Citation Nr: 21010301 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-51 079 DATE: February 24, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for diabetes mellitus is granted. REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for Parkinson’s disease, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. A March 2015 rating decision declined to reopen the claim of service connection for diabetes mellitus; the Veteran did not appeal this decision, or provide new and material evidence within one year, and it became final. 2. Evidence added to the record since the March 2015 rating decision includes evidence that is not cumulative and redundant and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has been received and the claim of service connection for diabetes mellitus may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1979 to June 1980. In March 2019, the Board declined to reopen the claim for service connection for diabetes mellitus, denied service connection for right hip strain and dental condition and remanded the claim for service connection for Parkinson’s disease. The Veteran appealed the portion of the Board decision which denied service connection for right hip strain and declined to reopen the claim for service connection for diabetes mellitus to the United States Court of Appeals for Veterans Claims. In a June 2020 Memorandum Decision, the Court vacated and remanded the portion of the Board decision pertaining to diabetes, affirmed the decision pertaining to right hip strain and dismissed the appeal as to the dental claim (because the Veteran had made no argument as to the dental claim). The claim for service connection for Parkinson’s disease is also addressed herein because the matter has been returned to the Board by the Regional Office/Agency of Original Jurisdiction (RO/AOJ) for adjudication. New and Material Evidence Notwithstanding determinations by the AOJ that new and material evidence has or has not been received to reopen the claim, the question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance, because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board finds that new and material evidence has been received to reopen the claim of service connection for diabetes mellitus. This claim was originally denied in an unappealed May 2012 rating decision on the basis that this disorder neither occurred in nor were caused by service. A subsequent March 2015 unappealed rating decision declined to reopen the claim. No new and material evidence was submitted within a year of that decision. As noted by the Court in the Memorandum Decision, newly received evidence since the March 2015 rating decision includes a September 2017 statement from the Veteran that “I tried to deal with my nightmares and depression the best way that I could and it was by eating. I gained so much weight that I became a [d]iabetic.” Also as noted by the Court, the Veteran was awarded service connection for posttraumatic stress disorder and persistent depressive disorder (PTSD) effective from 2016. See September 2017 rating decision. The Veteran’s September 2017 statement considered in combination with the grant of service connection for PTSD and persistent depressive disorder satisfy the low threshold requirement for new and material evidence. As such, the claim of service connection for diabetes mellitus is reopened. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). De novo consideration of this claim is addressed in the remand below. REASONS FOR REMAND The Veteran claims service connection for diabetes mellitus, including on the basis that his weight has increased because of his service-connected disabilities and has caused diabetes mellitus. See, e.g., September 2017 statement from the Veteran (tried to deal with nightmares and depression by eating and gained so much weight that he became diabetic) and December 2017 notice of disagreement (Veteran unable to live active lifestyle due to service-connected back disability), both submitted by the Veteran’s attorney. As clinical evidence shows treatment for diabetes mellitus and service connection for PTSD and lumbosacral strain with IVDS (intervertebral disc syndrome) has been established, the low threshold requirement for a VA examination has been met. Notably, while obesity itself is ineligible for service connection, it may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis. See VA. Off. Gen. Couns. Prec. Op. 1-2017, at 2-3. The pertinent inquiries are (1) whether the service-connected disability (PTSD and lumbosacral strain with IVDS) caused obesity (or aggravated obesity); (2) whether the obesity or aggravation of obesity as a result of the service-connected disability/disabilities was a substantial factor in causing diabetes mellitus and (3) whether the current diabetes mellitus would not have occurred but for the obesity caused/aggravated by the service-connected disability. Id.; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). Accordingly, the claim must be remanded to afford the Veteran a VA examination and obtain an opinion as to the nature and etiology of his diabetes mellitus, including whether obesity was caused or aggravated by the Veteran’s service-connected disabilities. The Veteran also claims his Parkinson’s is due to head injury sustained in service or secondary to his service-connected PTSD. See, e.g., February 2018 notice of disagreement. VA obtained examination and opinion concerning the etiology of the claimed Parkinson’s disease in April 2018 (less likely than not related to service-connected PTSD or related medications) and an addendum opinion in December 2019 (less likely than not related to inservice head trauma). The April 2018 opinion must be supplemented because it does not reflect consideration of the references to medical studies suggesting “an association between PTSD and a risk of early dementia, including Parkinson’s-like findings” in the February 2018 notice of disagreement and includes no opinion as to whether Parkinson’s disease may be aggravated by PTSD. As such, remand for a supplemental opinion is necessary. The matters are REMANDED for the following action: 1. Secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his diabetes mellitus and Parkinson’s disease. 2. After the development in paragraph 1 has been completed to the extent possible, please obtain a medical opinion as to the nature and etiology of the Veteran’s diabetes mellitus. Based on review of the record (and, if necessary and deemed feasible, interview and examination of the Veteran, and using telehealth techniques if possible), the clinician should respond to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus had its onset during or is etiologically related to service? In responding, the examiner should consider as necessary whether the presence of any other risk factors for the disease during service, such as a weight of 183 pounds in June 1969, makes it more (or less) likely that the condition started during service. b) Please explain whether the service-connected PTSD and lumbosacral strain with IVDS caused the Veteran’s obesity. Please address the Veteran’s statements that he tried to deal with nightmares and depression (related to his service-connected psychiatric disability) by eating and gained so much weight that he became diabetic and that he is unable to live active lifestyle due to service-connected back disability. c) Please explain whether the service-connected PTSD and lumbosacral strain with IVDS aggravated the Veteran’s obesity. d) If, and only if, the Veteran’s obesity is deemed to have been caused or aggravated by his service-connected disabilities, please explain whether the obesity was a substantial factor in causing diabetes mellitus. e) Please explain whether diabetes mellitus would not have occurred but for the obesity caused or aggravated by the service-connected disabilities. In this regard, it is noted that obesity is not a disease or disability for VA benefits purposes; however, it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an “intermediate step” between either any or all of the Veteran’s service-connected disabilities and diabetes mellitus, the examiner should fully answer the above questions. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the development in paragraph 1 has been completed to the extent possible, please obtain a medical opinion as to the nature and etiology of the Veteran’s Parkinson’s disease. Based on review of the record (and, if necessary and deemed feasible, interview and examination of the Veteran, and using telehealth techniques if possible), the clinician should respond to the following: a) Is it at least as likely as not (50 percent or more probable) that the Veteran’s Parkinson’s disease is etiologically related to service? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s Parkinson’s disease is caused by service-connected PTSD? The examiner should consider and discuss as necessary the references to medical studies suggesting “an association between PTSD and a risk of early dementia, including Parkinson’s-like findings” in the February 2018 notice of disagreement. c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s Parkinson’s disease is aggravated (i.e. any increase in severity) by service-connected PTSD? The clinician is informed that aggravation here is defined as any increase in disability. If the Veteran’s service-connected disability aggravated his Parkinson’s disease, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.