Citation Nr: A24058564 Decision Date: 09/20/24 Archive Date: 09/20/24 DOCKET NO. 220214-223061 DATE: September 20, 2024 REMANDED Entitlement to service connection for diabetes mellitus 2 (hereinafter, diabetes), as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS AND BASES FOR REMAND The Veteran served on active duty in the U.S. Army from February 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) from a February 2022 higher-level review (HLR) rating decision by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ), which constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. By way of background, in August 2021, the AOJ denied entitlement to service connection for diabetes. In December 2021, the Veteran submitted VA Form 21-0995, Decision Review Request: Supplemental Claim, requesting review of the August 2021 rating decision based on new and relevant evidence. In December 2021, the AOJ issued a supplemental claim decision, which found that new and relevant evidence had not been received since the prior denial and consequently continued the prior denial. In January 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the December 2021 supplemental claim decision. In February 2022, the AOJ issued the HLR decision on appeal, which implicitly found that new and relevant evidence had been received with the December 2021 supplemental claim and denied the claim on the merits based on the evidence of record at the time of the prior December 2021 supplemental claim decision. In the February 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2021 AOJ supplemental claim decision, which was subsequently subject to higher-level review. 38 C.F.R. §21.301. If evidence was submitted during the period after the AOJ issued the December 2021 supplemental claim decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of service connection for diabetes, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for diabetes, as secondary to service-connected PTSD, is remanded. The Veteran claims that the low energy and motivation associated with his service-connected PTSD, as well as his PTSD medication, led to weight gain. As a result, he believes he developed diabetes as a result of the weight gain caused or aggravated by his PTSD. See July 2021 Claim; December 2021 Supplemental Claim statement. Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. ?See?38?C.F.R. §?20.802(a).? Having reviewed the evidence of record, the Board finds that remand for a pre-decisional duty to assist error is required. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause," and instead holding, "but for" causation or aggravation is enough to show entitlement to secondary service connection). Obesity can serve as an "intermediate step" between a current disability and a service-connected disability for purposes of secondary service connection if it is found that (1) a service-connected disability caused or aggravated the veteran to become obese; (2) this obesity was a substantial factor in causing the current disability; and (3) the current disability would not have occurred but for the obesity caused or aggravated by a service-connected disability. Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020). If these three criteria are answered in the affirmative, then the claimed current disability may be service connected on a secondary basis. Id. As a preliminary matter, the Board finds that the theory of obesity as an intermediate step between the Veteran's diabetes and PTSD has been reasonably raised by both the Veteran and the evidence of record in this case. See Garner v. Tran, 33 Vet. App. 241, 249 (2021) (finding that the evidence of record must contain more than simply incidental references to the Veteran's weight or weight gain to reasonably raise the theory of secondary service connection via obesity as an intermediate step). However, the evidence of record does not indicate that obesity could be an intermediate step between the Veteran's diabetes and any other disability for which he was service-connected at the time of the December 2021 supplemental rating decision. Thus, the Board will only focus on the issue of whether the Veteran's diabetes was caused and/or aggravated by his service-connected PTSD. The Board notes that the February 2022 HLR rating decision favorably established that the Veteran is currently diagnosed with diabetes and that he is service-connected for PTSD. Thus, the first two elements for secondary service connection are established. The question for the Board is whether there is a nexus between the Veteran's diabetes and his service-connected PTSD. Turning to the medical evidence at hand, the Veteran was initially service connected for an anxiety disorder (claimed as PTSD) in June 2011. VA treatment records show that he also experienced back pain and underwent surgery in March 2012, which led to decreased mobility. See February 2012; March 2012 VA treatment records. Thereafter, his VA treatment records note fluctuations in weight, as well as constant adjustment of his psychiatric medications. See May 2013; October 2015; November 2015 VA treatment records. By May 2017 the Veteran's weight had increased to 287 pounds. The Veteran reported feeling depressed, "down," and having little interest or pleasure in doing things. He also reported that his weight gain was a result of "immobility, overeating, improper nutrition, [and] medications he has been taking." The Veteran's mental health provider reported that the Veteran was taking some "atypical antipsychotic medications," which placed him at risk for metabolic syndrome. The provider noted the Veteran's weight gain and labeled him as "pre-diabetic." He raised concerns that the diabetes would worsen, given the Veteran's obesity. See May 16, 2017 VA treatment record. The Veteran was diagnosed with diabetes in March 2019. See March 8, 2019 VA treatment record. However, a subsequent back surgery in 2019 led the Veteran and his wife to become more active and lose approximately 50 pounds. See August 2019 VA treatment record. In August 2021, the Veteran was afforded a VA examination with respect to his July 2021 claim. The August 2021 examiner opined that it was less likely than not that the Veteran's diabetes was caused by his depression and mental health, concluding it was more likely a result of a 90 pound weight gain between his discharge from active service in 2004 and two months prior to his diabetes diagnosis in 2019. The examiner specifically pointed out that the weight gain was likely a result of unhealthy diet and an inability to maintain any kind of exercise program. However, she did not address whether the Veteran's PTSD medications or depressive symptoms could be related to his poor diet and exercise habits. She also expressly stated that there was "no 'prediabetes' in chart seen." See August 2021 VA examination. In response to his December 2021 supplemental claim, the Veteran was afforded another VA examination. The December 2021 examiner also concluded that it was less likely than not that the Veteran's diabetes was caused by his PTSD because the two disabilities "are not medically related." She addressed the Veteran's statement that his "depression has caused him to slow down, and he doesn't have energy to move or exercise;" however, she dismissed it by looking to the August 2021 opinion that excessive weight gain led to the Veteran's diabetes. Although the December 2021 examiner admitted that obesity has been shown to cause diabetes, she noted that several factors contribute to obesity, such as genetics, diet, and metabolic/hormonal influences. Ultimately, she opined that the evidence failed to support the claim that the Veteran's obesity was "predominantly due to his PTSD" and, instead, stated that his smoking history was more likely the cause of his diabetes. The Board finds that neither the August 2021 nor the December 2021 VA opinions are adequate to adjudicate whether the Veteran's diabetes is a result of his service-connected PTSD. Although both examiners explained why the Veteran's PTSD did not cause his diabetes, as well as addressed the Veteran's weight and its role in his diabetes, neither of them provided adequate rationale as to why his obesity could not be an intermediate step between his diabetes and his PTSD. Specifically, neither examiner addressed the role of the Veteran's PTSD medication in the Veteran's weight gain and the fact that his providers warned him metabolic changes could occur as a result of "atypical" prescriptions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Moreover, the August 2021 examiner relied, in part, on an inaccurate factual premise when she noted that the Veteran had not been marked "prediabetic" in his medical history. See Reonal v. Brown, 5 Vet App. 458, 461 (1993) (asserting that an opinion based on an inaccurate factual premise has no probative value). May 2017 VA treatment records directly contradict that statement in that they clearly show his provider was concerned about his weight and prediabetic condition. See May 16, 2017 VA treatment record. Additionally, as the opinions primarily focus on causation, they do not address whether the Veteran's claimed PTSD symptoms, such as decreased motivation, low energy, and depression may have aggravated his obesity, eventually leading to a diagnosis of diabetes. See Spicer, 61 F. 4th 1360 (Fed. Cir. 2023); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (finding that a VA examination does not adequately address aggravation unless it rules out the possibility of aggravation). Based on the foregoing, the Board finds that the August 2021 and December 2021 opinions are incomplete and afford them no probative value as to whether there is a secondary nexus between the Veteran's diagnosed diabetes and his service-connected PTSD. Since the AOJ relied on these inadequate medical opinions in the February 2022 HLR rating decision on appeal, a pre-decisional duty to assist error was made. Consequently, there is not adequate medical evidence of record for the Board to find that all of the requirements of Walsh have been met at this time. See Walsh at 307. In reviewing the claims file, the Board notes it is not as evident that his obesity was caused and/or aggravated by his PTSD symptoms and medication. In addition, although the August 2021 and December 2021 VA examiners indicate that the Veteran's diabetes is a result of his obesity, it is not clear if the Veteran's diabetes would not have occurred but for the obesity that may have been caused or aggravated by his PTSD, as the opinions also specified other factors, such as smoking and genetics, may have played a part in the diabetes diagnosis. As such, remand is required to obtain an addendum medical opinion. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion, with examination only if deemed necessary by the clinician, as to the nature and etiology of the Veteran's diabetes. All appropriate tests and studies must be accomplished, and all clinical findings should be detailed. The Veteran's entire claims file, including a copy of this remand, should be made available to the clinician and it should be reviewed in its entirety for the purpose of providing the requested opinion(s) below. The clinician should opine as to the following: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) the Veteran's service-connected PTSD, to include any medication prescribed to treat his PTSD: i. Caused the Veteran to become obese; or ii. Aggravated the Veteran's obesity. (b.) If so, opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that this obesity or aggravation of obesity was a substantial factor in causing the Veteran's diabetes. (c.) Finally, opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) the Veteran's diabetes would not have occurred but for the obesity caused or aggravated by his service-connected PTSD, or any medication prescribed to treat his PTSD. The clinician is reminded that both the issues of causation and aggravation must be addressed. Furthermore, in considering aggravation under 38 C.F.R. § 3.310(b), there is no requirement that there be a "permanent worsening" of the non-service connected disability. The clinician should address the medical literature received from the Veteran's representative in December 2021. The clinician should also address the May 2017 VA treatment record in which the Veteran reported feeling depressed, "down," and having little interest or pleasure in doing things; and reported that his weight gain was a result of "immobility, overeating, improper nutrition, [and] medications he has been taking." In addition, the clinician should also address the May 2017 VA treatment record in which the Veteran's mental health provider reported that the Veteran was taking some "atypical antipsychotic medications," which placed him at risk for metabolic syndrome, noted the Veteran's weight gain and labeled him as "pre-diabetic," and raised concerns that the diabetes would worsen, given the Veteran's obesity. (Continued on the next page) ? Please provide a rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided without resorting to speculation, the clinician should indicate this and provide a supporting rationale as to why that is the case. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Neil, A. 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.