Citation Nr: 1244190 Decision Date: 12/31/12 Archive Date: 01/09/13 DOCKET NO. 08-34 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for nonalcoholic (fatty) liver disease (NAFLD), claimed as secondary to type 2 diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Lincoln, Nebraska Department of Veterans Affairs (VA) Regional Office (RO). In September 2012 the Board sought a Veterans Health Administration (VHA) advisory medical opinion in this matter. The Veteran had also initiated an appeal of the rating assigned for skin disease; his substantive appeal limited the appeal to the matter at hand. FINDING OF FACT It is reasonably shown that the Veteran's service-connected type 2 diabetes mellitus caused (or contributed to cause) his NAFLD (which is shown to be a chronic disease). CONCLUSION OF LAW Service connection for NAFLD is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter, as any notice defect or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be: (1) medical evidence of a 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, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). 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); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's service treatment records do not show any complaints of, or treatment for, a liver disorder. Notably, he does not contend that his liver disorder was manifested in, or is otherwise directly related to, his active duty service. His theory of entitlement is one of secondary (to diabetes mellitus) service connection. His type 2 diabetes mellitus is service connected. In June 2006 the Veteran was seen at a VA outpatient clinic where he presented with three problems, one of which was hyperechoic liver changes. Abdominal ultrasound revealed findings suggestive of liver disease. The liver was hyperechoic, consistent with fatty hepatic infiltration. On clinical evaluation, the physician noted that hyperechoic liver might be due to fatty infiltration, iron or copper overload, or cirrhosis. It was further noted that the fatty infiltration may be due to diabetes and obesity. On July 2007 VA examination, hyperechoic liver, possibly as a result of fatty infiltration was diagnosed. The examiner opined that such was less likely than not related to his service-connected diabetes nor is it aggravated by his diabetes. Explaining rationale for the opinion, the examiner noted that the Veteran's last blood sugar was 91 and the HgBAIC was 6.5. The examiner noted that hyperechoic liver is a fatty liver was seen on ultrasound, and that according to medicinenet.com, causes of primary or secondary hyperechoic liver can include medication (including prednisone, amiodarone, tamoxifen, methotrexate, and nonsteroidal anti-inflammatory drugs), alcoholic liver disease, chronic viral hepatitis C, chronic viral hepatitis B, chronic autoimmune hepatitis, and Wilson's disease, disturbances in the body's processing of fat rather than to direct injury to the liver cells, some gastrointestinal operations for obesity, malnutrition, and genetic defects in proteins that process lipids. The examiner stated that the Veteran's hyperechoic liver is more likely due to the listed conditions than due to diabetes or aggravated by diabetes-related issues. Following the August 2007 rating decision on appeal, the Veteran submitted evidence (an Internet article), indicating that diabetes is a risk factor for developing a liver disorder. The RO then sought another VA medical opinion. In September 2008 a VA staff physician noted that the hyperechoic changes on ultrasound are consistent with nonalcoholic fatty liver infiltration (as reported in the April 2002 New England Journal of Medicine) which is almost epidemic in this country. Among the leading causes are diabetes mellitus and insulin resistance. The consulting physician opined that the ultrasound hypercholic findings are considered to be due to the service-connected diabetes mellitus. In September 2008 (statement of the case) the RO continued the denial of service connection for hyperechoic liver, finding that such is not a compensable disease, but is merely a diagnostic study finding. As that determination was not supported by citation to medical authority/literature (but is a medical question), the Board, sought a VHA medical expert advisory opinion in the matter. The consulting expert was asked to address whether the Veteran's documented fatty liver is a chronic disease (with characteristic signs and symptoms), as opposed to an acute manifestation subject to resolution. Upon review of the Veteran's claims file (in a November 2012 response) a VA gastroenterologist indicated that fatty liver is a disease. He stated that the Veteran has fatty liver with normal liver function tests in a setting of risk factors for NAFLD, and that the Veteran most likely has NAFLD. He noted that NAFLD is defined as the presence of hepatic steatosis with no evidence of hepatocellular injury in the form of ballooning of the hepatocytes. The Board finds that the evidentiary record supports the Veteran's claim that he has NAFLD which (at least in part) was caused by his serviced-connected type 2 diabetes. The July 2007 VA examiner's opinion that the Veteran's fatty liver is less likely than not related to his service-connected diabetes is outweighed in probative value by the subsequent September 2008 opinion of a VA medical professional coupled with the November 2012 opinion of a VHA expert (which, combined, indicate to the contrary). Together, these opinions provide the most probative evidence in the matter at hand. They are accompanied by explanation of rationale, with citation to factual data and medical literature; such explanation is lacking with the July 2007 VA examiner's opinion. Accordingly, the requirements for establishing secondary service connection for NAFLD are met, and service connection for such disease is warranted. ORDER Service connection for NAFLD as secondary to service connected type 2 diabetes mellitus is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs