Citation Nr: 1209541 Decision Date: 03/14/12 Archive Date: 03/28/12 DOCKET NO. 09-01 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for nonalcoholic steatohepatitis (NASH), formerly characterized as fatty liver and claimed as liver failure, as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1998 to June 2002. This matter comes to the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In June 2009 and November 2011 the Veteran was afforded hearings before a Decision Review Officer (DRO) and the Board, respectively. Transcripts of the testimony offered at these hearings have been associated with the record. The Veteran has submitted evidence that has not yet been considered by the RO. In this regard, the Board may consider this evidence in the first instance because the Veteran has waived initial RO consideration thereof and the benefit sought on appeal is granted. See 38 C.F.R. § 20.1304(c) (2011). FINDING OF FACT The weight of the competent medical evidence is at least in a state of equipoise regarding the question of whether the Veteran's NASH is proximately due to service-connected disabilities. CONCLUSION OF LAW With the resolution of reasonable doubt in the Veteran's favor, service connection is warranted for NASH. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. Service connection may be granted for 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) (2011). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2011). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks service connection for NASH on a secondary basis. He does not contend that this condition manifested in service and the service treatment records disclose no such condition. Rather, he asserts that NASH is attributable to both over-the-counter and prescription medications that he has taken for service-connected disabilities. In this regard, it is noted by the Board that service-connection has been established for patellofemoral pain syndrome of the right and left knees, intermittent low cervical musculoskeletal muscle strain, myofascial pain syndrome involving left masseter muscle and a right ankle strain. The Veteran particularly notes that his knee conditions have required him to take acetaminophen, naproxen and numerous prescription medications for treatment of pain. He has also identified other medications, such as Flonase and Nasonex for treatment of sinus problems, as possible culprits in the development of NASH. Notably, service-connection for sinusitis was granted in a May 2010 rating decision. A review of the claims file discloses that in early August 2007 the Veteran presented to the Yale-New Haven Hospital with a complaint of right flank pain and nausea. The Veteran was admitted and treated for kidney stones; however, examination at this time noted extensive fatty infiltration of the liver with no intrahepatic biliary ductal dilatation. Subsequent medical records within the file document this condition. As noted above, the Veteran testified before a DRO in June 2009. At this hearing, he testified as to risk factors for the development of his disease. He noted that his weight was a risk factor, but that there were other possible factors. He particularly emphasized that his disease could be attributable to "oxidative damage." He explained that his research had shown that oxidative damage occurred from the ingestion of certain drugs. He outlined several medications that he took for his service-connected disabilities, and particularly noted that cyclobenzaprine, which he took for a service-connected disability, was one such drug. In furtherance of substantiating his claim, the Veteran submitted a July 2009 medical opinion from J.Y., M.D., who was then the Veteran's girlfriend. In this letter, Dr. Y notes that she had reviewed current literature on NASH, and its pathogenesis, particularly to comment on any possible link between NASH and military service. In the opinion, Dr. Y. explains that although the causative mechanism of NASH was not clearly defined, the medical literature suggested that an oxidative injury was required to manifest steatohepatitis of the liver. Dr. Y. related further that the oxidative injury may come from environmental exposures and especially might be induced by exogenous use of medications. She noted several non-steroidal anti-inflammatory medications (NSAIDs) in this regard, including ibuprofen, naproxen, nabumetone, and acetaminophen, as well as an antiviral, acyclovir. With respect to the Veteran's subjective medications, Dr. Y. noted that a review of the file was notable for extensive and prolonged use of NSAIDS and acetaminophen to treat his various musculoskeletal injuries sustained during military service. She also noted that the Veteran was treated for these conditions with tramadol and cyclobenzaprine, which were also medications that had possible liver side effects listed in their safety profiles. Accordingly, Dr. Y. concluded that based upon a review of the medical literature and the Veteran's record, that she could "establish a highly probable association between the use of known injurious medications, taken on a daily basis for an extended period of time, and documented, biopsy shown liver damage." Accordingly, she concluded that the Veteran's medications had a role in the development of NASH. In furtherance of substantiating his claim the Veteran was afforded a VA examination in October 2009. Examination at this time resulted in an impression of NASH, with persistent liver enzyme elevation with very mild residual functional impairments and noted "Veteran still with obesity and considering lap band procedure." The examiner noted that the medical literature listed conditions associated with NASH, to include obesity, diabetes, hypertension, insulin resistance, hyperlipidemia, abdominal surgery and various drugs and toxins. The examiner noted the opinion of Dr. Y. that etiologically liked NSAIDs to NASH; however, the VA examiner concluded that NASH was less likely than not attributable to service. The VA examiner concluded that the Veteran's NASH was more likely due to his obesity. In this regard, the examiner noted that the record disclosed weight ranging from 160 to 185 pounds from February 1998 to August 2002, and that thereafter the Veteran's weight steadily increased to the 240-250 range. The examiner further outlined that the Veteran's weight gain coincided with rising liver function tests (LFTs). Accordingly, the examiner found it more likely that NASH was attributable to obesity, rather than medications taken for service-connected disabilities. In November 2011 the Veteran testified before the Board. At the hearing, the Veteran reiterated his contentions that NASH was attributable to medications regularly taken for treatment of service-connected disabilities. He noted that at this time he weighed about 230 pounds and that his weight often fluctuated. He noted that his knee pain prevented him from exercising. With respect to Dr. Y., the Veteran explained that he had dated her, but as of the hearing they had discontinued their relationship, although he still utilized Dr. Y. for some of his prescriptions. He also noted that he developed this disease at a young age. As this claim clearly involves a complex medical question, resolution of this claim depends on the relative weight to be assigned to the unfavorable VA opinion and the favorable opinion of Dr. Y. The Board acknowledges that a review of the claims file demonstrates that the Veteran has a bachelor's degree in biology as well as experience as a pharmaceutical representative. However, this is clearly a complex question and the Veteran, as a lay person, is clearly not competent to address this question. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007). In this regard, the Board finds that the competing opinions are of at least equal value. As with weight gain, the record objectively demonstrates that the Veteran was required to take numerous medications for service-connected disabilities. Saliently, the VA examiner also acknowledged that the Veteran's various medications related to service-connected disabilities were a possible cause of NASH, in agreement with Dr. Y.'s opinion. Thus, although the VA examiner found that it was more likely that NASH was attributable to obesity due to objective evidence showing weight gain in correlation with rising and elevated LFTs, the Board also finds that the medications that the Veteran took for service-connected disabilities are as equally likely a cause thereof. Accordingly, the claim is granted. Gilbert, supra.; see also Jones v. Shinseki, 23 Vet. App. 382, 394 (Lance, J. concurring). In closing, the Board acknowledges that at the time Dr. Y. authored the favorable etiologic opinion that she and the Veteran were involved in a relationship. In any case, the Board has the responsibility to assess the credibility and weight to be given to the competent medical evidence of record. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993); Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). However, the Board finds no reason to doubt Dr. Y.'s credibility and notes that her conclusion is not entirely contradicted by that of the VA examiner, which notably identifies medications taken for service-connected disabilities as a possible cause of NASH. ORDER Entitlement to service connection for NASH is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs