Citation Nr: 0638253 Decision Date: 12/08/06 Archive Date: 12/19/06 DOCKET NO. 05-09 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a liver disorder. 2. Entitlement to an initial compensable evaluation for the post-operative residuals of a left anterior cruciate ligament reconstruction with medial meniscus tear. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant served on active duty from November 1998 to August 2003, when he received a medical disability discharge. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2004 rating decision rendered by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the appellant's claim for service connection for elevated liver function tests. In that rating decision, the RO also granted service connection for a left knee disability and assigned an evaluation of zero percent. The veteran has appealed from a rating decision that awarded service connection for the left knee disability and assigned a zero (noncompensable) percent rating. As such, the guidance of Fenderson v. West, 12 Vet. App. 119 (1999) is for application. The Board has therefore listed the left knee issue on the title page as one of entitlement to a higher initial rating. In August 2005, a Board hearing was held at the RO before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. At that hearing, the appellant submitted additional evidence concerning his increased initial rating claim; this evidence consisted of copies of private medical records demonstrating that the appellant underwent left knee surgery in December 2004. The appellant also submitted a written waiver of review of that evidence by the agency of original jurisdiction and therefore referral to the RO of evidence received directly by the Board is not required. 38 C.F.R. § 20.1304. However, as this issue is being remanded, the RO will be afforded the opportunity to review that evidence. Also during that hearing, the appellant raised the issue of entitlement to service connection for a right knee disorder claimed as secondary to the left knee disability. The matter is referred to the RO for appropriate action. The issue of a compensable initial evaluation for the left knee disability is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Based on the clinical findings of record, the appellant has nonalcoholic fatty liver disease (NAFLD) that was first manifested during his active military service. CONCLUSION OF LAW The criteria for the establishment of service connection for nonalcoholic fatty liver disease (NAFLD) are met. 38 U.S.C.A. §§ 1110, 1154, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease began in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a). Under Diagnostic Code 7345, chronic liver disease, various liver conditions are rated from zero to 100 percent. These conditions include, but are not limited to, Hepatitis B, chronic active hepatitis, autoimmune hepatitis, hematochromatosis and drug-induced hepatitis. A zero percent evaluation is assigned when the liver disability is nonsymptomatic. Review of the service medical records reveals that the appellant underwent a service entrance examination in November 1998; no liver disease or pathology was clinically observed or noted. The appellant was first seen for follow- up of elevated liver enzymes in late 2002. In December 2002, the appellant underwent an abdominal ultrasound; the associated report indicates that the liver looked like a severe case of fatty infiltration. The appellant underwent a CT scan of the abdomen the next month; the clinical impression was large liver with marked fatty infiltration especially for the age and habitus of the patient and these findings suggested hepatitis (nonalcoholic steatohepatitis (NASH)). A DD Form 2697, dated in May 2003, states that the appellant had been diagnosed with fatty liver disease secondary to unknown cause with no history of alcohol abuse. Post-service, the appellant underwent a VA medical examination in June 2004; the physician who examined the appellant noted that the appellant was taking Vitamin E for his liver. The doctor rendered a diagnosis of nonalcoholic fatty liver disease (NAFLD). Given that the veteran is presumed to have been in sound condition at entry, the evidence of record indicates that the appellant experienced NAFLD approximately four years after his entry into service, and that this condition has persisted to the present time. There is no medical opinion of record to contradict such a conclusion. Entitlement to service connection for NAFLD is therefore warranted. ORDER Service connection for NAFLD is granted, subject to the statutes and regulations governing the payment of monetary awards. REMAND A determination has been made that additional evidentiary development is necessary with respect to the issue remaining. Accordingly, further appellate consideration will be deferred and this case remanded to the RO for action as described below. The appellant underwent surgery in service to repair his anterior collateral ligament and a medial meniscus tear; he is service-connected for the post-operative residuals of the left knee. He was assigned an initial noncompensable evaluation for the service-connected residuals. The only residual rated by the RO was quadriceps atrophy. However, review of the service medical records indicates that the Medical Evaluation Board (MEB) found that the appellant had an area of hypoesthesia over the lateral knee that was lateral to the surgical incision. The June 2004 VA medical examination describes an eight-centimeter scar on the left knee. There is no further description of this scar. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. One exception to this general rule, however, is the anti-pyramiding provision of 38 C.F.R. § 4.14, which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. In Esteban v. Brown, 6 Vet. App. 259 (1994), the United States Court of Appeals for Veterans Claims (hereinafter Court) held that the described conditions in that case warranted 10 percent evaluations under three separate diagnostic codes, none of which had a rating criterion the same as another. The Court held that the conditions were to be rated separately under 38 C.F.R. § 4.25, unless they constituted the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14. Esteban, at 261. The critical element cited was "that none of the symptomatology for any one of those three conditions [was] duplicative of or overlapping with the symptomatology of the other two conditions." Id. at 262. The RO has not yet addressed all of the symptomatology associated with the left knee surgery residuals. For example, there has been no mention of the surgical scar that resulted from either the in-service left knee procedure or the December 2004 procedure. In this case, consideration of a separate compensable rating for the scarring of the left knee area due to surgery is indicated as part of the left knee surgery residuals issue on appeal, including whether any nerve damage is present. In addition, the appellant advised the RO, in November 2004, that he was to undergo surgery on his left knee in the next month. The RO apparently took no steps to obtain the associated records and apparently has not considered whether or not the appellant's left knee disability includes knee joint pathology in addition to the left quadriceps atrophy. The August 2005 written statement from the appellant's treating orthopedic surgeon indicates that the appellant also has traumatic arthritis of the left knee associated with the service-connected disability. The medical evidence of record is insufficient for the Board to render a decision on the severity of the appellant's left knee disability from initial grant of service connection to the present. The considerations described above require a remand for further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Finally, the VA examination of June 2004 does not reflect review of the appellant's claims file in conjunction with the examination. The appellant must be afforded an examination that includes review of the claims file. Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2005) and implementing regulations found at 38 C.F.R. § 3.159 (2006) is completed. In particular, the AMC/RO must notify the appellant of the information and evidence needed to substantiate his claim, and of what part of such evidence he should obtain and what part the Secretary will attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant should be told to submit all pertinent evidence regarding his claim he has in his possession. 2. All VA medical treatment records relating to treatment of the appellant's knees not already of record should be identified and obtained. These records should be associated with the claims file. If there are no records, documentation used in making that determination should be included in the claims file. 3. The AMC/RO should contact the appellant to obtain the names and addresses of all medical care providers, private or government, who have treated him for any knee problems. After securing the necessary release(s), the AMC/RO should obtain those records that have not been previously secured. In particular, the records from the appellant's private orthopedist in Elizabeth City, NC must be obtained. To the extent there is an attempt to obtain records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant should also be informed of the negative results, and should be given opportunity to submit the sought-after records. 4. After the above development is completed, the AMC/RO should schedule the appellant for appropriate VA medical examination(s) to accurately determine and delineate all the residuals of the left knee surgeries. All appropriate tests, including x-rays, should be conducted and the examiner(s) should review the results of any testing prior to completion of any report. The appellant's claims file, including a copy of this remand, the service medical records and any additional records obtained pursuant to the development requested above must be made available to the examiner(s) for review in conjunction with the examination(s). Each examiner should state in the report whether said claims file review was conducted. The examiner(s) should be requested to specifically identify each specific nerve, muscle, bone or portion of skin affected by the left knee surgery and comment upon the nature, extent, and current degree of impairment manifested. The examiner(s) should describe all symptomatology due to the appellant's service-connected left knee disability. The rationale for all opinions expressed should also be provided. In particular, the examiner(s) must describe in detail the relative degree or percentage of sensory manifestation or motor loss due to nerve damage (to include identification of each nerve so affected), as well as the relative degree or percentage of the loss, if any, of left knee function. Specific findings should be made with respect to the location, size and shape of the scar(s) from the left knee surgeries with a detailed description of any associated pain or tenderness as well as the presence of any disfigurement or any limitations caused by any adhesions or nerve impairment. The examiner(s) should state whether or not any arthritis of the left knee is attributable to the veteran's military service, pre- or post-service trauma, or some other cause or causes. In reporting the results of range of motion testing, the examiner(s) should identify any objective evidence of pain and the specific limitation of motion, if any, accompanied by pain. To the extent possible, the examiner(s) should assess the extent of any pain. Tests of joint movement against varying resistance should be performed. The examiner(s) should also describe the existence and severity of any lower extremity muscle atrophy, any knee arthritis, any anterior laxity or lateral instability of the left knee, any incoordination, any weakened movement and any excess fatigability on use. The examiner(s) should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare- ups (if the appellant describes flare- ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. 5. Upon receipt of the VA examination report(s), the AMC/RO should conduct a review to verify that all requested opinions have been provided. If information is deemed lacking, the AMC/RO should refer the report to the VA examiner(s) for corrections or additions. See 38 C.F.R. § 4.2. 6. Thereafter, the AMC/RO should consider all of the evidence of record and re-adjudicate the appellant's claim. Consideration should be given to the possibility of separate ratings for scars, paralysis of a nerve, traumatic arthritis (Diagnostic Code 5010) and any other potential sources of a further disability rating of the left knee surgery residuals, including functional loss due to pain. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories; 38 C.F.R. §§ 3.321, 4.40, 4.59; Esteban v. Brown, 6 Vet. App. 259 (1994); and DeLuca v. Brown, 8 Vet. App. 202 (1995). 7. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is hereby notified that it is the appellant's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs