Citation Nr: 0813836 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-00 250A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for obesity and other hyperalimentation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from June 1989 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied service connection for obesity. This case was previously before the Board in July 2006 at which time it was remanded for additional evidentiary development. The development requested in that Remand has been undertaken to the extent possible and the case has returned to the Board and is ready for appellate consideration. It appears that the veteran may be seeking service connection for a gastrointestinal disorder. This matter is referred to the RO for clarification and action as appropriate. FINDINGS OF FACT Obesity is a congenital or developmental disorder; there is no current disease or disability diagnosed in this case which primarily manifests as obesity. CONCLUSION OF LAW Service connection for obesity is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a duty to assist letter was issued in August 2006, after the initial adjudication and denial of the claim on appeal in May 2003. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, such notice was provided in the August 2006 letter. In this case it is clear that the duty to notify was not fully satisfied prior to the initial unfavorable decision on the claim by the Agency of Original Jurisdiction (AOJ). Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in August 2006 that fully addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her or his possession to the AOJ. The RO then issued a Supplemental SOC (SSOC) in October 2007 which included information on how disability ratings and an effective date for the award of benefits are assigned, and addressed other notice elements as well. The actions taken by VA after providing the notice have essentially cured the error in the timing of notice. The appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim, and been given ample time to respond. The AOJ also readjudicated the case by way of the SSOC issued in October 2007 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA and private treatment records dated between 1993 and 2007. In this case, an examination was specifically provided to include an opinion addressing the obesity claim and its relationship to service and to any other currently manifested disease or disability. Significantly, neither the appellant nor his representative has identified (and the record does not otherwise indicate) any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In a Board remand of July 2006, it was requested that a gastrointestinal evaluation conducted in August 2003 be sought for addition in the record. An August 22, 2003 nursing note is on file, but an evaluation was not among the VA records obtained for the file dated in 2002 and 2003. Accordingly, any additional evidence dated in August 2003, if it in fact exists, still remains at large. However, as a practical matter the disposition of this case is based upon legal/statutory interpretation and not factual analysis. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background The veteran filed his original service connection claim for obesity in November 2002. The service medical records include an enlistment examination report of November 1988 which revealed that the veteran was 5'10" and weighed 230. His build was described as heavy, but not obese. The summary of defects indicated that the veteran had 25 percent body fat and that the maximum allowable was less than 26 percent. A weight control evaluation record dated in June 1991 showed that the veteran's weight was 235, his body fat percentage was 30, and that he was assessed as being obese. A separation examination report is not on file. The file contains a decision of the Social Security Administration (SSA) dated in July 2002 which reflects that disability benefits were granted from December 2001, based on a finding that the veteran was disabled due to obesity and other hyperalimentation. A medical report for SSA purposes was conducted by Dr. I. in June 2002. At that time, the veteran's weight was 387 pounds. The diagnostic impressions included morbid obesity and chronic repetitive abdominal infections. Private medical records from Jefferson Hospital dated in September and October 1993 reflect that the veteran underwent appendectomy in 1993 for perforated appendicitis with peritonitis. At that time, his weight was listed as 350 pounds. VA medical records include show that the veteran underwent ventral hernia repair in February 2002. That the veteran was seen for a general surgery consult in July 2002 at which time his weight was recorded as 408, and it was noted that he had lost about 50 pounds. The veteran underwent incisional hernia repair in August 2002. When examined by VA in February 2003 for intestinal disorders, the veteran's weight was 428 pounds and the abdomen was described as morbidly obese. No diagnosis was made at that time and a gastrointestinal workup and follow-up was recommended. The veteran underwent a VA examination in August 2007 at which time the claims folder was reviewed. The report indicated that the veteran had a long history of obesity and that it ran in his family. The veteran had multiple complaints unrelated to hypothyroidism, insulinoma, or Cushing's syndrome. The veteran weighed 458.7 pounds on examination. An assessment of exogenous obesity without evidence of underlying pathology was made. The examiner, an endocrinologist, opined that he could not find any evidence that the condition was incurred in or aggravated by active service. Legal Analysis Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). Generally, in order to prove service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999). The term "disability" means an impairment of earning capacity resulting from a disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). "Injury" is defined as "damage inflicted on the body by an external force." See Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (citing Dorland's Illustrated Medical Dictionary 901 (29th ed. 2000)). "Disease" means "any deviation from or interruption of the normal structure or function of a part, organ, or system of the body." Id. at 1384 (citing Dorland's at 511). The evidence clearly establishes that obesity was first noted in service, but not upon enlistment. On enlistment the veteran's weight was 230, and his build was described as heavy, but not obese. The summary of defects indicated that the veteran had 25 percent body fat and that the maximum allowable was less than 26 percent. However, by June 1991, the veteran's weight and body fat had increased and he was assessed as being obese. It is not clear whether the veteran had a discharge examination, but it was not in the SMRs. Treatment records, both private and VA, show continued reports and diagnoses of obesity since service. Private medical records dated in September and October 1993 reflect that the veteran weighed about 350 pounds at that time. When examined by VA in August 2007, he weighed 458 pounds and exogenous obesity, without evidence of underlying pathology, was diagnosed. It is undisputed that there is a current finding of obesity, and that obesity was first noted in service. However, service connection is not warranted because obesity is not recognized by VA as a disease or disability for which service connection may be granted on a direct basis. Rather, obesity is a developmental or congenital condition which is specifically excluded by regulation, and is not subject to service connection. 38 C.F.R. § 3.303(c). The Board finds that obesity, in and of itself, is not a disease or disability subject to service connection. Instead, VA treats obesity as a sign or symptom of disease or disability, and considers it in assigning rating evaluations where appropriate. Weight gain is considered in evaluating diseases such as Cushing's syndrome or various thyroid disorders. In these instances, it is not obesity which is service connected, it is the underlying disease. Symptoms alone, without a finding of an underlying disorder, cannot be service connected. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Here, there is no medical evidence of any underlying service connected disease or disability which has resulted in obesity, as clarified by the diagnosis made upon VA examination conducted in August 2007. Moreover, at that time, the VA examiner reported that although the veteran had multiple complaints on examination, these were unrelated to hypothyroidism, insulinoma, or Cushing's syndrome. Without underlying pathology, VA has not recognized obesity as a disease entity for purposes of compensation. See 38 C.F.R. § Part 4. The diagnosis of exogenous obesity which was made upon VA examination in 2007, in fact, is defined as obesity caused by overeating, and not by any metabolic or disease related condition. The Board notes that obesity caused by overeating is not caused by an external force (such as for an "injury"); rather, obesity in that case is a result of behavior. Moreover, obesity that is not due to underlying pathology cannot be considered a deviation from the normal function of the body (such as for a "disease"); rather, the storage of calories for future use represents the body working most efficiently at what it is designed to do. The Board notes that basic entitlement to service connection, like payment of VA compensation, is limited to cases where there is a current disability which is the result of a disease or injury, including an injurious event, incurred in active service. See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.159; see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Applying the law to the facts of this claim, the Board concludes that the medical evidence does not show that the veteran's obesity was incurred other than as a result of excess caloric intake. In fact, in August 2007, a VA examiner having reviewed the claims folder, examined the veteran, and summarized the pertinent medical history concluded that he could identify no evidence that the veteran's exogenous obesity was incurred in or aggravated by active service. In the absence of evidence that the veteran's currently diagnosed obesity was incurred during service as a result of a disease process or injury, the Board finds that there is no disability for which service connection may be granted. Since direct service connection may not be established for exogenous obesity, the claim must be denied. ORDER Service connection for obesity is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs