Citation Nr: 0127181 Decision Date: 12/11/01 Archive Date: 12/19/01 DOCKET NO. 97-28 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for cirrhosis of the liver due to medication taken for service-connected residuals of fractured cervical spine with traumatic arthritis, spurs and calcium deposits. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran served on active duty from January 1955 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1995 rating decision by the Columbia, South Carolina RO which denied entitlement to service connection for cirrhosis of the liver due to medication taken for service-connected residuals of fractured cervical spine with traumatic arthritis, spurs and calcium deposits. The Board notes that in an April 1997 rating decision, the RO denied a claim of entitlement to a rating greater than 30 percent for residuals of fractured cervical spine with traumatic arthritis, spurs and calcium deposits. The veteran appealed, and in February 1999 the Board remanded the claim. However, in a letter received in January 2000, the veteran stated that he desired to withdraw his appeal on this issue. See 38 C.F.R. § 20.204(b) (2001). FINDING OF FACT The preponderance of the evidence is against the claim that the veteran's cirrhosis of the liver is due to medication taken for service-connected residuals of fractured cervical spine with traumatic arthritis, spurs and calcium deposits. CONCLUSION OF LAW Cirrhosis of the liver was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 1991 & 2001); 38 C.F.R. § 3.310 (2001); see also 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). REASONS AND BASES FOR FINDING AND CONCLUSION There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-4 75, 114 Stat. 2096 (2000). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA was implemented with the adoption of new regulations. See 66 Fed. Reg. 45, 620 (as amended, August 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). However, the regulations add nothing of substance to the new legislation and the Board's consideration of the regulations do not prejudice the appellant. See Bernard v. Brown, 4 Vet. App 384 (1993). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, although the RO did not have the benefit of the explicit provisions of the VCAA or the implementing regulations at the time of the decision on appeal, the Board finds that VA's duties have been fulfilled. First, VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C. §§ 5102 and 5103 (West 2001). The appellant was notified in the RO's March 1995 decision that the evidence did not show that the criteria had been met for a grant of service connection for cirrhosis of the liver secondary to a service-connected condition. He was again notified of the criteria required for secondary service connection in an April 1995 statement of the case (SOC), and in supplemental statements of the case (SSOC's), dated in October 1995, July 1996, September 1999 and February 2000. Therefore, the rating decision, as well as the SOC and the SSOC's, informed the appellant of the relevant criteria. VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes the discussions in the rating decision, SOC and the SSOC's sent to the appellant informed him of the information and evidence needed to substantiate this claim and complied with VA's notification requirements. Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. 38 U.S.C. § 5103A (West 2001). The appellant has not referenced any obtainable evidence not of record that might aid his claim or that might be pertinent to the basis for the denial of this claim. The RO also requested and obtained VA and non-VA medical records, and has obtained the veteran's available service medical records from the National Personnel Records Center. In February 1999, the Board remanded the claim for additional development, to include a VA examination. The veteran was afforded a VA examination in June 1999, and an etiological opinion was obtained. In addition, in July 2001, an opinion was obtained from an independent medical expert. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to notify and to assist the appellant in this case. Further development and further expending of VA's resources is not warranted. The veteran asserts that he has cirrhosis of the liver due to medication he took for his service-connected residuals of fractured cervical spine with traumatic arthritis, spurs and calcium deposits. Specifically, a review of the veteran's oral and written testimony, to include his claim, received in January 1995, and a letter, received in November 1999, shows that he argues that beginning in about 1987, he was provided with and used ibuprofen (800 milligram (mg.) doses), acetaminophen (500 mg. doses) and Gemfibrozil (600 mg. doses). He argues that he took these medications for about seven years. The Board notes that in February 1964, the veteran was granted service connection for residuals of a cervical spine injury with myositis and limited motion, evaluated as 10 percent disabling. Service connection for this condition was subsequently expanded to include traumatic arthritis, spurs and calcium deposits. In July 1995, his evaluation for this condition was increased from 10 percent to 30 percent. In June 1998, service connection was granted for headaches, evaluated as 10 percent disabling. In September 1999, the RO increased the evaluation for the veteran's cervical spine disability to 40 percent, increased the evaluation for his headaches to 30 percent, and granted a total disability rating based on individual unemployability due to service- connected disabilities. Service connection may be granted for a "[d]isability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a); Harder v Brown, 5 Vet. App. 183, 187-89 (1993). In addition, the U.S. Court of Appeals for Veterans Claims (Court) has held that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The medical evidence for consideration in this case includes VA outpatient treatment, examination and hospital reports, dated between 1993 and 1999. These reports include September 1993 VA hospital reports which show that the veteran was admitted for treatment of headaches and uncontrolled hypertension. The findings included hepatomegaly and a fatty liver. The veteran also received periodic treatment for neck pain beginning in 1994. A July 1994 report includes a notation that increased liver function test readings (AST and ALT) "could be [due to] Gemfibrozil." Reports, dated beginning in January 1995, note hepatomegaly as well as cirrhosis of the liver. A February 1995 report shows that the veteran reported that Motrin was of limited help in alleviating his neck pain and headaches. An April 1995 note from a VA physician, Patricia M. Edmundson, M.D., shows that Dr. Edmundson states that the veteran has early cirrhosis of the liver and hepatomegaly, with no history of alcohol intake or hepatitis. She further states, "There is a possibility that the cirrhosis may have been medication induced." A June 1995 VA spine examination report notes that the veteran cannot take nonsteroidals or Tylenol secondary to cirrhosis of the liver. The impression was that he had post-traumatic mechanical neck pain with post-traumatic arthritis that interferes with activities of daily living with concomitant intolerance to medical therapy. An August 1997 report shows treatment for abdominal symptoms, and notes that the veteran reported that he had cirrhosis secondary to medications. A September 1998 report from Dr. Edmundson shows that the veteran was noted to have a history of severe headache for about three years, and that he has required narcotics for pain control for about two years. A November 1998 report notes a history of treatment for headaches since 1987 that included Tylenol and Ibuprofen which caused cirrhosis. Reports from O. Ricalde, M.D., dated between 1996 and 1999, include an October 1997 report which notes a past medical history of "cirrhosis of the liver felt to be secondary to chemical exposure." The claims files contains reports from the Oconee Memorial Hospital (OMH), dated between 1997 and 1999, which show that the veteran was admitted on several occasions for treatment of gastrointestinal or respiratory symptoms. Three reports (one report dated in 1997, and two reports dated in 1999) note a "past medical history" that includes chronic liver disease or cirrhosis secondary to the use of nonsteriodal anti-inflammatories. The Board notes that the two 1999 reports were authored by Dr. Booker. Reports from Gastroenterology Associates (GA), dated between 1996 and 1999, include a December 1996 report which shows that the veteran was treated for gastrointestinal symptoms. The veteran reported a history of an endarterectomy in 1991 which included blood transfusions. The impression noted that it was possible that the veteran's liver changes may be due to diffuse fatty infiltration related to his hyperlipidemia and diabetes, and that he may have developed some scarring and cirrhotic pattern from this. It was further noted that the veteran's 1991 blood transfusion may have resulted in a subclinical type C viral hepatitis that led to cirrhosis of the liver. In an addendum to the December 1996 GA report, a VA physician, Patricia Edwards, M.D., wrote that the veteran had been evaluated four months previously for possible cirrhosis that was felt might be due to large quantities of Advil or Ibuprofen that he had been taking at the time for his neck pain. A June 1999 VA examination report shows that the veteran's medical history included a cervical fracture in 1957, diabetes mellitus controlled by insulin for about the past seven years, abdominal aortic aneurysm surgery in 1991 with blood transfusions, and coronary artery bypass surgery in 1996. Of particular note, the veteran reported his cervical fracture had been treated with 800 mg. doses of Ibuprofen and 500 mg. doses of acetaminophen, which had been discontinued in 1994, after he was diagnosed with hepatomegaly. The impression noted liver cryptogenic cirrhosis (i.e., cirrhosis of uncertain etiology). The examiner further noted that viral hepatitis had been excluded as the cause, and concluded that it was not "at least as likely as not" that the veteran's cirrhosis was caused by medications used to treat the veteran's cervical spine disorder. The examiner explained that although acetaminophen has been clearly associated with acute live injury, including fulminant hepatic failure, neither acetaminophen nor Ibuprofen were known to cause chronic liver disease resulting in cirrhosis. A letter from E. H. Booker, M.D., dated in January 2000, shows that Dr. Booker states that the etiology of the veteran's liver disease is unknown. He states that hepatitis and alcohol consumption could be ruled out, and that the veteran's liver disease became evident after taking "very large doses" of acetaminophen and Ibuprofen for his spine injury over "a very extended period of time." He states that both acetaminophen and Ibuprofen are known potential liver toxins and that "the assumption is that the veteran developed a psoriatic liver related [to] the long-term consumption of these medications for control of his neck and back pain." He stated that he had no further ideas as to etiology, and urged referral to a hepatologist. In September 2000, the Board requested an advisory medical opinion from an independent medical expert. See 38 C.F.R. § 20.901(a) (2001). Specifically, the Board requested that the entire claims file be reviewed and that an opinion provided as to whether it was at least as likely as not that medication used in treatment of the veteran's service- connected cervical spine disorder caused his liver disorder. In July 2001, an opinion was received from the Director of Pain Management, Loyola University Medical Center. The physician essentially noted the following: Gemfibrozil is not a pain medication, it is a lipid-lowering agent with the risk of elevating liver function tests; a September 1992 [sic] (the correct date is September 1993, as listed on page two) VA hospital report shows treatment for headaches and uncontrolled hypertension, and contains the first evidence of hyperlipidemia and hypercholesterolemia; in September 1993 the VA neurology department determined that the veteran had musculoskeletal pain, and started him on Motrin, extra- strength Tylenol and Flexeril (emphasis in original); the medical evidence does not show use of acetaminophen prior to September 1993; the veteran was noted to have been taking Percocet (which includes both Oxychodone and acetaminophen) as of 1997. The doctor noted that the articles submitted by the veteran indicate that hepatotoxicity may result from overdosage (emphasis in original). It was stated that a review of medical literature indicated that an overdose amount of acetaminophen was anywhere from 20 mg./kilogram (kg.) to 200 mg./kg. In the veteran's case, the evidence indicates that he was taking two grams of acetaminophen per day, which is below the recommended maximum dose. It was also noted that the veteran had repeatedly denied more than minimal alcohol use. The doctor concluded that it was unlikely that acetaminophen, Motrin or Tylenol caused the veteran's fatty liver problem or his cirrhosis, explaining that acute hepatic failure and injury can occur with acetaminophen overdose (emphasis in original) but not using acetaminophen as prescribed and under recommended maximum doses of four grams per day. The doctor's opinion is accompanied by supporting medical articles which discuss hepatotoxicity and drug-induced liver injury. The Board finds that the preponderance of the evidence is against the claim that the veteran's cirrhosis is related to a service-connected disability. Of particular note, the Board finds that independent medical expert's report is highly probative evidence against the claim. This report was based on a review of the claims files, and is accompanied by a detailed rationalization and citation to clinical findings, as well as supporting medical studies. It was concluded that the evidence did not show that liver disorders were related to use of painkillers, such as acetaminophen, in other than overdose amounts, nor did the evidence show that the veteran was taking overdose amounts of the claimed painkillers, or using alcohol in more than minimal amounts. The Board further notes that the medical expert's conclusion is consistent with the conclusion in the June 1999 VA examination report, in which the examiner determined that the veteran's cirrhosis was not related to his use of painkillers for his cervical spine disorder. The Board further points out that there is evidence of an alternative cause for the veteran's cirrhosis. Specifically, the December 1996 GA report noted the veteran's liver changes may be due to diffuse fatty infiltration related to his hyperlipidemia and diabetes (service connection is not currently in effect for these conditions). In reaching this decision, the Board has considered the various evidence in favor of the claim, including the comments on the etiology of the veteran's liver disorder as contained in VA outpatient treatment reports, as well as the reports from OMH, Dr. Edmundson, Dr. Booker and Dr. Edwards. However, the Board notes that many of these comments are "by history" only, and that they often appear in association with treatment that was primarily for other, unrelated physical conditions, such as gastrointestinal and respiratory symptoms. In addition, none of these comments appear to have been based on a review of the claims files, or other detailed medical history. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). In contrast, both the examiner who performed the June 1999 VA examination, and the independent medical expert, based their opinions on a review of the veteran's C-file. Furthermore, almost all of these comments, with the possible exception of Dr. Edmundson's April 1995 opinion and Dr. Booker's January 2000 opinion, are unaccompanied by a detailed rationale. Finally, the Board notes that when read in context, both Dr. Edmundson's April 1995 opinion and Dr. Booker's January 2000 opinion are equivocal in their terms. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board has considered the veteran's oral and written testimony submitted in support of his arguments that he has cirrhosis of the liver as a result of taking medications for a service-connected disability. However, without more his statements are not competent evidence of a nexus between cirrhosis of the liver and any service-connected disability. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, such as an opinion as to medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). The Board has considered the medical literature submitted in support of the veteran's claim. However, the Board notes that this literature was reviewed by Dr. Stotz, who explained that the veteran is not shown to have taken the requisite dosages of painkillers to cause liver disease, and who concluded that his liver disorder is not related to the medication taken for his service-connected cervical spine disorder. Accordingly, the Board finds that this evidence, even when considered in conjunction with the other favorable evidence of record, is outweighed by the evidence against the claim, and is insufficient to warrant a grant of service connection. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for cirrhosis of the liver is denied. C. W. SYMANSKI Member, Board of Veterans' Appeals