Citation Nr: 1418498 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 11-33 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for obesity, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Michael J. Kelley, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from August 1979 to August 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. FINDING OF FACT Chronic obesity is not etiologically related to the Veteran's active service and is not proximately due to nor chronically worsened by his service-connected disabilities. CONCLUSION OF LAW Chronic obesity was not incurred in or aggravated by active service and is not caused or aggravated by service-connected disabilities. 38 U.S.C.A. § 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify the Veteran was satisfied prior to the initial AOJ decision through a notice letter dated April 2011 that fully addressed all notice elements. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained, as have Social Security Administration (SSA) disability records. He has not identified any additional records that should be obtained prior to appellate consideration. VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2013). A VA examination was not provided in conjunction with the Veteran's service connection claim, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4) (2013). VA has a duty to provide a VA examination when the record lacks evidence to decide the veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, there is nothing in the record, other than the Veteran's own lay statements, that his current obesity is etiologically related to his active service or secondary to service-connected disabilities. The Veteran's conclusory lay statement alone is insufficient to trigger VA's duty to provide an examination with an opinion. Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010). As discussed below, the competent evidence reveals the Veteran's obesity is due to symptoms of a personality disorder and acquired psychiatric disorder, conditions for which service connection has been previously denied on three occasions. The elements of McLendon have not been satisfied. Therefore, VA is not required to provide the Veteran with a VA examination in conjunction with his claim. In May 2013, a hearing was held before the undersigned Veterans Law Judge (VLJ) of the Board. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ explained the issue that is before the Board. The representative and the VLJ asked questions to ascertain whether the Veteran had submitted evidence in support of his claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim on appeal. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may be established on a secondary basis upon a showing that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened (aggravated) the disability for which service connection is sought. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Regarding direct service connection, the Board notes the Veteran was noted to be obese during service, and was placed on a weight control program. Records indicate the Veteran ate a poor diet and exercised little during the time of his weight gain in service. A February 1983 Mental Health Clinic (MHC) consultation sheet notes the Veteran's problem with weight appeared to be related primarily to anxiety, noting that eating decreased the Veteran's symptoms of anxiety. On a related note, the Veteran was diagnosed with anxiety neurosis with schizoid personality traits in August 1980. After following the weight control program, the Veteran reduced his weight to 194.5 by the time of his service separation. See June 1983 Report of Medical Examination. The Board notes this weight was approximately five pounds higher than when he entered service. See December 1979 Report of Medical Examination. Thus, even though the Veteran did gain weight, and was at times noted to be obese during service, he was shown to be capable of maintaining an acceptable weight when following a proper diet and exercise program. Therefore, the Board finds the Veteran did not suffer from chronic obesity during active service. Regarding secondary service connection, the Veteran alleges that his service-connected disabilities prevent or severely restrict his ability to exercise, thus preventing him from losing weight and/or causing him to gain weight. See, e.g., May 2013 Board hearing transcript. While the Board acknowledges the Veteran may experience some pain when he attempts to exercise, the competent evidence of record does not support his assertion that his lumbar spine disability and/or hypertension has caused or chronically worsened his obesity. In fact, medical records suggest the opposite is true, that his obesity has aggravated his orthopedic and cardiac disabilities. For example, as early as a July 1985 VA medical examination, the Veteran's severe obesity was noted to be affecting his back problem and he was recommended to follow a strict weight reducing diet. Private treatment records dated throughout 1997-1998 reflect the Veteran was recommended to increase his level of exercise and restrict his diet to control his weight. Significantly, the Board notes that throughout this time period, even though the Veteran was experiencing difficulties with weight gain, he did not complain to his private physician that his back pain was so severe so as to restrict his ability to exercise. More recently, VA treatment records note the Veteran's physicians continued to recommend increased levels of exercise. See, e.g., October 2009 VA gastroenterology outpatient note, September 2010 VA nutrition education note. A February 2008 evaluation performed in relation to the Veteran's SSA disability claim notes the Veteran's morbid obesity was aggravating his back and knee pain, as his activity was severely restricted due to the obesity. A psychiatric evaluation also conducted in association with the SSA disability claim notes a diagnosis of anxiety disorder not otherwise specified (NOS) and eating disorder NOS. Finally, a March 2011 VA physical therapy consult note indicates the Veteran's obesity had led to severe deconditioning; while he was found to ambulate easier with a walker, he declined the aid. The Board notes the Veteran has produced no competent medical opinion in support of his claim that his current obesity is etiologically related to his period of active service and/or is secondary to his service-connected disabilities. While the Veteran himself has claimed that his obesity arises from active service or is due to or aggravated by service-connected disabilities, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, there is no competent medical evidence included in the record to support the Veteran's assertion that his currently diagnosed obesity is etiologically related to his active service or is secondary to service-connected disabilities. While he did suffer from obesity in service, this was shown to not to be chronic in nature, as his weight returned to an acceptable level upon following a recommended diet and exercise program. To whatever extent the Veteran's obesity has been related to a psychiatric condition, either through evidence generated in service or since, the Board again notes that service connection for both an acquired psychiatric disorder and a personality disorder has been denied on multiple occasions, and these unappealed decisions are final. Finally, while the Veteran may limit his exercise due to pain, the evidence demonstrates such limitation is self-imposed and runs counter to medical recommendations that have routinely advised him to increase his level of exercise. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for obesity, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). ORDER Service connection for obesity is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs