Citation Nr: 1715149 Decision Date: 05/05/17 Archive Date: 05/11/17 DOCKET NO. 12-12 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as secondary to the Veteran's service connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD A. Gibson, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to May 1977. This appeal to the Board of Veterans' Appeals (Board) arose from September 2009 and March 2012 rating decisions. FINDING OF FACT The Veteran's diabetes mellitus, type II, is secondary to the Veteran's service connected PTSD. CONCLUSION OF LAW The criteria for service connection for diabetes type II have been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking entitlement to service connection for diabetes mellitus, type II, to include as secondary to her service connected PTSD. As explained in greater detail below, the evidence indicates that the Veteran began overeating as a way to cope with the trauma of her in-service sexual assault. That overeating resulted in obesity, which has, in turn, led to the development of diabetes. Accordingly, the development of the veteran's diabetes mellitus was due to her in-service assault and PTSD. Thus, service connection for her diabetes mellitus, secondary to her service-connected PTSD, is warranted. On January 6, 2017, VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a "disease" for the purposes of service connection under U.S.C. §§ 1110 and 1131. In general, VAOPGCPREC 1-2017 concludes 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 basis. Similarly, obesity is not a "disability" for the purposes of secondary service connection under 38 C.F.R. § 3.310. However, where obesity resulting from a service-connected disease or injury is productive of an impairment beyond that contemplated by the applicable rating criteria, VA may consider an extra-schedular rating under 38 C.F.R. § 3.321 (b)(1) for the service-connected disability based on that impairment. Also, VAOPGCPREC 1-2017 recognizes that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). The Veteran's records indicate that her PTSD resulted in emotional eating, which caused obesity. Her obesity resulted in the development of her currently diagnosed diabetes mellitus. The Veteran was sexually assaulted during her active duty military service. A December 1976 note from her commanding officer states that the Veteran went home following her rape, came back overweight and has "stayed on a gain or hold her own posture since," indicating that she continued to gain weight following her return. In May 1977, the Veteran was discharged from the military by reason of unsuitability due to being overweight. A January 1985 C&P exam indicated that her weight is difficult for her to manage. A February 1994 treatment record notes that she was receiving therapy to address ongoing problems relating to her assault in 1976. Her problem areas included overeating. An August 1996 treatment record once again notes that since her assault in 1976, she has struggled with overeating. During an October 1996 Regional Office hearing, the Veteran commented on problems with her weight following the assault in 1976. During a PTSD evaluation in October 1996, the examiner noted that she used food to avoid thinking about the rape. The June 2009 examination report indicates that the Veteran again reported that her PTSD led eating unhealthy food because it seemed to be the only thing that comforted her. In June 2009, VA provided the Veteran with an examination to determine the etiology of her diabetes mellitus. Following a review of the veteran's claims file, the examiner stated "I believe that it is at least as likely as not that the veteran's current diabetes is a result of her service-connected PTSD. The Regional Office subsequently requested an addendum to this opinion. Specifically, the examiner was asked to provide a rationale for his opinion. Dr. L. states "the [V]eteran's current diabetes is a result of her service-connected PTSD because stress and diet are factors in the genesis of diabetes." This addendum was based upon a review of the Veteran's claims file, as well as an interview with the Veteran, and is supported by the record. The examiner explained that his opinion was based upon the fact that stress and diet are factors in the development of diabetes. This opinion is competent, credible and probative to the question at issue. A second opinion regarding the etiology of the veteran's diabetes mellitus was obtained in July 2009. However, this opinion weighs against the Veteran's claim. Dr. D. opined that the veteran's currently diagnosed diabetes was "not likely" caused or contributed to by her service connected PTSD. As rationale for this opinion, Dr. D. stated "[t]he available records do not make the connection. There is reference to eating junk food in connection with a diagnosis of her GERD. The reference to eating junk food was in 1999; her diagnosis of diabetes was not made until 2006. The Board agrees with the Veteran's representative, however, that at worst the evidence is in equipoise. Even if the Board were to find that the July 2009 opinion was adequate, there remains an approximate balance of positive and negative evidence, as the June 2009 opinion is also adequate, contains a well-reasoned rationale following a review of the claims file, and is consistent with the evidence of record. The non-medical opinion evidence supports the Veteran's claim. Here, the Veteran has established that she has a current diagnosis of diabetes mellitus and that the development of her currently diagnosed diabetes is related to the symptoms associated with her service-connected PTSD. Thus, service connection for diabetes mellitus, type II, secondary to the veteran's service connected PTSD, is warranted. ORDER Service connection for diabetes mellitus, type II is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs