Citation Nr: 1203108 Decision Date: 01/27/12 Archive Date: 02/07/12 DOCKET NO. 05-35 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for chronic liver disability, to include fatty liver disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active military service from February 1975 to February 1979 and from April 1979 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Anchorage, Alaska. By the March 2008 rating action, the RO denied the Veteran's claim for service connection for a chronic liver disability, to include fatty liver disease. Thereafter, the Veteran filed a timely appeal. In December 2008, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims folder. In April 2009 and September 2010 decisions, the Board remanded the claim for service connection for a chronic liver disability, to include fatty liver disease, to the RO for additional development and readjudication. The directives have been completed, and the Veteran's claim is properly before the Board at this time. As will be shown below, the Veteran has been diagnosed as having Hepatitis A and B immunity, without active disease. This does not represent a disability and has not been raised as an issue by the Veteran. If he wishes to raise a claim for service connection, he is informed that he is free to do so. FINDING OF FACT There is a preponderance of evidence against a nexus between the currently diagnosed fatty liver disease and any incident of service. CONCLUSION OF LAW Entitlement to service connection for chronic liver disability, to include fatty liver disease, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, notice compliant with the provisions of the VCAA was provided in October 2007, prior to the initial adjudication of the Veteran's claim in March 2008. See also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2011). VA and private treatment records have been obtained. Furthermore, the Veteran was afforded a VA examination in August 2009 that addressed his claim. The examination was conducted by a physician, who reviewed the claims file, obtained history from the Veteran, conducted an examination, and provided an opinion with a rationale based upon the evidence of record. The Board finds that it is adequate. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's and his representative's written and oral statements are of record. No available outstanding evidence has been identified. For the above reasons, 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). II. Analysis Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (C.A. Fed. 2009) (March 5, 2009). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The Veteran's service treatment records contain no evidence of liver disease or any symptoms. In August 1989, the Veteran filed his original claim for VA benefits. In it, he claimed entitlement to service connection for a head injury and a hearing problem. In August 1989, the Veteran underwent VA examination in connection with his claims. Examination of his digestive system and abdomen was normal, with the exception of the presence of a small hemorrhoid. In October 1994, the Veteran underwent VA examination for a gastrointestinal disorder claim. He complained of upper abdominal discomfort. The impression, following examination, was vague upper abdominal pain, which was possibly mild acid peptic disease. There was also a notation of rule out gastroesophageal reflux and gallbladder disease. A November 1994 private report of an ultrasound shows that the Veteran's liver was negative. In a March 1995 rating decision, the RO granted entitlement to service connection for colitis. In a February 1997 rating decision, the Veteran's disability was changed to colitis and irritable bowel syndrome, and a 10 percent rating was continued. A June 1999 VA record shows that the Veteran was to be seen again for evaluation of liver enzymes that were done recently. A September 1999 VA treatment record indicates that the Veteran was receiving preoperational instruction for a liver biopsy. An October 1999 VA record demonstrates that the Veteran's examination on that day revealed no liver enlargement or tenderness. The impression was possible liver disease, irritable bowel syndrome, hypertension, and hyperlipidemia. A March 2000 VA treatment record noted previously elevated liver function tests and hyperlipidemia. An August 2000 VA report indicates that the Veteran received laboratory results of a liver biopsy, which showed a probable fatty liver. His last liver function tests were noted to be fine. The assessment was hyperlipidemia, fatty liver, irritable bowel syndrome, and viral pharyngitis. A December 2000 VA medical record shows that the Veteran had a history of elevated liver function tests. He was immune from Hepatitis A and B and negative for Hepatitis C. A liver biopsy showed no inflammation or evidence of damage. The diagnosis was benign fatty liver. An April 2001 VA record references an abnormal liver function study dated in 1999. A subsequent April 2001 VA record shows that the Veteran's liver function tests were high again. A January 2002 VA report shows that the Veteran's liver was normal on abdominal ultrasound. VA records dated from April 2004 to April 2005 show that the Veteran was continually monitored for his history of elevated liver function tests. A July 2004 private treatment record indicates that the Veteran had abnormal liver function tests in a cholestatic picture that was consistent with possible nonalcoholic steatohepatitis. November 2006 and June 2007 VA records show that the Veteran had a history of elevated liver function tests without a specific cause. In his September 2007 written claim, the Veteran asserted that the symptoms of his fatty liver disease began while he was on active duty. In December 2008, the Veteran testified before the undersigned at the RO. He had no problems with his liver prior to service. He then stated that it was first diagnosed while he was on active duty. When asked how he first found out about the liver condition, he stated that his VA doctor recommended him to a specialist in 2002 for a biopsy. When asked whether he was actually diagnosed with a liver disease on active duty, the Veteran indicated that he did not remember. He stated that he had elevated enzyme readings during his service. He contends that he was first diagnosed during service and still had the same diagnosis. When asked about his symptoms or problems, the Veteran indicated that he had fat in his liver, which was found during the biopsy. That was the only thing the doctor told him. In August 2009, the Veteran underwent VA examination. His records were reviewed, and it was noted that he had a history of abnormal liver function tests dating to 1997, when abnormal liver function tests were revealed incidentally. There was a liver biopsy and consultation in 2008, which revealed a fatty liver. There was a history of Hepatitis A and B virus in 1997. There were no current symptoms. Following examination, the diagnosis was Hepatitis A and B positivity without active disease. There were also abnormal liver function tests secondary to a fatty liver. The examiner indicated that the risk factors for Hepatitis A and B are the origin of birth, and no labs were drawn until 1997 showing past infection. There was no good documentary history of an acute episode in the records. There was no evidence of abnormal liver function tests during service, as the examiner had reviewed the service treatment records. Such abnormal tests began in 1997. The examiner opined that chronic liver disease was not caused by or the result of service. The rationale was that there was no evidence of elevated liver function tests during service, and the abnormalities occurred ten years after separation. Furthermore, the evidence of Hepatitis A and B positivity showed past infection with immunity. These tests were drawn ten years after separation from service. It would be either from infection prior to or during service with no connection to the abnormal liver function tests. The liver biopsy performed in 1999 looked more like it was due to the effects of alcohol on the liver. Based on a review of the record, the Board concludes that service connection is not warranted for chronic liver disease, to include fatty liver. The August 2009 VA examiner has provided the only competent opinion of record with regard to whether the Veteran's diagnosed fatty liver disease is related to his service. After thoroughly reviewing the claims file and examining the Veteran, the examiner concluded that fatty liver disease did not begin in service and was not related to service. The examiner provided a rationale for this conclusion that was supported by the evidence of record. There is no competent opinion of record stating otherwise. A veteran is competent to provide evidence regarding symptomatology and its history. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran asserted in a September 2007 written statement that his symptoms began on active duty. However, there is no indication in this or any other document what symptoms the Veteran is referring to. As noted in the August 2009 VA examination report, the Veteran's elevated liver function tests and evidence of his fatty liver disease were found incidentally and not until several years after separation. When asked during the December 2008 hearing to describe his symptoms, the Veteran only stated that he had fat in his liver, which was diagnosed on biopsy. Also during that hearing, the Veteran was asked when he first found out about his liver disease, and he indicated that it was when he was sent to a specialist in 2002. Finally, the Veteran filed his original claim for benefits in August 1989 and did not file a claim for this or any related disorder. Silence here, when the Veteran is otherwise affirmatively speaking, constitutes negative evidence with regard to continuity of symptomatology. As such, the Board concludes that such continuity is not shown by the record. The Veteran's statements are, at best, contradictory regarding the history of his symptoms and do not establish continuity of symptomatology. As the Veteran's elevated liver function tests and fatty liver disease are not shown in the medical evidence until 1997, there is no other evidence of continuity of symptomatology. Furthermore, the etiology of the Veteran's fatty liver disease is not clearly observable through lay observation, as opposed to a fall leading to a broken leg. Rather, it is a medical question concerning an internal (and thus non-lay-observable) physical process. Thus, in the absence of continuity of symptomatology, the Veteran is not competent to address etiology in the present case. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). Finally, while the Veteran has been shown to have a diagnosis of Hepatitis A and Hepatitis B immunity, with no active disease, the VA examiner has stated that there is no relationship between this and the elevated liver functions tests secondary to the fatty liver. There is no opinion of record stating otherwise. In conclusion, the Board finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed fatty liver disease is not related to his service. In reaching this conclusion the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for chronic liver disability, to include fatty liver disease, is denied. ____________________________________________ ROBERRT E. O'BRIEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs