Millard W. Adams v. Douglas A. Collins

Case: 23-5064 Page: 1 of 24 Filed: 07/08/2025

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 23-5064

MILLARD W. ADAMS, APPELLANT,

V.

DOUGLAS A. COLLINS,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued January 13, 2025 Decided July 8, 2025)

John D. Niles, of Topeka, Kansas, for the appellant.

Gilles Sadak, with whom Richard J. Hipolit, Acting General Counsel; Mary Ann Flynn,

Chief Counsel; and James B. Cowden, Deputy Chief Counsel, all of Washington, D.C., were on

the brief for the appellee.

Before PIETSCH, GREENBERG, and JAQUITH, Judges.

PIETSCH, Judge, filed the opinion of the Court. JAQUITH, Judge, filed an opinion

concurring in part and dissenting in part.

PIETSCH, Judge: In 2017, VA's General Counsel (G.C.) issued a precedent opinion that

prohibits service connection for obesity, both as directly related to service and as secondary to a

service-connected disability, finding that it is neither a disability nor a disease for purposes of 38

U.S.C. § 1110 and 38 C.F.R. § 3.310. See VA Gen. Coun. Prec. 1-2017, at 1-7 (Jan. 6, 2017)

[hereinafter G.C. Prec. 1-2017]. On May 4, 2023, the Board of Veterans' Appeals (Board) cited

the G.C. opinion to deny appellant Millard W. Adams's claim for service connection for obesity,

including as secondary to service-connected post-traumatic stress disorder (PTSD). See Record

(R.) at 5-13.

In this timely appeal over which the Court has jurisdiction, see 38 U.S.C. §§ 7272(a),

7266(a), Mr. Adams challenges the G.C.'s interpretation of section 1110 as excluding obesity from

those conditions that may be compensated by VA. For the reasons that follow, we hold that the

G.C. opinion's finding that obesity is not a disability for purposes of section 1110 is not a

persuasive interpretation of the statute, but we also hold that the G.C.'s finding that obesity is not

a "disease" for purposes of section 1110 is a persuasive interpretation of the statute. Because direct

Case: 23-5064 Page: 2 of 24 Filed: 07/08/2025

service connection requires that a disability result from a "disease" or an "injury" incurred in the

line of duty, we decline to disturb the part of the G.C. opinion that prohibits service connection for

obesity as directly related to service. Yet in the context of secondary service connection, whether

a section 1110 disability is itself a "disease" or an "injury" incurred in the line of duty is irrelevant.

See Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023); Allen v. Brown, 7 Vet.App. 439,

448 (1995) (en banc).

Thus, we hold that the G.C. opinion's finding that obesity is not a "disease" for purposes of

secondary service connection is an impermissible interpretation of the statute. We will vacate the

part of the Board's decision that denied service connection for obesity as secondary to service-

connected PTSD, and we will remand this matter to the Board for further proceedings.

The May 2023 Board decision also dismissed a claim for a disability rating higher than

20% for diabetes mellitus, as well as claims for earlier effective dates for the awards of service

connection for diabetic neuropathy of the right and left lower extremities. See R. at 9-10. Mr.

Adams does not challenge the Board's dismissal of those claims; thus, the Court deems those issues

abandoned and will dismiss those appeals. See Pederson v. McDonald, 27 Vet.App. 276, 285

(2015) (en banc).

The Board decision also remanded the issue of entitlement to service connection for

obstructive sleep apnea as secondary to PTSD. See R. at 10-13. Thus, that matter is not presently

before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order) (stating

that a Board remand is not a final decision over which this Court has jurisdiction).

I. BACKGROUND

A. Law and Regulations

Section 1110 provides VA compensation "[f]or disability resulting from personal injury

suffered or disease contracted in the line of duty." 38 U.S.C. § 1110. In the context of secondary

service connection, "[section] 1110 plainly requires compensation when a service-connected

disease or injury is a but-for cause of a present-day disability," including the "natural progression

of a condition not caused by a service-connected injury or disease, but that nonetheless would have

been less severe were it not for the service-connected disability." Spicer, 61 F.4th at 1364.

VA's current policy is to prohibit service connection for obesity on the basis that it is not a

disability, disease, or injury contemplated in section 1110. See G.C. Prec. 1-2017, at 1-7. The G.C.

2

Case: 23-5064 Page: 3 of 24 Filed: 07/08/2025

opinion observes that the term "disease" is not defined in title 38 and cites gap-filling authority

delegated to the Secretary by Congress to determine what conditions qualify as "diseases" for

purposes of section 1110. Id. at 3 (first citing O'Bryan v. McDonald, 771 F.3d 1376, 1378 (Fed.

Cir. 2014); and then citing Terry v. Principi, 340 F.3d 1378, 1383 (Fed. Cir. 2003)). The opinion

discusses VA's history of defining "disease" as it was defined in the 26th edition of Dorland's

Illustrated Medical Dictionary–"any deviation from or interruption of the normal structure or

function of any part, organ, or system of the body that is manifested by a characteristic set of

symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown."

Id. (first citing VA Gen. Coun. Prec. 82-90 (Jul. 18, 1990); and then citing VA Gen. Coun. Prec.

2-93 (Jan. 13, 1993)). G.C. Prec. 1-2017 also discusses medical treatises that consider whether

obesity is a "disease," and G.C. Prec. 1-2017 finds no consensus among medical authorities that

obesity satisfies the definition of "disease." Id. at 4-6. The G.C. opinion notes that some of these

treatises state that "research has not yet found a true causal connection between obesity and

morbidity and/or mortality." Id. at 6.

The G.C. opinion also finds that obesity is not a "disability" for purposes of section 1110.

Id. at 7. The opinion defines "disability" as the average impairment of earning capacity and finds

that obesity is generally an excess accumulation of body fat and does not usually result in

impairment. Id. But the opinion acknowledges evidence that "severe obesity, i.e., BMI [body mass

index] greater than 40, impairs physical and social function." Id.

Addressing secondary service connection specifically, the G.C. opinion finds that obesity

is not a disability for purposes of 38 C.F.R. § 3.310(a) because VA has not included obesity on the

rating schedule. Id. (citing 38 C.F.R. § 3.310(a) (2016)). Citing the medical treatises and lack of

medical consensus on whether obesity is a "disease," the G.C. opinion then finds that obesity is

neither a "disease" nor an "injury" for purposes of § 3.310(a) and (b).1 Id.

One year after the G.C. issued G.C. Prec. 1-2017, the Federal Circuit issued its decision in

Saunders v. Wilkie, holding that the "plain language of [section] 1110," as well as dictionary

definitions of "disability," compelled the conclusion that "'disability' in section 1110 refers to the

functional impairment of earning capacity, not the underlying cause of said disability." 886 F.3d

1356, 1361 (Fed. Cir. 2018), rev'g Saunders v. McDonald, No. 15-0975, 2016 WL 3002862 (Vet.

1

The Federal Circuit has since determined that §3.310(b) is "unlawful as inconsistent with [section] 1110."

Spicer, 61 F.4th at 1366.

3

Case: 23-5064 Page: 4 of 24 Filed: 07/08/2025

App. May 25, 2016) (mem. dec.), aff'd, 2016 WL 4258493 (Vet. App. Aug. 12, 2016) (affirmed

by a three-judge panel). Saunders v. Wilkie concluded that pain can be compensated by VA even

in the absence of an underlying diagnosis, if the pain results in functional impairment and meets

the two other requirements for service connection—specifically, that the injury or disease be

incurred in the line of duty, and that there be a nexus between the in-service event and the current

disability. 886 F.3d at 1368-69.

