Citation Nr: 21031801 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-15 240 DATE: May 24, 2021 ORDER The application to reopen the claim for service connection for a psychiatric disorder is granted. The application to reopen the claim for service connection for diabetes mellitus type 2 (diabetes) is granted. The application to reopen the claim for service connection for right ear hearing loss is denied. REMANDED The claim for service connection for a psychiatric disorder is remanded. The claim for service connection for diabetes is remanded. The claim for service connection for hypertension is remanded. FINDINGS OF FACT 1. A May 2015 rating decision denied a claims for service connection for a psychiatric disorder, diabetes, and right ear hearing loss. The decision is final. 2. The record includes evidence received subsequent to the appeal period that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claims for psychiatric disorder and diabetes. 3. For the right ear hearing loss claim, the evidence is cumulative of the evidence previously considered or does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim for service connection for psychiatric disorder has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence to reopen the claim for service connection for diabetes has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence to reopen the claim for service connection for right ear hearing loss has not been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1979 to September 1982. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in March 2021. The undersigned Veterans Law Judge granted his motion to keep the record open for 30 days so that he could submit additional evidence, and later that month the Veteran submitted a statement from his brother. This evidence will be considered by the Board in the adjudication of this appeal. Applications to Reopen Claims for service connection for a psychiatric disorder, diabetes mellitus type 2, and right ear hearing loss were previously denied, most recently in a May 2015 rating decision. The Veteran filed a notice of disagreement, and a statement of the case (SOC) was issued in December 2016. The Veteran did not file a substantive appeal. The Board has considered the application of 38 C.F.R. § 3.156(b) and Lang v. Wilkie, 971 F.3d 1348 (2020) because the record includes VA treatment records dated within 60 days of the issuance of the December 2016 SOC and VA treatment records in VA's constructive possession at the time of the adjudications. Review of the records does not reveal any new and relevant information for any of the claims, however, which is consistent with the agency of original jurisdiction (AOJ) determination in the May 2018 rating decision that new and material evidence had not been submitted for any of the claims. After consideration of the record, the Board finds 38 C.F.R. § 3.156(b) does not apply and the May 2015 rating decision was final. In March 2021, the Veteran provided testimony before the Board that he was diagnosed with depression prior to service, that he was "real depressed" when he was not able to reenlist due to his medical conditions, and that his service-connected disabilities lead to his depression. He additionally provided testimony that the diabetes was the result of weight gain due to service-connected disabilities and psychiatric disorder. The Board finds the testimony, which is presumed credible for the purposes of determining whether new and material evidence has been submitted, is new and material evidence sufficient to reopen the previously denied claims for psychiatric disorder and diabetes. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, for the right ear hearing loss claim, the Board finds the evidence submitted since the last unappealed denial is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim and raise a possibility of substantiating the claim. The claim was previously denied because the evidence did not show aggravation of preexisting right ear hearing loss. The "new" evidence does not include any competent evidence that the right ear hearing loss did not preexist service, was aggravated by service, or is otherwise related to service or a service-connected disability. Although the threshold for reopening a claim is low, it is a threshold, nonetheless. Shade, 24 Vet. App. at 110. Thus, reopening of the claim is not warranted. REASONS FOR REMAND The claims for service connection for psychiatric disorder, diabetes, and hypertension are remanded. The Board finds the record would benefit if medical opinions were obtained to determine whether the psychiatric disorder is related to service or to his service-connected physical disabilities as well as whether the Veteran's diabetes and/or hypertension are secondary to a service-connected disability. In reaching this determination, the Board notes that although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability. See VAOPGCPREC 1-2017; see also Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020). In a secondary service connection claim, a theory of obesity as an intermediate step is raised when there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner v. Tran, 33 Vet. App. 241 (2021). In this case, the Board finds that a theory of obesity as an intermediate step has been raised but has not been adequately addressed in a VA opinion. Accordingly, the Board finds that these matters must be remanded another VA opinion to determine the etiology of the Veteran's diabetes and hypertension. The Board finds that a VA medical opinion addressing whether the Veteran's psychiatric disability is directly related to service or was caused or aggravated by the limitations imposed by his service-connected physical disabilities. In this regard, the Veteran testified that he gained a lot of weight since getting out of service as a result of lack of ability to exercise and be active due to his service-connected physical disabilities. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service mental health problems as well as any relationship between his psychiatric problems and the impact of his service-connected physical disabilities, to include the limitations the Veteran has due to those service-connected conditions on any . The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder. The examiner should identify all current acquired psychiatric disorder(s). If any previously diagnosed psychiatric disorder is not found on examination, the examiner should address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. For each diagnosis identified, the examiner should state whether it is at least as likely as not that disorder was incurred in, aggravated by, or is otherwise related to the Veteran's military service or was caused or aggravated by the service-connected disabilities. In responding to this inquiry, the examiner must acknowledge and discuss the Veteran's competent report regarding the onset of his psychiatric disability as well as his brother's statement, received in March 2021. Specifically, the examiner is asked to opine whether it is at least as likely as not the Veteran's psychiatric disability is related, at least in part, to the limitations imposed by the Veteran's service-connected physical disabilities and/or the Veteran's documented weight gain. The examiner must also opine as to whether the Veteran's psychiatric disability was caused or aggravated by his service-connected musculoskeletal disabilities. The examiner must particularly consider whether obesity was an "intermediate step" between a service-connected musculoskeletal disability(ies), in causing or contributing y to any degree to hypertension and diabetes. A complete rationale should be given for all opinions and conclusions expressed, with consideration of the October 1981 service personnel record reporting an offense, VA examinations dated in October 1998 and September 2009, and the evidence of recurrent substance abuse inpatient treatment dating from June 1991. If the examiner cannot provide an opinion 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. Obtain medical opinions as to whether the Veteran's diabetes and hypertension were caused or aggravated by service-connected disability. All pertinent evidence of record must be made available to and reviewed. Specifically, the examiner is asked to opine whether it is at least as likely as not the Veteran's hypertension and diabetes are related, at least in part, to the Veteran's documented weight gain. The examiner must also opine as to whether the Veteran's hypertension and diabetes were caused or aggravated by his service-connected musculoskeletal disabilities. The examiner must particularly consider whether obesity was an "intermediate step" between a service-connected musculoskeletal disability(ies), in causing or contributing to any degree to hypertension and diabetes. The examiner must also acknowledge and discuss the Veteran's competent statements as to his inability to be active due to his service-connected musculoskeletal disabilities. The medical professional must provide a rationale for all opinions expressed, with consideration of the August 2003 VA treatment record which reveals the new diagnoses of diabetes and hypertension and history of 80 pound weight gain over the previous year and the July 2009 VA examination record. If the medical professional is unable to provide any required opinion, the medical professional should explain why. If the medical professional cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.