Citation Nr: 21031164 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-35 520A DATE: May 20, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. FINDING OF FACT The Veteran's diabetes is proximately due to obesity that was aggravated by his service-connected depression. CONCLUSION OF LAW The criteria for service connection for diabetes as secondary to depression are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1986 until his honorable discharge in October 1989. This matter come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In September 2018, the Board remanded the case to the regional office for further development. Specifically, the Board directed the regional office to obtain a VA examination addressing whether obesity was an intermediate step between the Veteran's diabetes mellitus and service-connected cervical spine and/or service-connected depressive disorder. An examination took place in June 2020 but was later deemed inadequate. The claim returned to the Board and was remanded again in September 2020 in order to obtain another VA examination addressing whether his diabetes was secondary to his cervical spine or depressive disorder. An examination took place and an addendum opinion was provided in March 20201. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Generally, obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 (Jan 6, 2017). Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. Id. at 2. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. Furthermore, in deciding 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 (2014); 38 C.F.R. § 3.102 (2018); 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 of the matter, the benefit of the doubt will be given to the Veteran. Id. Entitlement to service connection for diabetes mellitus, type II. The Veteran asserts that his diabetes was caused by obesity which in turn was caused or aggravated by his service-connected cervical spine disability and/or his depressive disorder. The Court in Walsh v. Wilkie, 32 Vet. App. 300 (2020) addressed VAOPGCPREC 1-2017 and indicated that service connection may also be granted on a secondary basis where the claimed disability would not have occurred but for obesity aggravated by a service-connected disability. See Walsh at *14 ("to be clear: Despite [VAOPGCPREC 1-2017's] silence regarding aggravation, the Board, in accordance with § 3.310(b), must consider aggravation in this context when the theory is explicitly raised by the veteran or reasonably raised by the record"). (Continued on the next page) Here, the Board finds that a secondary service connection claim on the theory of obesity as an intermediary step has been raised by the Veteran. The March 2021 addendum opinion states that "his obesity was aggravated by his depression." The examiner stated in the first March 2021 VA examination that the Veteran's weight gain was "multifactorial" and that "depression does affect various aspects of choices and mood/motivation and at least as likely as not aggravated his obesity... Literature has supported depression with increased risk for obesity and correlation with conflicting evidence for causation-cited." As a result, the Veteran has met the first element of secondary service-connection due to obesity as an intermediate step. The examiner stated in the addendum opinion, "his obesity is at least as likely as not the cause of his [diabetes]." The examiner further stated, "his continued and worsening obesity is at least as likely as not continues to aggravate his [diabetes] and rationale is obesity is known contributor to insulin resistance and known worsening glucose control and is substantiated by his increasing insulin usage and A1c with his increasing weight." A prior VA examination in 2011 found that, "His obesity is more likely than not a symptom of his depressive disorder in combination with his experience of chronic pain." The Veteran's weight has drastically changed since he was diagnosed with depression and he has gained over 200 pounds since he started to suffer from depression in the early 2000s. It is clear that obesity was a substantial factor in causing his diabetes and that his diabetes would not have occurred but for the obesity. As a result, the Board awards the Veteran service connection for his diabetes. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, Associate Counsel 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.