Veteranclaims’s Blog

April 29, 2022

Single Judge Application; relationship between the veteran’s depression and obesity; relationship between obesity and his diabetes; obesity as an intermediate step; Board erred in not addressing a reasonably raised theory of secondary service connection;

Filed under: Uncategorized — veteranclaims @ 5:20 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-0987
VERNON WHITE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Navy veteran Vernon White appeals a Board decision that reopened his
claim for depression but denied service connection for several conditions claimed as secondary to
depression. The gravamen of his argument is that the record evidence reasonably raised a theory
of secondary service connection—namely, obesity as an intermediate step. The Secretary
responded by asserting that the record did not raise the theory of obesity as an intermediate step
and that the Board was not required to address it. However, because there are numerous pieces of
evidence suggesting a relationship between the veteran’s depression and obesity, as well as
evidence suggesting a relationship between obesity and his diabetes
, the record raised obesity as
an intermediate step as to his claim for diabetes type II and the Board erred in not addressing this
theory. But, because the Board had a plausible basis in the record for denying Mr. White’s other
claims, the Court affirms the remainder of the Board’s decision.
I. BACKGROUND
Mr. White served in the Navy from March 1969 until December 1970. He is currently
service connected for Bell’s palsy, tinnitus, and bilateral hearing loss. He originally sought service
connection for depression in 2002 but was denied. He applied to reopen his depression claim in
2
2013 and submitted secondary service-connection claims for erectile dysfunction (ED), a
gastrointestinal (GI) condition, and obstructive sleep apnea (OSA). He later sought service
connection for diabetes as well. After development had been completed, the RO denied all five
claims. On appeal, the Board reviewed the record—including a 2018 VA mental health treatment
note suggesting that his depression was related to his service-connected Bell’s palsy—and
determined that Mr. White had submitted new and material evidence to support reopening his
claim for depression. The Board remanded the depression claim but denied service connection for
each of the conditions claimed as secondary to depression. Mr. White appealed.
II. ANALYSIS
The Court must answer whether the record reasonably raised a theory of secondary service
connection based on obesity as an intermediate step. See Barringer v. Peake, 22 Vet.App. 242,
244 (2008) (holding that this Court has jurisdiction to determine in the first instance whether the
record reasonably raised a particular theory). After reviewing the record, the Court finds that the
theory was reasonably raised and, therefore, that the Board erred in not addressing it. See
Delisio v. Shinseki, 25 Vet.App. 45, 53 (2011) (the Board must address all reasonably raised
theories of entitlement).
Obesity as an intermediate step is a relatively new theory of secondary service connection.
VA does not categorize obesity as a disability on its own, but recognizes that obesity can be caused
by service-connected conditions and has the potential to cause, or aggravate, other disabilities. So,
to ensure that veterans are compensated for the true impact of conditions causing obesity, VA will
grant service connection when (1) a service-connected disability caused the veteran to become
obese or aggravated the obesity; (2) obesity, resulting from a service-connected condition, was a
substantial factor in causing, or aggravating, the disability claimed as secondary; and (3) the
claimed disability would not have occurred, or been aggravated to its current degree of severity,
but for obesity. Garner v. Tran, 33 Vet.App. 241, 247-48 (2021).
To raise the theory of obesity as an intermediate step, there must be “some evidence in the
record which draws an association or suggests a relationship between the veteran’s obesity, or
weight gain resulting in obesity, and a service-connected condition” and some evidence drawing
an association between obesity and the claimed condition. Id. at 249 (emphasis removed).
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In Garner, the Court provided a non-exhaustive list of “considerations that could give rise
to a reasonably raised theory of secondary service connection with obesity as an intermediate step.”
Id. at 248. These considerations include, as relevant to the current appeal, “reduced physical
activity as a result of a service-connected mental disability, . . . lay statement[s] by a veteran
attributing weight gain or obesity to the service-connected disability, and statements by treating
physicians or medical examiners attributing weight gain or obesity to the service -connected
disability.” Id. The Court clarified that the key factor when determining whether this theory has
been raised is whether there is any evidence “which draws an association or suggests a relationship
between the veteran’s obesity, or weight gain resulting in obesity, and a service -connected
condition.” Id. at 249 (emphasis removed).
Mr. White identifies several records indicating a causal relationship between his claimed
depression, the medication he uses to manage that condition, and his obesity. The most salient
record is a 2006 VA mental health note concerning Mr. White’s depression wherein the clinician
noted Mr. White’s belief that the medications he was using to treat his depression contributed to
his weight gain and expressed that the medications may be contributing to weight gain. R. at 3174.
A note from Mr. White’s May 2001 nutritionist contains a similar concern—Mr. White complained
that his new medications, which included two drugs used to treat his mental health condition, were
increasing his weight. R. at 2859. And, in a 2001 letter, his wife attributed his significant weight
gain to “his psychotropic medications.” R. at 1235. Further, VA practitioners told him that his
obesity put him at risk of developing diabetes. R. at 987, 995. And a 2015 VA diabetes examiner
listed obesity as a condition that was related to his diabetes. R. at 967. Mr. White also attempted
to raise this theory explicitly in his 2016 addendum NOD where he explained that he was seeking
service connection for diabetes as “secondary to medication taken for service connected
disabilities.” R. at 926. While he was not service connected for depression at the time, it is clear
from reading his submission that he was referring to medications he takes to treat his depression.
This is sufficient evidence to raise the suggestion that Mr. White’s weight gain may have
been caused or aggravated by his depression and that his obesity may have caused his diabetes.
Thus, the Board erred in not addressing Mr. White’s reasonably raised theory and remand is
required for the Board to properly consider Mr. White’s service-connection claim for diabetes.
And, because Mr. White’s claim for diabetes depends on the outcome of his claim for depression,
the Board should ensure that the two claims are adjudicated together. See Parseeya4
Picchopne v. McDonald, 28 Vet.App. 171, 177 (2016) (noting that when one claim could have a
significant impact on the outcome of another, they are inextricably intertwined).
However, the Court discerns no error in the Board’s denial of his secondary serviceconnection
claims for OSA, a GI condition, or ED. The Board found that Mr. White did not suffer
from a sleep disability and that, therefore, service connection was not warranted on any basis. On
appeal, he argues that the record contains many references to sleep issues and that the Board’s
determination that he does not have a sleep disability is erroneous. Although Mr. White’s file
includes several references to his sleep habits, he has never been diagnosed with a sleep disorder.
In fact, all of these references to sleep issues appear in his mental health notes and were
consistently considered to be a symptom of his major depressive disorder. See R. at 210. 227-28, 1406. He even underwent a sleep study, but the examiner determined that his results were
unremarkable and that no further testing was required. R. at 1270. The Board’s conclusion —that
Mr. White does not suffer from a current sleep disability to include OSA—is fully supported by
the record and thus must be affirmed.
As for Mr. White’s GI condition, the Board acknowledged that he has a diagnosed GI
condition consisting of acid reflux and occasional constipation, but found “no competent evidence
of record suggesting his claimed [GI] disability is secondary” to his depression. R. at 24. Further,
the Board found that the evidence did not indicate a relationship between service, or a serviceconnected
disability, and Mr. White’s GI condition. Accordingly, the Board denied the GI claim,
on both a primary and secondary basis, without securing a medical exam. See
Mclendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (obliging the Secretary to secure a medical
exam when there is “an indication that the disability or persistent or recurrent symptoms of a
disability may be associated with the veteran’s service or with another service -connected
disability”).
Mr. White argues that McLendon established a “low threshold” to trigger VA’s obligation
to secure an exam and that he has satisfied this threshold. Appellant’s Br. at 17. However, none of
the evidence he cites relates his GI condition to a service-connected disability. He merely asserts
that his Bell’s palsy symptoms, namely difficulty chewing or swallowing, are sufficient to indicate
an association between that condition and his GI condition. But there is no evidence in the record
to suggest that difficulty chewing or swallowing is associated with his occasional heartburn and
constipation. There is also no evidence that Mr. White’s depression is related to his GI condition.
5
In sum, the Board’s decision to adjudicate Mr. White’s GI claim without first obtaining a medical
exam was not arbitrary and capricious because there is no evidence of record indicating an
association between his GI condition and depression, obesity, or Bell’s palsy. See McLendon, 20
Vet.App. at 81, 83 (holding that the Board’s decision not to provide a medical exam and the
individual element of whether there is an indication of an association between the claimed
condition and the service-connected condition are reviewed under the “arbitrary and capricious”
standard).
Finally, Mr. White argues that his ED claim was inextricably intertwined with his pending
claim for depression and that the Board relied on an inadequate medical exam to deny his ED
claim. However, there is no evidence that suggests an association between the veteran’s depression,
or obesity, and ED. Further, Mr. White underwent a 2015 ED examination and the examiner
concluded that his ED was initially caused by vascular disease and old age but that his condition
was permanently aggravated by a 2008 prostatectomy. R. at 972.
Mr. White attacks the adequacy of this 2015 opinion, claiming that the examiner’s rationale
did not address a potential relationship between his ED and the medications he takes to treat
depression based on obesity as an intermediate step. However, there is no medical evidence in the
record relating his ED to obesity and his ED predated his depression-related weight gain by several
years. Compare R. at 2862 with R. at 3174. Further, his other argument—that the examiner did not
provide an adequate rationale for his conclusion that Mr. White’s ED was caused by the removal
of his prostate—is also unpersuasive. The examiner explained that Mr. White’s ED stopped
responding to medication after his prostate was removed and, on that basis, determined that the
prostatectomy was a superseding cause of the condition—a medical conclusion that neither the
appellant nor the Court is competent to revise.
III. CONCLUSION
Because the Board erred in not addressing a reasonably raised theory of secondary service
connection
for Mr. White’s diabetes, the Court VACATES the portion of the Board’s October 27,
2020, decision denying that claim and REMANDS the claim for readjudication. However, the
Court AFFIRMS that portion of the Board’s decision denying service connection for OSA, ED and
a GI disorder. The remainder of the Board’s October 27, 2020, decision is DISMISSED.
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DATED: April 28, 2022
Copies to:
Jerusha L. Hancock, Esq.
VA General Counsel (027)

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