Citation Nr: 1524053 Decision Date: 06/05/15 Archive Date: 06/16/15 DOCKET NO. 10-04 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a liver disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his son, D.S. ATTORNEY FOR THE BOARD N. Kroes, Senior Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned Veterans Law Judge in March 2012. A copy of the hearing transcript has been associated with his claims file. This issue was then remanded by the Board for additional development. The development having been completed, the issue was returned to the Board for further appellate consideration. The Board obtained an expert medical opinion on this issue in August 2014. The Veteran has been provided a copy of the opinion and afforded time for response. The Veteran has submitted additional evidence and waived initial agency of original jurisdiction (AOJ) consideration of the evidence. See 38 C.F.R. § 20.1304 (2014); see also Statement from the Veteran dated March 1, 2015 and Veteran's Request for Expedited Processing dated December 17, 2012. FINDING OF FACT A liver disorder was not present during service, cirrhosis of the liver did not manifest during the first year after separation from service, and the current liver disorder is unrelated to the Veteran's military service to include the use of antifungal medication. CONCLUSION OF LAW A liver disorder was not incurred in or aggravated by active service, and the incurrence or aggravation of cirrhosis of the liver during active service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § 3.159 (2014). The VCAA applies to the instant claim. The duty to notify was satisfied in this case by a January 2009 letter. The claim was last readjudicated in December 2012. VA has also fulfilled its duty to assist. VA obtained the Veteran's service treatment records and identified post-service treatment records. During the appeal period, VA provided the Veteran with an examination in June 2012 and obtained an expert opinion in August 2014. Both clinicians reviewed the Veteran's history, described his disability in detail, and provided an analysis to support the conclusions reach. Therefore, the examinations are adequate and allow the Board to make an informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The examination and opinions also substantially comply with the May 2012 Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record reflects that at the March 2012 hearing the undersigned explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Given the above, no further action related to the duties to notify and assist is required in this case. Analysis The Veteran contends that he has a liver disorder as a result of his military service, to include taking prescription antifungal medication (Griseofulvin). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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). In this case, a June 2012 VA examination report reflects a diagnosis of fatty liver. Thus, the remaining inquiry is whether the current liver disorder is related to the Veteran's military service in any way. The evidence does not reflect that the Veteran had a liver disorder during service. His service treatment records are devoid of any indication of complaints, treatment, or diagnoses related to a liver disorder. During his separation examination evaluation of the abdomen and viscera was normal and the Veteran specifically denied having had problems with jaundice or liver trouble. The Veteran did take antifungal medication during service. The Board recognizes that certain chronic diseases, like cirrhosis of the liver, are presumed to be related to service if they manifest to a compensable degree within one year of separation from service. See 38 U.S.C.A. §§ 1101, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2014). This presumption is not for application in this case as there is no medical or lay evidence suggesting that the Veteran had cirrhosis of the liver in the year after his separation from service. While there is evidence of hepatitis shortly after service there is no suggestion of cirrhosis. Of note, at the June 2012 examination there were no signs or symptoms attributable to cirrhosis of the liver. A liver disorder is not shown until years after the Veteran's separation from service, which weighs against a finding of in-service incurrence. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Private treatment records reflect that a February 1997 sonogram of the abdomen was unremarkable. In June 1999, the Veteran complained of right-sided pain; abdominal sonogram showed no abnormality or change since February 1997. In March 2002 the Veteran complained of "aching in the liver;" the assessment at that time was hyperlipidemia. Laboratory findings from October 2004 reflect normal hepatic function. In December 2008, a private physician evaluated the Veteran's complains of discomfort in the right upper quadrant of the abdomen radiating to the back. The physician noted that the Veteran had been symptomatic since July, numerous studies had been done, and with a sonography finding of sludge in the gallbladder there was definite gallbladder pathology. Of note, a nuclear medicine hepatobiliary scan from October 2008 reflected that the initial liver appearance was unremarkable. In March 2009, the Veteran told his private physician that he was treated for hepatitis after his discharge from service and his doctor at the time thought the hepatitis was related to medication he had taken for a nail fungus. The Veteran told his physician he continued to have "twinges" of pain in the "liver." Regarding treatment for hepatitis after service, in a February 2010 letter, Dr. F.C. wrote that in March 1969 he examined and treated the Veteran for infections hepatitis. He further noted that reexamination in April confirmed improvement and the Veteran finished treatment elsewhere. Of note, during his hearing the Veteran testified that he was told by the doctor in 1969 that he had liver damage. Board Hearing Tr. at 7. A March 2010 abdominal ultrasound suggested fatty infiltration of the liver. In June 2010, the Veteran's private physician, Dr. N.K., assessed fatty liver based on the abdominal imaging. Liver function tests were normal. In January 2011, Dr. N.K. offered the following opinion. I think it would be appropriate to evaluate [the Veteran's] situation in light of his initial presentation in 1968 with viral type symptoms, at which time he received griseofulvin. This could possibly have contributed to his subsequently abnormal liver function, and his ongoing issues involving the liver. The Board notes that the statement from Dr. N.K. is speculative in that she indicates that it is possible that medication contributed to later liver issues rather than offering an actual opinion. As a speculative opinion is of little probative value, VA obtained additional medical opinions. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). Doctor N.K. filled out a VA disability benefits questionnaire in August 2012. She diagnosed "Fatty liver infilt." and noted that the Veteran does not have hepatitis C. Doctor N.K. did not offer an opinion regarding the etiology of the liver disorder. The Veteran was afforded a VA examination in June 2012. The examiner diagnosed fatty liver and also noted hyperlipidemia. The Veteran reported that he had hepatitis in 1969, shortly after his discharge from service. The examiner noted that service treatment records were negative for any liver disorder including hepatitis, and recognized the note from Dr. F.C. regarding treatment for infectious hepatitis that improved by April 1969. According to the examiner there is no clinical diagnosis of hepatitis currently and since the Veteran tested negative for hepatitis after 1969 it is more likely than not that the hepatitis infection would have been hepatitis A or E. Hepatitis B or C would have persisted and been detectable on laboratory examination. The examiner stated that the Griseofulvin would not have caused the infectious hepatitis, and if liver damage occurred one would expect abnormal liver function tests during that timeframe but most likely resolving after discontinuation of treatment. According to the examiner, there is no actual documentation of abnormal liver function with the exception of elevated liver enzymes on an ultrasound request from 1997. The examiner commented that there are a whole host of potential reasons for temporarily elevated liver enzymes, and there are multiple regular normal liver function tests from 2002 through 2009. The examiner further noted that most common causes of fatty liver are alcoholism and nonalcoholic fatty liver disease associated with obesity and diabetes. According to the examiner, patients with drug induced fatty liver disease typically have mild to moderate elevations of AST/ALT and may develop hepatomegaly, but the Veteran has normal liver function and size. As the 2008 ultrasound of the liver was normal with no mention of fatty liver disease, the examiner opined it is more likely than not that the Veteran did not develop fatty liver until after 2008. Based on these facts, the examiner determined that it is not at least as likely as not that the Veteran's current diagnosis of fatty liver is related to any in-service event including the possible prescription of Griseofulvin. The Board has afforded this opinion high probative weight as it was offered by a medical clinician after examination of the Veteran and a review of the relevant medical history, and because it includes a reasoned rationale for the conclusions reached. In August 2014, an expert opinion was obtained from a gastroenterologist from the Veterans Health Administration. The physician noted the relevant history, including the treatment for hepatitis shortly after service, and opined that liver disorder-fatty steatosis was not as likely as not related to the Veteran's period of service and "certainly Griseofulvin did not contribute to infectious hepatitis in March/April 1969, from which [the Veteran] recovered completely." The physician explained that the medical history does not show possible cause and effect relationship to the use of Griseofulvin during his deployment and his liver disease/fatty steatosis and abnormal liver functions. According to the physician, articles and reference reflect that Griseofulvin causes a spectrum of cholestatic liver disease and abnormal liver functions which tend to normalize after discontinuation of the causative agent (Griseofulvin). The physician noted that considering the Veteran's history, physical findings, and clinical course and findings of hepatic steatosis more than 40 years after service it is extremely difficult to associate or establish cause and effect relationship to use of Griseofulvin in 1968. The physician also noted that hepatitis A does not leave any chronic sequelae or chronic liver disease and the majority of patients recover completely. Finally, the physician observed that there is no documentation of cholestatic liver disease and other components of potential risk factors in the etiology of fatty steatosis of the liver addressed or confirmed in the medical history. The Board has afforded this opinion high probative value as it was offered by a medical specialist applying his knowledge in the area after a review of articles and the specific medical history in this case, and as it includes a reasoned rationale for the conclusions reached. The Board has considered the Veteran's lay statements. While the Veteran is competent to report observable symptomatology, he is not competent to determine the etiology of a disorder such as fatty liver as that requires medical expertise. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, the Veteran reported that he was told by a physician in 1969 that he had liver damage. However, the statement from the physician who examined the Veteran in 1969 does not mention liver damage, and instead indicates that the Veteran was treated for infectious hepatitis which improved. Given the statement from the treating physician, the Veteran's statements that he had liver damage in 1969 are not competent to establish a diagnosis of liver damage. The Veteran has submitted several articles addressing antifungal medication and the liver. None of these articles specifically address the Veteran and they have been assigned little probative weight. These articles are outweighed by the application of medical knowledge to the specific history in this case by the VA examiner and VA specialist. In summary, the most probative evidence in this case - the opinions from the VA examiner and VA specialist - are adverse to the claim. There are no competent records contradicting the history and facts upon which the opinions are based. These opinions outweigh the lay statements, the general medical articles, and the speculative medical opinion submitted to support the claim. As such, the benefit of the doubt doctrine is not for application and the claim of entitlement to service connection for a liver disorder must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a liver disorder is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs