Stanley Przybylski v. ERIC K. SHINSEKI, Secretary of Veteran Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

STANLEY PRZYBYLSKI,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, Secretary of Veteran Affairs,
Respondent-Appellee.

2011-7190

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-0145 Judge Mary J.
Schoelen.

## ON MOTION

Before LOURIE, PROST, and MOORE, Circuit Judges.
PER CURIAM.

## ORDER

The Secretary of Veterans Affairs ("Secretary") moves
to voluntarily remand this case for a new medical opinion.
The Secretary also requests that we waive the require-
ment of Federal Circuit Rule 27(f) which requires his
argument in support of remand be made in his brief.

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Mr. Przybylski filed a claim with the Department of
Veterans Affairs ("VA") for entitlement to service connec-
tion for morbid obesity. When his claim reached the
Board of Veterans Appeals ("Board"), the Board remanded
the case for compliance with the VA's notice requirements
and to obtain additional evidence. In its remand, the
Board stated that it believed that "for the purpose of
establishing entitlement to VA disability benefits obesity
is a symptom, rather than a disease or disability in its
own right." Following a VA medical examination on
remand, the doctor concluded that he could not find any
etiology for Mr. Przybylski's obesity other than eating.
The doctor opined that Mr. Przybylski's obesity was less
likely as not related to military service.

The Secretary notes that it was not clear from the
doctor's report as to whether the doctor was influenced by
the Board's statements that suggested obesity could not
be considered a disease for the purpose of service connec-
tion. As a result, the Secretary requests we vacate and
remand this appeal for a new medical opinion that is not
potentially influenced by the Board's remand opinion.

Upon consideration thereof,

IT IS ORDERED THAT:

1\) The motion to vacate and remand is granted. The
United States Court of Veterans Claims is ordered to
remand Mr. Przybylski's claim to the VA for a new medi-
cal opinion determining whether Mr. Przybylski's obesity
is a disease on its own that may be service connected.

2\) The requirement of Rule 27(f) is waived, and the
present motion is accepted as the Secretary's argument.

3\) Costs are awarded to Mr. Przybylski.

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PRZYBYLSKI V. DVA
FOR THE COURT

FEB 06 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Stanley Przybylski

Renee Gerber, Esq.

s25

Issued As A Mandate:

FEB 06 2012

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
FEB 06 2012
JAN HORBALY
CLERK