Citation Nr: 1301222 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 08-23 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for residuals of heat stroke, to include a liver disorder manifested by abnormal liver function tests (LFTs). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active military service from October 1978 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut which, in pertinent part, denied service connection for history of abnormal LFTs related to heat stroke in the military. In November 2009, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge. In May 2010, the Board remanded the issue of entitlement to service connection for residuals of heat stroke, to include abnormal LFTs for further development, including obtaining medical records for the Veteran from the VA medical facility in New London, for treatment for complaints related to abnormal LFTs from October 2007 to the present, and scheduling him for an appropriate VA examination and opinion. A review of the record shows that these actions were accomplished. Thus, the Board concludes that there was substantial compliance with the remand directives of May 2010. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT At no time during the appeal period has the Veteran has exhibited a liver disorder manifested by abnormal LFTs that is causally related to his active service or any incident, including heat stroke. CONCLUSION OF LAW Residuals of heat stroke, to include a liver disorder manifested by abnormal LFTs, were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial 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). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the United States Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in August 2007 and in November 2007 that fully addressed the notice elements and were both sent prior to the initial RO decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of how disability ratings and effective dates are assigned. Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice. Therefore, the presumption of prejudicial error as to such notice does not arise in this case. Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds that VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified all available service and post-service treatment records for the Veteran. In addition, the Veteran underwent a VA examination, with opinion provided, in September 2010. The Board finds that the September 2010 VA examination included a review of the claims folder and of the history obtained from the Veteran. Examination findings, along with opinions, were reported and supported in the record. The VA examination report of September 2010 is therefore are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background Service treatment records (STRs) reflect that the Veteran was hospitalized in January 1987 for five days for treatment for a heat stroke. He had lost consciousness after a six mile run, and was transported via ambulance for treatment. On discharge from that hospitalization, the Veteran's diagnoses included heat stroke, recovered; asthma; elevated LFTs secondary to heat stroke; thrombocytopenia secondary to heat stroke; and coagulopathy, resolved, secondary to heat stroke. The discharge summary indicated that the "only apparent clinical sequelae from his heat stroke were the laboratory abnormalities previously noted." Several days after his release from the hospital, the Veteran underwent a medical board evaluation, which noted that his first episode of heat intolerance was on January 7, 1987. He reported he felt well currently, and on objective examination his skin was noted to be without jaundice. He was found fit for full duty, and follow-up LFTs were to be obtained. On a report of medical history, prepared in conjunction with his separation examination, it was noted that he had been hospitalized for heat stroke in January 1987 for five days, that his temperature had reached 107.2, and that he had no problems at the present. On separation examination in May 1988, his endocrine system was evaluated as clinically normal. VA treatment records dated in January 1999 showed that the Veteran had been sent to the liver clinic for evaluation of abnormal LFTs. It was noted that he had a history of heat stroke when in the military about 15 years prior, with damage to the liver and kidneys. Objective examination showed that he had a normal liver span and no stigmata of chronic liver disease. The diagnosis was mild transaminitis--more likely NASH (nonalcoholic steatohepatitis). It was noted that it was okay for the Veteran to be on lipid lowering agent, as long as LFTs were checked periodically. Subsequent treatment records show that the Veteran's LFTs have varied from normal to very high and are affected by medication that he takes for hyperlipidemia. In October 1999, his past medical history was noted to include heat stroke in the military, and that he was told it affected his liver. It was noted that he had intermittently elevated LFS and was seen in the liver clinic and was felt to have NASH, but had no history of alcohol abuse and his hepatitis screens were negative. His LFTs were reported to be "close to normal now." The liver clinic felt that taking statins was okay as long as the Veteran was monitored regularly. Subsequent VA treatment records showed that in September 2005 the Veteran was approved to start taking Fluvastatin. He was instructed to stop taking Lopid once he began the Fluvastatin and was to have his LP and LFTs monitored in six to eight weeks after beginning the Fluvastatin. In January 2006, it was noted that he had been on Fluvastatin for more than two months, that his LFTs had more than doubled, and that he had been taking no other medications or using alcohol. He was instructed to stop taking the Fluva and his laboratory work would be rechecked in one month. If his LFTs were back to normal, they would see about getting Zetia for the Veteran. Received in July 2007 was a statement from the Veteran's wife in which she described the incident in service when the Veteran was hospitalized. She reported receiving a phone call and going to see the Veteran in the off base hospital where he was initially taken, and being told that if he survived the night, he could have brain, liver, or kidney damage. She reported that he was eventually moved to the base hospital, and that after a few days the doctors said the Veteran had kidney and liver damage, and that the Veteran was going to be let out of the military with at least 50 percent disability. She claimed that the Veteran came home from the hospital after about 15 days and that he was taken out of his unit and put in a unit that stayed on base. She further indicated that the Veteran did not more PT, that he began to have asthma problems, and that he eventually got his papers to go home. She indicated that the Veteran currently had high cholesterol and that his doctor had tried all kinds of medication on the Veteran, but all of them seemed to make the Veteran's liver function bad. She also reported that his eyes had gone from white to yellow, and his cholesterol was still high. In a statement received in July 2007, the Veteran reported that when he was hospitalized for heat stroke he was told by the hospital that he had kidney and liver failure. He claimed that since that incident, he could not use any medication for his high cholesterol that could damage his liver. VA treatment records showed that in October 2008, the Veteran was found to be intolerant to statin therapy due to elevated LFTs. February 2009, his LFTs were slightly elevated, and it was noted that "per PCP notes," the Veteran had a history of abnormal LFTs related to a heat stroke injury. In June 2009, the Veteran was approved for Crestor, and it was noted that he had LFT elevations on several statins in the past, and they would continue to monitor him closely. Per the most recent labs, however, his LFTs were noted to be within normal limits. In November 2009, the Veteran testified that since the incident in service where he was hospitalized with heat stroke and reportedly had liver failure, he had to constantly have his liver tested, especially when he was taking medicine, and especially cholesterol medication. He testified that he had liver tests done every two to three months. VA treatment records showed that in January 2010 the Veteran was noted to be intolerant to statin therapy due to elevated LFTs. It was also noted that he had missed does of his cholesterol medications, and that his LFTs were slightly elevated. In March 2010, his allergies included Simvastatin and Fluvastatin due to "elevated LFTs". On a VA examination in September 2010, the examiner noted that, in the medical history obtained from the Veteran and his wife, they reported that he had developed heat stroke in service and was taken to the hospital and put in the ICU for 5 days, and then transferred to an Army hospital for two weeks. According to their history, the Veteran's liver and kidneys shut down and he recovered from this, but that since then he had not been able to take cholesterol medicine, and every time he took a cholesterol medicine, his liver function started rising and he had to switch to a different medicine. He reported having no other problem with his liver since the heat stroke incident in 1987. It was noted that there were no extrahepatic manifestations of liver disease, and no cirrhosis of the liver or other liver condition. Physical examination showed no signs of jaundice, and no signs of liver disease. His most recent LFTs were done in May 2010 at the Dorn VA, and were noted to be "absolutely normal." The examiner noted that the Veteran's prior LFTs dating back to 2000 had been reviewed, and showed that his liver functions were slightly elevated in 2002 and in February 2009, but were normal in 2001 and 2003, and were intermittently mildly elevated between 2004 and 2009. The examiner also noted that in between his "labs" he had some normal liver function tests also. The diagnoses included history of intermittent transaminitis, secondary to statin therapy; and history of heat stroke in service, in 1987, with full recovery a week later and normal liver function tests in July 1988, after the heat stroke episode. The examiner opined that the Veteran's intermittent LFTs rise or elevated transaminitis were less likely than not due to his service-related episode of heat stroke. For rationale, the examiner indicated that a review of the Veteran's claims folder showed he had an episode of heat stroke in January 1987 and recovered fully a week later and was fully fit for duty after that. The examiner was not able to see any LFTs showing elevated LFTs at that time during the episode of heat stroke, but noted that "regardless," the Veteran's LFTs were normalized at the follow-up examination in July 1988. The examiner further noted that the Veteran had absolutely normal LFTs at that time and had no liver disease or signs of liver injury after his recovery, but that his records dating back from 2000 showed mildly elevated transaminitis with the use of statin therapy for his cholesterol. The examiner was not aware of, and had not found any literature regarding, any association between the Veteran's heat stroke, which was only one episode from which he fully recovered, and association of his statin intolerance to his heat stroke. The examiner opined that the Veteran's intermittent fluctuating liver transaminitis or elevated liver functions were due to side effects of the statin itself and that there was no direct correlation between the history of one episode of heat stroke with statin intolerance. III. Analysis A. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 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, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board does recognize that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation and etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). B. Discussion The Veteran essentially contends that he has residuals due to a heat stroke he suffered in service, to include abnormal LFTs. He claims that, since the episode of heat stroke in service, he has problems taking cholesterol-lowering medications due to the effects it has on his liver function. Turning to the merits of the decision, the Board considers the Veteran's main contention of entitlement to service connection for residuals of heat stroke, to include a liver disorder manifested by abnormal LFTs. At the outset, the Board finds that the probative evidence of record is against finding that the Veteran has a chronic liver disability/disorder of any type, even while acknowledging his elevated LFTs in service, which were secondary to his heat stroke, and his post-service elevated LFTs, which were noted in VA records. Fundamental to the service connection claim is that the Veteran first has to establish he has a chronic disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). A "current disability" means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). While post-service treatment records, dated back to 1999, show that the Veteran was diagnosed with mild transaminitis, and has been seen for findings of elevated/abnormal LFTs, these abnormal LFT findings were clearly attributed to several medications that were prescribed to him for his high cholesterol. There has been no competent medical evidence linking these findings to any chronic liver disability/disorder. While there is no dispute that the Veteran has had elevated/abnormal LFTs, this is not necessarily a disease for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996), noting that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. Moreover, the VA examiner in 2010 did not diagnosis any liver disorder or disability; rather, the diagnoses included history of intermittent transaminitis, secondary to statin therapy, and history of heat stroke in service with fully recovery and normal LFTS after the heat stroke episode. Thus, while the Board does not dispute that the Veteran may experience various symptomatology, and that he has had abnormal LFTs, there is no objective clinical confirmation that he suffers from any actual liver disability/disorder. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); see also Brammer v. Derwinski, supra. Further, what is missing from the record is competent evidence showing that the Veteran has current residuals of heat stroke, to include a chronic liver disability, manifested by abnormal LFTs, that may be related to his active service. 38 C.F.R. § 3.303. In that regard, as noted above, the Veteran has submitted no competent medical evidence to show that he has a current liver disorder related to service. The only medical evidence addressing a potential liver disorder and a potential nexus is the VA examination report dated in 2010. Therein, the examiner opined that the Veteran's intermittent LFTs rise or elevated transaminitis were less likely than not due to his service-related episode of heat stroke. The Board notes that the VA examiner in 2010 reviewed the claims folder, obtained a history from the Veteran and his wife, and provided a clear opinion with supporting rationale. Thus, the opinion is found to be probative and persuasive. Additionally, the Board notes that the Veteran has submitted no competent medical evidence to the contrary. Full consideration has been given to the Veteran's own assertions that he has residual disability from the episode of heat stroke in service. However, he is a layperson, and as such he has no competence to render a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, supra. As noted above, lay statements may, however, serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. If the Veteran had any ongoing complaints or symptoms from service to the present, he would certainly be competent to report those symptoms. However, the Veteran has not contended any ongoing symptoms. Rather, he has essentially indicated that he has had elevated/abnormal LFTs since service that are related to the heat stroke and abnormal LFTs he experienced in service. Additionally, the Board does not find that a residual disability resulting from heat stroke or abnormal LFTs, as contrasted with symptoms, is subject to lay diagnosis. The Board finds no basis for concluding that a lay person would be capable of discerning what disorder his complaints or symptoms represented, in the absence of specialized training, which the Veteran in this case has not established. Espiritu v. Derwinski, supra. The Board recognizes that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as in the case, the overall evidence of record fails to support a diagnosis of the claimed disability, that holding is inapplicable. Based upon the foregoing and the lack of competent evidence of any current liver disability/disorder, of a residual disability from heat stroke in service, or of a relationship between a current liver disability/disorder and active service, the Board concludes that the Veteran is not entitled to service connection for residuals of heat stroke, to include a liver disorder manifested by abnormal LFTs. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for residuals of heat stroke, to include a liver disorder manifested by abnormal LFTs must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of heat stroke, to include a liver disorder manifested by abnormal LFTs, is denied. ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs