Citation Nr: 1221285 Decision Date: 06/19/12 Archive Date: 06/29/12 DOCKET NO. 08-30 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a liver disability, to include as due to anthrax vaccine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2003 to September 2004. The Veteran's DD-214 indicates another prior active service period of 4 months and 3 days; however, the exact dates are unknown. The Veteran has also served in the National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from May 2006, September 2006 and April 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which denied the benefits sought on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that she currently has a chronic liver disease that is related to her period of active duty service, to include as due to anthrax vaccine. She reported that she had abnormal liver function tests during an April 2005 VA examination and was seen on follow up for laboratory work in October 2005. Historically, the Veteran served in the Army from February 2003 to September 2004 and was deployed to the Middle East from April 2003 to July 2004. Her service treatment records are negative for any liver condition. In a July 2004 post-deployment health assessment report, the Veteran indicated that she received anthrax vaccination. After separation from service, VA treatment records dated from February 2005 to October 2007 and private treatment reports dated from February 2005 to October 2006 show that the Veteran has had elevated liver function tests with diagnoses of fatty liver. Specifically, a February 2005 VA treatment report noted an assessment of elevated liver function tests. An October 2005 VA treatment report noted an assessment of elevated liver enzymes possibly related to obesity. An October 2005 private treatment report stated that VA notified the Veteran that she had a positive Hepatitis A test; however, Hepatitis A was found non reactive by the private physician. A December 2005 VA treatment report noted that the Veteran's elevated liver enzyme was fatty liver. In conjunction with the claim on appeal, the Veteran was afforded a VA examination in April 2007. The VA examiner noted that historically the Veteran was found to have an enlarged liver with no apparent etiology. The examiner stated that the only laboratory abnormality of significance was the elevated GGTP and all other tests of the liver were normal. The examiner further stated that no stigmata of chronic liver disease were found. Following a liver ultrasound, the impression was that the liver was borderline in size and of mild diffuse increased echogenicity suggestive of at least mild fatty infiltration. While the medical evidence of record contains evidence of abnormal liver function tests, the record is absent of any discussion explaining whether these abnormal liver functions tests constitute a disability of the liver. There is also no medical opinion addressing whether abnormalities in the liver and findings reflecting "enlarged liver" or "mild fatty infiltration" are the equivalent of a liver disease or liver disorder. The December 2005 VA treatment report indicates the Veteran has a diagnosis of "fatty liver," but there is no medical opinion provided with respect to whether a "fatty liver" constitutes a liver disease or symptoms of a liver disability. Similarly, although the April 2007 VA examiner stated that no stigmata of chronic liver disease were found, a diagnosis of mild fatty infiltration of the liver was made following a liver ultrasound. It is not clear, however, whether such a diagnosis is indicative of a chronic liver disorder or symptoms of a liver disorder. The Board cannot render its own medical determination as to whether or not the lab findings of liver abnormalities, a lab report showing "enlarged liver" or "fatty infiltration," or a diagnosis of "fatty liver," are evidence of a liver disorder or symptoms of a current liver disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board may only consider independent medical evidence and is prohibited from exercising its own independent judgment to resolve medical questions). Furthermore, the Board finds that the April 2007 VA examination not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). First, the April 2007 VA examiner failed to indicate whether the Veteran's claims file was reviewed at the time of the examination. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); see also Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence). Additionally, the April 2007 VA examiner opined that the Veteran's mild fatty infiltration of the liver was more than likely due to elevated body mass index (BMI), which is a measurement of body fat based height and weight. However, the VA examiner provided no explanation of the basis for such opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board also notes the record contains conflicting medical opinions with regard to the etiology of the Veteran's liver condition. The April 2007 examiner also opined that although the Veteran believed that the liver enzyme abnormalities might be due to the anthrax vaccination, review of up-to-date information did not indicate this as a complication of anthrax vaccine. However, an April 2007 VA gastroenterology consultation report noting an impression of elevated liver function enzymes, "most likely drug induced." The report further stated that the Veteran's anthrax vaccination could be contributing to her liver function enzyme abnormalities. In short, the Board finds the medical evidence ambiguous as to whether the Veteran currently has any chronic liver disorder related to his period of active duty service, to include as due to anthrax vaccine. Therefore, the Board finds that a clarifying medical opinion is necessary to adequately decide the merits of the claim here. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to identify or submit any new evidence not already of record that addresses her claimed condition. 2. The claims files should be forwarded to the VA examiner who examined the Veteran in April 2007. (If the examiner is not available, the claims file should be referred to another qualified examiner for the requested opinions.) The claims file and all records on Virtual VA, as well as this REMAND, must be made available to the examiner in conjunction with the examination, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records, if any, that are reviewed. The examination report must include responses to the each of the following items: a. Based on a review of the claims file, the examiner should opine as to whether it is at least as likely as not that the Veteran's current liver disability, if any, had its onset in service or otherwise is causally or etiologically related to a disease or injury incurred in active service, to include her anthrax vaccination in service. b. The examiner should consider the medical evidence of record reflecting laboratory findings of "elevated liver function enzyme tests," "enlarged liver" and "fatty infiltration of the liver," or diagnoses of "fatty liver," and state whether these finding constitute a chronic liver disorder or symptoms of a chronic liver disorder. c. In rendering the etiology opinion, the examiner is asked to consider and attempt to reconcile any conflicting medical opinions of record, specifically the April 2007 VA gastroenterology consultation report noting that the Veteran's in-service anthrax vaccination could be contributing to her liver function enzyme abnormalities. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2011), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).