vet. App. 155 (2018), the Court affirmed VA’s authority to preclude consideration of obesity as a disability for adjudication purposes. The Court found in Marcelino that it could not order VA to include obesity as a compensable disability under the Rating Schedule because it was barred from reviewing the Rating Schedule under 38 U.S.C. § 7252 and the petitioner’s challenge in Marcelino did not involve a challenge to the constitutionality of the Rating Schedule, an interpretation of existing regulatory language by VA, or a procedural challenge to VA’s adoption of regulations under the Rating Schedule. Id.; see also Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004) (insulating VA’s discretion over Rating Schedule from judicial review). The Veteran’s appeal in this case falls squarely within the parameters of VAOPGCPREC 1 2017 and Marcelino. It is undisputed that the Veteran has been diagnosed as having obesity. It also is undisputed that service connection is in effect for a lumbosacral spine disability. As noted elsewhere, the Veteran asserts that he is entitled to service connection for morbid obesity as due to his service-connected lumbosacral spine disability. The Board again notes that VAOPGCPREC 1-2017 precludes consideration of obesity as a disability for which service connection is available, including as due to a service-connected disability. See VAOPGCPREC 1-2017 (Jan. 6, 2017). Nor does the Veteran in this appeal present a challenge to the constitutionality of the Rating Schedule, an interpretation of existing regulatory language, or a procedural challenge to the Secretary’s adoption of regulations under the Rating Schedule such that his appeal falls outside of the Court’s holding in Marcelino. See Marcelino, 29 Vet. App. at 155. In summary, as the law, and not the evidence, is dispositive, the Board finds that the Veteran’s claim of service connection for morbid obesity, including as due to service-connected degenerative joint disease of the lumbosacral spine, is denied as a matter of law. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for ulnar neuropathy of the right wrist is remanded. The Veteran contends that he incurred ulnar neuropathy of the right wrist (which he characterized as neuropathy) during active service. The record evidence shows that the Veteran has been diagnosed as having and treated for ulnar neuropathy of the right wrist since his service separation. To date, however, the AOJ has not scheduled the Veteran for appropriate examination to determine the nature and etiology of his current ulnar neuropathy of the right wrist. The Board notes in this regard that VA’s duty to assist includes scheduling an examination where necessary. Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his ulnar neuropathy of the right wrist. 2. Entitlement to a disability rating greater than 20 percent prior to March 24, 2015, and greater than 40 percent thereafter, for a lumbosacral spine disability is remanded. The record evidence shows that the Veteran was examined most recently for his service-connected lumbosacral spine disability on VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in March 2015. Following this examination, the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the lumbosacral spine, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. Unfortunately, the Veteran’s most recent VA examination for the lumbosacral spine in March 2015 did not comply with Correia. For example, there is no indication in the March 2015 VA back (thoracolumbar spine) conditions DBQ whether the range of motion obtained at that examination is active or passive or in weight-bearing or non-weight-bearing. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for updated VA examination to determine the current nature and severity of his service-connected lumbosacral spine disability. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any ulnar neuropathy of the right wrist. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that ulnar neuropathy of the right wrist, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for ulnar neuropathy of the right wrist, alone, is insufficient rationale for a medical nexus opinion. 2. Schedule the Veteran for an updated VA examination to determine the current nature and severity of his service-connected lumbosacral spine disability. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel