Citation Nr: 0832813	
Decision Date: 09/24/08    Archive Date: 09/30/08

DOCKET NO.  07-32 164	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Propriety of severance of, and entitlement to restoration of, 
compensation under 38 U.S.C.§ 1151 for non-alcoholic fatty 
liver disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARINGS ON APPEAL

Appellant and D.S.


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from 
July 1980 to July 1983.  This matter is before the Board of 
Veterans' Appeals (Board) on appeal from a July 2004 rating 
decision by the Cleveland, Ohio Department of Veterans 
Affairs (VA) Regional Office (RO).  In July 2008, a Travel 
Board hearing was held before the undersigned.  A transcript 
of the hearing is associated with the claims file.


FINDINGS OF FACT

1.  A July 2004 rating decision granted the veteran 
compensation under 38 U.S.C.A. § 1151 for non-alcoholic fatty 
liver disease, effective January 31, 2003, essentially on the 
basis that the disease resulted from VA's prescription of 
simvastatin.

2.  In December 2004, the RO proposed to sever compensation 
for the veteran's non-alcoholic fatty liver disease under 
38 U.S.C.A. §  1151 on the basis that the liver disease was 
not caused by VA's prescription of simvastatin; an August 
2005 rating decision implemented the severance, effective 
November 1, 2005.

3.  When the RO granted compensation under 38 U.S.C.A. § 1151 
for non-alcoholic fatty liver disease, the evidence showed 
that the veteran's liver disease was caused by VA's 
prescription of simvastatin and there was no evidence to the 
contrary; it is not undebatable that compensation under 
38 U.S.C.A. § 1151 was not warranted, and the grant of 
compensation under 38 U.S.C.A. § 1151 was not clearly and 
unmistakably erroneous.


CONCLUSION OF LAW

The severance of compensation for non-alcoholic fatty liver 
disease under 38 U.S.C.A. § 1151 was improper; restoration of 
compensation under 38 U.S.C.A. §  1151 for such disease is 
warranted.  38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 
2008); 38 C.F.R. §§ 3.102, 3.105(d), 3.361 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a).  The VCAA applies to the instant claim.

Because the determination below constitutes a full grant of 
the claim, there is no reason to belabor the impact of the 
VCAA on this matter, since any error in notice content or 
timing is harmless

II.  Factual Background

A VA treatment record dated September 25, 1997, notes that 
the veteran was prescribed simvastatin for his 
hyperlipidemia.  Upon examination that day, the abdomen was 
benign.  Liver function tests were ordered.

A March 2001 VA treatment record notes that the veteran began 
having a reaction to simvastatin-diarrhea and stomach pain-in 
1998.

A September 2002 surgical pathology report notes that the 
veteran's liver enzymes were abnormal.  A liver biopsy 
revealed steatotic liver disease, which the pathologist 
attributed to diabetes mellitus, obesity, or medication 
effects.  

In January 2003, the veteran submitted a claim for 
compensation under 38 U.S.C.A. § 1151 for non-alcoholic fatty 
liver disease.

In a January 2004 statement, Dr. T.W. stated that he had 
first seen the veteran for complaints of abdominal pain in 
October 1998.  He noted that the veteran was taking Zocor at 
that time.  Laboratory studies showed no problems which could 
have precipitated the veteran's abdominal pain.  Abdominal 
CT, abdominal X-ray and cholecystogram were all negative.  
Gallbladder ultrasound revealed some biliary sludge.  The 
veteran eventually developed abnormal liver enzymes and 
stopped taking Zocor.  A September 2002 liver biopsy revealed 
severe fatty liver changes.  Dr. T.W. opined, "I believe it 
is very possible that his abdominal pain and liver pathology 
are the result of his use of simvastatin."

In a March 2004 statement, Dr. S.N.M. indicated that he saw 
the veteran for evaluation of his liver disease.  He stated 
that the veteran developed abnormal liver enzymes following 
treatment with Zocor.  He stated, "According to the record 
that I have received his liver enzymes were normal prior to 
the treatment with Zorcor (sic).  In my opinion liver enzymes 
abnormalities most likely were results of treatment with 
Zocor although it somewhat difficult to establish a 
cause/effect relationship.  However it seems fairly clear 
that Zocor probably caused his liver disease."

A July 2004 rating decision granted the veteran compensation 
under 38 U.S.C.A. § 1151 for non-alcoholic fatty liver 
disease.  

An October 2004 VA examination report notes that VA 
prescribed simvastatin for the veteran's hyperlipidemia in 
September 1997.  At that time, blood was drawn to check liver 
function studies; ALT returned elevated at 60.  The examiner 
opined that this clearly demonstrates that the veteran had 
liver disease before he was prescribed simvastatin; moreover, 
the veteran's liver disease was not caused or aggravated by 
simvastatin.  The VA examiner further noted that other common 
etiologies of liver disease included obesity and 
hyperlipidemia, both of which the veteran had.  

In a December 2004 rating decision, the RO proposed to sever 
compensation for non-alcoholic fatty liver disease under 
38 U.S.C.A. § 1151 on the basis of clear and unmistakable 
error in the initial grant.  Specifically, the RO noted that 
the October 2004 VA examiner opined that the veteran had 
liver disease prior to VA's prescribing simvastatin.

In an August 2005 rating decision, compensation under 38 
U.S.C.A. § 1151 for non-alcoholic fatty liver disease was 
severed, effective November 1, 2005.
In July 2007, a VA physician reviewed the veteran's claims 
file and noted that on September 25, 1997, the veteran's ALT 
was elevated at 60.  That same day, simvastatin was 
prescribed.  During his treatment with simvastatin, the 
veteran's liver function tests were monitored and never 
exceeded three times the upper normal limit.  The veteran was 
ultimately diagnosed with non-alcoholic fatty liver disease 
in 2002.  The VA physician opined the veteran had evidence of 
liver disease on September 25, 1997, before he was prescribed 
simvastatin.  He further opined that the VA exercised the 
care expected of a reasonable health care provider because 
the veteran's liver function tests were monitored during his 
treatment with simvastatin; these tests never exceeded the 
acceptable range for persons on statins (such as 
simvastatin).  Finally, the VA physician cited to medical 
studies which show that the use of statins is safe for 
persons with fatty liver disease and studies which show that 
non-alcoholic liver disease is not caused by the use of 
simvastatin.

III.  Legal Analysis

When a veteran suffers additional disability as the result of 
training, hospital care, medical or surgical treatment, or an 
examination by VA, disability compensation shall be awarded 
in the same manner as if such additional disability were 
service-connected.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.

For claims filed on or after October 1, 1997, the veteran 
must show that the VA treatment in question resulted in 
additional disability and that the proximate cause of the 
disability was carelessness, negligence, lack of proper 
skill, error in judgment, or similar instance of fault on 
VA's part in furnishing the medical or surgical treatment, or 
that the proximate cause of additional disability was an 
event which was not reasonably foreseeable.  See VAOPGCPREC 
40-97; 38 U.S.C.A. § 1151.

To determine whether a veteran has additional disability, VA 
compares the veteran's condition immediately prior to the 
beginning of medical or surgical treatment to the veteran's 
condition after such care has ceased.  38 C.F.R. § 3.361(b).  
To establish actual causation, the evidence must show that 
the hospital care, medical or surgical treatment, resulted in 
the veteran's additional disability.  Merely showing that a 
veteran received care, treatment, or examination and that the 
veteran has an additional disability does not establish 
cause.  38 C.F.R. § 3.361(c).

To establish that fault on the part of VA caused the 
additional disability, it must be shown that VA hospital 
care, medical or surgical treatment or examination caused the 
veteran's additional disability and that VA failed to 
exercise the degree of care expected of a reasonable health 
care provider, or furnished the hospital care, medical 
treatment, or surgery, without the veteran's informed 
consent.  38 C.F.R. § 3.361(d).

Generally, service connection will be severed only where 
evidence establishes that the original grant of service 
connection was clearly and unmistakably erroneous, the burden 
of proof being upon the Government (emphasis added).  38 
C.F.R. § 3.105(d).  Once service connection has been granted, 
it can be severed only upon a VA showing that the rating 
decision granting service connection was clearly and 
unmistakably erroneous, and only after certain procedural 
safeguards have been met.  38 C.F.R. § 3.105(d); Daniels v. 
Gober, 10 Vet. App. 474 (1997).  Thus, the burden of proof in 
severing service connection is on the Government, and this 
burden is the same as a claimant's burden in attempting to 
overturn a final decision on the basis of clear and 
unmistakable error (CUE).

The U.S. Court of Appeals for Veterans Claims has propounded 
a three-pronged test to determine whether CUE is present in a 
prior determination: (1) either the correct facts, as they 
were known at the time, were not before the adjudicator 
(i.e., more than a simple disagreement as to how the facts 
were weighed or evaluated) or the statutory or regulatory 
provisions extant at that time were incorrectly applied; (2) 
the error must be "undebatable" and of the sort "which, had 
it not been made, would have manifestly changed the outcome 
at the time it was made"; and (3) a determination that there 
was CUE must be based on the record and law that existed at 
the time of the prior adjudication in question.  Damrel v. 
Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 
Vet. App. 310, 313-14 (1992).

The Court has further stated that a CUE is a very specific 
and a rare kind of "error."  It is the kind of error, of fact 
or of law, that when called to the attention of later 
reviewers compels the conclusion, to which reasonable minds 
could not differ, that the result would have been manifestly 
different but for the error.  Thus, even where the premise of 
error is accepted, if it is not absolutely clear that a 
different result would have ensued, the error complained of 
cannot be, ipso facto, clear and unmistakable.  Fugo v. 
Brown, 6 Vet. App. 40, 43-44 (1993).

The Court has held that the same CUE standard which applies 
to a veteran's CUE challenge to a prior adverse determination 
under 3.105(a) is also applicable in the Government's 
severance determination under 3.105(d)).  "Once service 
connection has been granted, section 3.105(d) provides that 
it may be withdrawn only after VA has complied with specific 
procedures and the Secretary meets his high burden of proof."  
See Wilson v. West, 11 Vet. App 383 (1998); see also Baughman 
v. Derwinski, 1 Vet. App. 563, 566 (1991) ("In effect, § 
3.105(d) places at least as high a burden of proof on the VA 
when it seeks to sever service connection as § 3.105(a) 
places upon an appellant seeking to have an unfavorable 
previous determination overturned.").  See also Graves v. 
Brown, 6 Vet. App. 166, 170 (1994) (holding that clear and 
unmistakable error is defined the same under 38 C.F.R. § 
3.105(d) as it is under § 3.105(a)).

However, the evidence that may be considered under section 
3.105(d) is not limited to the evidence before the RO at the 
time of the initial service connection award.  Daniels v. 
Gober, 10 Vet. App. 474, 480 (1997); cf. Venturella v. Gober, 
10 Vet. App. 340, 342-43 (1997).  The Court reasoned that 
because section 3.105(d) specifically contemplates that a 
change in diagnosis or change in law or interpretation of law 
may be accepted as a basis for severance, the regulation 
contemplates the consideration of evidence acquired after the 
original granting of service connection.  Thus, "[i]f the 
Court were to conclude that . . . a service connection award 
can be terminated pursuant to section 3.105(d) only on the 
basis of the law and record as it existed at the time of the 
award thereof, the VA would be placed in the impossible 
situation of being forever bound to a prior determination 
regardless of changes in the law or later developments in the 
factual record."  Venturella, at 342-43.  In the present 
case, the procedural steps followed by the RO in proposing 
and implementing the severance of compensation under 38 
U.S.C.A. § 1151 for non-alcoholic fatty liver disease 
satisfied the requirements of 38 C.F.R. § 3.105(d).  The 
veteran does not contend otherwise.

The Board notes that compensation for non-alcoholic fatty 
liver disease under 38 U.S.C.A. § 1151 was severed based on 
the report of the October 2004 VA examiner who found that the 
veteran had liver disease before he was prescribed 
simvastatin by VA.  The VA examiner further noted that other 
common etiologies of liver disease include obesity and 
hyperlipidemia, both of which the veteran has.  The VA 
examiner did not specifically address the January 2004 and 
March 2004 medical opinions from the veteran's private 
physicians which note that the veteran first complained of 
abdominal pain about a month after VA prescribed simvastatin 
and attribute the veteran's liver disability to the 
prescription simvastatin.  Given the competent and 
essentially unrebutted private medical opinions in the 
record, that there was error in the July 2004 rating decision 
granting compensation under the provisions of 38 U.S.C.A. § 
1151 for non-alcoholic fatty liver disease remains debatable.  
Notably, the severance was not based on either a change in 
diagnosis or on a change in the law.  See Venterulla, supra.  
It was based on interpretation of the facts by a subsequent 
reviewing physician.  The fact that liver disease may have 
pre-existed VA's prescription of simvastatin does not 
preclude a finding that such prescription may have aggravated 
the liver disease.  It does not appear to be in dispute that 
the liver disease became more symptomatic after treatment 
with simvastatin was initiated (albeit the cause of the 
increased disability is disputed).  Therefore, the record 
does not establish that the award of compensation for non-
alcoholic fatty liver disease under 38 U.S.C.A. § 1151 was 
clearly and unmistakably erroneous.  The Board emphasizes 
while the 2004 and 2007 VA medical opinions obviously do not 
support a grant of compensation for non-alcoholic fatty liver 
disease under 38 U.S.C.A. § 1151, the standard of proof in a 
severance is that the grant of the benefit must be found to 
have been undebatably erroneous.  That standard is not met.  
The record considered by the July 2004 adjudicator does not 
preclude a reasonable judgment decision that the veteran's 
non-alcoholic fatty liver disease was caused by (or increased 
in severity due to) VA's prescription of simvastatin.  

In summary, it is not shown that the grant of compensation 
for non-alcoholic fatty liver disease under 38 U.S.C.A. 
§ 1151was clearly and unmistakably erroneous.  The burden of 
proof required for severance is not met, and restoration of 
compensation under for non-alcoholic fatty liver disease 38 
U.S.C.A. § 1151 is warranted.


ORDER

The appeal seeking restoration of compensation for non-
alcoholic fatty liver disease under 38 U.S.C.A. § 1151 is 
granted.



____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs