Citation Nr: A25035261 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240626-451132 DATE: April 16, 2025 Entitlement to service connection for diabetes mellitus type II (DMII), to include secondary to service-connected depressive disorder with obesity as an intermediate step, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1984 to July 1986. The Appeals Modernization Act (AMA) automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). The rating decision on appeal was issued in February 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the AMA, applies. In the June 2024 VA Form 10182, Decision Review Request: Board Appeal Notice of Disagreement (NOD), the Veteran timely appealed the February 2024 rating decision and elected the Direct Review docket Therefore, the Board may only consider the evidence of record at the time of the February 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to service connection for DMII, to include secondary to service-connected depressive disorder with obesity as an intermediate step, 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). In September 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for DMII, to include secondary to service-connected depressive disorder with obesity as an intermediate step, most recently addressed in a June 2023 rating decision. In February 2024, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal. In February 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for DMII, to include secondary to service-connected depressive disorder with obesity as an intermediate step, most recently addressed in a September 2019 rating decision. In June 2023, the AOJ issued a rating, which implicitly found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In July 2024, the Board notified the Veteran that the appeal has been placed on the Direct Review docket. Thus, the appeal is properly before the Board, and this decision follows. Entitlement to service connection for diabetes mellitus type II, to include secondary to service-connected depressive disorder with obesity as an intermediate step, is remanded. The Veteran contends that his DMII was caused by his military service from the possibility of toxic exposure. See February 2023 Statement in Support of Claim. Additionally, the Veteran asserts that his DMII is secondary to his service-connected depressive disorder with obesity as an intermediate step. In general, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran has been diagnosed with DMII. See May 9, 2023 VA Examination. He has a presumption toxic exposure risk activity (TERA), to include mustard gas. See April 2023 VA Memorandum. The Veteran has been service connected for depressive disorder. See June 2023 Rating Decision. On May 8, 2023, the Veteran was afforded a VA examination filed on May 9, 2023. The examiner opined that the Veteran's DMII was less likely than not caused by the Veteran's TERA. See May 9, 2023 VA Examination. As rationale, the examiner stated that the Veteran's DMII is not one of the cancers which can be service connected on the bases of presumptions due to exposure to mustard gas. Id. The examiner's opinion is not supported by an adequate analysis and is conclusory. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can weigh, and a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision). As the AOJ did not obtain an addendum to correct this deficiency, such was a pre-decisional duty to assist error, and the claim must be remanded to address this deficiency. On November 6, 2023, the Veteran was afforded a VA examination. The examiner opined the Veteran's DMII was less likely than not due to his military service. As rationale, the examiner stated that there was a lack of substantiating evidence supporting a nexus and that without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology. See November 6, 2023 VA Examination. The Board notes the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was passed. Under the PACT Act, VA is required to provide a disability examination and medical nexus opinion when a veteran submits a compensation claim and has evidence of a disability and participation in a toxic exposure risk activity (TERA), but the evidence is not sufficient to establish service connection for the disability. See 38 U.S.C. § 1168. The examiner did not provide a disability examination and medical nexus opinion based on the Veteran's TERA. As the AOJ did not obtain an addendum to correct this deficiency, such was a pre-decisional duty to assist error, and the claim must be remanded for an examination that meets the 38 U.S.C. § 1168(a) requirements. On December 15, 2023, the Veteran was afforded a VA examination. The examiner opined the Veteran's DMII was less likely than not due to the Veteran's service-connected depression. As rationale, the examiner stated that DMII and depression were not medically related and that DMII was a separate entity entirely from depression. See December 15, 2023 VA Examination. The examiner did not provide an opinion whether the Veteran's service-connected depressive disorder aggravated the Veteran's DMII as required for an adequate secondary service connection opinion. See Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018) (holding that, in claims involving service connection on a secondary basis, VA medical opinions must provide separate findings and rationales regarding both causation and aggravation). As the AOJ did not obtain an addendum to correct this deficiency, such was a pre-decisional duty to assist error, and a remand is necessary to address this deficiency. The matter is REMANDED for the following actions: 1. Obtain an opinion from an appropriate examiner to determine the nature and etiology of the Veteran's diabetes mellitus type II. A copy of this remand request should be provided. The need for an in-person examination is left to the discretion of the examiner offering the opinion. The examiner must address the following: (A) The examiner must opine whether the disability was at least as likely as not related to the Veteran's military service and toxic exposure risk activity, to include mustard gas. The examiner must address the total potential exposure through all applicable deployments and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. (B) The examiner must opine whether it is 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 and/or aggravated by his service-connected depressive disorder. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. Separate opinions and detailed rationales are required for both causation and aggravation. (C) The examiner must opine whether it is 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 and/or aggravated by his obesity, as an "intermediate step" between the Veteran's service-connected depressive disorder. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. Separate opinions and detailed rationales are required for both causation and aggravation. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After ensuring full compliance with this remand, readjudicate the claims on appeal. Danette Mincey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hahn 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.