Citation Nr: 20044992 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 09-26 506 DATE: July 7, 2020 ORDER Service connection for diabetes mellitus type II (DM), to include as due to the Veteran’s service-connected lumbar spine condition and left L5 radiculopathy, is granted. FINDING OF FACT The Veteran’s service-connected lumbar spine condition and left L5 radiculopathy caused his DM type II. CONCLUSION OF LAW The criteria for service connection for DM type II, as secondary to the service-connected lumbar spine condition and left L5 radiculopathy, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to August 1984. He subsequently served in the Army National Guard from August 1984 to May 2008 with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals on appeal from a March 2009 rating decision. This issue was previously before the Board in June 2014 and April 2017. Service Connection Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in, or aggravated by, active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Aggravation of a nonservice-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310 (b). The United States Court of Appeals for Veterans Claims (Court) held in the case of Ward v. Wilkie, 31 Vet. App. 233 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that “aggravation” is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. In determining whether service connection is warranted for a disability, 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. § 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 for DM type II, to include as due to the Veteran’s service-connected lumbar spine condition and left L5 radiculopathy, is granted. The Veteran asserts service connection is warranted for DM type II as it is the result of his service-connected disabilities. Upon a review of the evidence of record, the Board finds the evidence supports a causal relationship between these conditions and as a result, service connection for DM Type II is warranted. The record demonstrates the presence of a DM type II diagnosis; at his October 2016 VA examination, the examiner noted that the Veteran was diagnosed with DM type II. Furthermore, the Veteran is service connected for a lumbar spine condition and left L5 radiculopathy. A private medical opinion from June 2020 states that the Veteran’s DM type II is caused by his service-connected lumbar spine condition and left L5 radiculopathy because these conditions have prevented him from participating in certain activities and as a result, has affected his metabolism and resulted in an increase in his weight. In this regard, the Board notes 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. See VAOPGCPREC 1-2017 (January 6, 2017). However, obesity, may be an “intermediate step” between a service-connected disability and a current disability for which service connection may be granted on a secondary basis under 38 C.F.R. § 3.310 (a). See id.; see also Walsh v. Wilkie, Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020) (holding that obesity as an “intermediate step” in a causal chain for service connection can be established on either a causal or aggravation basis). The Board acknowledges there are unfavorable nexus opinions of record. In its April 2017 remand, the Board found the October 2016 VA opinion to be inadequate. Furthermore, the Veteran received a VA opinion in August 2017. The examiner found it is less likely than not that the Veteran’s DM type II is caused by or aggravated by his service-connected lumbar spine condition or radiculopathy. However, the Board notes the VA examiner did not discuss the effects of the Veteran’s service-connected lumbar spine condition and radiculopathy on his ability to be active and on his metabolism. Given the both the positive and negative medical opinions, the Board determines that the evidence is in equipoise as to whether the Veteran’s DM type II is related to his service-connected lumbar spine condition and left L5 radiculopathy. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds service connection for DM type II is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. L. MCCABE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.