Citation Nr: 0308930 Decision Date: 05/12/03 Archive Date: 05/20/03 DOCKET NO. 95-38 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a liver disorder. 2. Entitlement to an initial rating greater than 10 percent for chronic fatigue due to undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The veteran had active service from June 1975 to June 1979, from November 1990 to May 1991, and from September 2001 to November 2002. This appeal to the Board of Veterans' Appeals (Board) arises from a September 1995 rating decision which granted service connection for chronic fatigue due to undiagnosed illness; a 10 percent rating was assigned, effective November 2, 1994. A November 1997 rating decision, in part, denied service connection for a liver disorder classified as hepatitis/fatty liver and for duodenitis. In correspondence received in October 1995, the veteran requested a Travel Board hearing. He subsequently provided a statement in June 1998 withdrawing his request for a Travel Board heating. The Board issued a decision in October 2001 which granted service connection for duodenitis. In addition, the Board remanded for further development the issues of service connection for a liver disorder and an increased rating for chronic fatigue due to undiagnosed illness. The case has been returned to the Board for continuation of appellate review. The decision which follows addresses the issue of service connection for a liver disorder. The issue of an initial rating greater than 10 percent for chronic fatigue due to undiagnosed illness is addressed in the REMAND at the end of this decision. FINDING OF FACT The veteran's chronic liver disorder, classified as macrovesicular steatosis, is attributable to military service. CONCLUSION OF LAW Macrovesicular steatosis was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION During the pendency of the veteran's appeal, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. Pub. L. No. 106-475, 114 Stat. 2096 (2000). The VCAA is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Following the RO's determination of the veteran's claims, VA issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2002) . The VCAA and the implementing regulations pertinent to the issues on appeal are liberalizing and are therefore applicable to the issues on appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The Act essentially eliminates the requirement that a claimant submit evidence of a well-grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). As explained below, the Board has found the evidence and information currently of record to be sufficient to substantiate the veteran's claim of service connection for a liver disorder. As such, the Board is satisfied that VA has complied with both the notification requirements, see Quartuccio v. Principi, 16 Vet. App. 183 (2002), and the duty to assist requirements of the VCAA and the implementing regulations relevant to that portion of the veteran's appeal. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A review of the claims file shows that the veteran was deployed in the Southwest Asia theater of operations during the period from November 1990 to May 1991. He received the Southwest Asia Service Medal and the Kuwait Liberation Medal. A service department treatment entry of October 1976 contains a diagnosis of infections hepatitis. Service medical records show elevated liver function test results involving the levels of serum glutamic oxalacetic transaminase (SGOT) on 2 occasions in November 1976. There are no subsequent normal readings. The next elevated liver function studies were noted during tests by VA in September and December 1992. The report of the December 1992 VA examination indicated that hepatitis antigens were negative. The doctor expressed the opinion that the veteran had a hepatitis-like illness which could not be fully characterized. The doctor thought it might be related to Desert Storm and might not be chronic. In March 1993, hepatitis tests were negative. A biopsy in March 1993 revealed macrovesicular steatosis. The doctor commented that the changes were non-specific and could be associated with various conditions. Liver function tests in June 1993 had elevated results. In a report dated in September 1993, a VA physician explained that there was no clear underlying reason for the veteran's liver abnormalities. On a VA psychiatric examination performed in May 1995, the veteran reported that he was exposed to chemical and biological agents in the Persian Gulf War during his tour of active duty which spanned the period from November 1990 to May 1991. He related that he was exposed to oil well fires. He indicated that sometimes chemical alarms sounded, but the troops were told to ignore them, and so did not don protective gear. He noted that nearby chemical plants were bombed and believed that chemical/biological agents were dispersed in the wind and might have drifted to the area where he was serving. In correspondence received in October 1995, the veteran remarked that, during Desert Storm, he was exposed to phosphorus, carbon tetrachloride, carbon monoxide, microwave radiation, depleted uranium, and oil and natural gas fumes from fires of destroyed oil and natural gas facilities. In March 1998, there were elevated liver function studies. A VA doctor associated the veteran's fatigue with elevated liver transaminase. The recent findings raised the possibility that the veteran had a chronic liver disorder. The Board determined that further development of the evidence was needed to determine the correct current diagnosis of the veteran's liver disorder and to determine a relationship, if any, of the current liver disorder to his military service. Added to the record in January 2002 was a report of the veteran's admission in October 1976 to the emergency room of St. Anthony's Hospital. A service department document shows that the government subsequently reimbursed the private medical facility for emergency service rendered in October 1976 for hepatitis. A VA examination by a specialist in gastrointestinal disorders was performed in July 2002 pursuant to instructions contained in the Board's October 2001 remand. The examiner stated that the veteran's claims file had been reviewed. The examiner summarized pertinent evidence from service and postservice medical records and performed an examination. The assessment follows. It was found that the veteran had a clearly proved macrovesicular steatosis as the source of his chronic persistent elevation in his liver transaminases (according to a liver biopsy). This entity was quite common and had several causes, alcohol consumption being the most common cause, but not the only one. The veteran did not have a history of alcohol use presently or in the remote past. Other causes of steato hepatitis were obesity, diabetes mellitus, protein malnutrition, jejunoileal bypass, total parenteral nutrition, hyperlipidemia and toxins. Acute fatty liver was caused by a number of hepatotoxins and was frequently accompanied by signs and symptoms of liver failure. Carbon tetrachloride intoxication, DDT poisoning, and ingestion of substances containing yellow phosphorus resulted in severe hepatic steatosis. The examiner went on to note that, from all the possible etiologies for the veteran's liver steatosis, the only possible ones in this case were hyperlipidemia and toxins. His lipids were only mildly elevated in 1992. However, the veteran reported exposure to carbon tetrachloride and phosphorus during Desert Storm. In view of the veteran's Persian Gulf War service and his assertions about exposure to toxins during that conflict, coupled with diagnostic uncertainties about the nature of his liver disorder, adjudication and evidentiary development in this case had focused on the issue of service connection for undiagnosed illness related to liver pathology. However, a VA specialist, who examined the veteran in July 2002, has now identified the veteran's liver disorder as macrovesicular steatosis, a definite disease entity. The examiner related the chronic liver disorder to reported in-service toxin exposure, and the Board accepts the credibility of the veteran's statements regarding exposure to toxins during the Persian Gulf War. The examiner's well- reasoned opinion was informed by a review of the claims file and resolves earlier ambiguities regarding the diagnosis of the veteran's liver disorder as well as its etiology. The weight of the medical evidence, then, supports a grant of service connection for a diagnosed liver disorder, classified as macrovesicular steatosis, on the basis that it is attributable to the veteran's service during the Persian Gulf War. In reaching this determination, the Board has resolved all reasonable doubt in the veteran's favor. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for a liver disorder is granted. REMAND In correspondence received in 1998, the veteran alleged he had missed 5-1/2 weeks of work during that year and had required much bed rest because of his fatigued state. He has not provided official documentation from an employer or from private medical sources verifying the alleged prolonged period of absence from work. The Board notes that the RO has informed the veteran in general terms of the importance of identifying records of private treatment providers. However, the RO has not called his attention to the possibility of obtaining employer and medical statements which might help to substantiate the allegation about time lost from work because of chronic fatigue due to undiagnosed illness. In view of the foregoing, the case is REMANDED to the RO for the following: 1. The RO must review the claims folder and ensure that all notification and development required by the VCAA, Pub. L. No. 106-475, is completed. In particular, the RO should ensure that the new notification requirements and development procedures, contained in sections 3 and 4 of the Act, now codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107, are fully satisfied. 2. Ask the veteran to supply names and addresses of all private medical providers that have treated him for fatigue symptoms or chronic fatigue syndrome since November 1994. These records should include notation to the frequency and duration of any periods of recommended or prescribed bed rest. As well, obtain any additional up-to-date VA medical records of his treatment for fatigue symptoms or chronic fatigue syndrome. 3. Ask the veteran to furnish employment records and any correspondence from an employer that would verify his contentions pertaining to time lost from work or sick leave used due to a condition stemming from chronic fatigue. 4. When the development requested above has been completed, and any other necessary development, the case should be readjudicated by the RO. If the remaining benefit sought on appeal is not granted to the veteran's satisfaction, then the RO should issue a Supplemental Statement of the Case (SSOC) and provide the veteran and his representative an appropriate opportunity to respond. The veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.