B. Procedural History

The facts are not in dispute. Mr. Adams served in the U.S. Air Force from October 1966 to

September 1970. R. at 14,868. He filed a claim for service connection for obesity as secondary to

his service-connected PTSD in March 2016, R. at 12,496-506, submitting a November 2009 article

that links cortisol, a hormone whose levels are said to increase with stress, with weight gain. R. at

12,478-81. VA denied Mr. Adams's claim in April 2016. R. at 12,354.

Mr. Adams filed a supplemental claim for service connection for obesity in December

2019. R. at 7585-86. Records obtained in connection with this claim include an August 2016 VA

treatment record states that Mr. Adams has "core weakness and postural changes due to obesity."

R. at 3284. In a January 2020 rating decision, VA determined that Mr. Adams had not submitted

new and relevant evidence to reopen his finally adjudicated March 2016 claim. 2 R. at 6906-13. In

August 2020, Mr. Adams filed a VA Form 10182 to appeal that decision, electing to have a hearing

before the Board. R. at 6887. A July 2022 VA treatment record describes Mr. Adams as "obese,

uses rollator." R. at 144. Mr. Adams testified at a hearing before the Board in January 2023. R. at

2565.

The Board issued the decision on appeal in May 2023. R. at 5-13. It found that "obesity is

not a disease or disability for VA purposes and is not subject to service connection." R. at 9 (citing

Marcelino v. Shulkin, 29 Vet.App. 155, 158 (2018)). The Board then noted the G.C. opinion's

conclusion that "obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and

1131, and, therefore, may not be service connected on a direct or secondary basis ." R. at 9. The

Board also characterized the G.C. opinion as finding that "particularities of body type, such as

being overweight or underweight, do not, of themselves, constitute disease or disability subject to

2

VA issued another rating decision in March 2020 because the January 2020 rating decision did not consider

certain laws and regulations that applied to Mr. Adams's claim. R. at 6907. But VA's finding that Mr. Adams had not

submitted new and relevant evidence remained unchanged. Id.

4

Case: 23-5064 Page: 5 of 24 Filed: 07/08/2025

service connection." Id. Additionally, the Board found that the record did not show that Mr.

Adams's obesity functionally impaired earning capacity, and though Mr. Adams was obese, his

"obesity is not considered a disease or injury." Thus, the Board concluded, service connection for

obesity as either directly related to service or as secondary to a service -connected disability was

not warranted.

II. PARTIES' ARGUMENTS

A. Appellant's Arguments

Mr. Adams argues that G.C. Prec. 1-2017's general prohibition on service connection for

obesity on both direct and secondary bases is invalid in light of Saunders. First, Mr. Adams argues,

Saunders invalidates the G.C. opinion's reliance on gap-filling authority to determine the sorts of

conditions that qualify as a "disease" or an "injury" for purposes of section 1110. Appellant's Brief

(Br.) at 12. Mr. Adams notes that in Saunders, the Federal Circuit arrived at its conclusion by

characterizing the word "disability" as unambiguous; thus, he argues, there is no gap to fill. Id. He

distinguishes O'Bryan by arguing that O'Bryan is limited only to those disabilities that the

Secretary "has by regulation interpreted not to constitute a section 1110 disability, disease, or

injury—such as congenital or developmental defects." Id.

Second, Mr. Adams challenges the G.C. opinion's reliance on the absence of obesity from

the rating schedule. Id. at 13 (citing G.C. Prec. 1-2017, at 5-6). Mr. Adams notes that pain is also

not listed in the rating schedule, but that Saunders still found that pain can be a disability under

section 1110 if it causes functional impairment. Id. (citing Saunders, 886 F.3d at 1368). Thus, in

his view, Saunders "reflects the understanding that has always been correct: whether [the rating

schedule] lists a particular condition does not affect whether that condition is service-connectible."

Id. Instead, he argues, the question is simply whether a disability results in functional impairment.

Id.

Mr. Adams acknowledges G.C. Prec. 1-2017's finding that obesity is not a disease or injury

for purposes of section 1110, but he argues that under Saunders, "the operative language for service

connection is 'disability' rather than its cause." Id. (citing Saunders, 886 F.3d at 1362-63). Thus,

Mr. Adams asserts, anything causing functional impairment can be service connected, and

"whether a condition such as obesity is itself a 'disease' simply does not matter." Id. at 13-14.

5

Case: 23-5064 Page: 6 of 24 Filed: 07/08/2025

Third, Mr. Adams argues that the G.C. opinion is invalid because to support its conclusion

that obesity is not a "disease" for purposes of section 1110, the G.C. opinion relies on medical

literature stating that obesity does not cause "morbidity and/or mortality" in all patients. Id. at 14

(citing G.C. Prec. 1-2017, at 6-7). Mr. Adams argues that under Saunders, the only question is

whether a disability causes functional impairment, not whether it results in morbidity or mortality.

Id.

Mr. Adams finds additional support for his position in Spicer, because that decision affirms

that "disability" for purposes of section 1110 means "functional impairment." Id. (citing 61 F.4th

1363-64). He also asserts that Spicer affirms that Saunders found section 1110 unambiguous. Id.

(citing Spicer, 61 F.4th at 1363). Additionally, he asserts that Spicer holds that claims for

secondary service connection, such as the claim under consideration, arise under section 1110. Id.

(citing Spicer, 61 F.4th at 1366). In Mr. Adams's view, Spicer confirms that "[section] 1110 is

unambiguous and leaves no gap" for VA to fill as to whether obesity can be service connected. Id.

All that matters is whether obesity results in functional impairment. Id.

Mr. Adams asserts that the Board's error was prejudicial because the record includes

evidence that his obesity causes functional impairment. Id. at 15-18. Mr. Adams points to a VA

treatment record describing "core weakness and postural changes due to obesity," with "symptoms

more pronounced with trunk extension." Id. at 16 (citing R. at 144). He also argues that symptoms

documented in clinical notes, such as "fatigability, weakness, and … postural changes … are all

hallmarks of disability" that result from obesity. Id. (citing 38 C.F.R. §§ 4.1, 4.3, 4.45 (2024)).

B. Secretary's Arguments

The Secretary asserts that VA has the authority to determine what it will compensate as a

service-connected disability under 38 U.S.C. § 1155, authorizing VA to create a rating schedule,

and under 38 U.S.C. § 501(a), authorizing the Secretary to "prescribe all rules and regulations

which are necessary or appropriate to carry out the laws administered by the Department."

Secretary's Br. at 5-6. Because of this authority, the Secretary argues, VA's "determinations as to

what disabilities it includes in the rating schedule [are] precluded from judicial review." Id. at 6

(first citing Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004); and then citing Palczewski

v. Nicholson, 21 Vet.App. 174, 179-80 (2007) (observing that in reviewing a regulation that defines

when hearing loss may be a disability, the Court must review the regulation with "substantial

deference" to the Secretary's interpretation)). The Secretary then appears to challenge this Court's

6

Case: 23-5064 Page: 7 of 24 Filed: 07/08/2025

jurisdiction to consider this matter, pointing out that in Marcelino, this Court found that

"'reviewing what should be considered a disability is no different from direct review of the content

of the rating schedule," a task that the Court has no authority to engage in. Id. at 7 (quoting

Marcelino, 29 Vet.App. at 158).

The Secretary also argues that Saunders is distinguishable because it does not mention

obesity, instead finding that pain can be a disability under section 1110 if it causes functional

impairment.3 Id. at 8. Moreover, the Secretary asserts, Mr. Adams has not shown that his obesity

causes pain that results in functional impairment. Id. at 9. The Secretary dismisses as "lay

hypothesizing" Mr. Adams's argument that symptoms such as fatigability, weakness, and postural

changes are hallmarks of disability, and the Secretary contends that the Board was not obligated

to specifically address this evidence. Id. at 9-10. And even if Saunders does apply, the Secretary

argues, the G.C. opinion "specifically found based on a review of scientific research, that obesity

does not produce impairment resulting in reductions of earning capacity." Id. at 11. The Secretary

also asserts that Mr. Adams relies on Spicer only because Spicer cites Saunders with approval. Id.

Additionally, the Secretary argues, VA properly exercised its gap-filling authority. Id. at 12.

C. Appellant's Reply to the Secretary

In his reply brief, Mr. Adams disagrees with the Secretary that Palczewski requires this

Court to afford substantial deference to his determination as to what constitutes a disability for

purposes of section 1110. Reply Br. at 9. First, Mr. Adams characterizes Saunders as holding that

section 1110 is not ambiguous and he argues that "Palczewski thus does not survive Saunders." Id.

Second, he points to the U.S. Supreme Court's recent decision in Loper Bright Enterprises v.

Raimondo, and notes that its holding significantly affects the deference that courts are to afford

agency determinations. Id. (citing Loper Bright, 603 U.S. 369, 412-13 (2024)). Thus, Mr. Adams

argues, Palczewski deference is "no longer tenable." Id.

At oral argument, Mr. Adams responded to the Secretary's argument that the G.C. opinion

determined that obesity does not result in the functional impairment of earning capacity : Mr.

Adams noted that the opinion does, in fact, appear to acknowledge that obesity can functionally

3

At oral argument, the Secretary acknowledged authority holding that Saunders does not apply only to pain.

Oral Argument (OA) at 33:45-34:57, Adams v. Collins, U.S. Vet. App. No. 23-5064 (argued Jan. 13, 2025),

http://www.uscourts.cavc.gov/oral.arguments.audio.php (discussing Martinez-Bodon v. Wilkie, 32 Vet.App. 393, 398

(2020) ("[W]e hold that Saunders is not limited to pain"), aff'd sub nom. Martinez-Bodon v. McDonough, 28 F.4th

1241 (Fed. Cir. 2022)). In light of this concession, the Court will not discuss this argument further.

7

Case: 23-5064 Page: 8 of 24 Filed: 07/08/2025

impair certain people who suffer from "severe" obesity, defined as BMI of 40 or greater. G.C.

Prec. 1-2017, at 6. The Secretary responded that the G.C. opinion describes "obesity as an

intermediate step" to service connection, allowing compensation for disabilities for which obesity

is a link in the causal chain. OA at 35:37-37:46. The Secretary asserted that this view is consistent

with VA's position that obesity is merely the "excess accumulation of body fat" that can impair

other body functions, but that obesity does not by itself result in the functional impairment of

earning capacity. Id.

III. ANALYSIS

Establishing service connection generally requires medical or, in certain circumstances, lay

evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or

injury, and (3) a nexus between the claimed in-service disease or injury and the present disability.

38 U.S.C § 1110; see Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). We reiterate

that the G.C. opinion finds that obesity is neither a "disability" nor a "disease" for purposes of

section 1110, and thus that service connection for obesity cannot be established.

Under 38 U.S.C. § 7104(c), the precedent opinions of the VA General Counsel are binding

on the Board. Thus, in Mr. Adams's appeal, the Board was required to follow G.C. Prec. 1-2017.

But unlike the Board, this Court is not bound by VA General Counsel precedent opinions. See 38

U.S.C. § 7261(a)(3). Though this Court generally reviews VA's statutory interpretation de novo,

see DeBeaord v. Principi, 18 Vet.App. 357, 363 (2004), we recognize that opinions of the General

Counsel "constitute a body of experience and informed judgment," Osman v. Peake, 22 Vet.App.

252, 256 (2008). VA's interpretation of a statute in a G.C. opinion is entitled to respect to the extent

that the interpretation has "'the power to persuade.'" Wanless v. Shinseki, 23 Vet.App. 143, 150

(2009) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). The weight the Court affords

General Counsel opinions "depends heavily on their thoroughness, reasoning, and consistency

with earlier and later pronouncements on the specific issue." Osman, 22 Vet.App. at 256 (citing

Skidmore, 323 U.S. at 140).

A. The Court's Jurisdiction to Review the Question Presented

The Secretary noted in his brief that VA has the authority to determine the content of the

rating schedule, and that this Court does not have the authority to review the content of the rating

schedule. Id. at 5-6 (first citing Wanner, 370 F.3d at 1131; and then citing Palczewski, 21 Vet.App.

8

Case: 23-5064 Page: 9 of 24 Filed: 07/08/2025

at 179-80). He also points to this Court's holding in Marcelino, finding that an argument that

obesity should be considered a disability under the rating schedule is not one that can be reviewed

by this Court. Id. at 7 (citing Marcelino, 29 Vet.App. at 157-58).

The Secretary's argument fails to account for the Federal Circuit's decision in Larson v.

McDonough, holding that asking whether obesity can be a disability for purposes of section 1110

is not a request for the Court to review the rating schedule but is instead a request to establish

service connection under that statute. 10 F.4th 1325, 1329 (Fed. Cir. 2021). Larson held that such

questions are controlled by Saunders, rather than Wanner, and Larson reversed a determination by

this Court that we lacked jurisdiction to review the Board's determination that obesity does not

constitute a disability for purposes of section 1110. Id. at 1329-30.

Mr. Adams does not ask this Court to review the content of the rating schedule; instead, he

challenges the G.C. opinion's finding that obesity is not a disability for purposes of section 1110.

Thus, this matter is controlled by Saunders, rather than Wanner. See Larson, 10 F.4th at 1329-30.

The Court is therefore satisfied that we may review the question that Mr. Adams has presented to

us, and we reject the Secretary's arguments to the contrary.

B. The G.C. Opinion’s Finding That Obesity Is Not a Disability

We turn now to the first question before us: In G.C. Prec. 1-2017, did the G.C., for purposes

of VA compensation, persuasively interpret section 1110 as excluding obesity from those

conditions that may be considered "disabilities." See Wanless, 23 Vet.App. at 150. We find that

the G.C. did not persuasively interpret the statute.

"As in any case of statutory construction, our analysis begins with the language of the

statute." Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). Saunders, which holds that

"disability" in the context of section 1110 means "functional impairment of earning capacity,"

extensively analyzes "disability" for purposes of section 1110 and guides our analysis here.

Saunders, 886 F.3d at 1363. The G.C. opinion, issued before Saunders, defines "disability" for

purposes of section 1110 as "'average impairments of earning capacity resulting from such injuries

in civil occupations.'" G.C. Prec. 1-2017, at 7 (quoting 38 U.S.C. § 1155). The Court discerns no

material difference between the G.C. opinion's definition of "disability" as "average impairment

of earning capacity" and Saunders's definition of "disability" as "functional impairment of earning

capacity." Notably, Saunders cites section 1155's definition of "disability" as "average impairment

of earning capacity" as an indication that VA's regulations support its definition of "disability" as

9

Case: 23-5064 Page: 10 of 24 Filed: 07/08/2025

referring to "functional impairment." Saunders, 886 F.3d at 1362. Thus, the G.C. opinion's

definition of "disability" is consistent with Saunders, and is therefore a permissible interpretation.

But the G.C. opinion goes on to find that obesity does not meet the definition of "disability"

because obesity does not impair most obese individuals. G.C. Prec. 1-2017, at 7. The opinion

acknowledges "evidence that severe obesity, i.e., BMI of greater than 40, impairs physical and

social function." Id. The opinion then describes obesity as "excess accumulation of body fat" and

cites medical studies finding that most obese people are not impaired as a result of their obesity.

Id. Thus, the opinion concludes, VA "need not consider obesity itself as meeting the criteria to be

considered a 'disability' for purposes of relevant statutes and regulations." Id.

In its opinion the G.C. does not attempt to reconcile the apparent contradiction between

acknowledging that obesity can physically and socially impair some people, and concluding that

obesity does not meet the criteria to be considered a disability. It appears that the opinion interprets

section 1110 as excluding obesity from the conditions that may be considered a disability under

that statute, just because some, but not all, obese people are not functionally impaired by their

obesity. This interpretation does not comport with Saunders's definition of "disability." Nothing

in Saunders, or in any subsequent authority that addresses Saunders, stands for the proposition that

a condition is not disability for purposes of section 1110 when only some, but not all, people with

that condition are impaired by it.

Because the G.C. opinion does not reconcile its contradictory findings or comport with

Saunders's definition of "disability," we reject the opinion's interpretation of section 1110 as

excluding obesity from the conditions that may be considered a "disability." See Theiss v. Principi,

18 Vet.App. 204, 211 (2004) (rejecting a G.C. opinion's definition of a term for "faulty reasoning").

We hold that obesity may be a disability for purposes of section 1110 if it results in the functional

impairment of earning capacity, see Saunders, 886 F.3d at 1362-63, and that deciding whether a

claimant's obesity causes functional impairment requires an "individualized assessment" of the

"degree of impairment" caused by a claimant's obesity, see Wait v. Wilkie, 33 Vet.App. 8, 16

(2020).

C. The G.C. Opinion's Finding that Obesity Is Not a Disease

i. Reliance on VA's Gap-Filling Authority

Before discussing the persuasive value of the G.C.'s opinion that obesity is not a disease

for purposes of section 1110 and § 3.310(a) and (b), we must first address Mr. Adams's challenge

10

Case: 23-5064 Page: 11 of 24 Filed: 07/08/2025

to VA's authority to determine whether a condition is a "disease" for purposes of section 1110. See

Appellant's Br. at 12. The G.C. opinion notes that the word "disease" is not defined in section 1110

and observes that Congress delegated to VA the authority to fill the gap as to the sorts of conditions

that may be considered a disease under that statute. G.C. Prec. 1-2017, at 3. Mr. Adams challenges

VA's reliance on gap-filling authority to ascertain whether obesity is a disease for purposes of

section 1110. Appellant's Br. at 12. He argues that because Saunders found that the "disability" in

section 1110 is unambiguous, there is "no pertinent gap for the Secretary to fill." Id. He also

characterizes Spicer as holding that section 1110 is unambiguous because Spicer cites Saunders

with approval. Id. at 14.

The Court is not persuaded. The G.C. opinion cited gap-filling authority to ascertain

whether obesity is a disease, not whether it is a disability for purposes of section 1110. See G.C.

Prec. 1-2017, at 3. Mr. Adams does not explain how Saunders's analysis of the word "disability,"

or Spicer's citation to that part of Saunders, has any bearing on VA's authority to fill the statute's

gap in defining "disease." Mr. Adams appears to believe that because Saunders interpreted the

word "disability" as unambiguous, see Saunders, 886 F.3d at 1362, then all of section 1110 is

unambiguous.

This reading of Saunders is far too broad. Saunders is concerned only with the definition

of "disability"; it does not concern "disease" or "injury." In fact, in Saunders the Federal Circuit

expressly rejected authority this Court had relied on in deciding Ms. Saunders's appeal by finding

that the authority "reads out the distinction Congress made in section 1110 between the

requirement for a disability and the requirement for in-service incurrence or aggravation of a

disease or injury." Id. at 1366 (citing Sanchez-Benitez v. West (Sanchez-Benitez I), 13 Vet.App.

282, 285 (1999)). Saunders notes further that reading out the requirement for a disease or injury

"eviscerates the nexus requirement" and is therefore "illogical." Id.

Our reading of Saunders is also consistent with this Court's decision in Wait, characterizing

Saunders as drawing "a distinction between the term 'disability' and 'disease or injury.'" 33

Vet.App. at 14. Thus, the Court is not convinced that Saunders's interpretation of "disability" in

section 1110 prevents the Secretary from exercising gap-filling authority to determine the

conditions that may be a "disease" or an "injury" for purposes of section 1110.

11

Case: 23-5064 Page: 12 of 24 Filed: 07/08/2025

ii. Direct Service Connection

The G.C. opinion notes that some medical authorities, including the American Medical

Association (AMA), and other Federal agencies have described obesity as a "disease." G.C. Prec.

1-2017, at 4. Yet the opinion goes on to find that "these statements were made for a variety of

purposes other than disability compensation," and that these statements "do not compel the same

result by VA." Id. The opinion then notes that there is no apparent consensus among medical

authorities that obesity is a disease, and the opinion points out disagreement within the AMA that

obesity is appropriately characterized as a disease. Id. Additionally, the opinion finds, classifying

obesity as a disease "for purposes of promoting understanding, prevention, and treatment of

conditions that jeopardize a person's health" does not also mean that obesity should also be

classified as a disease for purposes of VA compensation. Id. at 5.

Critically, Mr. Adams does not challenge any of those findings. Instead, he argues that

"whether a condition such as obesity is itself a 'disease' simply does not matter." Appellant's Br. at

14. In his view, all that matters is whether a condition functionally impairs earning capacity. Id. at

13-14. If so, he believes, the condition should be compensated under section 1110. Id.

In the direct-service-connection context, Mr. Adams asks the Court to effectively read out

of section 1110 its requirement that a disability—i.e., a condition resulting in functional

impairment of earning capacity—result from a disease or injury that is contracted in the line of

duty. This we cannot do. The Court must give effect to all terms and avoid rendering any

"'inoperative or superfluous, void or insignificant.'" Roper v. Nicholson, 20 Vet.App. 173, 178

(2006) (quoting 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION

§ 46:06 (6th ed. 2000)), aff'd, 240 F. App'x 422 (Fed. Cir. 2007); see Marx v. Gen. Revenue Corp.,

568 U.S. 371, 386 (2013) (stating that the "canon against surplusage is strongest when an

interpretation would render superfluous another part of the same statutory scheme"). Additionally,

the Federal Circuit has held that "[s]ection[] 1110 … make[s] it clear that if a disability cannot be

attributed to an 'injury' or a 'disease' incurred or aggravated in the line of duty, the disability is not

compensable." Terry, 340 F.3d at 1382 (emphasis added). Thus, in the context of direct service

connection, Mr. Adams has not presented the Court with a valid reason to invalidate the Secretary's

interpretation of section 1110 as excluding obesity from the conditions that may be considered a

"disease."

12

Case: 23-5064 Page: 13 of 24 Filed: 07/08/2025

And in the absence of such an argument, the Court finds that the Secretary's interpretation

of section 1110 as excluding obesity from the conditions that may be considered a "disease" is

persuasive and entitled to respect. See Wanless, 23 Vet.App. at 150. The interpretation is supported

by references to literature showing that there is no medical consensus that obesity should be

classified as a disease,4 and Mr. Adams does not challenge the G.C. opinion's reliance on such

literature. Moreover, the G.C. opinion's interpretation is not inconsistent with any other position

taken by the Secretary on the question of whether obesity is properly classified as a "disease," and

the Secretary has the authority to fill the gap in section 1110 by determining which conditions may

be considered a disease for purposes of that statute. See Skidmore, 323 U.S. at 140; see also

Wanless, 23 Vet.App. at 150-51 (holding that the VA G.C. opinion interpreting section 5313 was

entitled to respect where the interpretation was accompanied by supporting rationale and not

inconsistent with previous VA positions); Osman, 22 Vet.App. at 259-60 (rejecting VA G.C.

interpretation that was inconsistent with a prior interpretation).

iii. Secondary Service Connection

But in the context of secondary service connection, Mr. Adams is correct that whether

obesity is itself a disease or an injury for purposes of section 1110 "simply does not matter."

Appellant's Br. at 14. This Court explained in Allen that

the term "disability" as used in [section] 1110 refers to impairment of earning

capacity, and . . . such definition mandates that any additional impairment of

earning capacity resulting from an already service-connected condition, regardless

of whether or not the additional impairment is itself a separate disease or injury

caused by the service-connected condition, shall be compensated.

7 Vet.App. at 448 (1995) (emphasis added). Additionally, Spicer holds that "[section] 1110 plainly

requires compensation when a service-connected disease or injury is a but-for cause of a present-

day disability," including additional disability that results from "the natural progression of a

condition not caused by a service-connected injury or disease, but that nonetheless would have

4

Our dissenting colleague disagrees that the G.C. opinion's findings as to this medical literature are

persuasive, and he presents a litany of more recent medical literature, as well as findings by other Federal agencies

and a recent executive order, all describing obesity as a disease. See infra at 21-22. But whether the Court can take

judicial notice of this extrarecord evidence is an open question. See Euzebio v. McDonough, 989 F.3d 1305, 1323

(Fed. Cir. 2021). It is important to note again that Mr. Adams himself does not challenge the G.C. opinion's reliance

on such literature, and we do not believe it is prudent to consider a legal theory that was not advanced by the appellant

when such consideration requires us to rely on evidence not presented to us. See Davis v. United States, 512 U.S. 452,

464 (1994) (Scalia, J., concurring) (observing that "refusal to consider arguments not raised is a sound prudential

practice," but that "there are times when prudence dictates the contrary").

13

Case: 23-5064 Page: 14 of 24 Filed: 07/08/2025

been less severe were it not for the service connected disability." 61 F.4th at 1364. Thus, Allen and

Spicer clarify that in the context of secondary service connection, whether a condition such as

obesity is itself a "disease" or an "injury" for purposes of section 1110 is irrelevant. All that is

required to establish entitlement to secondary service connection is evidence that a condition

results in a "disability," defined as functional impairment of earning capacity, and a "but-for"

relationship between the disability and the service-connected disease or injury. See Spicer, 61 F.4th

at 1364. In the context of secondary service connection, the requirement in section 1110 that a

"disease or injury" result from the line of duty has already been fulfilled by virtue of the award of

service connection for the condition that caused the additional disability.

Before the Federal Circuit's decision in Spicer, secondary service connection was

considered a product of regulation, rather than statute. See Frost v. Shulkin, 29 Vet.App. 131, 137

(2017) (observing that "[s]secondary service connection for VA benefit purposes is not addressed

in any statute"). For that reason, the G.C. opinion addresses whether a disability can be a "disease"

for purposes of secondary service connection in the context of 38 C.F.R. § 3.310(a) and (b). See

G.C. Prec. 1-2017, at 7. Thus, we must assess the level of deference to afford the Agency's

interpretation of the regulation. See Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d

1352, 1364 (Fed. Cir. 2005) (holding that an agency's interpretation of its own regulations is

entitled to broad deference unless "'it is plainly erroneous or inconsistent with the regulation'"

(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945))). "[C]ourts should defer

to an agency's interpretation of its own ambiguous regulation so long as that interpretation is not

inconsistent with the language of the regulation or otherwise plainly erroneous and represents the

agency's considered view on the matter." Mulder v. Gibson, 27 Vet.App. 10, 16 (2014) (citing

Smith v. Nicholson, 451 F.3d 1344, 1349 (Fed. Cir. 2006) (citing Auer v. Robbins, 519 U.S. 452,

461-62 (1997))).

Referring to medical treatises and other evidence the G.C. opinion relied on to find that

obesity is not a disease for purposes of section 1110, which the opinion calls "the reasons noted

above," the G.C. finds that obesity is not a disease for purposes of § 3.310(a). Id. We will not defer

to the opinion's interpretation because it is inconsistent with the language of the regulation. The

regulation provides for compensation for disabilities that are due to a service-connected disease or

injury. See 38 C.F.R. § 3.310(a). In such situations, the veteran is required only to establish that

his or her condition meets the section 1110 definition of "disability," and that but-for the service-

14

Case: 23-5064 Page: 15 of 24 Filed: 07/08/2025

connected disease or injury, the veteran would not have the disability. See Spicer, 61 F.4th at 1364.

The regulation contains no requirement that the disability also be a "disease" or an "injury" for

purposes of section 1110. The opinion's brief finding that obesity is not a disease "[f]or the reasons

noted above" fails to account for the fact that in the context of secondary service connection, a

"disease" refers to a condition that has already been found to be related to serv ice. See G.C. Prec.

1-2017, at 7. The Court cannot find that this arbitrary and dismissive finding "'reflect[s] the

agency's fair and considered judgment on the matter in question.'" Cathedral Candle Co., 400 F.3d

at 1364 (quoting Auer, 519 U.S. at 462). As a result, the G.C. opinion's interpretation of § 3.310(a)

is "unworthy of deference." See Auer, 519 U.S. at 462.

The G.C. opinion also finds that obesity is not a disease for the purposes of §3.310(b), see

G.C. Prec. 1-2017, at 7; yet in Spicer, the Federal Circuit held that §3.310(b) is "unlawful as

inconsistent with [section] 1110." Spicer, 61 F.4th at 1366. We therefore reject the G.C. opinion's

finding that obesity is not a disease for the purposes of secondary service connection by

aggravation, because the finding is inconsistent with Spicer.

D. Application to Mr. Adams's Appeal

Before the Board, Mr. Adams argued that his obesity is secondary to his service-connected

PTSD. R. at 8. The Board found the record devoid of any evidence that Mr. Adams's obesity

resulted in the functional impairment of earning capacity. R. at 9. Mr. Adams argues that the Board

overlooked evidence that his obesity does, in fact, result in functional impairment of earning

capacity. Appellant's Br. at 16. He points specifically to the August 2016 VA treatment record

finding that he has "core weakness and postural changes due to obesity" that are "more pronounced

with trunk extension." R. at 3284. He also characterizes the July 2022 VA treatment record

describing him as "obese" and reports that he "uses rollator" as evidence of fatigability, and argues

that "[f]atigability, weakness, and manifestations leading to postural changes or symptoms more

pronounced on movement are all hallmarks of disability." Appellant's Br. at 16-17 (citing R. at

144).

The Board must provide a statement of its reasons or bases for its determinations that is

adequate to enable an appellant to understand the precise basis for the Board's decision as well as

to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527

(1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the

Board must analyze the credibility and probative value of the evidence, account for the evidence

15

Case: 23-5064 Page: 16 of 24 Filed: 07/08/2025

it finds persuasive or unpersuasive, and provide its reasons for rejecting any material evidence

favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d

604 (Fed. Cir. 1996) (table). The Court finds that the Board provided an inadequate statement of

reasons or bases for finding that Mr. Adams's obesity does not result in the functional impairment

of earning capacity, because it overlooked favorable material evidence—specifically, the August

2016 VA treatment record that attributes weakness and postural changes directly to Mr. Adams's

obesity. See R. at 3284; Caluza, 7 Vet.App. at 506. Although the Secretary disagrees that the Board

was obligated to discuss this evidence, see Secretary's Br. at 10-11, his post hoc rationalizations

cannot make up for the Board's lack of adequate reasons or bases. See Simmons v. Wilkie, 30

Vet.App. 267, 277 (2018) (holding that the "Court cannot accept the Secretary's post hoc

rationalizations" to cure the Board's reasons-or-bases errors). Remand is therefore warranted so

that the Board can provide an adequate statement of reasons or bases for finding whether Mr.

Adams's obesity results in the functional impairment of earning capacity. If the Board answers this

question affirmatively, it must then make factual determinations whether Mr. Adams's service-

connected PTSD is a but-for cause of his obesity. See Spicer, 61 F.4th at 1364.

To the extent that the Board also denied service connection for obesity on a direct basis,

the Court leaves this finding, consistent with our findings above, undisturbed. See R. at 9. We

remind the Board that "[a] remand is meant to entail a critical examination of the justification for

the [Board's] decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991); see also Andrews v.

McDonough, 34 Vet.App. 151, 161 (2021). Additionally, on remand the Board must treat this

matter in an expeditious manner, in accordance with 38 U.S.C. § 7112(a).

IV. CONCLUSION

After considering the parties' pleadings and reviewing the record, the Court VACATES the

part of the Board's May 4, 2023, decision that denied service connection for obesity as secondary

to service-connected PTSD, and REMANDS that matter for further proceedings consistent with

this decision. The remainder of the appeal is DISMISSED.

16

Case: 23-5064 Page: 17 of 24 Filed: 07/08/2025

JAQUITH, Judge, concurring in part and dissenting in part: I completely agree with the

majority's holding (1) that "the G.C. opinion's finding that obesity is not a disability for purposes

of section 1110 is not a persuasive interpretation of the statute," ante at 1; (2) "reject[ing] the G.C.

opinion's finding that obesity is not a disease for the purpose of secondary service connection by

aggravation," ante at 15; and (3) that "the Board provided an inadequate statement of reasons or

bases for finding that Mr. Adams's obesity does not result in the functional imp airment of earning

capacity, because the Board overlooked favorable material evidence," ante at 16; so I agree that

this matter must be remanded. But I cannot join in either the majority's deference to the General

Counsel's opinion that "obesity is not a 'disease' for purposes of section 1110" or the majority's

conclusion that G.C. Prec. 1-2017 “prohibits service connection for obesity as directly related to

service,” ante at 1-2. In my view, the Board's denial of both direct and secondary service

connection for Mr. Adams' obesity is based on flawed analysis that fails to consider (or even

mention) watershed precedential cases, so the Board's denial of both bases for service connection

should be vacated and the matter remanded.

My bottom line is that the Court should vacate the Board's May 4, 2023, decision that

denied service connection for obesity—both secondary and direct service connection—in

accordance with the Board's unitary treatment of service connection. The Board did n ot address

secondary and direct service connection separately. Regarding obesity, the Board's order says only

that "[e]ntitlement to service connection for obesity, to include as secondary to service connected

post[-]traumatic stress disorder (PTSD) is denied." R. at 5. The Board's all-encompassing

conclusion of law likewise says flatly that "[t]he criteria for service connection for obesity have

not been met." R. at 6. And the Board's reasons or bases for its order and conclusion assert that

"[t]he general requirements for direct and secondary service connection notwithstanding, obesity

is not considered a disease or disability for VA purposes and is not subject to service connection,"

citing only Marcelino v. Shulkin, 29 Vet.App. 155 (2018), and G.C. Prec. 1-2017. R. at 9. But the

Board's reliance on Marcelino is misplaced. In that case, the Court said nothing resembling the

Board's assertion, instead holding only that the Court did not "have jurisdiction to entertain the

argument that obesity should be considered a disability under the rating schedule." 29 Vet.App. at

158.

The Federal Circuit decided otherwise in Larson v. McDonough, holding that a veteran

seeking to establish service connection for obesity under section 1110 is not asking the Court to

17

Case: 23-5064 Page: 18 of 24 Filed: 07/08/2025

invalidate or revise any portion of the rating schedule, so the Court has jurisdiction to review the

Board's denial of such a claim. 10 F.4th 1325, 1329-30 (Fed. Cir. 2021). The Larson court also

held that obesity was analogous to the pain at issue in Saunders v. Wilkie, which held that pain

may constitute a disability under section 1110 without an identified disease or injury, because pain

can constitute or cause functional impairment. Larson, 10 F.4th at 1329; Saunders, 886 F.3d 1356,

1362-68 (Fed. Cir. 2018). Here, the majority relies on Larson and Saunders but neither notes nor

acts on the fact that Board did not factor either case into its decision. In short, the Board relied on

a case that was wrong and ignored two cases that are of paramount importance. I agree with our

distinguished colleagues who have persuasively determined in other cases that such a Board failure

warrants vacating the Board decision and remanding the matter for the Board to consider Larson

and Saunders in the first instance. See Kedrowski v. McDonough, No. 22-5633, 2024 WL 557956,

at *3 (Vet. App. Feb. 13, 2024) ("[I]t remains for the Board to resolve whether Saunders and

Larson undermine the continuing validity of Precedent Opinion 1-2017's conclusion that obesity

is not a disability for VA compensation purposes."); Shillingburg v. McDonough, No. 21-3081,

2022 WL 3909054, at *3 (Vet. App. Aug. 31, 2022).

In my view, because the Board's decision addressed direct and secondary service

connection together, citing Marcelino, the Court's remand here should require the Board to address

whether Saunders and Larson undermine the continuing validity of G.C. Prec. 1-2017's categorical

exclusion of obesity as a disease and disability permitting compensation. Although the G.C.

opinion binds the Board, that does not mean the Board's consideration of the issues is futile. See

Wolfe v. McDonough, 28 F.4th 1348, 1358 (Fed. Cir. 2022). The factual setting is key to making

correct decisions on the law, so the Board's consideration of all of the relevant record—including

the veteran's testimony that his weight increased from 125 pounds to 230 pounds while he was on

active duty, R. at 2574, his testimony that his weight gain was related to his PTSD, R. at 2567 -75,

the objective evidence of his height (72 inches), weight (276 pounds), and BMI of 38, R. at 93,

and the VA physical therapist's assessment that the veteran's chronic lower back pain was related

to his "core weakness and postural changes due to obesity," R. at 3284—could be informative.

Considering pertinent facts and governing law can make a difference!

G.C. Prec. 1-2017 suffers from the same shortcoming as the Board decision: G.C Prec. 1-

2017 did not contemplate the holdings and analysis by the Federal Circuit in Saunders and Larson.

Indeed, it would have required prescience, or at least unbiased foresight, for VA's General Counsel

18

Case: 23-5064 Page: 19 of 24 Filed: 07/08/2025

to anticipate such future court decisions. In this case, the Court's majority concludes that G.C. Prec.

1-2017 does not comport with Saunders. Ante at 10. The majority highlights G.C. Prec. 1-2017's

contradictory finding that obesity cannot constitute a disability while acknowledging that people

with severe obesity are physically and socially impaired by their condition. Ante at 10-11. The

majority rejects G.C. Prec. 1-2017's "arbitrary and dismissive finding" that obesity is not a disease

for purposes of 38 C.F.R. § 3.310 as inconsistent with the language of the regulation and

inconsonant with Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023), which holds that a

veteran is entitled to compensation for functional impairment resulting from service, even as only

one of many causal links. Ante at 15.

Last year, the Supreme Court emphasized that courts must exercise their independent

judgment to discern the best meaning of statutes and " may not defer to an agency interpretation

of the law simply because a statute is ambiguous." Loper Bright Enterprises v. Raimondo, 603

U.S. 369, 412-13 (2024). At the same time, the Supreme Court said that "[c]areful attention to the

judgment of the Executive Branch may help inform that [judicial] inquiry," id., and the Court

recalled that "'[t]he weight of such a judgment in a particular case'" would "'depend upon the

thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier

and later pronouncements, and all those factors which give it power to persuade, if lacking power

to control,'" id. at 388 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). This Court

has applied that Skidmore standard. See Ante at 9; see, e.g., Wanless v. Shinseki, 23 Vet.App. 143,

150 (2009), aff'd, 618 F.3d 1333 (Fed. Cir. 2010). In my view, the significant shortcomings the

majority has identified in G.C. Prec. 1-2017 demonstrate that G.C. Prec. 1-2017 does not have

persuasive power.

G.C. Prec. 1-2017 acknowledges that although Congress left a gap in title 38 by not

defining "disease," VA has not filled the gap by defining "disease" in a regulation. G.C. Prec. 1-

2017, at 3. The G.C. opinion also notes that VA has, in a regulation, specifically listed defects,

disorders, and deficiencies that are not diseases. Id.; see 38 C.F.R. § 3.303(c) (2024). Obesity is

not listed (as not being a disease). G.C. Prec. 1-2017 also notes that the General Counsel had

previously endorsed a medical dictionary's definition of "disease" as "any deviation from or

interruption of the normal structure or function of a part, organ, or system of the body that is

manifested by a characteristic symptoms and signs and whose etiology, pathology, and prognosis

may be known or unknown." Id. (citing Disease, DORLAND'S ILLUSTRATED MED. DICTIONARY 385

19

Case: 23-5064 Page: 20 of 24 Filed: 07/08/2025

(26th ed. 1974)). That dictionary currently defines "disease" virtually identically. See Disease,

DORLAND'S ILLUSTRATED MED. DICTIONARY 521 (33rd ed. 2020). 5 But the G.C. opinion curiously

says that "[a]lthough [the General Counsel's prior] opinions cite definitions of 'disease' from

various authorities, they do not interpret VA statutes or regulations as establishing a specific

definition of that term." G.C. Prec. 1-2017, at 4. Importantly, the G.C. opinion neither explains

how obesity does not constitute a deviation from or interruption of the normal structure or function

of the body, nor endorses a different standard for assessing obesity. Id. Instead, the G.C. opinion

says that prior General Counsel opinions "do not describe a standard for distinguishing disease

from things[] like obesity," and the G.C. opinion offers unsupported assertions that it is VA's

"longstanding policy" that obesity per se is not a disease, id. at 1, and that obesity has not

traditionally been considered a disease, id. at 4.

There is no evidence in the G.C. opinion, the Board decision, or the record of any such

tradition or policy. Just as VA has not defined "disease" by regulation, VA has not regulated

whether obesity is a disease. In this case, the regional office erroneously asserted that "[o]ur

regulations state: 1) Direct basis—Obesity per se is not a disease or injury for the purposes of 38

U.S.C 1110 and 38 U.S.C. 1131 and therefore may not be service connected on a direct basis." R.

at 7101. There was and is no such regulation, yet the Board did not address this glaring error—

instead attributing the same exact words to G.C. Prec. 1-2017. R. at 9. VA has excluded from

CHAMPVA 6 coverage, for survivors and dependents of certain veterans, of "[n]onsurgical

treatment of obesity or morbid obesity for dietary control or weight reduction (with the exception

of gastric bypass, gastric stapling, or gastroplasty procedures in connection with morbid obesity

when determined to be medically necessary) including prescription medications."7 38 C.F.R. §

5

Black's Law Dictionary defines "disease" as "[a] deviation from the healthy and normal functioning of the body" and

"[a]ny disorder." Disease, BLACK'S LAW DICTIONARY (12th ed. 2024).

6

"CHAMPVA" is the acronym for Civilian Health and Medical Program of the Department of Veterans Affairs.

CHAMPVA is a special program for survivors and dependents of certain veterans. See 38 C.F.R. §§ 17.270-17.279

(2024).

7

Notably, "changes in the prevailing medical consensus towards recognizing obesity as a disease" have led the U.S.

Department of Health's Centers for Medicare & Medicaid Services (CMS) to propose reinterpreting statutory

exclusions to provide Medicare prescription drug benefits under Part D and Medicaid coverage of anti-obesity

medications "when used for weight loss or chronic weight management for the treatment of obesity." Medicare and

Medicaid Programs; Contract Year 2026 Policy and Technical Changes to the Medicare Advantage Program,

Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for

the Elderly, 89 Fed. Reg. 99,340-01, 99,341 (Dec. 10, 2024). The CMS proposal is "based on the distinction between

obesity as a disease and overweight, which is not recognized as a disease." Id. at 99,377. The comments to the proposed

rule include one by the American College of Cardiology expressing that acknowledging that obesity is a chronic

20

Case: 23-5064 Page: 21 of 24 Filed: 07/08/2025

17.272(a)(22) (2024). And, by regulation, obesity warrants a 30% disability rating for a veteran

with Cushing's syndrome.8 38 C.F.R. § 4.119, Diagnostic Code 7907 (2024). Add that the G.C.

opinion acknowledges that the rating schedule is not exhaustive, see 38 C.F.R. § 4.20 (2024), but

inconsistently asserts that obesity is categorically excluded because it is unlisted. 9 G.C. Prec. 1-

2017 at 6. The Secretary has not used his regulatory authority to address whether obesity is a

disease—for purposes of disability compensation or otherwise—so his General Counsel's

interpretation is not entitled to deference, even under the pre-Loper regime. See, e.g., Cook v.

Snyder, 28 Vet.App. 330, 339 (2017), aff'd sub nom. Cook v. Wilkie, 908 F.3d 813 (Fed. Cir. 2018).

G.C. Prec. 1-2017 does not acknowledge that since 2006, 42 U.S.C. § 3002 has included

obesity as a chronic disease for purposes of Federal disease prevention and health promotion

services for older Americans. 42 U.S.C. § 3002(14)(D) (added by the Americans Act Amendments

of 2006, Pub.L. 109-365, sec. 101(a)(2)).

G.C. Prec. 1-2017 does acknowledge that the American Medical Association, the Social

Security Administration (SSA), the National Heart, Lung & Blood Institute, the Internal Revenue

Service (IRS), and the American Association of Clinical Endocrinologists have stated that obesity

is a disease. 10 Id. Yet G.C. Prec. 1-2017 dismisses those statements as "made for a variety of

purposes other than disability compensation" and says they "do not compel the same result by

VA"—without explaining why, including why the medical determinations do not apply to

disability compensation decisions. G.C. Prec. 1-2017 also relies heavily on two reports by AMA

councils—without explaining why councils that "provide information and recommend policies" to

the AMA11 are more persuasive than the decisions the AMA actually makes after considering such

information and policies. In that regard, it is noteworthy that the AMA reaffirmed its recognition

disease "is long overdue," and that "obesity is a multifactorial disease that significantly contributes to elevated blood

pressure, dyslipidemia, and hyperglycemia, each of which are key risk factors for the development of [cardiovascular

disease]." https://www.regulations.gov/comment/CMS-2024-0345-27198 (last accessed May 12, 2025).

8

"Cushing's syndrome" is "a complex of symptoms caused by hyperadrenocorticism due either to a neoplasm of the

adrenal cortex or adenohypophysis, or to excessive intake of glucocorticoids." Cushing, DORLAND'S I LLUSTRATED

M ED. DICTIONARY 1797 (33rd ed. 2020).

9

In Saunders, the Federal Circuit rejected the Secretary's similar argument that without an identified condition, pain

cannot be a disability under section 1110 and VA's regulations. See 886 F.3d at 1362-68.

10

See, e.g., Rev. Rul. 2002-19, 2002-1 C.B. 778 (“Obesity is medically accepted to be a disease in its own right.”);

SSR 02-1p; Titles II and XVI: Evaluation of Obesity, 67 Fed. Reg. 57,859-02, 57,860 (Sep. 12, 2002) (Obesity is a

complex, chronic disease characterized by excessive accumulation of body fat.”).

11

Councils–American Medical Association, https://www.ama -assn.org/councils (last visited May 9, 2025).

21

Case: 23-5064 Page: 22 of 24 Filed: 07/08/2025

of obesity as a disease in 2023. 12 Moreover, in the 8 years since G.C. Prec. 1-2017, the U.S. Centers

for Disease Control and Prevention (CDC) has declared that, "Obesity is a common, serious, and

costly chronic disease."13 The World Health Organization (WHO) says that, "Obesity is a chronic

complex disease defined by excessive fat deposits that can impair health." 14 The American

Association of Clinical Endocrinology states that "[o]besity is a biological, preventable, and

treatable disease that means a person has too much body fat." 15 And the Obesity Medicine

Association defines "obesity" as a "chronic, relapsing, multi-factorial, neurobehavioral disease,

wherein an increase in body fat promotes adipose tissue dysfunction and abnormal fat mass

physical forces, resulting in adverse metabolic, biomechanical, and psychosocial health

consequences." 16 As the Supreme Court of Washington concluded en banc: "There is an

overwhelming consensus in the medical community that obesity is a disease in and of itself." 17

Finally, Executive Order 14212, issued just a few months ago, listed obesity as a chronic

disease, stating: "It shall be the policy of the Federal Government to aggressively combat the

critical health challenges facing our citizens, including the rising rates of mental health disorders,

obesity, diabetes, and other chronic diseases." Exec. Order No. 14212, 90 Fed. Reg. 9833, 9834

(Feb. 13, 2025).

12

Recognition of Obesity as a Disease H-440.842, AM. M ED. ASS 'N, https://policysearch.ama-

assn.org/policyfinder/detail/obesity?uri=®AMADoc®HOD.xml-0-3858.xml (last visited May 9, 2025) ("Our

American Medical Association recognizes obesity as a disease state with multiple pathophysiological aspects

requiring a range of interventions to advance obesity treatment and prevention.").

13

About Obesity, U.S. CTRS . FOR DISEASE CONTROL & PREVENTION (Jan. 23, 2024), available at

https://www.cdc.gov/obesity/php/about/index.html (last visited May 9, 2025). CDC is responsible for exercising the

duties provided for in law "related to the investigation, detection, identification, prevention, or control of diseases or

conditions to preserve and improve public health domestically." 42 U.S.C. § 242c. CDC "has an essential role in

defending against and combatting public health threats." 42 U.S.C. § 247d-4. Last year, CDC announced new ICD-

10-CM codes for adult and childhood obesity, effective October 1, 2024, saying that "ICD-10-CM codes are used to

classify and diagnose disease processes and for disease management and billing purposes, as well as health services

research." See https://www.cdc.gov/obesity/media/pdfs/2024/12/Adult-Partner-Promotion-Materials-ICD-10-Codes-

508.pdf (last visited May 9, 2025).

14

Obesity and Overweight, WORLD H EALTH ORG. (March 1, 2024), https://www.who.int/news-room/fact-

sheets/detail/obesity-and-overweight (last visited May 9, 2025). The World Health Organization is a "public

international organization of which the United States is a member." 8 C.F.R. § 316.20(c) (2024); see 22 U.S.C. § 290.

15

Nutrition and Obesity, AM. ASS 'N OF CLINICAL ENDOCRINOLOGY, https://www.aace.com/disease-and-

conditions/nutrition-and-obesity/all-about-obesity (last visited May 11, 2025).

16

Why Obesity is a Disease, OBESITY M ED. ASS 'N (Dec. 30, 2023), https://obesitymedicine.org/blog/ why-is-obesity-

a-disease/ (last visited May 11, 2025).

17

Taylor v. Burlington N. R.R. Holdings, Inc., 444 P.3d 606, 613 (Wash. 2019) (en banc).

22

Case: 23-5064 Page: 23 of 24 Filed: 07/08/2025

The majority rejects the General Counsel's finding that obesity is not a disease for purposes

of 38 C.F.R. § 3.310, ante at 14, but the majority endorses "the Secretary's interpretation of section

1110 as excluding obesity from the conditions that may be considered a 'disease' [as] persuasive

and entitled to respect" because that "interpretation is supported by references to literature showing

that there is no medical consensus that obesity should be classified as a disease," ante at 13. But

the majority fails to look carefully at the Secretary's flimsy claim of no consensus, which is based

on his General Counsel's rejection of the AMA's definitive conclusion that obesity is a disease in

favor of the uncertain input of two subordinate councils that the medical question is a difficult one.

And the majority is uninterested in the subsequent determinations by judicial, executive,

legislative, and authoritative medical entities, supra at 21-22, because the appellant did not spell

them out when he attacked G.C. Prec. 1-2017 for categorically excluding obesity from disability

compensation, ante at 12, 13 n.4.18 In my view, such myopic and mechanical deference fails to

fulfill the Court's responsibility to provide independent judicial review, including by considering

the thoroughness of the General Counsel's opinion, the validity of its reasoning, and its consistency

with other reliable sources and later developments. See Loper Bright, 603 U.S. at 388. The Court

is not limited by the specific arguments of the parties, "but rather retains the independent power to

identify and apply the proper construction of governing law." Kamen v. Kemper Fin. Servs., Inc.,

500 U.S. 90, 99 (1991). Indeed, Loper Bright recently reminded us that

[j]udges have always been expected to apply their "judgment" independent of the

political branches when interpreting the laws those branches enact. The Federalist

No. 78, at 523. And one of those laws, the [Administrative Procedure Act], bars

judges from disregarding that responsibility just because an Executive Branch

agency views a statute differently.

603 U.S. at 412.

18

The veteran’s challenge to G.C. Prec. Op. 1-2017’s categorical exclusion of obesity as a disability and a disease

placed all of the General Counsel’s justifications at issue, and the veteran was not silent on the inconsonance between

the G.C. opinion and the conclusions of the AMA and Federal agencies that obesity is a disease. See Appellant’s Br.

at 9. Moreover, it is indisputable that AMA, CDC, WHO, the American Association of Clinical Endocrinology, the

Obesity Medicine Association, CMS, the American College of Cardiology, 42 U.S.C. § 3002, Executive Order 14212,

and rulings by IRS and SSA all describe obesity as a disease. Such official public references may and should be

judicially noticed and considered in determining whether the General Counsel’s selective reliance on medical literature

is persuasive. See Euzebio v. McDonough, 989 F.3d 1305, 1323 (Fed. Cir. 2021) (“[T]he Veterans Court [is not

precluded] from taking judicial notice of extra-record evidence that is ‘generally known’or ‘from sources whose

accuracy cannot reasonably be questioned,’ . . . or in accordance with and in furtherance of its review of Board and

VA decisions.” (citations omitted)).

23

Case: 23-5064 Page: 24 of 24 Filed: 07/08/2025

G.C. Prec. 1-2017 is riddled with inconsistencies and unsupported assertions, and it

conflicts with caselaw and the opinions of medical and governmental authorities, so I do not find

its categorical exclusion of obesity from its unstated definition of disease to be persuasive. And

the Board did not even address Larson or Saunders, obviously pertinent precedential cases, in its

unitary decision denying service connection for the veteran's acknowledged obesity. I respectfully

dissent from the Court's leaving the Board's direct-service-connection denial undisturbed.

24