In this Facebook Live broadcast, the CCK Team talks about obesity and VA disability compensation. Additionally, Robert gives updates on a new Office of Inspector General report about unwarranted reexaminations, and the recent House Veterans Affairs Committee hearing on Appeals Reform.
Robert: Good afternoon, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. Welcome Facebook Live. I’m here with Emma Peterson and Brad Hennings. And today, we’re going to be talking about obesity. But before we begin that we’d like to talk to you a little bit about two things that happened this week. The first thing that happened in the last week is we got an OIG report I think, if I’m correct on this. Yes, on unwarranted medical examinations by the VA. What we’re talking about here is, Brad, VA regularly conducts medical examinations for service connection. But they also will sometimes reexamine someone. And there was some criticism by this report about VA conducting exams when at the end of the day they really didn’t have to.
Brad: That’s right.
Robert: And most of the cases that we’re involved with, Emma, deal with service connection. So usually exams are a big part of that but if someone has a rating in place, the VA has the right to reexamine that person to see if they’ve improved. And we’ve seen some examples of that. What the report seemed to criticize was getting exams, for example, where the person has a permanent disability. When they have permanent disabilities, that means it’s not likely to change. So why is VA reexamining those folks? The other thing that we learned is that sometimes disabilities without substantial improvement for over 5 years. So in those cases they may not be permanent disabilities but they’re static. That means they’re not going to get better. They’re not going to get worst. They shouldn’t be examining in that situation. Then my other big takeaway from this was sometimes there’s medical evidence in the record already. We’ve seen that in a lot of the cases we review and they shouldn’t be getting exams in that situation. Any other thoughts on this particular topic?
Brad: Just that if this happens to you and VA does order examinations that you think that are unwarranted. We strongly suggest you contact your representative if you have one in the disability claims process. Whether it would be a veteran service organization, an attorney, or an accredited agent and talk to them about it before you do anything else.
Robert: Good points. Okay the other thing that happened this week, there was a big hearing at the House Veterans Affairs Committee. And the hearing was focused on, I’m going to just simplify it and say, is VA ready for Appeals Reform at the end of the day? There’s a couple of takeaways that we had that we posted on our website about this. The first one is IT infrastructure. Brad, you have a degree in Management Information Systems. So generally speaking, you’ve worked at the VA, what are we talking about when we’re talking about IT infrastructure?
Brad: We’re talking about the computer systems that actually manage all of the work. That manages the workflow for how the decisions are made both at the Veterans Benefits Administration and the Regional Offices. How they make their decisions on claims and how the appeals are then routed and processed by the Board of Veterans’ Appeals.
Robert: We have computer systems here in our law office, right?
Emma: We do.
Robert: We rely on those…
Robert:…to help us manage the cases and make sure everything is going in the right direction. And VA’s challenge right now is getting ready for this new appeals track, if you will. And they need new infrastructure, computer programs to help them manage the case load going forward. It sounds like they’re not ready for prime time because they’ve only got 35% of the core functions ready for prime time so to speak.
Brad: Unfortunately, the VA has been struggling with their IT implementation for a long time. They’re working with systems particularly on the appeal side that are 30 years old, 40 years old. And so it’s really difficult to shoehorn in these new sets of processes into these old systems, who were already overburdened to begin with with the record number of appeals that are pending.
Robert: Emma, you have some familiarity with the VA’s current back log of appeals.
Emma: I do.
Robert: One of the things that was talked about at this hearing is that there’s nearly 430,000 pending appeals throughout the system as we understand it. On the positive front is the Board has increased the number of Board decisions they’re making each year.
Emma: Yes and we’re certainly seing an uptake in the number of Board decisions we’re receiving from our veterans, our clients.
Robert: So that’s one positive takeaway.
Robert: On the negative side unfortunately is VA can’t even – they’re supposed to go live in February 2019 with Appeals Reform. In order to do that, they need to promulgate regulations, that’s rules to guide the VA and how they are going to handle these claims, but those regulations have to go through a period of what’s called notice and comment. We’ve been told for the last few months that these are coming soon. At the hearing, they said they’re coming very soon but as of today, this Friday afternoon, we haven’t seen the actual regulations yet. Until we see the regulations, they’re not going to be able to go forward with Appeals Reform. But there’s still time to get it done, just not yet. Then I guess the last takeaway is the RAMP processing time. RAMP is the test pilot program for Appeals Reform. And we’re understanding that VA is saying that it’s about 84 days average processing time for RAMP appeals. We’ve thrown some cases into RAMP and I’ll be frank our cases aren’t being decided in 84 days. We have a number that have been pending over 120 days. I also know from some other lawyers around the country that handle these claims, they’re over 90 to 100 days before they’re getting decisions. Those RAMP processing times we haven’t seen that average time but that’s what they’re stating is the average time. A lot of challenges going forward with VA as it begins to implement Appeals Reform. That was my main takeaway from this hearing. Any other thoughts that you wanted to share?
Brad: That there’s a lot of work to be done and not a lot of time to do it at this point to meet this February 2019 deadline.
Robert: We’re going to switch to the main topic. Again, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. If you have any questions please feel free to reach out to us on Facebook. If you ask the question during the presentation, we’ll try to answer it to the best of our ability. If you see the video afterwards, we can always respond later on through Facebook. The question first is, we’re talking about obesity, and first of all how is obesity diagnosed? Who’d like to hit that?
Emma: I can hit that. Obesity would be diagnosed by a medical professional, typically based on a person’s BMI or Body Mass Index. It has to do with your relative height and weight and some other factors that your doctor takes in to account, but it’s based on a numerical factor.
Robert: Do we have any data from VA as to how many veterans or what percentage of veterans are either overweight or obese?
Brad: Yes. In fact, 78% of veterans are considered overweight or obese. That’s a very large percentage of the veteran population.
Robert: The next question is does VA consider obesity a disability?
Robert: Okay. That was a very short answer so I’m going to have to ask why?
Emma: So VA promulgated an opinion through their General Counsel last year about this issue. Specifically came out and said that they were not going to consider obesity a disability for compensation purposes. So that means obesity in and of itself, you cannot get service connected for that condition as a disability, get a rating for that, get monthly compensation pay for obesity.
Robert: So Brad, for a lot of disabilities VA recognizes there’s something called the “diagnostic code” correct? And there is not one specifically for obesity.
Brad: That’s correct. Although, that’s a little misleading because so many disabilities are not listed in the rating codes. They are what they call “rated by analogy.” So just because a disability doesn’t have a rating code assigned to it doesn’t mean that they can’t be service connected and then ultimately compensated for it.
Robert: When the Court of Appeals for Veterans Claims was set up and Congress decided to have judicial review of VA decision making, there were certain things that Congress decided “Look, you can’t review this.” The this in this case is the rating schedule. Since obesity isn’t part of the rating schedule, it can’t be reviewed by a court unfortunately, the way the current system is set up.
Brad: That’s right. That’s what the Court of Appeals for Veterans Claims has held, and that is that obesity is not a disability for the purposes of disability compensation. You cannot get direct service connection for obesity.
Robert: So we tried. Our firm had a case called Marcelino, and recently, in the past year, it was decided the Court said we don’t have jurisdiction to review that issue. But that’s not the end of the story. And this is the important part. At this point, it might be good to get the infographic up if we could do that. Give us just one second. Little drawing sort of explain how you might be able to get service connection for conditions that flow through obesity, if you will. So who wants to describe how you get service connected for problems related to obesity?
Emma: I can take that one.
Robert: Okay. I’m going to start by saying this has confused me. I’ve been doing this for 25 years and I find this difficult. Let’s walk through the little example here.
Emma: So we start with your hiker here on one side of a bank. That is your first service-connected condition. So let’s say you are service connected for a psychiatric disability like PTSD or depression. And your treatment provider prescribes you some medication and one of the results of that medication, a side effect, is rapid weight gain. As a result of your disability, your service-connected disability, depression or what have you, you become obese because of that medication and a number of other factors. And so now you’re in the middle of this stream here. You’re on this island. You can’t be service connected for that obesity but it’s the bridge. It gets you over to the other side of the river to the other bank. Anything that might result from that obesity can be service connected. For example, if you happen to develop diabetes type 2, adult-onset diabetes, if you develop hypertension, a number of just, you know, very common disabilities that can result from obesity can then be service connected.
Robert: So then in the scenario you’re talking about, if you develop diabetes that would be then rated in conjunction with the diagnostic code for diabetes, correct?
Robert: If you developed other symptoms as the result of the diabetes like diabetic retinopathy, all those kinds of secondary conditions would be service connected.
Brad: They’re all like links in a chain and so they connect together. Once you start with your original service-connected disability, you become obese and then you get the diabetes and everything else is linked together.
Brad: One other disability I wanted to particularly mention because it’s big in the veterans community and that is sleep apnea. Obesity is a huge risk factor for sleep apnea so that’s something to keep in mind as well if you’re filing for sleep apnea.
Robert: Okay. So let’s walk through this. Let’s think about a person who has a back condition. Just to give another example. How might a back condition result in obesity and walk through that hypothetical if you would.
Brad: So many veterans who have service-connected back disabilities, they end up being quite severe and they prevent the veteran from exercising or ambulating on a regular basis. Obviously, if it’s painful to walk, if it’s painful to exercise or run or move a substantial amount, it’s going to be very difficult to control your weight. And so that service-connected back disability indirectly leads to an inability to move or exercise which led to obesity.
