Citation Nr: 1305121 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 12-18 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for liver cancer. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Service connection for liver cancer was denied therein. The Veteran appealed this determination. In August 2012, a supplemental statement of the case (SSOC) was issued. Following this last adjudication of this matter, the Veteran submitted additional pertinent evidence. Additional pertinent evidence must be referred to the agency of original jurisdiction (AOJ), which in this matter is the RO, for initial review unless either the right to such review is waived by the Veteran or his representative or the Board determines that the benefit to which the evidence relates may be fully allowed on appeal. 38 C.F.R. § 20.1304(c) (2012). A waiver was submitted by the Veteran in June 2012. As such, the additional pertinent evidence will be considered by the AOJ/RO before this matter is returned to the Board. This matter is REMANDED, as aforementioned, to the AOJ/RO via the Appeals Management Center (AMC), in Washington, DC, based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." VA will notify the Veteran if further action is required. Please note this matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND Although the Board sincerely regrets the delay of a remand, adjudication of this matter cannot proceed without additional development. Such development is necessary to ensure that there is a complete record upon which to determine the Veteran's entitlement to service connection for liver cancer. VA indeed has a duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). I. Medical Examination and Opinion If VA undertakes the effort to provide a medical examination or opinion with respect to service connection, whether or not obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination or opinion is adequate when it allows the Board to perform a fully informed evaluation of the claim. Id. As such, it must be fully informed itself. It must be based upon consideration of the Veteran's entire medical history, in other words. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). This helps ensure that the factual premises underlying a medical opinion will be accurate, as is required. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for a medical opinion also must be fully and clearly articulated. Stefl, 21 Vet. App. at 120; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In January 2012, the Veteran was afforded a VA medical examination. The examiner did not indicate whether or not the claims file was reviewed. The examiner did indicate that he reviewed service, VA, and private treatment records, however. Interview of the Veteran and his wife was also undertaken. Thereafter, the examiner then rendered a medical opinion that the Veteran's hepatocellular carcinoma was at least as likely as not proximately due to or the result of his service-connected hepatitis C. That he "was really never an alcoholic abuser" was noted. Also noted was that he was diagnosed with a viral load of hepatic C of 830,000 in November 2009 and has since been under the care of an oncologist for biopsy proven liver cancer. Clarification of the aforementioned opinion was requested by the AOJ/RO later in January 2012. Contrary to the examiner's statement, it was noted that VA treatment records show the Veteran's history of and current alcohol abuse and contain a diagnosis of alcoholic cirrhosis of the liver. The examiner therefore was requested to opine as to whether the etiology of the Veteran's liver cirrhosis is due to alcohol abuse or hepatitis C. In light of the information that he abused alcohol in the past and currently abuses alcohol, the examiner opined that "it can be safely stated that [the Veteran's] cirrhosis of [the] liver is due to alcohol abuse." That it is a well-known fact that alcohol abuse can cause or lead to cirrhosis of the liver was noted. The aforementioned opinions are inadequate. Several reasons lead to this conclusion. There is a strong suggestion that the Veteran's entire medical history was not considered in rendering them. At no point has the examiner indicated that the claims file and/or "eFolder" was reviewed despite review of service, VA, and private treatment records. The interview of the Veteran and his wife did not elicit information concerning his alcohol consumption. VA treatment records confirm that he abused alcohol in the distant past, yet they do not support finding that he abused alcohol in the recent past or that he currently does so. These records, albeit somewhat inconsistent, instead contain reports and those of his family that he at most had had a few drinks on occasion. Next, the opinions are incomplete. Secondary service connection means that a current non-service-connected disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires showing that a current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Here, the examiner considered whether the Veteran's liver cancer was proximately due to or the result of his service-connected hepatitis C. Proximate cause was considered, in other words. Yet there was no consideration of whether the Veteran's liver cancer has been aggravated by his service-connected hepatitis C. Aggravation indeed was not even referenced. Finally, the rationale for even the incomplete opinions rendered by the examiner is not fully or clearly articulated. No real explanation was provided as to the basis for the opinions. As pointed out by the Veteran's representative in a February 2013 Brief, there was no explanation for why a positive opinion was initially made and thereafter followed by a contradictory clarifying opinion, or at least an opinion suggesting negativity (as it addressed cirrhosis rather than liver cancer), was made. Discussion of the interplay between cirrhosis and liver cancer was not undertaken. Alcohol abuse and hepatitis C were addressed as directed by the AOJ/RO, but no other potential causes of cirrhosis were addressed. Finally, there was almost no discussion of the pertinent evidence. Only viral load and the well-known fact that alcohol abuse causes/leads to cirrhosis were mentioned in addition to alcohol consumption. The two private medical opinions of record were not even referenced. Dr. A.G. opined in a September 2011 letter that the Veteran's hepatoma secondary to liver cirrhosis was caused by hepatitis C. Dr. E.P. opined in an undated letter that "since the association of cause and effect are so close[,] hepatitis C caused or predisposed the development of the [Veteran's] hepatoma." Therefore, for the reasons set forth above, a new VA opinion is needed. Another examination of the Veteran and his wife, as he has been noted to have cognitive deficits, need not take place prior to rendering this opinion unless the new examiner deems it necessary. II. Records The duty to assist includes making reasonable efforts to help procure pertinent records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). VA treatment records dated through August 2012 are of record. They document continued follow-up regarding the Veteran's liver cancer. It accordingly is inferred that there may be outstanding pertinent VA treatment records dated from August 2012 to present. There is no indication that such records have been requested. VA has constructive notice of VA generated documents that could plausibly be expected to be part of the record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Indeed, such documents are constructively part of the record before the Board even where they are not actually before the adjudicating body. Id. The aforementioned requests accordingly must be made. Doing so requires a remand. Notification to the Veteran of the inability to obtain updated VA treatment records, or any other records sought, shall be made on remand if necessary. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). Such notification shall include an explanation that the Veteran ultimately is responsible for providing the records. 38 C.F.R. § 3.159(e)(1) (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Review the Veteran's claims file and "eFolder" and undertake any records development indicated. This shall include requesting updated VA treatment records (August 2012 to the present) regarding the Veteran. This also shall include requesting, after securing any necessary authorization, any new/additional pertinent private treatment records identified by him during the course of this remand. All records obtained shall be associated with the claims file or "eFolder." Notice shall be provided to the Veteran if records sought are not obtained. Document the claims file or "eFolder" as appropriate regarding this paragraph. 2. After completion of the above development, arrange for another opinion to be provided regarding the etiology of the Veteran's liver cancer. The claims file and pertinent documents in the Virtual VA "eFolder" shall be made available to and reviewed by the examiner. If deemed necessary, arrangements shall be made for the Veteran to undergo further examination regarding his relevant history, symptomatology and/or physically evaluation, inclusive of tests/studies. The examiner thereafter shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's liver cancer: (a) is related to his service, (b) was proximately caused by, due to, or the result of his service-connected hepatitis C, or (c) is proximately aggravated (permanently worsened beyond natural progression) by his service-connected hepatitis C. If aggravation is found, the examiner finally shall opine as to: (a) the baseline level of disability prior to the aggravation and (b) the current level of disability so that the amount of disability attributable solely to the aggravation may be determined. A complete and clear rationale (explanation why) shall be provided for each opinion. This shall include thorough discussion of the pertinent medical evidence (service, VA, and private records, Dr. E.P.'s undated opinion letter, Dr. A.M.'s September 2011 opinion letter, the January 2012 VA examination complete with opinion, and the January 2012 VA opinion clarification) and non-medical or lay evidence (statements from the Veteran and individuals who know him). Chronicity and continuity of symptomatology therefore specifically shall be addressed. Discussion of pertinent medical facts and principles concerning the development, onset, etiology, etc., of liver cancer also shall be made as necessary. If discussion is made of pertinent medical literature, a citation is required. If an opinion cannot be provided without resort to mere speculation, a complete and clear rationale (explanation why) shall be provided. In so doing, it specifically shall be indicated whether or not the inability to render the opinion is the result of a need for additional information or of the limits of current medical knowledge having been exhausted. Each of the above actions shall be documented fully in an VA examination report. A copy of such report shall be placed in the claims file or "eFolder." 3. Finally, readjudicate the Veteran's entitlement to service connection for liver cancer. If this benefit is not granted, he and his representative shall be provided with a supplemental statement of the case (SSOC), afforded the requisite time period to respond, and a copy of the SSOC shall be placed in the claims file or "eFolder." The Veteran has the right to submit additional evidence and argument on the issue 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).