Citation Nr: A25035805 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 241004-479595 DATE: April 18, 2025 REMANDED Entitlement to service connection for diabetes mellitus type II is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1982 to February 1982, and from May 1983 to August 2003. In May 2024, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for diabetes, addressed in a September 2019 rating decision. In September 2024 the agency of original jurisdiction (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. In the October 2024 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 September 2024 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 service connection for diabetes mellitus type II, 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). The Veteran selected the Direct Review docket on his October 2024 NOD and requested a direct review of the September 25, 2024, rating decision. Williams v. McDonough, 37 Vet. App. 305 (2024) (holding that the Board may not decide an appeal before the deadline for requesting a docket switch has elapsed); 38 C.F.R. § 20.202 (c)(2) (providing that claimants may switch dockets by completing and submitting a new Notice of Disagreement (NOD) within one year from the date the agency of original jurisdiction (AOJ) mails notice of the decision on appeal, or 60 days from when the Board receives the NOD, whichever is later. In this case, the Board has not requested a waiver of the time to switch dockets. However, there is no prejudice in proceeding with the appeal without requesting a waiver, as the case must be remanded due to a pre-decisional duty to assist error. By seeking a waiver from the appellant, the Board would only be causing undue delay, with no additional benefit to the appellant. "A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution." Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Given the undue delay that a request for a waiver would cause and the lack of prejudice to the appellant, the Board finds that proceeding with a remand of this claim is the appropriate course of action. 38 C.F.R. § 20.800 (c). The U.S. Court of Appeals for Veterans Claims has distinguished a Board remand from a final Board decision on the basis that a Board remand does not contain an order granting or denying relief. Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir. 2005). Thus, remand orders are neither final nor adverse to a veteran. Stiles v. McDonough, 37 Vet. App. 328 (2024). Moreover, as the Veteran elected the direct review docket and specifically indicated, "advance to docket age, we waive VA RO jurisdiction" the Board finds that he is seeking the quickest possible resolution of his appeal. Further, on the VA Form 10182, the Veteran wrote, "VA failure under the duty to assist" which indicates that a remand to correct such error is the desired result. 1. Entitlement to service connection for diabetes mellitus type II is remanded. The Veteran contends diabetes mellitus type II is secondary to service-connected post-traumatic stress disorder (PTSD) The September 2024 rating decision favorably found that the Veteran is diagnosed with diabetes mellitus type II. The Veteran is service-connected for generalized anxiety disorder (GAD) with panic attacks and PTSD, effective September 1, 2003. Therefore, the first and second elements of secondary service connection are met (current disability and primary service-connected disability). The missing element for service connection is nexus between the two. A July 2002 service treatment record notes that the Veteran gained 25 lbs. from November 2000 to May 2001. He was put on a weight management program. The Veteran was afforded a VA mental health examination in October 2004. The October 2004 VA examiner notes that the Veteran suffered a major depression while in Japan in 2001. He began sleeping 12-14 hours a day, his energy was low, his concentration was poor, and he was irritable. He gained 30 pounds over six months, but he had no suicidal ideation. A January 2006 VA treatment record notes the Veteran's report that steroid injections in his back were only lasting one month. A January 2009 VA treatment record notes the Veteran's report that he tries to walk 3 miles per day but has back problems. A January 2010 VA treatment record notes the Veteran's report that his weight has gone up by 10 lbs. in 6 months due to stress. A March 2011 VA treatment record notes that the Veteran has not been seen for over a year but has dealt with depression through some alternative methods of exercising and dieting. At an October 2013 VA thoracolumbar spine examination, the Veteran reported that he injured his back in 1990 when doing heavy lifting in service. The pain worsened and was managed fairly well for a time with steroid injections. Steroids caused some weight gain. A May 2014 VA treatment record notes a recent weight increase since 2005. An October 2014 VA treatment record notes that the Veteran has had medication management with anti-inflammatories and muscle relaxants, as well as epidural steroid injections on several occasions with some improvement, but has persistent pain. A March 2024 VA treatment record notes the Veteran's report that he weighed approximately 165 lbs. when he entered the Air Force. He stated that he believes that the fact that he has been taking omeprazole for GERD since he was 23 years old may have some impact on his ability to lose weight. In September 2019, a VA examiner opined that the Veteran did not have a clear diagnosis of diabetes mellitus type II based on his test results. Nevertheless, the examiner provided an opinion addressing whether a diagnosis of diabetes mellitus is likely to be related to PTSD. The examiner opined diabetes mellitus is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner provided the rationale that PTSD is not a cause of diabetes mellitus. There is no pathophysiologic mechanism for PTSD to cause acquired insulin resistance, which is diabetes mellitus type II. PTSD is a mental health diagnosis and has not been considered as a cause or even a risk factor for DM2. Furthermore, the Veteran's medical records clearly indicate[ a] family history of diabetes mellitus type II, which increases his risk of developing diabetes mellitus type II. Another known risk factor for developing diabetes mellitus is obesity. Veteran as of 2016 was noted to have a BMI of 37, which indicates significant obesity. Given the presence of obesity and a family history of diabetes mellitus, it is unlikely that PTSD would cause his diabetes mellitus. As an initial matter, the Board notes that while the September 2019 VA examiner explained that PTSD does not cause diabetes mellitus type II, the examiner did not attempt to address aggravation. This is likely because he found no current diagnosis of diabetes mellitus. The failure to obtain an opinion that addresses aggravation prior to the September 2024 rating decision on appeal is a pre-decisional duty to assist error that warrants a remand. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013); Atencio v. O'Rourke, 30 Vet. App. 74 (2018) (holding that causation and aggravation are independent concepts and should have separate findings and rationales). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The September 2019 VA examiner related the Veteran's diabetes mellitus type II to the risk factors of obesity and family history of diabetes, but VA did not request an opinion on this theory. In conjunction with the current supplemental claim for diabetes mellitus, a new examination was provided in May 2024. This examiner confirmed a current diagnosis of diabetes mellitus type II. The examiner was asked to provide an opinion addressing a nexus between the Veteran's diabetes mellitus type II and his toxic exposure risk activities (TERAs). In that opinion, the examiner stated, "The Veteran's diabetes diagnosis is more likely than not related to his risk factors of age and obesity at this time." This opinion raised the theory of whether the Veteran's obesity is due to his service-connected disabilities, and provided an indication that they may be related. These were in the record at the time of the September 2024 rating decision. General Counsel Precedent Opinion 1-2017 determined that although obesity is not a disability for VA compensation purposes, obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a); VAOPGCPREC 1-2017; see Marcelino v. Shulkin, 29 Vet. App. 155 (2018). In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disability must have caused the veteran to become obese; (2) the obesity as a result of the service-connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability. See Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (affirming the "but for" prong of this analysis); see also Walsh v. Wilkie, 32 Vet. App. 300, 304 (2020). In this matter, the Board finds there has been a pre-decisional duty to assist error and a remand is required to correct it. 38 C.F.R. § 20.802 (a). Prior to the rating decision on appeal, the Veteran was not provided an opinion regarding secondary service connection with obesity as an intermediate step despite the indication that diabetes mellitus is due to his obesity, and his obesity may be related to his service-connected disabilities. However, VA did not instruct an examiner to provide opinions for the intermediate step analysis. The failure to obtain an opinion addressing whether the Veteran's obesity is an intermediate step between diabetes mellitus type II and his service-connected disabilities (to include GAD with panic attacks and PTSD, GERD, lumbar spine, and the medications used to treat these conditions) was a duty to assist error requiring remand. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate VA examiner to obtain an addendum medical opinion regarding service connection for diabetes mellitus type II. An in-person examination is not required unless the examiner determines it is necessary. The examiner is asked to review all relevant evidence in the claims file. The examiner should then address 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 Veteran's diabetes mellitus type II was aggravated by service-connected GAD with panic attacks and PTSD, to include medications prescribed to treat them? (b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's obesity was caused by his service-connected disabilities to include GAD with panic attacks and PTSD, GERD, and lumbar spine? In forming this opinion, consider the effects of medications used to treat these conditions, including omeprazole and steroid injections, and the combined effects of the service-connected disabilities and their medications. (c.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the obesity was aggravated by his service-connected disabilities to include GAD with panic attacks and PTSD, GERD, and lumbar spine? In forming this opinion, consider medications used to treat these conditions, including omeprazole and steroid injections, and the combined effects of the service-connected disabilities and their medications. If yes to (b.) or (c.): (d.) Was obesity resulting from service-connected disabilities a substantial factor in causing his diabetes mellitus type II? (e.) Would diabetes mellitus type II not have occurred but for the obesity caused by service-connected disabilities? Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his symptoms. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asare, Ama K. 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.