Robert: Okay. Are you actually getting secondarily service connected for the obesity or are you getting secondarily service connected for the conditions that flow from the obesity?
Emma: I would say the second choice. And I think there’s a road map here with conditions that can be secondary service connected to things like alcohol use disorder, that also might result from someone’s psychiatric disability. VA has said that that can’t be service connected in and of itself. But the resulting disabilities that might happen, such as cirrhosis of the liver, can be. So it’s the result of that non-service connectable issue gets service connected secondarily to the first primary service-connected condition.
Robert: All right. There’s a recent court case called Sanders from the Federal Circuit. In Sanders, they talked about pain. How does the Sanders decision relate possibly to obesity?
Brad: In the Sanders decision, the US Court of Appeals for the Federal Circuit held that pain without any sort of underlying disability, such as arthritis or neuropathy, but pain itself could be considered or is considered a disability for VA compensation purposes. Historically, VA said, “Well, that’s fine if you’ve got pain but there’s got to be something causing the pain. And we’ve got to be able to identify it.” Be it again arthritis, neuropathy or whatever it would be. The Federal Circuit said no, it’s that pain if it causes functional impairment which has to do with your ability to work, ultimately, then you can be compensated for it. It relates here because obesity itself even if it’s not a disability or a diagnosis or a disease under VA’s terms, it can still cause functional impairment such that it deserves compensation.
Robert: Do we have any questions yet? Okay. Again, we’re talking here today from cck-law.com Facebook Live. If you have any questions please feel free to reach out to us. There’s another piece to this puzzle and that’s 38 CFR 3.321(b)(1), so called extraschedular rating. How does that play into obesity, if that all?
Emma: Why don’t you take this one Brad?
Brad: Okay. One of the things that the General Counsel talks about in their opinion is the ability to compensate the effects of obesity through an extraschedular rating. So this is an opportunity for disabilities where they’re not necessarily contemplated by the rating criteria, either as to their symptoms or the severity of their effects, it’s another way of compensating veterans. As you discussed before, obesity is not in the rating criteria. And so the argument is well, we can possibly compensate the veteran for the effects in this other way. I will say though that extraschedular ratings are notoriously difficult to actually earn in the VA system.
Robert: So as a practical matter, the first avenue with the infographic is probably the better approach to go to get a rating from the problems that result from obesity, in essence.
Robert: Okay. I wanted to talk a minute about the OGC opinion. And I think the OGC opinion is up on our website. Am I correct in that? Yes, it is. So the Office of General Counsel issued an opinion it’s VAOPGR Precedential Decision 1-2017 and they came up with a test. Lawyers love tests. So this is a three-part test. We don’t agree with all three parts so let’s be frank about that. And the Court hasn’t actually ruled whether, by the Court I mean the Court of Appeals for Veterans Claims, hasn’t ruled whether this three-part test is correct. But here’s what they said, the first part is part one, whether the service connected, in this case it was a back disability leading to obesity. The first part of the test was whether the service-connected back disability caused the veteran to become obese. Part two of the test, if yes, whether the obesity as result of the service-connected disability was a substantial factor in causing hypertension. So in this case the veteran was trying to prove that the back condition led to obesity which then led to hypertension. Part one and two seem okay, but part three is the problematic part. That is whether the hypertension would not have occurred but for obesity caused by the service-connected back disability. And Emma, that seems a little too stringent to me.
Emma: It does. You know the default standard for service connection is “as likely as not.” So it’s just a 50-50 standard. Is it at least as likely as not this happened? But for, cause and fact is a much higher standard. I’m not even quite sure I could put it in percentages necessarily. But it doesn’t seem to be coherent or flow with the rest of the VA disability scheme. It’s supposed to be veteran-friendly, we’re giving veterans the benefit of the doubt here. And having a veteran have to meet this very high burden, it seems almost insurmountable.
Robert: It does. And Brad, you may be familiar with what’s been going on in our court practice? I think we may have a case that sort to bringing this to the head, to a challenge.
Brad: We do have a case. It is a case where we’re asking the Court to say that you can get secondary service connection for obesity, that perhaps obesity as a primary disability is not available, but it should be available for secondary service connection. As Emma said, that’s a lower standard than this test that’s been set up by the Office of the General Counsel. We’re challenging that precedential opinion to the extent that it makes it more difficult for veterans to get compensation for their obesity.
Robert: Okay. Are there some examples of things that could be service connected through obesity? Some common examples, we talked about diabetes. Hypertension is another one. Are there some other ideas or disabilities?
Emma: Absolutely. Sleep apnea, Brad mentioned. Heart disease.
Brad: Certain cancers have been associated with weight gain. As well as things like arthritis, osteoarthritis. If all that extra weight that you’ve put on puts extra pressure or substantial pressure on your joints, it can lead to arthritis and all sorts of other issues with your joints.
Robert: Emma, you review a lot of Board decisions. Are there certain ways that VA is talking about obesity and missing the bigger picture? And by here, are there some common errors that you see.
Emma: Certainly. One of the biggest errors that I see in looking at Board decisions from our clients has to do with VA examinations. The VA examiners are getting us almost there but not completing the circle. So they’ll review, for example, sleep apnea. We see a lot of clients asking for sleep apnea secondary to PTSD. They’ll have a VA examination, a Compensation and Pension Examination, and the examiner will say, “Well, their sleep apnea is due to obesity.” But then no one is answering the question, well what’s the obesity due to? Is it due to the PTSD? Is it because of the psychotropic medication the veteran is prescribed? So that’s a common error that we’re seeing. If that can be addressed sooner then perhaps we can nip some of these errors before they even get to an appellant stage.
Robert: So do they even have to answer that question if the Veteran hasn’t raised it specifically? Is there a requirement? This might get to what we’re going to talk about next week which is the “non-adversarial” nature of VA. But let’s just sort of – if we could just sort of explain why they actually do sort of have a duty to examine that question?
Brad: Well the idea in the veteran-friendly benefits system is that all something has to be is reasonably raised, that adjudicators are supposed to look through a veteran’s claims file and try to figure out any possible way, within reason, that a veteran can obtain disability benefits. So an adjudicator who is aware of the OGC opinion and who is familiar with the file should be able to identify something like, “Oh, this veteran has a back condition that seems to effect his ambulation and his exercise capabilities. Maybe that led to- and he’s obese, and he’s gotten a disability for which a VA compensation and pension doctor said is due to his obesity.” Basically, VA is expected to connect the dots. Veterans are not the ones that are forced to do that in our system. It’s supposed to be the VA itself.
Robert: All right. So are there any practical tips that we could give a veteran in terms of their own claim? What they should say in terms of a lay statement perhaps? What a doctor should probably be opining? Let’s take the first case, the psychiatric disability that leads to obesity then leads to diabetes, say. What does one want to present in a claim as a practical matter?
Brad: So I think what you want to talk about, if you’re a veteran on one of these medications, is to explicitly tell the VA, “I’m on x and y medication and here are some of the common side effects.” Because it may be in your treatment records but an adjudicator or doctor may missed that or it may not be spelled out and they may not sort of bridge that gap. You want to say if a known side effect is weight gain or rapid weight gain, be explicit and say, “Hey, I’ve gained weight. And I think it’s in part due to this. And my gaining weight is causing all these problems.”
Robert: Great. We sometimes get expert opinions for our clients. If you have a treating doctor, you can ask the doctor the question point blank, right? There’s no harm in asking. Have them put it in the record. We pose these exact types of questions to our experts and look, if they support it, then you have a valid claim and you should pursue it. If you don’t get an answer to the question, write to VA and say you want this question answered. And that’s perfectly okay. Are there any questions? All right, is there anything else we wanted to add on this topic of obesity?
Brad: I just wanted to add one thing and that is that historically VA has been very resistant to compensate veterans for any of the complications due to obesity. And there’s a number of reasons for that which we won’t get in to. In addition, doctors have been very reluctant to talk about obesity and some of the causes of obesity. VA itself in its research, it has been doing a lot of research on obesity. And on one of VA’s own websites, it talks about doctors and how patients often feel doctors blame the patients for their obesity. Either due to lifestyle, choices, eating habits, when in fact, obesity is a much more complex disability. We’re really fighting against a lot of headwinds and trying to get a better understanding of what the cause of this are.
Robert: That sort of brings to my mind when I started representing veterans 25 years ago, there was a big focused on post-traumatic stress disorder. The VA wasn’t diagnosing it. If they were diagnosing it, they were saying the stressful event didn’t happened in service. We’ve come a long way over the last quarter century in how PTSD is diagnosed and how VA rates it and grants service connection. It seems to me, based on what you’re saying, is we’re in the beginning stages of a process here.
Brad: It certainly seems that way.
Robert: Okay. I think that’s a good point. Any final thoughts, Emma?
Emma: No. Just to echo what Brad was saying about getting your claim granted as soon as possible, just be as open and honest as you can. I know there’s a lot of stigma attached to it but being as clear as you can about how this effects you in your day-to-day life, and how it effects your ability to work is key to getting a disability granted and rated appropriately.
Robert: Well I want to thank you both for joining us here this afternoon. This is again Robert Chisholm from Chisholm Chisholm & Kilpatrick. Please reach out to us on Facebook. Next week we’ll be talking about the non-adversarial nature of the VA system. Is it really non-adversarial, or is it adversarial? So tune back in next week and thank you for listening.