Citation Nr: 1124141 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-34 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a liver disorder, to include as secondary to the service-connected bilateral patellar tracking disease. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. C. Schingle, Associate Counsel INTRODUCTION The Veteran had active service from March 1998 to April 1998 and from February 2000 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA). For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to final adjudication of the issue on appeal. In particular, the Veteran contends that his current liver disorder is related to service because he began to experience symptoms of a liver disorder shortly after active duty. In addition, he maintains that his liver problems may be the result of inservice treatment for a service-connected bilateral knee disorder. [Service connection has been granted for patellar tracking disease of each knee, and evaluations of 10 percent, effective from May 2008, have been assigned to each of these disabilities.] Specifically, the Veteran asserts that the medication that he used to treat his bilateral knee pain caused his current liver disorder. Service treatment records show no evidence of complaints of, treatment for, or findings of a liver disorder. Notably, service treatment records do show ongoing treatment for both knees from 2002 to 2004. At the January 2010 hearing before a decision review officer, the Veteran reported that he sought pertinent treatment almost immediately after service, but could not get an appointment for almost six months. The Veteran further explained that he found out about his liver problems in 2004. According to post-service treatment records, liver problems, to include a fatty and enlarged liver, were first noted in November 2005, approximately one and a half years after service discharge. VA and private treatment records from 2005 to 2010 show ongoing treatment for the liver, to include multiple biopsies. An April 2009 biopsy report shows a diagnosis of steatohepatitis with mild activity and mild fibrosis, glycogenated hepatocellular nuclei. The examiner noted that special stains trichorme confirmed the fibrosis but that the Prussian blue stain did not show iron deposition. In September 2008, the Veteran was afforded a VA examination of his liver. The examiner diagnosed a fatty liver, but provided no opinion regarding a relationship between the Veteran's liver disorder and service or either of the service-connected knee disorders. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examiner provided no medical nexus opinion thus, it is inadequate. As no probative medical opinion has been offered regarding the Veteran's liver disorder, the Board finds that a VA examination is necessary in order to determine the Veteran's complete disability picture and to determine whether any current liver disorder is related to service or a service-connected knee disorder. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2010) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. As this case presents certain medical questions which cannot be answered by the Board, a VA medical opinion must be provided. See Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. Of particular significance to the Board in this matter is the fact that, subsequent to the September 2008 VAX (and specifically by an October 2010 rating action), service connection was recently granted for patellar tracking disease of each knee. Accordingly, the case is REMANDED for the following action: 1. Accord the Veteran a VA examination to determine the nature, extent, and etiology of any liver disorder that he may have. The claims folder should be made available to, and reviewed by, the examiner. The examination report should state that the claims folder has been reviewed. All necessary tests should be performed. For any liver disorder diagnosed on examination, the examiner should opine as to whether it is "more likely than not" (a likelihood greater than 50%), "at least as likely as not" (a likelihood of at least 50%), or "less likely than not" or "unlikely" (a likelihood of less than 50%) that such disability(ies) had its(their) clinical onset in service, is(are) otherwise related to active duty, or was(were) caused, or aggravated by, a service-connected disability. In answering this question, the examiner should address the Veteran's contentions that he has a liver disorder as a result of pain medication that he has taken for his service-connected patellar tracking disease of each knee. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a thorough and complete rationale for all opinions provided in the examination report. 2. The Veteran must be given adequate notice of the date and place of any requested examination. If feasible, copies of all notifications should be associated with the claims folder. The Veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 3. Following completion of the foregoing, the RO/AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the RO/AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010). 4. Then, the RO/AMC should readjudicate the issue on appeal based on all the evidence of record, including any additional information obtained as a result of this remand, and all governing legal authority. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2010). The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).