Citation Nr: 18154294 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 14-44 398 DATE: November 29, 2018 ORDER The claim of entitlement to service connection for obesity is denied. REMANDED The claim of entitlement to service connection for a respiratory disorder is remanded. The claim of entitlement to service connection for degenerative joint disease of the left hip is remanded. The claim of entitlement to service connection for a right hip disability is remanded. The claim of entitlement to service connection for degenerative joint disease of the left knee is remanded. The claim of entitlement to service connection for degenerative joint disease of the right knee is remanded. The claim of entitlement to service connection for status post pulmonary embolism is remanded. The claim of entitlement to service connection for diabetes mellitus type 2 is remanded. FINDING OF FACT Obesity is not a disability for which VA disability benefits may be awarded. CONCLUSION OF LAW The criteria for service connection for obesity have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from September 1968 to September 1972. 1. The claim of entitlement to service connection for obesity In January 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. In general, VAOPGCPREC 1-2017 concludes that obesity is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and therefore may not be service connected. See also, Marcelino v. Shulkin, 29 Vet. App. 155, 158 (U.S. 2018). The Board is bound by precedent opinions of VA’s General Counsel. 38 C.F.R. § 19.5 (2018). Congress specifically limits entitlement for service-connected disease or injury to cases where those incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection can only be granted for a disability resulting from disease or injury. 38 U.S.C. § 1110. Obesity is a finding that manifests itself only in examination, and is not a disability for which service connection can be granted. Therefore, service connection for obesity is not warranted. REASONS FOR REMAND 1. The claim of entitlement to service connection for a respiratory disorder is remanded. The Board cannot adjudicate the claim of entitlement to service connection for respiratory disorder as the evidentiary record is incomplete. The Veteran was provided a VA respiratory conditions examination in May 2013. The examiner opined that the Veteran’s current lung conditions were less likely than not incurred in or caused by asbestos exposure during service. Subsequent to the VA opinion, the Veteran submitted positive opinions from his private physician, Dr. M. B., indicating that the Veteran’s exposure to asbestos during service caused or contributed to the development of his restrictive lung disease. As the private opinions did not explain why the Veteran’s current lung disease was “not at all related to his previous smoking,” the private opinions are inadequate to adjudicate the claim. Accordingly, a remand for addendum opinion is required. 2. The claim of entitlement to service connection for degenerative joint disease of the left hip is remanded. 3. The claim of entitlement to service connection for a right hip disability is remanded. 4. The claim of entitlement to service connection for degenerative joint disease of the left knee is remanded. 5. The claim of entitlement to service connection for degenerative joint disease of the right knee is remanded. 6. The claim of entitlement to service connection for status post pulmonary embolism is remanded. 7. The claim of entitlement to service connection for diabetes mellitus type 2 is remanded. As the Veteran is asserting entitlement to service connection for his other claimed disabilities as secondary to his respiratory disorder, the Board finds that these issues are inextricably intertwined with the resolution of that remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board notes that VAOPGCPREC 1-2017 also 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). Under 38 C.F.R. § 3.310(a), disability which is proximately due to or the result of a service-connected disease or injury is service connected. “Proximate cause” is defined as a “cause that directly produces an event and without which the event would not have occurred.” VAOPGCPREC 6-2003 (quoting Black’s Law Dictionary 213 (7th ed. 1999)). When there are potentially multiple causes of harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. Shyface v. Sec’y of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999). The Veteran contends that his bilateral hip disability, bilateral knee disability, status post embolism, and diabetes mellitus, are proximately due to his restrictive lung disease. In essence, he argues that his lung condition severely impaired his mobility, which caused him to gain weight. This weight gain, in turn, caused the other disabilities on appeal. As he is contending that obesity was an intermediary step between the restrictive lung disease and the disabilities on appeal, such a causal link must be addressed if his restrictive lung disease is eventually service connected. Accordingly, these issues must be remanded for contemporaneous readjudication. The matters are REMANDED for the following actions: 1. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 3. After the above is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran’s respiratory disorder. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. The clinician must consider the Veteran’s lay reports of observable symptomatology associated with the disability. After a thorough review of the medical and lay evidence of record, the clinician should opine whether it at least as likely as not (i.e. a probability of 50 percent or more) that any respiratory disorder present during the pendency of the appeal had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include as due to exposure to asbestos? In so opining, the examiner should address the November 9, 2011, April 28, 2014, and December 18, 2015 opinions from Dr. M. B, as well as discuss the significance, if any, of the Veteran’s smoking history. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel