Citation Nr: 21074270 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-13 473 DATE: December 14, 2021 REMANDED Service connection for diabetes mellitus, to include as secondary to the service-connected posttraumatic stress disorder (PTSD) with depression, anxiety, drug, and alcohol abuse and/or spondylolisthesis with spinal stenosis, is remanded. REASONS FOR REMAND The Veteran served on active duty from February to June 1964 and from February 1968 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for diabetes mellitus. In April 2017, October 2018, and July 2020, the Board remanded the case for further development and adjudicative action. Following the July 2020 Board decision, in an October 2021 rating decision, the RO granted service connection for spondylolisthesis with spinal stenosis and assigned an initial disability rating of 100 percent, effective March 23, 2015; service connection for right lower extremity sciatic radiculopathy and assigned an initial disability rating of 20 percent, effective March 23, 2015; service connection for left lower extremity sciatic radiculopathy and assigned an initial disability rating of 20 percent, effective March 23, 2015; service connection for right shoulder degenerative joint disease and assigned an initial disability rating of 20 percent, effective December 7, 2018; and service connection for a cervical spine strain and assigned an initial disability rating of 10 percent, effective December 7, 2018. As these constitute full grants of the benefits sought on appeal, the above issues are no longer in appellate status. 1. Entitlement to service connection for diabetes mellitus, to include as secondary to the service-connected PTSD with depression, anxiety, drug, and alcohol abuse and/or spondylolisthesis with spinal stenosis. The Veteran, through his representative, has contended that his diabetes mellitus is proximately due to or aggravated by his service-connected PTSD with depression, anxiety, drug, and alcohol abuse. Specifically, he asserts that his PTSD with depression, anxiety, drug, and alcohol abuse caused him to become obese which, in turn, caused him to develop or aggravated his diabetes mellitus. See Appellant's May 2020 Remarks to Supplemental Statement of the Case Dated April 17, 2020. With regard to this theory, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). However, 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). In order to meet this criterion, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). In the May 2020 correspondence, the Veteran's representative also included citations to the following: (1) "Trajectories of Change in Obesity and Symptoms of Depression: The CARDIA Study," which is purported to show that "[i]ndividuals who have higher levels of depression experience greater rates of weight gain than individuals with lower levels of depression"; and (2) "Post-Traumatic Stress Disorder, Physical Activity, and Eating Behaviors," which is purported to shows that "PTSD is associated with higher rates of obesity ... and there may be a negative association among PTSD, physical activity, and eating behaviors." Id. To date, no examiner has provided an opinion regarding this theory of entitlement or addressed the literature submitted by the Veteran's representative. Accordingly, further remand is warranted to address the "intermediate step theory" described above. However, remand would also be warranted due to noncompliance with the July 2020 Board decision's remand directives. In this regard, the July 2020 decision instructed the RO to obtain an opinion regarding whether "the Veteran's service-connected PTSD caused or aggravated (permanently worsened) his diabetes mellitus" (emphasis added). July 2020 Board Decision at 9. Although the RO provided opinions for direct service connection and secondary aggravation, there was no opinion submitted for secondary causation. Accordingly, the RO did not substantially comply with the July 2020 decision's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, an alternative theory of entitlement to service connection for diabetes mellitus is reasonably raised by the record. Specifically, as noted in the Introduction, the October 2021 rating decision granted service connection for spondylolisthesis with spinal stenosis and assigned an initial disability rating of 100 percent, effective March 23, 2015. Notably, the Veteran has unfavorable ankylosis of the entire spine and experiences significant impairments to mobility. Furthermore, the Veteran's medications for his back include Gabapentin at a dosage of at least 600 milligrams 3 times per day (for a total of at least 1800 milligrams). See November 2019 VA thoracolumbar spine examination report. In light of the above, on remand, the examiner should also consider the service-connected spondylolisthesis with spinal stenosis with regard to the intermediate step theory. The matters are REMANDED for the following actions: 1. Obtain a VA opinion regarding the etiology of the Veteran's diabetes mellitus. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate that the claims file was reviewed in the examination report. A complete rationale for all opinions must be provided. It is stipulated that the Veteran has a current diagnosis of diabetes mellitus. See October 2021 VA examination report. The examiner should answer the following questions: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diabetes mellitus is proximately due to the service-connected PTSD with depression, anxiety, drug, and alcohol abuse? (b.) If (a.) is answered in the negative, is it at least as likely as not that the Veteran's service-connected PTSD with depression, anxiety, drug, and alcohol abuse and/or spondylolisthesis with spinal stenosis caused the Veteran to become obese? (c.) If (b.) is answered in the negative, is it at least as likely as not that the Veteran's service-connected PTSD with depression, anxiety, drug, and alcohol abuse and/or spondylolisthesis with spinal stenosis aggravated the Veteran's obesity beyond the natural progression? (d.) If the obesity was caused or aggravated by the service-connected PTSD with depression, anxiety, drug, and alcohol abuse and/or spondylolisthesis with spinal stenosis, i.e. either (b). or (c.) is answered in the affirmative, is it at least as likely as not that the obesity was a substantial factor in causing the diabetes mellitus? It is not necessary that the service-connected disability be either the "sole" cause or even the "predominant cause" to satisfy the "substantial factor" test. Moreover, a "substantial factor" is one which is not defined quantitatively. (e.) If the obesity was a substantial factor in causing the diabetes mellitus, is it at least as likely as not that the obesity (either caused or aggravated by the service-connected PTSD with depression, anxiety, drug, and alcohol abuse and/or spondylolisthesis with spinal stenosis) was the but-for cause of the diabetes mellitus? With regard to the above questions, the examiner should consider the following: (Continued on the next page) (a.) The effects of any medications taken during the period on appeal for PTSD with depression, anxiety, drug, and alcohol abuse and/or spondylolisthesis with spinal stenosis, to include Gabapentin. (b.) The following literature submitted by the Veteran's representative: (1) Trajectories of Change in Obesity and Symptoms of Depression: The CARDIA Study," https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2866598/; (2) Post-Traumatic Stress Disorder, Physical Activity, and Eating Behaviors," https://academic.oup.com/epirev/article/37/1/103/422515/ B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.