Citation Nr: 1312487 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 08-06 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that denied the Veteran's claim for service connection for diabetes mellitus. The Veteran disagreed and perfected an appeal. The Veteran initially sought a hearing before a Veterans Law Judge, but did not appear for the January 2013 hearing and notified the Board in a February 2013 submission that he wished to withdraw his request for a hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for diabetes on two grounds. First, he has maintained that during active duty he was exposed to herbicides when he participated in training exercises on Eglin Air Force Base in Florida. Most recently, his representative has contended in the March 2013 formal brief in support of the Veteran's claim that the Veteran's numerous service-connected disabilities have resulted in an inability to participate in physical exercise which has caused him to become obese. He argues that he should be entitled to service connection on a secondary basis as his diabetes is caused by obesity. A Veteran may articulate one theory of service connection, but he is not limited to that theory. See Delisio v. Shinseki, 25 Vet. App. 45, 54 (2011). In this case, the Veteran's new contention is a different theory to seek the same benefit he sought in his initial claim and is not a different or separate claim. The claim was developed, and decided, solely regarding the Veteran's contention that he was exposed to herbicides during service. The newly submitted additional theory of service connection of service-connected disabilities causing obesity which in turn caused or aggravated diabetes mellitus has not been developed. The record does not include a VA compensation and pension examination regarding the likely etiology of the Veteran's diabetes. However, other medical evidence is available to support a finding that a new examination is mandated. The Veteran is currently service-connected for lumbar spine degenerative joint disease (DJD) with bilateral lower extremity radiculopathy; obstructive sleep apnea secondary to lumbar spine DJD; depressive disorder secondary to lumbar spine DJD; tinnitus; bilateral hearing loss; and a forehead scar. The Veteran also receives Total Disability for Individual Unemployability due to service-connected disabilities (TDIU) benefits. The record includes a July 2006 diagnosis of diabetes mellitus and an August 2004 diagnosis of obesity by physicians associated with the Northeast Medical Center. VA medical treatment records show that the Veteran had a body weight increase of approximately 15 pounds from about May 2007 to October 2010 despite incorporation of a diet to treat diabetes. A January 2007 VA treatment report states that the Veteran's service-connected back disability prevents him from exercising. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), the VA must provide a VA medical examination in service connection claims when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Board observes that the degree of proof needed to satisfy McLendon is slight. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends that his service-connected back disability prevents him from exercising which caused obesity and, in turn, caused or aggravated diabetes. The evidence includes a diagnosis of current diabetes and evidence of a service-connected back disorder. The record includes medical evidence that the Veteran's back disability prevents him from exercising, and the evidence shows a body weight increase since the back disability was assessed in 2007. The remaining link is suggested by evidence of worsening of diabetic symptoms as weight gain increased. The Board finds that the McLendon criteria are met and that an examination should be provided that includes an opinion regarding whether the Veteran's diabetes is aggravated by an inability to exercise and/or is aggravated by obesity that results from an inability to exercise because of his service-connected back disability. VA should also ensure that all VA and private treatment records are included in the Veteran's VA claims folder prior to the examination. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran in writing and request that he identify any private medical treatment he received for his service-connected diabetes mellitus that is not already included in his VA claims folder. Any records the Veteran identifies should be obtained and included in the Veteran's VA claims folder. Inform the Veteran of the evidence necessary to substantiate a claim for secondary service connection in accordance with 38 C.F.R. § 3.159 (2012). 2. Ensure that all VA treatment records dated from October 2010 are included in the Veteran's VA claims folder. 3. Schedule the Veteran for a VA examination to determine the nature and etiology his diagnosed diabetes mellitus. The claims file, and any pertinent records contained in the Virtual VA eFolder, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Based on the review and the physical examination, the examiner is asked to render an opinion as to whether it is at least as likely as not that the Veteran's diabetes mellitus has been caused, or aggravated, by his service-connected disabilities, to include the Veteran's theory that his service-connected disabilities prevented physical exercise and caused weigh gain. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The whole file must be reviewed, however, attention is invited to the treatment records referred to above dated in January 2007, May 2007, and October 2007 which confirm weight gain despite incorporation of a diet to treat diabetes, and a treatment record confirming that the Veteran's service-connected back disability prevents him from exercising. The examiner must explain any conclusions reached. 4. Following completion of the foregoing, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and return the Veteran's VA claims folder to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).