Citation Nr: 24012829 Decision Date: 03/27/24 Archive Date: 03/27/24 DOCKET NO. 21-00 366 DATE: March 27, 2024 ORDER Service connection for obesity, to include as due to a service-connected disability is denied. REMANDED Entitlement to service connection for diabetes mellitus, type 2, to include as due to a service-connected disability is remanded. Entitlement to service connection for obstructive sleep apnea, to include as due to a service-connected disability is remanded. Entitlement to service connection for arrhythmias, to include as due to a service-connected disability is remanded. Entitlement to service connection for hypertension, to include as due to a service-connected disability is remanded. Entitlement to service connection for venous stasis, to include as due to a service-connected disability is remanded. Entitlement to service connection for erectile dysfunction, to include as due to a service-connected disability is remanded. Entitlement to service connection for recurrent water blisters, to include as due to a service-connected disability is remanded. FINDING OF FACT Obesity, in and of itself, is not a disability for which VA compensation benefits are payable. CONCLUSION OF LAW The criteria for entitlement to service connection for obesity, to include as due to a service-connected disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310; VAOPGCPREC 1-2017 (Jan. 6, 2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had service from March 1972 to January 1976 and from November 1980 to November 1984. This appeal comes from an October 2016 rating decision of the Agency of Original Jurisdiction (AOJ). Service Connection 1. Entitlement to service connection for obesity, to include as due to a service-connected disability. The Veteran asserts that he is entitled to service connection for obesity as secondary to a service-connected disability. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2016); El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. Id. The general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a disease for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and, therefore, may not be service-connected on a direct or secondary basis. The opinion notes that particularities of body type, such as being overweight or underweight, do not, of themselves, constitute disease or disability subject to service connection. Id. The opinion further held that, because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service event for the purposes of establishing service connection. Furthermore, the opinion noted that obesity may be an intermediate step between a service-connected disability and a current disability that may be connected on a secondary basis. 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 not have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). Thus, while the evidence shows that the Veteran is obese, 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, supra; see also Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004) (holding that VA's discretion over the rating schedule is insulated from judicial review and that review of the content of the rating schedule is indistinguishable from review of what should be considered a disability). Accordingly, as having obesity, in and of itself, is not a disability for VA compensation purposes, the Board is unable to award service-connected disability benefits for obesity in this case. To the extent to which the Veteran claims obesity played a part as an intermediary step in causing other disabilities it will be considered as part of the claim for other disabilities below. The appeal seeking to establish service connection for obesity is denied. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type 2, to include as due to a service-connected disability is remanded. 2. Entitlement to service connection for obstructive sleep apnea, to include as due to a service-connected disability is remanded. 3. Entitlement to service connection for arrhythmias, to include as due to a service-connected disability is remanded. 4. Entitlement to service connection for hypertension, to include as due to a service-connected disability is remanded. 5. Entitlement to service connection for venous stasis, to include as due to a service-connected disability is remanded. 6. Entitlement to service connection for erectile dysfunction, to include as due to a service-connected disability is remanded. 7. Entitlement to service connection for recurrent water blisters, to include as due to a service-connected disability is remanded. The Board cannot make a fully-informed decision on the issues of diabetes, sleep apnea, arrhythmias, hypertension, venous stasis, erectile dysfunction, and recurrent water blisters because, for each disability, no VA examiner has opined whether it is due to service on a direct basis. Furthermore, the previous VA examination opinions did not address to theory of obesity as an intermediary step between a service-connected disability and the claimed disabilities. The matters are REMANDED for the following action: 1. Obtain addendum opinions (if necessary, schedule the Veteran for any VA examinations) for the diabetes, sleep apnea, arrhythmias, hypertension, venous stasis, erectile dysfunction, and recurrent water blisters. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service? Is the disability at least as likely as not proximately due to a service-connected disability? Is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? What part, if at all, did any of the Veteran's service-connected disabilities have that lead to his obesity, to include overconsumption of calories due to the service-connected disability (depression) or the alleged sedentary lifestyle (low back and depression) caused by any of the Veteran's service-connected disabilities? If so, is the Veteran's obesity a substantial factor in causing or aggravating the claimed disability? Would the Veteran's claimed disability not have occurred but for the obesity that was caused or aggravated by any of his service-connected disabilities, to include depression and/or low back disability? Is it at least as likely as not that the disability (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.