Citation Nr: 0904169 Decision Date: 02/05/09 Archive Date: 02/13/09 DOCKET NO. 07-29 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for fatty liver disease. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The Veteran had active service from March 1963 to May 1971 and from June 1971 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2008, a hearing was held at the RO before the undersigned Veterans Law Judge, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The transcript of the hearing is in the record. FINDINGS OF FACT The Veteran has fatty liver disease as the result of disease incurred during his active service. CONCLUSION OF LAW The criteria for service connection for fatty liver disease have been met. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection has been established for diabetes mellitus. The Veteran claims that he has nonalcoholic fatty liver disease due to his service-connected diabetes mellitus. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Duty to Notify The Veteran's claim for service connection for liver disease was received in February 2007. A letter from the RO dated in April 2007 provided him with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The initial duty-to-assist letter was provided before the adjudication of his claim in July 2007. The Board also notes that in an October 2008 letter additional notice was provided regarding potential ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. Therefore, the Board may decide the appeal without a remand for further notification. Duty to Assist The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The veteran's service medical records have been obtained. His available post-service treatment records have also been obtained. The veteran has had a hearing and a VA examination. A medical opinion has been obtained. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection In order to establish service connection on a direct or primary basis, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 101(16), 1110 (West 2002); 38 C.F.R. § 3.303 (2008); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection on a secondary basis may be granted for a disability which is proximately due to and the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2008). Evidence Against the Claim In July 2007, a VA Physician's Assistant (PA) who conducted a June 2007 VA examination, including review of the claims folder and medical records, provided an addendum to his medical opinion. It was noted that the Veteran claimed to be a non-alcohol drinker, his diabetes mellitus was somewhat controlled, and his laboratory results for triglycerides were normal. (The clinical notes reflect that the Veteran is currently on medication to lower triglycerides.) On the other hand, if his diabetes mellitus was not well controlled in the past, and his triglycerides were elevated for long periods of time, then it could be related to diabetes mellitus. Therefore, it was less likely that his fatty liver was related to his diabetes mellitus. Evidence Supporting the Claim The file includes VA clinical records. In December 2006, the Veteran complained of soreness and pain in the right upper quadrant of his abdomen. He was scheduled for tests including an ultrasound (US) study. A February 2007 note shows the Veteran continued to have right upper quadrant pain. His US report showed a fatty liver. The doctor provided him with information regarding nonalcoholic fatty liver disease. In March 2007, the Veteran continued to report right upper quadrant pain and the assessment was nonalcoholic fatty liver disease. Later that month, the VA physician discussed the problem. Her impression was that the Veteran had musculoskeletal pain. She did not feel that there was a likely gastrointestinal component to the problem as it was related to movement. She expressed the opinion that the fatty liver was an incidental finding and was not causing any symptoms. It was related to overweight status and diabetes mellitus. In June 2007, the Veteran was afforded a VA liver examination. The Veteran reported that he began having upper quadrant aches and pain beginning in 2006. He sought medical advice, an US study was done, and a fatty liver was diagnosed. He continued to have aches and pains. The claims folder and medical records were reviewed and the Veteran was examined. There was noted to be a history of chronic liver disease risk factors including tattoo during service, blood exposure during service, high risk sexual practices before, during and after service, shared shaving razors in service, and a history of viral hepatitis B after service. An abdominal US study in December 2006 showed hepatomegaly with fatty changes. The examiner expressed the opinion that, as far as the nonalcoholic fatty liver, it was difficult to determine if the condition was due to tattoo and/or risky behavior during service, because tests for hepatitis were not available until the early 1980's. It was the examiner's opinion that it was at least as likely as not (50/50 probability) caused by or a result of his behavior during service. The opinion by the PA was reviewed and endorsed by a physician. In November 2008, the Veteran appeared before the undersigned and provided sworn testimony. He reported that he did not have liver symptoms during service and that the current symptoms began approximately 2 years earlier. He described the symptoms and their effect on him. His representative emphasized the opinion connecting the liver disease to service. He also argued that the opinion of a physician connecting the fatty liver disease to the Veteran's service- connected diabetes outweighed the contrary opinion of the PA. Conclusion The evidence has a competent medical opinion by a PA and endorsed by a physician to the effect that the Veteran's liver disease is the result of infection during service. Since there is no opinion to the contrary, this opinion is sufficient to establish service connection on a direct or primary basis. As to the claim for secondary service connection, the PA opinion against a connection to the diabetes mellitus seems to turn on assumptions in the Veteran's medical history that may or may not be accurate. Specifically, the Veteran's triglycerides are currently normal but he is on medication to control them. How long they were elevated before control was established is a matter of speculation. The PA is of the opinion that if the triglycerides were elevated for a long period of time it would be likely that the fatty liver was related to the service-connected diabetes. Further, the medical opinion from a VA physician that relates the fatty liver disease to the Veteran's service-connected diabetes mellitus puts the matter in equipoise. The evidence against the claim is not sufficiently persuasive as to comprise a preponderance of evidence in this case. The supporting evidence raises a reasonable doubt, as to both primary and secondary service connection, and that doubt must be resolved in the Veteran's favor. ORDER Service connection for nonalcoholic fatty liver disease is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs