Citation Nr: 0000714 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 97-24 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for exogenous obesity, to include morbid obesity. 2. Entitlement to service connection for diabetes mellitus secondary or due to exogenous obesity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran served on active duty from March 1972 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana which denied the veteran's attempt to reopen his claim for service connection for exogenous obesity and diabetes mellitus. The Board notes that the veteran claimed service connection for "extreme obesity" in 1977. By a rating decision dated April 1978 the RO denied service connection for an endocrine condition as not found on examination. Reading the rating action narrowly, the Board finds that the RO did not make an adjudicative determination whether the veteran was entitled to service connection for extreme obesity. The RO notified the veteran in 1978 that service connection was denied for a "gland condition" as not shown by evidence of record; nothing was said in the letter of notification about exogenous obesity. In a statement dated in June 1993 the veteran filed a claim for service connection for obesity and diabetes mellitus, asserting the latter was due to his obesity. The veteran said that a physician had told him, presumably at a VA facility in the 1970s, that his rapid weight gain was probably due to a "pituitary gland problem". The veteran repeated his claim for service connection in a statement dated in September 1993 following a hearing at the RO in August, In March 1994, following a rating action in February, the RO informed the veteran that their letter of April 27, 1978 had informed him of the denial for service connection for "exogenous obesity/endocrine disease", that he did not appeal the decision, and that now he needed new and material evidence to reopen his claim. However, the Board is unable to find a copy of the cited letter dated April 27, 1978, in the claims folder. In the rating action of February 1994 the RO denied service connection for diabetes mellitus on direct and presumptive bases. By correspondence dated August 1996, the veteran again filed a claim for service connection for obesity as "a primary condition" and diabetes mellitus as secondary to obesity. By a rating decision dated March 1997, the RO held that new and material evidence had not been submitted regarding claims of service connection for obesity and diabetes. The RO said in the rating action that service connection had been denied for exogenous obesity in April 1978, and that an endocrine abnormality was not shown in service or on the first post service VA examination. The RO then said that obesity was not a disability for which compensation may be established, that it (obesity) is considered a clinical finding, and that medical examination had ruled out an underlying disability. A copy of the rating decision was mailed to the veteran. REMAND The Board finds that the claim of service connection for obesity, exogenous or morbid, was never considered by the RO on it own merits as a primary disorder until the veteran's claim in 1996. There fore, the issue is entitlement to service connection for exogenous obesity. Also, as the veteran is claiming service connection for diabetes mellitus only on a secondary basis, the claim does not involve new and material evidence as an issue. The statement of the case dated in June 1997 misstated the issues. The veteran's service medical records indicate that he weighed 232 lbs. upon entry into the service and weighed 334 lbs. upon discharge. His weight was as high as 390 lbs. In service. The veteran's weight fluctuated during service and was diagnosed with exogenous obesity and placed on a number of diets. Interestingly, in December 1982 the veteran had been able to get his weight down to 230 lbs. In August 1984 his weight was noted as 252 lbs. At other times, however, he was markedly overweight. A July 1997 VA examination diagnosed morbid obesity and a subsequent VA statement dated February 1999 indicated that morbid obesity could cause an insulin resistance syndrome that results in diabetes with poor control of blood sugar. However, there is no opinion as to whether the veteran had chronic obesity in service or whether that obesity could be characterized as morbid obesity while in service. In fact there is no guidance from the VA as to how to treat this type of condition or differentiate between morbid obesity and exogenous obesity. In denying the veteran's claim in the March 1997 rating decision, the RO did not cite any authority, such as might be available from a VA medical facility or Central office of the VA, to support the conclusion that exogenous obesity is not a disability for compensation purposes or that it is only a clinical finding. The RO used it own medical judgment, something that an adjudicatory body cannot do. See Colvin v. Derwinski 1 VetApp. 171 (1991). Therefore, as a matter of due process consideration, the case is hereby REMANDED to the RO for the following: 1. The RO should adjudicate as original claims the issues of entitlement to service connection for exogenous obesity, to include morbid obesity, and service connection for diabetes mellitus as secondary or due to exogenous obesity in service. 2. If the RO denies either benefit, the veteran and his representative are to be furnished supplemental statements of the case, setting forth the law and regulations applicable to the decision and any authority for its holding. The appellant and his representative are to be given adequate time to respond to the supplemental statement of the case and each may has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to ensure due process of law. The Board intimates no opinion as to the merits of the veteran's claim by reason of this remand. BRUCE KANNEE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).