Citation Nr: 1431676 Decision Date: 07/15/14 Archive Date: 07/22/14 DOCKET NO. 12-08 116A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for a left knee disability, status post ACL, and in excess of 10 percent for left knee instability. 2. Entitlement to service connection for a liver disorder, diagnosed as non-alcoholic fatty liver, Gilbert's syndrome, and nonalcoholic steatohepatitis (NASH). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1991 to May 2009. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2013, the Veteran provided testimony at a hearing before the undersigned Acting Veterans Law Judge. At such time, the Veteran submitted additional evidence with a waiver of RO consideration. The Veteran also submitted additional evidence to the Board in September 2013 with a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such newly received evidence. The Board observes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA reveals that, with the exception of the August 2013 Board hearing transcript, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Further, the Veteran's VBMS file does not contain any documents at this time. FINDINGS OF FACT 1. At the Board hearing in August 2013, prior to the promulgation of a decision on such issue, the Veteran stated on the record that he wished to withdraw from appeal his claim of entitlement to a higher disability rating for his left knee disability. 2. Resolving all doubt in favor of the Veteran, a liver disorder, diagnosed as non-alcoholic fatty liver and Gilbert's syndrome, had its onset during service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to a higher disability rating for a left knee disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for service connection for a liver disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claim With respect to the issue of entitlement to a higher disability rating for a left knee disability, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the Board hearing in August 2013, prior to the promulgation of a decision on such issue, the Veteran stated on the record that he wished to withdraw from appeal his claim of entitlement to a higher disability rating for a left knee disability. The transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Thus, no allegations of errors of fact or law remain for appellate consideration with respect to that particular claim. As such, the Board does not have jurisdiction to review the claim and the appeal of that claim must be dismissed. II. Service Connection Claim As the Board's decision to grant the claim for service connection for a liver disorder herein is completely favorable, no further action with respect to such claim is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. There is also no potential prejudice regarding the conduct of the Central Office hearing. See 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As fatty liver disease, Gilbert's syndrome, and NASH are not considered chronic diseases per VA regulations, presumptive service connection for such liver disorder, to include on the basis of continuity of symptomatology, is not warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At his August 2013 Board hearing, the Veteran testified that his liver disorder had its onset during his military service. The Board observes that the Veteran's service treatment records reflect that the Veteran was diagnosed with fatty liver during his active military service. In October 1999, the Veteran had elevated liver enzymes. In January 2000, he was diagnosed with fatty liver. In October 2007, the Veteran's liver had moderate fatty replacement. Records dated in November 2007 reflect that the Veteran had a diagnosis of fatty liver. He had "mildly elevated LFTs, fatty liver and normal serological [workup] most likely consistent with NASH." July 2008 treatment notes show that the Veteran had a diagnosis of non-alcoholic fatty liver. There is conflicting evidence as to whether the Veteran has a current liver disorder. In November 2009, the Veteran was afforded a VA contract examination. The examiner noted that the Veteran has had fatty liver with elevated liver enzymes since 1999. The examiner then determined that "there is no diagnosis because the condition has resolved. The claimant does not have any other liver problems . . . ." The Veteran's private treatment records show that the Veteran has been diagnosed with a liver disorder during the appeal period. For instance, private treatment records dated in August 2010 reveal that the Veteran was "most likely suffering from fatty liver disease/NAFLD [non-alcoholic fatty liver disease]." Private treatment records dated in June 2011 show that the Veteran had a diagnosis of NASH. Treatment records dated in June 2012 document that the Veteran had a diagnosis of fatty liver and Gilbert's syndrome. Although the November 2009 examiner determined that the Veteran did not have a liver disorder, the Board finds that there is competent medical evidence showing that the Veteran has a liver disorder, diagnosed as non-alcoholic fatty liver, NASH, and Gilbert's syndrome. Resolving reasonable doubt in favor of the Veteran, the Board finds that he has a current liver disability. The Board further finds that the Veteran's liver disorder had its onset during service. The Veteran's service treatment records show that he was diagnosed with fatty liver during service. Furthermore, although the November 2009 examiner found that the Veteran did not have a disability, he found that the Veteran had "fatty liver with elevated liver enzymes" since 1999. With resolution of all reasonable doubt in the Veteran's favor, the service connection claim for a liver disorder is granted. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied. See 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 49. ORDER Service connection for a liver disorder is granted. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs