Citation Nr: 1219817 Decision Date: 06/06/12 Archive Date: 06/20/12 DOCKET NO. 09-07 026A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder. 2. Entitlement to service connection for a hepatic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active military service in the United States Army from July 1974 to March 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA) that, in part, denied the appellant's claims for service connection for hepatitis C and a stomach disorder. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). That holding was expanded to encompass other conditions in Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (claimant's identification of the benefit sought does not require technical precision). The appellant is seeking service connection for abdominal and liver problems. Therefore, the Board has recharacterized the issues on appeal as they are listed on the title page to comport with the evidence of record. In an April 2009 rating decision, the RO denied the Veteran's claims for service connection for diabetes mellitus and hypertension. After the Veteran submitted a Notice of Disagreement (NOD) in June 2009, the RO issued a Statement of the Case (SOC) in November 2009. However, the Veteran failed to complete the procedural steps necessary for an appeal of these two service connection claims. Therefore, the Board may not address either of those issues in its consideration of the claims currently on appeal. The issue of entitlement to service connection for a hepatic disorder addressed in the REMAND portion of the decision below and that issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Evidence shows treatment for various gastrointestinal symptoms and disorders including at various times, diarrhea, stomach pain and retrosternal/epigastric burning. 2. The appellant's service medical records contain no findings or diagnoses of any chronic abdominal/gastrointestinal disorder. 3. There is no competent medical evidence of any nexus between the appellant's claimed gastrointestinal disorder and any aspect of his military service. 4. The preponderance of the competent and probative evidence is against a finding that the appellant has a gastrointestinal disorder that is due to any incident or event in military service, or that any such disorder was manifested to a degree of ten percent or more within one year after service separation. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran received notification prior to the initial unfavorable agency decision of September 2007 through a November 2006 notice letter. This pre-adjudication notice substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim, the relative duties of VA and the claimant to obtain evidence, and the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has obtained service treatment records, Army dependent treatment records, VA treatment records, and a VA examination report. VA has also assisted the appellant in obtaining evidence and afforded him the opportunity to present written statements and evidence. The appellant did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained. He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations. In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The appellant was afforded a VA examination in September 2007. That examination is adequate for the purposes of determining service connection, as it involved a review of the Veteran's pertinent medical history and is based on supporting clinical data. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The appellant was afforded an adequate examination for his claimed gastrointestinal disorder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). All relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Thus, VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision at this time. II. The Merits of the Claim 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). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a). There must be medical evidence of a nexus relating an in-service event, disease, or injury, and a current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993). 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 at some point during the claim process, 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); McClain v. Nicholson, 21 Vet. App. 319 (2007). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Certain chronic disabilities, such as diseases of the gastrointestinal system (e.g., a gastric ulcer), may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from active service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain is the sort of condition that is observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The appellant's service medical treatment records do not reveal any complaints of, or treatment for, any chronic gastrointestinal disorder. The appellant did complain of an upset stomach in May 1976 and in January 1977, but his complaints were acute and transitory and resolved without any sequelae as evidenced by the lack of any further complaints. On August 31, 1982, the appellant complained of nausea and vomiting and a week later he complained of cramps across the lower abdomen. On September 9, 1982, he was hospitalized for hepatitis; no gastrointestinal disorder was diagnosed during his hospital stay. The appellant underwent a service separation examination in February 1984; the clinical evaluation was normal. No diagnosis of any chronic gastrointestinal disorder was rendered. Review of the appellant's post-service medical treatment records indicates he has received medical care at various VA and military medical facilities. The appellant received treatment as an Army dependent between 1984 and 1986. In July 1985, he complained of stomach cramps times two days; he also complained of diarrhea. He next reported gastrointestinal symptoms occurred in March 1986. The clinical assessment was acute gastroenteritis. In August 1986, he again complained of diarrhea and stomach pain and again, the clinical assessment was acute gastroenteritis. The next month, the appellant was noted to continue to have epigastric abdominal pains. He had no history of stomach ulcers. The clinical assessment was that his symptoms were consistent with cholangitis. A September 1986 note states that the appellant complained of upper abdominal pain times four days. His liver enzyme test results were all elevated, as was his total bilirubin level. Urobilinogen was positive on urinalysis. A physician thought that the appellant's complaints reflected a hepatocellular pattern that was possibly alcohol related. The evidence of record contains VA treatment records dated between 1999 and 2009. In February 1999, the appellant presented with severe right upper quadrant pain that was associated with nausea and vomiting. He indicated that his pain mostly occurred postprandially and that he had had symptoms to a lesser degree over the previous year. An ultrasound of the appellant's abdomen revealed the presence of multiple calculi in the gallbladder. The assessment was acute cholecystitis and he underwent a cholecystectomy without complications in March 1999. A May 2003 Primary Care Clinic progress note indicates that the appellant presented with complaints of postprandial heartburn; he said this had been occurring for several months. He described retrosternal burning and said that it occurred exclusively after food consumption. The clinical assessment was gastroesophageal reflux disease (GERD). Another such clinic progress note, dated in July 2007, reflects that the appellant sought treatment for a complaint of chronic diarrhea times one year. Studies, including for Clostridium difficile, antigliandin antibody, fecal fat and fecal leukocytes, were all negative. The assessment was chronic diarrhea. The appellant underwent a VA medical examination in September 2007; the examiner reviewed the appellant's claim's file. The appellant reported that he had experienced a rapid transit of food with loose stools after meals for many years. He said that he thought it had started in service. The appellant further reported that he had undergone various work-ups over the years and that no clear diagnosis had ever been established and that no ulcers had ever been found. He said that the removal of his gallbladder had not helped. The appellant stated that he was lactose intolerant. After reviewing the claims file and examining the appellant, the examining physician rendered a diagnosis of diarrhea and abdominal pain. The examiner opined that the appellant's diarrhea and abdominal pain were more likely than not due to his alcohol abuse. The examiner stated that it was unlikely that the appellant's diarrhea and abdominal pain were related to his military service or that the current diarrhea and abdominal pain condition was the same as the in-service complaints because the in-service complaints were not ongoing in that the appellant's in-service abdominal complaints were actually isolated incidents. In order for service connection to be warranted for a claimed condition, there must be evidence of a present disability that is attributable to a disease or injury incurred during service. Rabideau v. Derwinski, supra. "[I]n order to establish service connection or service-connected aggravation for a present disability the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board has considered the appellant's written statements submitted in support of his contention that he has a gastrointestinal disorder as a result of his service. To the extent that said statements represent evidence of continuity of symptomatology, without more, these statements are not competent evidence of a diagnosis of any gastrointestinal pathology, nor do they establish a nexus between a medical condition and the appellant's military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Even if the Veteran or his representative were competent to offer a medical opinion, abdominal or gastrointestinal pain, in and of itself, is a symptom and not a diagnosed disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Chronicity is not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology is written information from the claimant and when "no" medical evidence indicated continuous symptomatology. McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (per curiam). Furthermore, there is no medical evidence of record in this case to establish a nexus between any in-service incident and any claimed gastrointestinal disorder, including GERD. The Board must assess the appellant's competence to report sustaining a gastrointestinal disorder during his military service, as well as his credibility. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr and Washington, the Court noted that a Veteran is competent to testify to factual matters of which he had first-hand knowledge, and citing its earlier decision in Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), held that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the personal knowledge of the witness; see also 38 C.F.R. § 3.159(a)(2). See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The Board recognizes the apparent sincerity of the arguments advanced by the appellant that he has a gastrointestinal disorder that should be service connected. However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, supra. The Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau; Buchanan; both supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, gastrointestinal pathology requires specialized training for a determination as to diagnosis and causation, and therefore is not susceptible of lay opinions on etiology. Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran or his representative about the origins of his claimed disorder, because they are not qualified to offer such opinions. In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, supra. Based on the totality of the evidence of record, including the service treatment records, the dependant military and VA treatment records and the report of VA examination, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for a gastrointestinal disorder. The Board concludes that the weight of the "negative" evidence, principally in the form of the service medical treatment records (which do not document any in-service chronic condition), the lack of a diagnosis of any chronic pathology until at least 2003 (when there was a diagnosis of GERD), and the lack of any competent medical opinion finding some etiologic nexus between the claimed gastrointestinal condition and service exceeds that of the "positive" evidence of record, which basically amounts to the appellant's contentions and other lay statements. The lack of any evidence of clinical findings reflecting chronic gastrointestinal pathology until many years after service separation is itself evidence which also strongly suggests that no claimed gastrointestinal condition is traceable to disease or injury that occurred during the appellant's time in the Army. The Veteran received medical care at various facilities from the time he separated from service until the first diagnosis of GERD of 2003; however, those records are silent for any reported history of any chronic gastrointestinal disorder such as GERD or other related diagnosis. If the Veteran had suffered from a gastrointestinal disorder continuously since service, it would normally be expected that he would have had complaints or reported a history during treatment. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The evidence does not support a finding of any chronic gastrointestinal disorder to a compensable degree within the first post-service year, and no medical nexus evidence supports a finding of service connection for any gastrointestinal pathology as no diagnosis for any such pathology was of record until 2003, and the current records, as reflected by the appellant's April 2009 VA problem list, do not currently include a diagnosis of GERD. In addition, no medical nexus evidence supports a finding of service connection for any such gastrointestinal pathology - the only opinion on those questions states that the appellant's current gastrointestinal pathology is not etiologically related to his Army service, including the isolated incidents of treatment for stomach pain. Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection and that service connection for a gastrointestinal disorder is not warranted. Because the preponderance of the evidence is against the service connection claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for a gastrointestinal disorder is denied. REMAND The appellant is seeking service connection for a liver disorder, to include infection with the hepatitis B Virus (HBV) and infection with the hepatitis C virus (HCV). Review of the appellant's service medical treatment records reveals that he was hospitalized from September 9, 1982 to September 14, 1982, for what was diagnosed as 'viral hepatitis'. Blood drawn on September 28, 1982, and on November 2, 1982, was negative for hepatitis B surface antigen. Other laboratory test results reflected abnormal liver function, to include elevated urobilinogen levels in urine and elevated serum bilirubin and liver enzyme levels. Mild scleral icterus was observed and the appellant was noted to admit to heavy alcohol intake. The evidence of record indicates that the appellant has denied blood transfusions and tattoos. He was treated in service for venereal disease. He has admitted to using crack cocaine (smoked and snorted) since 1986, but he denies intravenous drug use. The appellant's representative argues that the appellant's current hepatitis is related to unprotected sex he had while in service. After service, the appellant received care as an Army dependent at the Army Health Clinic in Worms, Germany (APO AE 09058) between 1984 and 1986. A September 1986 note states that the appellant complained of upper abdominal pain times four days. His liver enzyme test results were all elevated, as was his total serum bilirubin level. Urobilinogen was positive on urinalysis. A physician thought that the appellant's complaints reflected a hepatocellular pattern that was possibly alcohol related. The appellant was supposed to return for a hepatitis panel, but the related test results are not of record. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, in order to fulfill the duty to assist, all of the appellant's outstanding Army dependent treatment records and all of the outstanding VA inpatient and outpatient records, as well as all pertinent private inpatient and outpatient records, should be obtained and associated with the claims file. In addition, hepatitis B/C are infectious diseases in Texas which must be reported within days after diagnosis and the related public health records could provide insight into the question of onset date. Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). While the appellant was afforded a VA medical examination in September 2007, and while the examiner stated that he had reviewed the claims file, the examiner made declarations that do not gibe with the medical evidence of record; casting doubt that a thorough record review was accomplished. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). For example, the examiner stated that the appellant had never had an elevated bilirubin and that his bilirubin was normal in service, yet the service medical records reflect elevated serum bilirubin results on at least three occasions. In addition, the examiner did not address all of the appellant's risk factors for contracting viral hepatitis, namely his engagement in unprotected sex as reflected by his in-service treatment for venereal disease. Thus, while the RO did arrange for the examination of the appellant, the medical findings were inadequate. Accordingly, a new medical examination is necessary to make determinations in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The medical evidence of record is insufficient for the Board to render a decision. In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. 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). Therefore, to ensure full compliance with due process requirements, this case is REMANDED for the following: 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Obtain from the appellant the names and addresses of all VA, government, and private physicians and/or medical facilities that have provided him with any treatment for any liver-related conditions since March 1984, and secure all available relevant reports not already of record from those sources. In particular, obtain the rest of the appellant's Army dependent medical treatment reports from the Army Health Clinic in Worms, Germany (APO AE 09058) from September 1986 onward, including all laboratory test results, as well as all VA treatment records dated after September 2007, including all laboratory test results related to hepatitis such as the HBV DNA testing ordered in July 2007. 3. Ascertain whether the appellant is listed in Texas public health records as a confirmed case of hepatitis B or C, and if he is, when he was added to the list. Check first with the VA official or office that is responsible for submitting reports of bloodborne illnesses as directed by TEX. HEALTH & SAFETY CODE Ch. 81 (Vernon 2011); Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. 4. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and his representative must be informed of the negative results and be given opportunity to secure the records. 5. After the above development has been completed, arrange for the appellant's records to be reviewed by a physician with expertise in liver disease or infectious diseases. The reviewer must be provided with the appellant's claims file, including any records obtained pursuant to the above development, and a copy of this remand. The reviewer is to render an opinion as to the etiology and onset date of all current liver pathology, to include a discussion of the relevant pathogenesis, signs and symptoms, and diagnosis or diagnoses, as well as the causes and risk factors for infection with the hepatitis B virus, infection with the hepatitis C virus, cirrhosis, portal hypertension and varices. In particular the reviewer must address the following: a. Does the appellant have hepatitis B? If so, what evidence supports the diagnosis? What was the onset date? List and discuss, with reference to the literature as appropriate, all of the Veteran's documented risk factors for hepatitis B infection and rank order the documented risk factors relative to the probability that the Veteran's hepatitis B infection is etiologically related to the risk factor. In particular, address the Veteran's blood tests for hepatitis B, his in-service bout with hepatitis, his ethanol and substance abuse history and his sexual history. b. Does the appellant have hepatitis C? If so, what evidence supports the diagnosis? What was the onset date? List and discuss, with reference to the literature as appropriate, all of the Veteran's documented risk factors for hepatitis C infection and rank order the documented risk factors relative to the probability that the Veteran's hepatitis C infection is etiologically related to the risk factor. In particular, address the Veteran's blood tests for hepatitis, his in-service bout with hepatitis, his ethanol and substance abuse history and his sexual history. c. Has the appellant ever been diagnosed with any other liver pathology? If so, what was the onset date? List and discuss, with reference to the literature as appropriate, all of the Veteran's documented risk factors for cirrhosis of the liver or other pathology and rank order the documented risk factors relative to the probability that the Veteran's cirrhosis of the liver or other pathology is etiologically related to the risk factor. In particular, address the Veteran's in-service bout with hepatitis, his ethanol and substance abuse history, his sexual history and his infection with the hepatitis B and C viruses. d. As to the above questions, the standard to be applied in formulating the response is whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that a medical/causal/factual issue should be resolved in the appellant's favor, or whether such a favorable response is unlikely (i.e., less than a 50-50 probability). Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the physician should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the physician concludes that there is insufficient information to provide a requested opinion without result to mere speculation, the physician should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's current liver pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). If a physical examination or additional history is needed before an opinion can be rendered, VA must arrange for said examination to occur. 6. Upon receipt of the reviewer's report, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, refer the report to the VA reviewer for corrections or additions. See 38 C.F.R. § 4.2 (where findings in examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate). 7. After all appropriate development above has been accomplished, review the record, including any newly acquired evidence, and re-adjudicate the service connection claim on appeal. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories. 8. If the benefit sought on appeal remains denied, provide the appellant and his representative a Supplemental Statement of the Case (SSOC) and appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter 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. 2011). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs