Citation Nr: 0634650 Decision Date: 11/08/06 Archive Date: 11/27/06 DOCKET NO. 00-04 405A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama ISSUE Entitlement to service connection for a liver disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran served on active duty from September 1977 to September 1980, from February 1982 to November 1983, and from April 1984 to July 1985. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a December 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. In June 2000 the veteran appeared and testified at an RO hearing in Montgomery, Alabama. A transcript of that hearing is of record. In October 2001 the Board remanded the case for further development, including acquisition of Social Security Administration (SSA) records. Those documents have been obtained and made a part of the record. In December 2004 the Board found that new and material evidence had been submitted to reopen the veteran's claims for entitlement to service connection for schizophrenia and a chronic liver disorder. The Board then remanded the issue of service connection for a psychiatric disorder for clarification of a January 2004 compensation and pension (C&P) examination opinion. The Board deferred consideration of the issue of entitlement to service connection for a liver disorder until a medical opinion was received as to whether the veteran's abuse of alcohol during service was due to primary alcohol abuse or whether the substance abuse disorder arose secondary to a psychiatric disorder which began during service. By a decision dated in March 2006, the RO granted service connection for schizoaffective disorder (claimed as schizophrenia) and rated this condition as 50 percent disabling from August 1998. In April 2006, the RO provided the veteran and his representative with a supplemental statement of the case which addressed the issue of entitlement to service connection for a chronic liver disorder. FINDINGS OF FACT 1. The veteran's claim for service connection for a liver disorder was filed after October 31, 1990, and his alcohol abuse disorder is not secondary to the service-connected psychiatric disorder. 2. The veteran's alcoholic hepatitis is secondary to his nonservice-connected alcohol abuse disorder. 3. Hepatitis C was not present in service, was first shown many years following service, and is not due to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. A liver disorder was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 105, 1101, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.301 (2005). 2. A liver disorder is not secondary to a service-connected disorder. 38 C.F.R. §§ 3.1, 3.301, 3.310 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty while in active military service. 38 U.S.C.A. §, 1110; 1112; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease 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). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the veteran's own willful misconduct; or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For purposes of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Service-connected means, with respect to disability, that such disability was incurred or aggravated in line of duty in the active military, naval, or air service. In line of duty means an injury or disease was incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct; or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.1(k), (m). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. 38 C.F.R. § 3.159. It is VA's defined and consistently applied policy to administer the law under a broad interpretation; consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Facts. The veteran reports that he has a liver disorder caused by his drinking, which he attributes to his service- connected psychiatric disorder. Service medical records (SMRs) include the following documentary evidence: * Entry examination reports - no liver abnormalities; no report of hepatitis or jaundice by the veteran. * SMR dated September 9, 1982, contains the following: "Final Diagnosis: Alcohol Abuse." * SMR dated September 10, 1982, contains the following: "the [veteran] stated that he began drinking at age 18, heavily at age 21, and that his drinking pattern progressively worsened." Also, "the [veteran] has a history of alcoholic hepatitis documented by a minimally elevated bilirubin on admission which has since returned to normal." * SMR dated September 11, 1984, contains the following diagnosis: "alcohol dependence." Another SMR dated September 11, 1984, advises: "self-admitted drinking problem to CAAC; family [history] of alcoholism; started drinking in h.s. [high school]." * SMR dated January 2, 1985, states "R/O [rule out] viral hepatitis." * SMR dated January 7, 1985, contains the following comments: "reevaluation for R/O hepatitis. Referred to Infectious Disease Clinic/ER Nav. Hosp. for further evaluation. Abnormally high liver panel results." Another SMR dated January 7, 1985, contains the following: "provisional diagnosis: viral hepatitis." * SMR dated January 9, 1985, contains the following: "taking antabuse; admitted with elevated liver function studies; felt to be [secondary] to either viral or antabuse; HBAG [illegible] are negative; stop antabuse." * SMR dated January 31, 1985, contains the following comments: "probable alcohol hepatitis - still effective evidence of alcohol intake with alcohol of 0.15 on [date] as well as persistently elevated LFTs." * SMR dated in March 1985 contains the following comments: "began moderate social drinking at age 16 with a large increase in consumption after age 21 while on active duty;" also, "well documented history of substance abuse/dependency. * SMR dated in April 1985 advises: "liver or kidney trouble - No." * SMR dated in May 1985 (separation examination) indicates history of "alcohol hepatitis." * Service discharge document contains the following comment: "Alcohol Abuse Rehabilitation Failure." VA treatment records dating from July 1985 document a post- service history of alcohol abuse and intravenous drug (cocaine) use. Treatment records dated in July 1985 advise that "in the abdomen, the liver is palpable 1 cm. (centimeter) below the costal margin," and later note the veteran's "marked liver dysfunction." In June 2002 the veteran underwent a C&P "liver, gall bladder, and pancreas" examination. The examiner reported that the entire case file was reviewed pursuant to this examination. Diagnostic and clinical tests yielded the following liver function results: "sgot 45 (h); sgpt 80 (h) ; ggt 36 (H) ; ultrasound of the abdomen/liver - normal." According to the examiner, "liver at midclavicular line, 10- 11 cm. Edge of liver is soft. No complaints of tenderness." Diagnoses were as follows: 1) Hepatitis C, positive titer 2) Long Standing diagnosis of alcohol abuse, detoxification and alcoholic hepatitis. 3) Drug addiction and abuse. 4) Diabetes mellitus, type II, adult onset with oral meds 5) Hypertension 6) Liver damage secondary to alcohol abuse A C&P psychiatric examination done in January 2004 also included review of the entire case file. According to the examiner, the veteran's in-service elevated liver function test results "could be related to hepatitis secondary to his alcohol use." The examiner then stated that: It is the impression of the examiner that a lot of medical evidence looking at the C-file that [the veteran's] main problem may be related to the alcohol abuse. His liver impairment is also secondary to alcohol abuse. A C&P psychiatric examination done in June 2005 also included review of the entire case file. According to the examiner, While alcohol abuse may well have masked a developing psychiatric disorder, it is less likely that [the] veteran's abuse of alcohol during service was secondary to his psychiatric disorder, as the alcohol abuse had already persisted from an early age. In a rating decision dated in March 2006 the veteran was granted service connection for a schizoaffective disorder, with an evaluation of 50 percent, effective August 21, 1998. In that decision the RO noted the June 2005 examiner's opinion that the veteran's alcohol abuse did not result from his schizoaffective disorder, but rather preceded it. The veteran is not service-connected for any other disorders. Analysis. In-service liver function testing done in January 1985 showed elevated readings; however, the Board notes that these findings were concomitant with "effective evidence of alcohol intake." Final diagnosis was alcohol hepatitis. Since this disorder is the result of alcohol abuse, it is deemed not to have been incurred in the line of duty. See 38 C.F.R. § 3.301(d). Consequently, direct service connection cannot be granted. VA treatment records dating from July 1985 document a history of intravenous drug use. The veteran was apparently diagnosed with hepatitis C circa 1992, several years after his release from service and after his use of intravenous drugs. There is no evidence which tends to link hepatitis C to any incident of his military service. According to the June 2002 and January 2004 C&P examiners, the veteran's liver damage stems from his nonservice-connected alcohol abuse disorder. The record contains no competent medical evidence to the contrary. In fact, the June 2005 examiner advises that it is less likely that the veteran's alcohol abuse disorder resulted from his psychiatric disorder, since the alcohol abuse disorder "had already persisted from an early age." As the veteran's alcohol abuse disorder does not stem from a service-connected disorder, service connection pursuant to 38 C.F.R. § 3.310(a) must be denied. In addition to the foregoing, the veteran's claim was filed after October 31, 1990. According to 38 C.F.R. § 3.301, service connection may not be granted for claims filed after October 31, 1990, when a disability is the result of the veteran's abuse of alcohol or drugs. Accordingly, service connection must be denied as a matter of law. 38 C.F.R. § 3.301(a); Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). Although the veteran claims that his abuse of alcohol while in service is tantamount to self medicating for his psychiatric disorder, the evidence clearly shows that the alcohol disorder preceded the psychiatric disorder; not vice versa. Moreover, while the veteran is competent, as a lay witness, to testify with respect to his symptoms, he is not qualified to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board has considered the doctrine of reasonable doubt, but finds, for the reasons just expounded, that the evidence is not in relative equipoise. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. VA has met the notice and duty to assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Letters from the RO dated in January 2002 and March 2005 essentially satisfied the duty to notify provisions. SMRs, VA, and SSA records have been obtained and made a part of the file. The veteran has also been accorded multiple examinations for disability evaluation purposes, and testified at an RO hearing. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. Consequently, the Board finds that VA has met the duties to notify and assist as to the issues decided herein. To the extent that VA has failed to fulfill any duty to notify or assist the veteran, the Board finds that error to be harmless. ORDER Service connection for a liver disorder is denied. ____________________________________________ GARY L. GICK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs