Citation Nr: A25035131 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210910-184485 DATE: April 16, 2025 ORDER 1. New and relevant evidence having been received, readjudication of the previously denied claim of service connection for diabetes mellitus, type II, is warranted. 2. New and relevant evidence having been received, readjudication of the previously denied claim of service connection for hypertension is warranted. REMANDED 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to the service-connected posttraumatic stress disorder (PTSD), to include obesity as an intermediate step is remanded. 2. Entitlement to service connection for hypertension, to include as due to the service-connected PTSD, to include obesity as an intermediate step, is remanded. FINDINGS OF FACT 1. An April 2021 Higher-Level Review rating decision confirmed and continued the previous denial of service connection for diabetes mellitus, type II, because the evidence failed to show that the condition was related to service or to the service-connected PTSD. 2. An April 2021 Higher-Level Review rating decision confirmed and continued the previous denial of service connection for hypertension because the evidence failed to show that the condition was related to service or to the service-connected PTSD. 3. In May 2021, the Veteran filed a supplemental claim for service connection for diabetes mellitus, type II, and hypertension based on new and relevant evidence. 4. Evidence received in relation to the May 2021 supplemental claim is new and included information that tended to prove or disprove a matter at issue with respect to the claims for service connection for diabetes mellitus, type II, and hypertension. CONCLUSIONS OF LAW 1. New and relevant evidence having been received in conjunction with the May 2021 supplemental claim, the criteria to readjudicate the claim for service connection for diabetes mellitus, type II have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(d), 3.2501. 2. New and relevant evidence having been received in conjunction with the May 2021 supplemental claim, the criteria to readjudicate the claim for service connection for hypertension have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(d), 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to April 1984 and from November 1985 to October 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The decision was issued on May 21, 2021. In response to the May 2021 rating decision, in September 2021, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) where he selected the Evidence Submission docket. Under the Evidence Submission docket, the Board considers the claim based on evidence of record at the time of the rating decision, and evidence received within 90 days following receipt of the NOD. 38 C.F.R. § 20.303. Thus, the Board's review is limited to the evidence of record at the time of the issuance of the May 2021 rating decision and evidence received within 90 days following receipt of the September 10, 2021 VA Form 10182. Id. However, because the Board is remanding the claims, any evidence the Board could not consider will be considered by the agency of original jurisdiction (AOJ) in the adjudication of the claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. New and relevant evidence having been received, readjudication of the previously denied claim for service connection for diabetes mellitus, type II, is warranted. 2. New and relevant evidence having been received, readjudication of the previously denied claim for service connection for hypertension is warranted. Under the Appeals Modernization Act (AMA), if "new and relevant" evidence is presented or secured with respect to a supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501. "New" evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). "Relevant" evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(2). If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. Id. In the April 2021 rating decision, the AOJ confirmed and continued the previous denial of service connection for the Veteran's diabetes mellitus, type II, and hypertension because the evidence failed to show that the conditions were related to service or secondary to the service-connected PTSD. The evidence of record at the time of the April 2021 rating decision included service treatment records, service personnel records, the VA hypertension examination report, the VA diabetes mellitus examination report, and post-service treatment records. Since that time, additional evidence includes medical articles submitted by the Veteran suggesting a relationship between diabetes mellitus, type II, hypertension, and PTSD, to include obesity as an intermediate step. Therefore, new and relevant evidence having been received, the Board concludes that the requirements to readjudicate the claims of entitlement to service connection for diabetes mellitus, type II, and hypertension have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(d), 3.2501. REASONS FOR REMAND 1. Service connection for diabetes mellitus, type II, to include as due to the service-connected PTSD, to include obesity as an intermediate step. 2. Service connection for hypertension, to include as due to the service-connected PTSD, to include obesity as an intermediate step. The Veteran contends that his diabetes mellitus, type II, and hypertension are related to service, or alternatively, secondary to his service-connected PTSD, to include obesity as an intermediate step. The Veteran underwent VA diabetes mellitus examination and VA hypertension examination in February 2020 and was diagnosed with both diabetes mellitus, type II, and hypertension. The examiner opined that the conditions were less than likely caused by the service-connected PTSD because neither diabetes nor hypertension were medically related to the service-connected PTSD as the conditions were separate entities entire from the service-connected PTSD and medical literature did not support a direct or plausible secondary medical relationship. However, the examiner did not address the question of aggravation as required under 38 C.F.R. § 3.310. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (a medical opinion is inadequate when it fails to adequately address the question of aggravation). Thus, the Board finds that the February 2020 VA opinions are inadequate. The Board also notes that the Veteran has submitted medical articles accompanying his May 2021 supplemental claim which suggest obesity as an intermediate step; however, to date an opinion addressing whether the Veteran's diabetes mellitus, type II, and hypertension are secondary to PTSD, to include obesity as an intermediate step has not been obtained. Further, the Veteran's service treatment records show that in February 1990, he has a documented blood pressure reading of 140/80 and in December 1990, there was a notation of elevated blood pressure. However, to date, an opinion addressing direct service connection has not been obtained. Additionally, the recently passed Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) provides that where a Veteran submits a service connection claim with evidence of a disability and evidence of participation in a toxic exposure risk activity (TERA) during active military service and such evidence is not sufficient to establish service connection for the disability, the Secretary shall provide the Veteran with a medical examination and secure a nexus opinion unless VA determines that there is no assertion that the claimed disorder is related to the toxic exposure risk activity. See 38 U.S.C. § 1168; see also Pub. L. No. 117-168, 136 Stat. 1759 (2022). As a Persian Gulf veteran, the Veteran has presumed exposure to toxic risk activities in Southwest Asia, and he has been diagnosed with diabetes mellitus, type II, and hypertension. As mentioned, the Veteran underwent VA examination in February 2025 in connection with his claims for service connection; however, to date an opinion as to whether the Veteran's conditions are related to TERA participation during service has not been obtained. As this evidence is insufficient to establish service connection, addendum TERA opinions must be obtained. Considering the foregoing, the failure to obtain adequate medical opinions (which reflect consideration of the full, accurate record) that address whether the Veteran's diabetes mellitus, type II, and hypertension are related to service, to include TERA participation during service, or alternatively, caused or aggravated by his service-connected PTSD, to include obesity as an intermediate step constitutes a pre-decisional duty-to-assist error. Accordingly, development for adequate VA medical opinions is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following actions: 1. Send the Veteran's claims file to an appropriate VA examiner to obtain an addendum medical opinion regarding the etiology of the Veteran's diabetes mellitus, type II. If a new examination is required in order to respond to the request, such should be arranged. 2. Following review of the claims file, the examiner should provide an opinion as to the following: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the current diabetes mellitus, type II, is caused or otherwise related to the Veteran's service? Please explain why or why not, to include addressing the Veteran's contentions. (b.) Is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the diagnosed diabetes mellitus, type II, is related to the Veteran's TERA participation in Southwest Asia? Please explain why or why not, to include addressing the Veteran's contentions. (c.) The examiner shall consider the total potential exposure through all applicable military deployments and the synergistic, combined effect of all TERA participation of the Veteran. (d.) The examiner is cautioned from rendering a negative opinion solely on the basis that the condition is not a presumptive condition. The examiner must consider other relevant factors such as: medical studies that may or may not be found persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition manifested itself in an unusual manner. If not related to service, the examiner should provide an opinion to the following: (e.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diabetes mellitus, type II, was caused by his service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). (f.) If not caused by the service-connected PTSD, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diabetes mellitus, type II, is worsened (aggravated) by his service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). The examiner is advised that for a veteran to be service connected on a secondary basis, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. With regard to obesity as an intermediate step, the examiner shall provide an opinion as to the following: (g.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected PTSD caused him to become obese or aggravated his obesity? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). (h.) If the Veteran's service-connected PTSD caused him to become obese or aggravated his obesity, is it 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 his diabetes mellitus, type II? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). (i.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diabetes mellitus, type II, would not have occurred or been aggravated, but for the obesity caused by or aggravated by his service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). 3. Send the Veteran's claims file to an appropriate VA examiner to obtain an addendum medical opinion regarding the etiology of the Veteran's hypertension. If a new examination is required in order to respond to the request, such should be arranged. 4. Following review of the claims file, the examiner should provide an opinion as to the following: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the current hypertension is caused or otherwise related to the Veteran's service? Please explain why or why not, to include explaining the significance of the in-service treatment records showing a February 1990 blood pressure reading of 140/80 and a December 1990 notation of elevated blood pressure, as well as the Veteran's contentions. See service treatment records. (b.) Is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the diagnosed hypertension is related to the Veteran's TERA participation in Southwest Asia? Please explain why or why not, to include addressing the Veteran's contentions. (c.) The examiner shall consider the total potential exposure through all applicable military deployments and the synergistic, combined effect of all TERA participation of the Veteran. (d.) The examiner is cautioned from rendering a negative opinion solely on the basis that the condition is not a presumptive condition. The examiner must consider other relevant factors such as: medical studies that may or may not be found persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition manifested itself in an unusual manner. If not related to service, the examiner should provide an opinion to the following: (e.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hypertension was caused by his service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). (f.) If not caused by the service-connected PTSD, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hypertension is worsened (aggravated) by his service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). The examiner is advised that for a veteran to be service connected on a secondary basis, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. With regard to obesity as an intermediate step, the examiner shall provide an opinion as to the following: (g.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected PTSD caused him to become obese or aggravated his obesity? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). (h.) If the Veteran's service-connected PTSD caused him to become obese or aggravated his obesity, is it 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 his hypertension? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). (i.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hypertension would not have occurred or been aggravated, but for the obesity caused by or aggravated by his service-connected PTSD? Please explain why or why not, to include addressing the Veteran's contentions as well as all of the medical articles submitted by the Veteran. See sets of medical articles submitted in May 2021 and September 2021 (set 1) (set 2) (set 3) and (set 4). A complete rationale should be provided for any opinion expressed. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.). S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Medina, Sara 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.