Citation Nr: A21020108 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190117-1585 DATE: December 16, 2021 ORDER Entitlement to service connection for obesity is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT Obesity is not a disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for obesity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1981 to September 1984 with additional service with the Army National Guard from September 1984 to July 1989. A rating decision was issued under the legacy system in May 2016. In June 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in October 2018, which is the decision on appeal. In January 2019, the Veteran appealed the RAMP HLR decision directly to the Board and elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In January 2021, the Veteran testified before a Veterans Law Judge (VLJ) at a videoconference hearing who is no longer employed at the Board. By letter dated in May 2021, the Veteran was advised of this development and was offered the opportunity for another hearing. In June 2021, the Board received the Veteran's statement that he did not wish to appear at another Board hearing. Entitlement to service connection for obesity is denied. The Veteran seeks service connection for obesity, which he contends had its onset during service. During the Board hearing, the Veteran testified that many of his current disabilities were caused or aggravated by obesity. Obesity is not a disease or disability for VA compensation purposes. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). However, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. See Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020). Intermediate step theory will be discussed further in the remand section below. In sum, while the evidence shows that the Veteran is obese, the Board finds obesity is not considered a disease or injury for which direct or secondary service connection may be granted. See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities) (does not contemplate a separate disability rating for obesity). Accordingly, as obesity or being overweight is not a disability for VA compensation purposes, the claim for service connection for obesity must be denied. See Marcelino, 29 Vet. App. at 155. Therefore, service connection for obesity is not warranted. REASONS FOR REMAND One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them directly. Nevertheless, even under the AMA, the Board still has the duty to remand issues when necessary to correct a pre-decisional duty-to-assist error. See 38C.F.R. § 20.802 (a). The Veteran essentially contends that the disorders at issue had their onset during active duty and have continued during and since his service in the Army National Guard. Additionally, in testimony before the Board, the Veteran asserted that obesity may be an intermediate step between some of the claimed disabilities. Indeed, he is not in receipt of service connection for any disabilities at this time. Applicable laws and regulations also permit service connection for disability resulting from disease or injury incurred in, or aggravated while, performing active duty for training (ACDUTRA) or from an injury while performing inactive duty for training (INACDUTRA). See 38 U.S.C. § 101 (22), (23), (24); 38 C.F.R. § 3.6. The Veteran's claims file does not appear to contain his complete service reatment or personnel records for his period of active duty service. The Board, therefore, finds that the failure of the AOJ to associate all service treatment and personnel records with the file amounts to a pre-decisional duty-to-assist error. A remand is required to obtain them. Further, the scant amount of service treatments records which actually have been associated with the file include Reports of Medical Examination (RMEs) and Reports of Medical History (RMHs) dated in June 1981, September 1984, and September 1988. The June 1981 RME noted that the Veteran entered service with mild, asymptomatic pes planus, blood pressure of 125/62, and weight at 150 lbs. The September 1984 RME found no defects or diagnoses, blood pressure at 122/80, and weight at 185. The September 1988 RME noted that blood pressure was 124/86, that the Veteran was overweight (204 lbs), and that weight loss was recommended. In the June 1981 and September 1984 RMHs, the Veteran denied ever having swollen or painful joints, hearing loss, high or low blood pressure, sugar or albumin in urine, recent gain or loss of weight, arthritis, bone or joint deformity, recurrent back pain, trick or locked knee, and foot trouble. In the June 1981 RMH, the Veeran reported having had broken bones; and the examiner noted that the Veteran had fractured his right lower leg during childhood and that there was no disability or deformity. In the September 1988 RMH, the Veteran noted that he had had high or low blood pressure; and the examiner noted that blood pressure was normotensive on examination without prescription. Also included is a June 1987 Health Record noted pseudodermatitis of the face secondary to shaving and a shaving profile for two days. Post-service treatment records indicate that the Veteran reported occasional problems with foot pain and a history of elevated blood pressure readings. At the Veteran's Board hearing in January 2021, the Veteran testified that his tinnitus began in Germany when he worked in air defense artillery and that he had tinnitus "sometimes" since his time in service. The Veteran also testified that during his last year of active duty, he had gained weight and was placed in an overweight program. He further testified that his hypertension began at the time the Army decided he was obese. In addition, the Veteran testified that his back, knee, and foot pain started during active service. The Veteran testified that he also cracked his knee running PT, 8Ks, and 5Ks in the Army. The Veteran testified that he experienced razor bumps with shaving during and since active duty service. Thus, the record indicates that there is evidence of current foot pain, pes planus prior to service and foot pain during service; a history of elevated blood pressure readings in service and since service; and a history of razor bumps in service and since service. As the Veteran may have had onset of PFB and hypertension during his National Guard service, the AOJ should attempt to verify the Veteran's period of active duty for training or inactive duty for training. As appropriate etiology opinions have not been rendered, a remanded is necessary to correct such a pre-decisional error with respect to the remaining issues on appeal. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's complete service treatment records and service personnel records. 2. After all attempts to obtain the Veteran's service treatment records and personnel records have been made, schedule the Veteran for VA examinations for his claimed diabetes mellitus, hypertension, foot, knee, back, and skin disorders. The examiner must review the claims file, which should include a list of the Veteran's periods of active duty for training and inactive duty training in the National Guard. (a) The clinician should address identify any current disability with respect to the Veteran's claimed diabetes mellitus, hypertension, foot, knee, back, and skin disorders. (b) With respect to each identified disability, the examiner is to address each of the following in terms of whether it is at least as likely as not: a. Did the disability have its onset during active duty service? b. Did the disability result from disease or injury incurred in, or aggravated while, performing active duty for training (ACDUTRA)? c. Did the disability result from an injury incurred while performing inactive duty for training (INACDUTRA)? d. Is the disability otherwise related to a period of active duty? e. Did any of the claimed disabilities (i) cause or (ii) aggravate (beyond their natural progression) any of the other claimed disabilities? f. Is obesity an "intermediate step" between any of the claimed disabilities? In other words, did any claimed disability result in obesity, which caused or aggravated another claimed disability? Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.