Citation Nr: 1307871	
Decision Date: 03/08/13    Archive Date: 03/11/13

DOCKET NO.  06-38 146	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for a liver disorder. 


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Jennifer R. White, Counsel



INTRODUCTION

The Veteran served on active duty from March 1965 to March 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  

In September 2008, the Veteran testified before the Board at the RO.  A transcript of this proceeding is of record.

This appeal was previously before the Board in February 2009.  The February 2009 Board decision denied service connection for a liver disorder, and remanded the issue of entitlement to service connection for erectile dysfunction.  Pursuant to a subsequent Joint Motion for Remand, the U.S. Court of Appeals for Veterans Claims (Court) issued a November 2009 order vacating the denial of service connection for a liver disorder, and returning this issue to the Board for further adjudication.  These issues were again before the Board in January 2010, at which time they were remanded for additional development.  In a January 2011 decision, the Board again denied service connection for a liver disorder, and this denial was again vacated in a July 2011 Court order granting a Joint Motion for Remand.  The issue was remanded again by the Board in a February 2012 decision.  The claim has been returned for further appellate adjudication.

The Board notes that the Veteran was awarded individual unemployability (TDIU) effective December 2005, by a July 2007 rating decision.  Thus, the Veteran is  receiving benefits at the 100 percent rate, effective prior to the claim for service connection denied herein.

The required development has been completed and this case is appropriately before the Board.  See Stegall v. West, 11 Vet. App. 268 (1998). 

Please note this appeal 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).


FINDING OF FACT

The preponderance of the evidence indicates that the Veteran does not have a current liver disorder which is related to active service or is secondary to any service-connected disability.


CONCLUSION OF LAW

Entitlement to service connection for a liver disability, to include as secondary to service-connected disabilities, is not warranted.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent letters in October 2005, November 2005, July 2006, June 2007, February 2008, and February 2009 that addressed all notice elements.  The letters provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  Moreover, a July 2006 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal.  Fully compliant notice, however, was issued in later communication, and the claim was thereafter, most recently, readjudicated in October 2012.  Accordingly, any timing deficiency has here been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). 

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at his September 2008 hearing.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

The Veteran was afforded the opportunity to testify before the undersigned Veterans Law Judge in September 2008.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, the presiding Veterans Law Judge, in a pre-hearing conference discussed the basis of the prior determinations and noted the elements that were lacking to substantiate the service connection claims on appeal.  In addition, the Veteran demonstrated actual knowledge of this information.  The Veteran specifically addressed medical evidence in support of his claims, indicating an understanding of requirements to establish service connection.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.)  Additionally, the presiding Veterans Law Judge noted the issues on appeal and provided a basic explanation of them.  Accordingly, the Veteran is not shown to be prejudiced on this basis. 

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).


Regulations and Analysis

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; 38 C.F.R. § 3.303.  Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

As the Veteran also had military service in Vietnam, the Board must also consider entitlement to service connection for a liver disability as secondary to herbicide exposure.  Under the provisions of 38 C.F.R. § 3.309(e), if a Veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases set forth in 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 

According to 38 C.F.R. § 3.307(a)(6)(iii), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  Service in Vietnam includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in Vietnam.  38 C.F.R. § 3.313(a) (2012).

Service connection may be awarded for any disability which is due to or the result of, or is otherwise aggravated by, a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  Although 38 C.F.R. § 3.310  was amended effective October 10, 2006, during the pendency of this claim, the Board will apply the former version of 38 C.F.R. § 3.310, which is more favorable to the appellant because it does not require the establishment of a baseline before an award of service connection may be made.

In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.   Lay evidence may be competent and sufficient to establish a diagnosis of a condition when

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).   Laypersons have generally been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Turning to the evidence of record, the Veteran's service treatment records are negative for any diagnosis of or treatment for a liver disability during military service.  On his March 1969 service separation examination, the Veteran was without any abnormality of the abdomen, including his gastrointestinal system. Immediately after service, although the Veteran sought VA and private medical treatment for various disabilities, he did not seek treatment for or receive a diagnosis of a liver disability for many years thereafter.

The Veteran underwent abdominal surgery in March 2006.  Among his current conditions were hyperlipidemia and hypercholesterolemia.  Upon surgical opening of the abdomen, his liver was described as moderately enlarged, with moderately increased turgor, and a mild to moderate degree of steatotic discoloration.  A liver biopsy was performed. 

In May 2006, the Veteran underwent a private consultation with T.B., M.D., regarding several of his medical issues, including a possible liver disorder.  Dr. B. stated that the Veteran had several risk factors for a liver disorder, including morbid obesity, dyslipidemia, and diabetes.  Dr. B. also indicated that he thought it was unlikely that prior Agent Orange exposure would explain fatty liver and he was unaware of any such risk.  Dr. B. acknowledged that steatohepatitis had been suspected in the past; however, on review of his liver tests performed that same month, his liver function was "completely normal," according to Dr. B. Additionally, Dr. B. found "no evidence of advanced liver disease" and his most recent liver panel was "completely negative."  In an addendum to this consultation report, Dr. B. reviewed the recent private operative report, which determined the Veteran's liver was not overtly cirrhotic.  As noted above, the liver was described as moderately enlarged, with moderately increased turgor, and a mild to moderate degree of steatotic discoloration.  No diagnosis of a liver disorder was rendered by Dr. B. at that time. 

A VA medical examination was afforded the Veteran in September 2006.  The examination was conducted by a VA physician, and the Veteran's claims file was reviewed in conjunction with the examination.  The reviewed records included the March 2006 operative and biopsy reports.  The VA examiner noted that while steatohepatitis was observed within the biopsy report, the Veteran's private physician at that time described this as a "likely benign prognosis" without evidence of cirrhosis or advanced liver disease.  Current liver function testing was ordered by the VA examiner, and physical examination of the Veteran was also performed.  A tentative impression of fatty liver was given, less likely than not related to the Veteran's diabetes and more likely related to his history of morbid obesity and hyperlipidemia.  The examination results were shown to a hepatologist, who described the Veteran's fatty liver as a "benign condition."  In a November 2006 addendum, the VA examiner stated the Veteran's most recent liver function tests were completely within normal limits. 

In April 2010, the Veteran submitted a letter from a private doctor, H.C.W., D.O. Dr. W. noted the Veteran's prior biopsy, which indicated steatohepatitis.  Dr. W. also stated the Veteran had hyperlipidemia. 

Most recently, the Veteran was afforded a VA examination in August 2010.  He was physically examined by a VA physician, and his claims file was reviewed.  In particular, the examiner reviewed the Veteran's 2006 biopsy, which suggested steatohepatitis.  The Veteran also stated that he was told by his dentist that he had jaundice, but a review of VA medical treatment records dated from 2007 to 2009 indicated all liver tests were negative for elevated levels of bilirubin.  After review of the file and examination of the Veteran, the examiner stated he could not diagnose a current liver disorder at this time.  The prior 2006 biopsy report was suspect as a diagnostic tool because, according to the examiner, insufficient tissue was present for a definitive diagnosis.  Moreover, liver function tests as recent as June 2010 were without abnormal findings.  Even assuming a current diagnosis of steatohepatitis was warranted, this condition was less likely than not a result of the Veteran's service-connected disabilities, and more likely related to his prior morbid obesity and associated dyslipidemia. 

In conclusion, the Board finds that service connection for the Veteran's liver disorder must be denied as the preponderance of the evidence is against a finding that the disability is related to active service, any incident of active service or is secondary to any service-connected disability.  

Indeed, there is no competent evidence linking the Veteran's liver disorder to any incident of active service.  Rather, he expressly denied problems at his separation examination, and the clinical record reveals no treatment or diagnosis for such problems for years after discharge.  In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

The Board notes the very recently decided Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  In the decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a).  In this case, the claimed disability is not a decidedly chronic disability.  The only liver disorder considered to be chronic according to 38 C.F.R. § 3.309(a) is cirrhosis, which has not been diagnosed during the relevant period.  Thus, a discussion of whether there has been continuity of symptomatology since service cannot stand as a basis for an award of service connection in this case.

Additionally, the medical evidence of record does not relate liver problems to active service.  Indeed, VA medical opinions, offered following examination of the Veteran and after a review of the relevant records, indicates that the disorder is not related to active service, any incident of active service and is not secondary to any service-connected disability but more likely than not related to morbid obesity and associated dyslipidemia.  The rationale provided was clearly articulated and was based in part on the Veteran's own statements, history and review of the claims file.  For these reasons, these opinions are deemed highly probative and have not been refuted elsewhere in the record.  

The Board, however, notes that the Veteran's service records confirm service in Vietnam pursuant to 38 C.F.R. § 3.307(a)(6).  Thus, his exposure to herbicides is presumed.  None of the claimed liver disabilities, however, are among the disorders listed at 38 C.F.R. § 3.309(e).  Therefore, a grant of service connection for a liver disability on a presumptive basis must be denied.  Additionally, there is no competent evidence indicating that the Veteran's liver disorder is related to in-service Agent Orange exposure.  In fact, the Veteran's private physician indicated in a May 2006 treatment note that he felt it was unlikely that his liver dysfunction is related to Agent Orange exposure and the physician was not aware of any link.

The Board notes that the Veteran has submitted various medical literature printed from the internet indicating general information regarding liver disorders.  There is no specific information about the Veteran's circumstance.  Thus, the articles are entitled to little, if any, probative weight and the Board finds the medical opinions of record to be far more persuasive as the Veteran's actual case is that which is considered.  See Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (finding that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus between current disability and military service). 

The Board also recognizes that the Veteran has submitted copies of Board decisions which pertain to other Veterans in support of this claim.  In this regard, the Veteran, in essence, cites to the Board's disposition of those cases as precedential in establishing his claim.  The Board emphasizes, however, that Board decisions are not precedential.  See 38 C.F.R. § 20.1303 (2012).  Rather, the Board must weigh the facts of each case and apply the governing laws and regulations without regard to dispositions in other Veterans' cases based on separate and unique facts.

The Veteran himself believes that his liver disorder is related to active service.  In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  Here, however, due to the passage of time, the reported delayed onset of diagnosis, and the systemic nature of liver disease, the question of causation extends beyond an immediately observable cause-and-effect relationship.  As such, the Veteran is not competent to address etiology in the present case.  

In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's liver disorder is related to active service, to any incident of active service, or is secondary to any service-connected disability.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to service connection for a liver disability is denied. 



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs