Citation Nr: 21023298 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-61 172 DATE: April 20, 2021 REMANDED Entitlement to service connection for Type II diabetes mellitus, to include as due to a service-connected disability (with intermediary obesity), is remanded. Entitlement to service connection for obstructive sleep apnea, to include as due to a service-connected disability (with intermediary obesity), is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from September 1988 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated November 2016 and March 2017 of a Department of Veterans’ Affairs (VA) Regional Office. In April 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. As phrased on the title page of this remand, the Board has recharacterized the service connection issues to reflect the Veteran’s assertion on appeal that his Type II diabetes mellitus and sleep apnea are due to obesity resulting from his service-connected major depressive disorder, and to better reflect the information contained in the medical evidence of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Discussion During the April 2021 Board hearing, the Veteran asserted a new theory of entitlement to service connection for Type II diabetes mellitus and sleep apnea, specifically that both disabilities are due to obesity resulting from his service-connected major depressive disorder. A precedential VA General Counsel Opinion 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). The Board notes that obesity is not a disability for purposes of VA benefits, and it cannot be service connected on a direct basis. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). A grant is warranted (1) if the service-connected disability caused the Veteran to become obese; (2) if obesity was a substantial factor in causing a subsequent disability; and (3) if the subsequent disability would not have occurred but for obesity. See also Walsh v. Wilkie, No. 18-0495, slip op. at 4-5 (U.S. Vet. App. February 24, 2020) (precedential panel decision) (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 record reflects that the Veteran is currently diagnosed with Type II diabetes mellitus and obstructive sleep apnea. See, e.g., VA Pulmonary Procedure Note dated February 27, 2017. Additionally, the Veteran has been diagnosed with obesity due to excess calories. See, e.g., VA mental disorders examination dated July 26, 2012; VA Pulmonary Procedure Note dated February 27, 2017. Moreover, the Veteran is service-connected for major depressive disorder. See Rating Code Sheet dated October 8, 2020. VA is obligated to provide an examination and obtain a medical opinion in an initial claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service or “with another service-connected disability,” and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the claims must be remanded to afford the Veteran VA examinations and to obtain medical opinions addressing the etiology of his Type II diabetes mellitus and obstructive sleep apnea, to include whether the service-connected major depressive disorder caused the Veteran to become obese, whether obesity was a substantial factor in causing diabetes mellitus and obstructive sleep apnea, and whether these disabilities would not have occurred but for the Veteran’s obesity. See McLendon, supra; VAOPGCPREC 1-2017. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for a VA diabetes mellitus examination to be conducted by an appropriately qualified VA clinician to help determine the etiology of the Veteran’s currently diagnosed Type II diabetes mellitus. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. **In providing the requested opinions, please consider the Veteran’s contention that he has gained weight (become obese) because of his service-connected major depressive disorder. After review of the claims file, the examiner is asked to respond to the following: (a) Whether it is at least as likely as not (50 percent or higher probability) that a service-connected disability, to include major depressive disorder and/or any prescribed medication administered for treatment of a service-connected disability, caused the Veteran to become obese due to inactivity because of feeling down and hopeless? (b) If so, whether the obesity was a substantial factor in causing Type II diabetes mellitus; and whether the Type II diabetes mellitus would not have occurred but for obesity caused by a service-connected disability(s). (c) If an answer to (a) and (b) above is in the negative, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed Type II diabetes mellitus onset during service, manifested within one year after service separation, or is otherwise casually or etiologically related to it. A complete rationale should be provided, citing to specific evidence of the record, as necessary. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS label and receipt date in parenthesis: **September 2, 2016 VA Nutrition Outpatient Assessment noting that the Veteran “eats for emotional reasons” and that he had been eating and snacking too much (see VBMS entry with document type “CAPRI,” receipt date 09/28/2017, at page 17); **November 21, 2016 VA Pulmonary Procedure Note by E.H., Staff Pulmonologist that the Veteran “is at present battling with manic depression which sends him into episodes of binge eating. For this reason, he states having gained between 45-50 lbs in the last year.” (see VBMS entry with document type “CAPRI,” receipt date 03/09/2017, at page 36); **November 30, 2016 VA nutrition outpatient note reflecting that the Veteran “Did more binge eating, make cookies and ate almost of all of them... says when he gets depressed, he doesn’t feel like doing anything.” (see VBMS entry with document type “CAPRI,” receipt date 09/28/2017, at page 7); **February 15, 2017 VA Diabetic Retinopathy Surveillance Consultation Note reflecting the Veteran’s current diabetes therapy as “diet” (see VBMS entry with document type “CAPRI,” receipt date 03/09/2017, at page 25); and **February 27, 2017 VA Pulmonary Procedure Note reflecting a diagnosis of “Obesity due to excess calories” (see VBMS entry with document type “CAPRI,” receipt date 09/28/2017, at page 4). 3. Schedule the Veteran for a VA sleep disorders examination to be conducted by an appropriately qualified VA clinician to help determine the etiology of the Veteran’s currently diagnosed obstructive sleep apnea. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. *In providing the requested opinions, please consider the Veteran’s contention that he has gained weight because of his service-connected major depressive disorder. After review of the claims file, the examiner is asked to respond to the following: (a) Whether it is at least as likely as not (50 percent or higher probability) that a service-connected disability, to include major depressive disorder and/or any prescribed medication administered for treatment of a service-connected disability, caused the Veteran to become obese due to inactivity because of feeling down and hopeless? (b) If so, whether the obesity as a result of a service-connected disability(s) was a substantial factor in causing obstructive sleep apnea; and whether the obstructive sleep apnea would not have occurred but for obesity caused by a service-connected disability(s). (c) If an answer to (a) and (b) above is in the negative, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed obstructive sleep apnea onset during service or is otherwise etiologically related to service. A complete rationale should be provided, citing to specific evidence of the record, as necessary. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS label and receipt date in parenthesis: **September 2, 2016 VA Nutrition Outpatient Assessment noting that the Veteran “eats for emotional reasons” and that he had been eating and snacking too much (see VBMS entry with document type “CAPRI,” receipt date 09/28/2017, at page 17); **November 21, 2016 VA Pulmonary Procedure Note by E.H., Staff Pulmonologist that the Veteran “is at present battling with manic depression which sends him into episodes of binge eating. For this reason, he states having gained between 45-50 lbs in the last year.” (see VBMS entry with document type “CAPRI,” receipt date 03/09/2017, at page 36); **November 30, 2016 VA nutrition outpatient note reflecting that the Veteran “Did more binge eating, make cookies and ate almost of all of them... says when he gets depressed, he doesn’t feel like doing anything.” (see VBMS entry with document type “CAPRI,” receipt date 09/28/2017, at page 7); and **February 27, 2017 VA Pulmonary Procedure Note reflecting a diagnosis of “Obesity due to excess calories” (see VBMS entry with document type “CAPRI,” receipt date 09/28/2017, at page 4). 4. Thereafter, ensure that the examiner(s) has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.