Citation Nr: 0810925 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 98-07 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a disability manifested by jaundice, including hepatitis and cirrhosis of the liver. 2. Entitlement to service connection for a liver disorder, classified as Gilbert's syndrome/disease with hyperbilirubinemia. 3. Entitlement to service connection for a disability manifested by dizziness or fatigue. ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION Appellant had active service from June 1974 to June 1977. He reportedly was on inactive Army Reserve status for a period after service. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision by the Jackson, Mississippi, Regional Office (RO), which denied service connection for an acquired psychiatric disability (including post-traumatic stress disorder), a chancroid with lymphadenitis, a disability manifested by dysuria, a kidney disorder, dysentery, cholera, a disability manifested by jaundice, hepatitis, defective hearing, and a dental disability; denied the issue of whether appellant has filed a timely Substantive Appeal with respect to a June 6, 1979 rating decision (which denied service connection for a right knee disability, left ear otitis media, Gilbert's syndrome/disease with hyperbilirubinemia, residuals of fractures of the right 2nd, 3rd, and 4th toes, and tuberculosis) and an October 23, 1979 rating decision (which denied service connection for Gilbert's syndrome/disease with hyperbilirubinemia and tuberculosis); and denied the issues of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for a liver disorder (classified as Gilbert's syndrome/disease with hyperbilirubinemia), tuberculosis, and left ear otitis media. Appellant subsequently appealed a January 1999 rating decision which denied service connection for cirrhosis of the liver, hypertension, a disability manifested by dizziness, a disability manifested by fatigue, a disability manifested by abdominal pain/vomiting, and a disability manifested by occult blood/red blood cells in the urine; and denied the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disability. Although in certain written documents, appellant requested that a Board hearing be held, he subsequently submitted a September 1999 written statement wherein he expressly withdrew his hearing request. By a decision rendered February 2, 2000, the Board denied entitlement to service connection for an acquired psychiatric disability, including post-traumatic stress disorder, a chancroid with lymphadenitis, a disability manifested by occult blood/red blood cells in the urine or dysuria, including a kidney disorder, a disability manifested by abdominal pain/vomiting, including dysentery and cholera, a disability manifested by jaundice, including hepatitis and cirrhosis of the liver, defective hearing, hypertension, a disability manifested by dizziness or fatigue, and a dental disability; denied the issue of whether appellant filed a timely Substantive Appeal with respect to a June 6, 1979 rating decision (which denied service connection for a right knee disability, left ear otitis media, Gilbert's syndrome/disease with hyperbilirubinemia, residuals of fractures of the right 2nd, 3rd, and 4th toes, and tuberculosis) and an October 23, 1979 rating decision (which denied service connection for Gilbert's syndrome/disease with hyperbilirubinemia and tuberculosis); and denied reopening of service connection claims for a liver disorder, classified as Gilbert's syndrome/disease with hyperbilirubinemia, tuberculosis, left ear otitis media, and a right knee disability. Subsequently, appellant appealed the Board's February 2, 2000 decision to the United States Court of Appeals for Veterans Claims (Court). By Order rendered in June 2001, the Court granted part of the VA Secretary's (appellee) motion for remand, vacated the Board's February 2, 2000 decision in its entirety, and remanded the case to the Board for readjudication in light of the recent enactment of the Veterans Claims Assistance Act of 2000 (VCAA). Although appellant appealed the Court's Order to the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), the Federal Circuit Court granted the appellee's motion to dismiss appellant's appeal of a nonfinal order. In a May 28, 2002 decision, the Board denied service connection for a dental disability and denied the issue of whether appellant filed a timely Substantive Appeal with respect to a June 6, 1979 rating decision (which denied service connection for a right knee disability, left ear otitis media, Gilbert's syndrome/disease with hyperbilirubinemia, residuals of fractures of the right 2nd, 3rd, and 4th toes, and tuberculosis) and an October 23, 1979 rating decision (which denied service connection for Gilbert's syndrome/disease with hyperbilirubinemia and tuberculosis). Appellant subsequently appealed the Board's May 28, 2002 decision to the Court. Additionally, in May 2002, the Board undertook further development on the remaining service connection claims (other than the appellate issues denied by the May 28, 2002 Board decision) pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2)). However, on May 1, 2003, the Federal Circuit Court in Disabled American Veterans v. Secretary of Veterans Affairs invalidated a portion of the Board's development regulations, specifically 38 C.F.R. § 19.9(a)(2), and (a)(2)(ii). See Disabled American Veterans, et al., v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Under 38 C.F.R. § 19.9(a)(2), the Board could consider additional evidence without having to either remand the case to the agency of original jurisdiction for initial consideration or obtain the appellant's waiver. Due, in part, to procedural due process concerns as a result of the Federal Circuit Court's partial invalidation of the Board's development regulations, in December 2003, the Board remanded the remaining appellate issues (other than the appellate issues denied by the May 28, 2002 Board decision) to the RO for additional evidentiary development. In an October 2004 Memorandum decision, the Court affirmed the May 28, 2002 Board decision, insofar as it denied service connection for a dental disability and service connection for a right knee disability, left ear otitis media, and residuals of fractures of the right 2nd, 3rd, and 4th toes (affirming those latter three claims on the grounds that appellant did not submit a timely Notice of Disagreement with a June 6, 1979 adverse rating decision). Additionally, however, the Court Memorandum decision reversed the May 28, 2002 Board decision, insofar as it denied the issue of whether appellant filed a timely Substantive Appeal with respect to June 6th, and October 23, 1979 rating decisions (which denied service connection for Gilbert's syndrome/disease with hyperbilirubinemia and tuberculosis), on the grounds that the presumption of regularity of VA's mailing to appellant a July 1980 Statement of the Case on said issues had been rebutted. In the October 2004 Memorandum decision, the Court remanded the issues of service connection for Gilbert's syndrome/disease with hyperbilirubinemia and tuberculosis for "appropriate procedural compliance, specifically the issuance of an SOC" [Statement of the Case]. See also Manlincon v. West, 12 Vet. App. 238 (1999). Consequently, in a March 2, 2005 decision, the Board denied service connection for an acquired psychiatric disability, including post-traumatic stress disorder, a chancroid with lymphadenitis, a kidney disorder, a disability manifested by abdominal pain/vomiting, including dysentery and cholera, defective hearing, and hypertension; and the other appellate issues involving service connection for a disability manifested by occult blood/red blood cells in the urine or dysuria, a disability manifested by jaundice, including hepatitis and cirrhosis of the liver, a disability manifested by dizziness or fatigue, a liver disorder, classified as Gilbert's syndrome/disease with hyperbilirubinemia, and tuberculosis were remanded to the RO for additional evidentiary development. In October 2005, the Board denied service connection for tuberculosis and a disability manifested by occult blood/red blood cells in the urine or dysuria. The remaining appellate issues involving service connection for a disability manifested by jaundice, including hepatitis and cirrhosis of the liver, a disability manifested by dizziness or fatigue, and a liver disorder, classified as Gilbert's syndrome/disease with hyperbilirubinemia were remanded. These issues have been returned to the Board for review. FINDINGS OF FACT 1. It has not been shown, by credible competent evidence, that appellant has a chronic disability manifested by jaundice, including hepatitis and cirrhosis of the liver related to service. Cirrhosis was not confirmed to be present within 1 year following separation from service. 2. It has not been shown, by credible competent evidence, that appellant has a chronic liver disorder, classified as Gilbert's syndrome/disease with hyperbilirubinemia related to service. 3. It has not been shown, by credible competent evidence, that appellant has a chronic disability manifested by dizziness or fatigue related to service. CONCLUSIONS OF LAW 1. Appellant does not have chronic disability manifested by jaundice, including hepatitis and cirrhosis of the liver that was incurred in or aggravated by service, nor may cirrhosis of the liver be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007); 2. Appellant does not have a chronic liver disorder, classified as Gilbert's syndrome/disease with hyperbilirubinemia that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 3. Appellant does not have a chronic disability manifested by dizziness or fatigue that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Review of the record reveals that all appropriate notice and development has been accomplished. See 38 U.S.C.A. §§ 5100 et seq. (West 2002 & Supp. 2007). Examination has been conducted, notice as to what evidence needed has been provided, and there is no indication that there is additional evidence or development that should be undertaken. Letters of April 2004, April 2005, and October 2005 provided pertinent notice and development information. Further, the veteran was notified of the type of evidence necessary to establish a disability rating and effective date for that disability in the October 2007 supplemental statement of the case (SSOC). While this is a post- decisional document, there is no prejudice to the veteran as service connection for the disorders at issue is denied. Although the notices were not sent until after the initial rating denying the claims, the Board finds that any defect with respect to the timing of the required notice was harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). For the above reasons, the Board finds that development of the record is sufficiently complete to permit a fair and just resolution of the appeal, and there has been no prejudicial failure of notice or assistance to the appellant. Entitlement to service connection In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection will be presumed for certain chronic diseases (e.g. cirrhosis of the liver) which are manifest to a compensable degree within the year after qualifying active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the claimed disability, 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this regard, the problem with the veteran's claims is the first element of Hickson, in that; there is no current medical evidence of the claimed disabilities. He claims to have chronic disabilities claimed as: a disability manifested by jaundice, including hepatitis and cirrhosis of the liver; a liver disorder, classified as Gilbert's syndrome/disease with hyperbilirubinemia, and a disability manifested by dizziness or fatigue. Significantly, however, the current record does not support a conclusion that the veteran currently has the aforementioned disabilities. Without proof of current disability, service connection cannot be granted. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In this regard, the service medical records, including a March 1977 service separation examination, did not reveal any complaints, findings, or diagnoses pertaining to a chronic liver disorder including, jaundice, hepatitis, cirrhosis, Gilbert's syndrome, hyperbilirubinemia, or a chronic disability manifested by dizziness or fatigue. Over the years the veteran has complained of and received treatment for the variously claimed disabilities. In 1978, the veteran underwent diagnostic testing due to abnormal liver readings. There were different provisional diagnoses reported including hyperbilirubinemia and rule out Gilbert's syndrome. VA outpatient treatment report dated in March 1978 included a diagnosis of resolving hepatitis B. Thereafter, he received follow up VA treatment for hepatitis B. VA outpatient treatment reports reflect that in May 1978, liver enzymes were reported as "OK." In March 1979, the impression was status post hepatitis with slightly elevated indirect bilirubin. On May 1979 VA examination, diagnoses included "[l]iver condition, history primarily of cirrhosis with hepatomegaly associated with a hyperbilirubinemia." That diagnosis was crossed out and replaced by "[l]iver condition, Gilbert's syndrome w [ith] hyperbilirubinemia." Furthermore, over the years, the veteran has also complained of dizziness and chronic fatigue. Importantly however, since then, there has been no evidence of residual pathology associated with the liver or a diagnosis of a chronic disability manifested by dizziness and chronic fatigue. A July 1985 VA outpatient treatment report indicates appellant complained of "chronic hepatitis." The assessment was rule out hepatitis. Clinically, there were no pertinent findings. A December 1997 VA examination report noted that liver enzymes were within normal limits, including a total bilirubin value of 0.9. There were no complaints, findings, or diagnoses pertaining to a disability manifested by jaundice, including hepatitis and cirrhosis of the liver. VA examinations were conducted in June 2004 and October 2005 and it was determined that the veteran did not have the claimed chronic disabilities. The examiners reviewed the veteran's medical history and noted his past diagnosis of hepatitis in 1978; however, it was also noted that the veteran did not exhibit any residual pathology related to hepatitis. The examiner commented that his hepatitis B infection resolved without residual disability. His liver function tests were normal. He had no evidence of Gilbert's disease. It was further noted that Gilbert's disease was an inherited disorder and would not be caused by or made worse by military service. Further, there was no evidence of cirrhosis. Still further, there was no diagnosis of a chronic disability associated with dizziness and fatigue. The VA examiner in October 2005 postulated that his fatigue resulted from his poor sleeping habits. His dizziness was associated with postural hypotension. This is the first listing of this cause and there is no evidence that it is related to service. As there is no evidence of current disability, the Board will not address the remaining elements outlined in Hickson. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for chronic disabilities claimed as a chronic disability manifested by jaundice, including hepatitis and cirrhosis of the liver; a chronic liver disorder, classified as Gilbert's syndrome/disease with hyperbilirubinemia; and a chronic disability manifested by dizziness or fatigue. ORDER Service connection for a disability manifested by jaundice, including hepatitis and cirrhosis of the liver, is denied. Service connection for a liver disorder, classified as Gilbert's syndrome/disease with hyperbilirubinemia, is denied. Service connection for a disability manifested by dizziness or fatigue, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs