Citation Nr: 18154532 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 11-18 037 DATE: November 30, 2018 REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypothyroidism or sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1973 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Board denied the Veteran’s claim for service connection for diabetes, to include as secondary to service-connected hypothyroidism or sleep apnea. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In May 2018, the parties filed a Joint Motion for Partial Remand (JMPR). The motion was granted and the Veteran’s claim for service connection for diabetes, to include as secondary to service-connected hypothyroidism or sleep apnea was remanded by CAVC in June 2018. In September 2018, the Veteran waived the opportunity to submit additional evidence or argument. Entitlement to service connection for diabetes, to include as secondary to service-connected hypothyroidism or sleep apnea. Remand is required for an addendum VA opinion. In the JMPR, it was determined that the Board did not provide an adequate statement of reasons or bases for finding that a June 2015 VA diabetes examination was sufficient to determine the question of service connection for diabetes mellitus, to include as secondary to service-connected hypothyroidism or sleep apnea. See 38 U.S.C. § 7104(d) (2012). The JMPR noted that the June 2015 VA diabetes examination report failed to consider the VA’s Office of General Counsel (OGC) precedential opinion. VAOGCPREC 1-2017 (Jan. 6, 2017). This OGC opinion found that although obesity is not a disability for VA purposes, it could qualify 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). Thus, in this case, to establish whether obesity qualifies as an intermediate step, there must be sufficient facts to determine: (1) whether any service-connected disorder, to include hypothyroidism or sleep apnea caused the Veteran to become obese; and if so, (2) whether the Veteran’s obesity, as a result of any service-connected disorder, to include hypothyroidism or sleep apnea, was a substantial factor in causing diabetes mellitus; and (3) whether the diabetes mellitus would not have occurred, but for the obesity caused by the Veteran’s service-connected disorder, to include hypothyroidism or sleep apnea. See VAOGCPREC 1-2017. Although the June 2015 VA examiner opined that it was less likely than not that the Veteran’s diabetes mellitus as caused by or permanently aggravated by any of his service-connected disabilities, to include hypothyroidism, sleep apnea, or asthma, the examiner did not address or provide an opinion regarding whether any of the Veteran’s service-connected disorders, to include hypothyroidism or sleep apnea caused the Veteran to become obese, and if so, whether the Veteran’s obesity was a substantial factor in causing his diabetes mellitus, such that, but for the obesity caused by any service connected condition, to include hypothyroidism or sleep apnea, the Veteran’s diabetes mellitus would not have occurred. Accordingly, remand is required for an addendum VA opinion. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran’s diabetes mellitus from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether the Veteran’s obesity was an intermediate step between his service-connected hypothyroidism or sleep apnea and his current diabetes mellitus. The examiner must specifically address the following: (a.) Whether any of the Veteran’s service-connected disorders, to include hypothyroidism or sleep apnea and asthma caused the Veteran to become obese? (b.) If the answer to (a.) is yes, provide an opinion regarding whether the Veteran’s obesity was a substantial factor in causing his diabetes mellitus? If obesity was not a substantial factor in causing the Veteran’s diabetes mellitus, the examiner must specifically discuss any and all factors that were at least as, or more, substantial in causing his diabetes mellitus. (c.) If the answer to (a.) and (b.) is yes, provide an opinion regarding whether the Veteran’s diabetes mellitus would not have occurred, but for the obesity caused by any of his service-connected disorders, to include hypothyroidism or sleep apnea and asthma? In rendering an opinion, the examiner must evaluate relevant evidence of record, to include the following: 1) a June 2015 VA diabetes examination report; 2) a November 2010 private medical report prepared by Dr. M; and 3) the Veteran’s November 2014 testimony that it was his understanding that his obesity is related to his service-connected hypothyroidism, and that his diabetes has been caused or aggravated by either his service-connected hypothyroidism or sleep apnea directly, or because of the obesity his hypothyroidism has caused. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel