Citation Nr: 1318007 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-16 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for sinusitis with history of nasal polyps. 2. Entitlement to service connection for a liver disability, including autoimmune hepatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1988 to November 1988, from May 1995 to May 1998, from November 2003 to May 2005, and from February 2008 to March 2008. These matters come before the Board of Veterans' Appeals (Board) from October 2008 and November 2008 RO decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The issues on appeal were previously remanded by the Board in October 2011 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain VA examinations for the Veteran's liver and sinus disabilities. This was accomplished, and the claims were readjudicated in an March 2013 supplemental statement of the case. For this reason, the Board concludes that the Board's remand orders have been substantially complied with and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The issues of entitlement to service connection for bilateral hearing loss and tinnitus have been raised by the record (in a statement received in May 2009), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Sinusitis with a history of nasal polyps was not noted on the Veteran's entrance to active service. 2. Clear and unmistakable evidence demonstrates that the Veteran had sinusitis with history of nasal polyps prior to entry into active duty. 3. Clear and unmistakable evidence demonstrates that the Veteran's pre-existing sinusitis with a history of nasal polyps did not permanently increase in severity during active service. 4. The Veteran did not sustain an injury or disease of the liver in service. 5. The Veteran has a current diagnosis of autoimmune hepatitis. 6. The Veteran's currently diagnosed autoimmune hepatitis is not etiologically related to any period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis with history of nasal polyps have not been met for any period of service. 38 U.S.C.A. §§ 1110, 1111, 1113, 1131, 1132, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 4. The criteria for service connection for a liver disability, including autoimmune hepatitis, have not been met for any period of service. 38 U.S.C.A. §§ 1110, 1111, 1113, 1131, 1132, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A May 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, service treatment records and post-service treatment records have been secured, including records of VA treatment after January 2012 that were requested pursuant to remand by the Board in October 2012. Further, the RO arranged for VA examinations in January 2013 also pursuant to the Board's remand. For reasons discussed in detail below, the Board finds the January 2013 VA examinations to be adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor her representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The conditions of sinusitis with history of nasal polyps and autoimmune hepatitis are not considered "chronic disease[s]" listed under 38 C.F.R. § 3.309(a) (2012); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. §§ 101(22), 101(24); 38 C.F.R. § 3.6 (2012). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). Annual training is an example of ACDUTRA while weekend drills are INACDUTRA. VA's General Counsel has interpreted that it was the intention of Congress when it defined "active service" in 38 U.S.C.A. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). On the other hand, the correct standard for rebutting the presumption of soundness under Section 1111 requires that the government show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." The United States Court of Appeals for the Federal Circuit noted that the lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F. 3d 1089, 1096-97 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service Connection for Sinusitis The Veteran contends that he has chronic sinusitis with history of nasal polyps that was caused or aggravated during active service. See VA Form 9 dated May 2009. In the Veteran's case, sinusitis was not "noted" at the time of the service entrance examination; therefore, the presumption of soundness at service entrance attached. See 38 U.S.C.A. § 1111. Because a preexisting disorder of sinusitis was not noted on entering service, VA must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. In this case, after a review of all the evidence of record, the Board finds that the presumption of sound condition at service entrance is rebutted by clear and unmistakable (obvious and manifest) evidence that the Veteran's sinusitis with nasal polyps pre-existed active duty service, and clear and unmistakable evidence that the preexisting sinusitis disorder was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The Board finds that clear and unmistakable (obvious and manifest) evidence demonstrates that the Veteran's sinusitis with nasal polyps pre-existed active service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Review of service treatment records show that on examination at entry into active duty service in February 1988, clinical evaluation of the sinuses and nose were normal. In the February 1988 report of medical history on entrance into service; however, the Veteran reported that he had ear, nose, and throat trouble. Specifically, the Veteran wrote that he had nasal polyps around 1987 (one year prior to entry into service in 1988). Service treatment records from all periods of active service also reveal that the Veteran was treated off and on for sinusitis while on active duty. In a screening note of acute medical care, dated August 1997, the Veteran reported difficulty breathing through the right side of his nasal canal. The Veteran stated to the doctor that he had experienced this problem "all his life." The Veteran further reported that the right side of his nose would swell up every now and then, causing difficulty breathing and excess nasal discharge. The doctor noted that the Veteran had a right growth structure on the right wall of the nasal canal. In a follow-up evaluation, also dated August 1997, the Veteran was diagnosed with nasal polyps. The Board finds that the Veteran's statements regarding nasal polyps prior to service on his 1988 service entrance examination are consistent with the 1997 service treatment (medical) records diagnosing the Veteran with nasal polyps. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence is competent and sufficient to establish a diagnosis of a condition when lay symptoms are supported by a later diagnosis by a medical professional). The Board finds that this evidence weighs in favor of establishing by clear and unmistakable evidence that the Veteran's sinusitis with nasal polyps pre-existed service. In a January 2006 private correspondence, Dr. M.G. noted that the Veteran suffered from chronic sinusitis with nasal polyps for at least fifteen years (i.e. approximately on or prior to 1991). The Board finds this evidence to be consistent with the Veteran's reported history that his nasal condition (sinusitis and nasal polyps) have existed prior to service. In October 2008 the Veteran underwent a VA sinusitis examination. The Board finds that the October 2008 VA examiner's opinion is not adequate as the opinion failed to address whether sinusitis (which was not "noted" upon entry into service) clearly and unmistakably existed prior to service and, if so, whether the preexisting sinusitis clearly and unmistakably was not aggravated during service. Pursuant to the Board's October 2012 remand, the Veteran was afforded a second VA sinusitis examination in January 2013. The VA examiner noted that he interviewed the Veteran and reviewed the claims file. Based upon review of the claims file and the history provided by the Veteran, the January 2013 VA examiner diagnosed chronic sinusitis with nasal polyps and opined that the Veteran's condition clearly and unmistakably existed prior to service. The Board finds the medical opinion provided by the January 2013 VA examiner to be highly probative. The VA examiner interviewed the Veteran, and reviewed the claims file, which would have included service treatment records and the Veteran's reported medical history. See Prejean, 13 Vet. App. at 448-9. After a review of all the evidence of record, lay and medical, the Board finds that clear and unmistakable (obvious and manifest) evidence demonstrates that the Veteran's sinusitis and nasal polyps pre-existed active service. In making this finding, the Board has relied on the January 2013 VA medical opinion, which the Board has found to be highly probative, and on the Veteran's lay statements during service. In February 1988, the Veteran reported that he had nasal polyps around 1987 (one year prior to entry into service). In August 1997, the Veteran himself stated that he had nasal canal problems his whole life. The Board finds that the lay statements found in medical records when medical treatment is being rendered are afforded greater probative value because statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy. See Federal Rule of Evidence 803(4). For these reasons, the Board finds that clear and unmistakable (obvious and manifest) evidence demonstrates that the Veteran's sinusitis with nasal polyps pre-existed active service The Board further finds that clear and unmistakable evidence demonstrates that the Veteran's preexisting sinusitis with history of nasal polyps did not permanently increase in severity during service, that is, was not aggravated by service. Service treatment records do not demonstrate that the Veteran suffered a sinus or nasal injury during any period of active service. That notwithstanding, service treatment records show that the Veteran was treated off and on for sinusitis while on active duty. In August 1997, the Veteran was seen for nasal polyps and was given nasal steroids. When seen on follow-up in October, the condition was improving. See October 28, 1997 service treatment record. The Veteran was seen periodically throughout the remaining time on active duty for sinus problems that would resolve with treatment. Service treatment records do not reveal notations of worsening of the Veteran's sinusitis condition or symptoms. In his statement dated May 2009, the Veteran contends that his sinusitis was aggravated by military service; specifically, the treatment and subsequent surgery performed in 2006. See VA Form 9 dated May 2009. The Board finds, however, that this contention is inconsistent with the medical treatment notes of record. Treatment notes from Dr. M.G. reveal that the Veteran underwent surgery for chronic pansinusitis with nasal and sinus polyposis in March 2006. By April 2006, the Veteran's sinus surgery was healing nicely and there was no evidence of recurrence of polyps, blood loss, and the Veteran was breathing well through his nose. See private treatment records from Dr. M.G. dated January 2006 to April 2006. As stated above, the Veteran was afforded a VA sinusitis examination in January 2013. The VA examiner interviewed the Veteran and reviewed the claims file. The VA examiner opined that the Veteran's sinusitis was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of this opinion, the VA examiner stated that there was no evidence that either (sinusitis or nasal polyps) were permanently worsened in service. The VA examiner reasoned that nasal polyps have a tendency to recur with increasing occurrence with age; therefore, it was less likely as not that the condition was aggravated by service. While it is noted that the Veteran was treated for sinusitis and nasal polyps during service, such temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Thus, "a lasting worsening of the condition"- that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). For the reasons stated above, the Board finds that sinusitis with nasal polyps was not aggravated during any period of active service. Accordingly, and based on all the evidence of record, lay and medical, the Board finds that the Veteran's sinusitis with history of nasal polyps clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by active military service. The Board is aware of the burden on VA to demonstrate, by clear and unmistakable evidence, that the preexisting disability was not aggravated by service, and the Board has applied this legal standard in this case. The evidence in this case meets this high standard. As the standard is clear and unmistakable evidence on VA to rebut the presumption of sound condition at service entrance, a burden which has been met for the reasons explained, the rule of resolving reasonable doubt in the Veteran's favor is not applicable in this case. Service Connection for a Liver Disability In the May 2009 VA Form 9, the Veteran contends that service connection for autoimmune hepatitis is warranted based on elevated liver enzyme laboratory reports allegedly during active service. Essentially, the Veteran contends that, although not diagnosed with autoimmune hepatitis in service, had he been treated properly after the elevated liver enzymes readings, a diagnosis of autoimmune hepatitis would have been rendered in service. As noted above, the condition of autoimmune hepatitis is not considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker, 708 F.3d 1331. Accordingly, the general principles of service connection apply. In this regard, service connection for a disability generally requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). At the outset, the Board finds that the Veteran has autoimmune hepatitis, which was initially diagnosed in 2007. See September 2007 correspondence from Dr. M.C.; see also August 2008 and January 2013 VA examinations. The Board next finds that the Veteran did not sustain an injury or disease of the liver during any period of active duty service from August 1988 to November 1988, May 1995 to May 1998, or from November 2003 to May 2005. Service treatment records do demonstrate any complaints, findings, diagnosis, or treatment for any liver disorder during the periods of active service listed above. Although the Veteran contends that laboratory results during active service showed elevated liver enzymes, a careful review of all service treatment records does not support this contention. Rather, the first evidence of abnormal liver function is found in an April 2007 pathology report from Dr. M.C. In this report, Dr. M.C. stated that the Veteran had a history of elevated liver function for "several months." In a correspondence dated September 2007, Dr. M.C. noted that the Veteran had been diagnosed with autoimmune hepatitis earlier that year (i.e., 2007). In the September 2007 correspondence, Dr. M.C. noted that the Veteran's liver function tests were currently normal as the Veteran was being treated with medication. For these reasons, the Board finds that the Veteran did not sustain an injury or disease of the liver during any period of active service from August 1988 to November 1988, May 1995 to May 1998, or from November 2003 to May 2005. Next, the Board finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed autoimmune hepatitis is not etiologically related to any period of active service. The Veteran was afforded a VA examination in January 2013. The VA examiner noted that he reviewed the claims file, interviewed the Veteran, and conducted a laboratory study. During the interview process, the Veteran stated that he first noted his liver enzymes elevated in 2005 while at Fort Bragg. According to the Veteran, he saw a specialist in 2007 who later diagnosed him with autoimmune hepatitis. The VA examiner stated that he conducted a thorough review of the claims file and found no evidence of abnormal liver values or liver disease. Accordingly, the VA examiner opined that it was less likely as not that autoimmune hepatitis began in service or was related to service. The Board finds the medical opinion provided by the January 2013 VA examiner to be highly probative. The VA examiner reviewed the claims file, interviewed the Veteran, and reviewed laboratory liver tests. See Prejean at 448-9. The Board has also considered the Veteran's statements contending that his autoimmune hepatitis is related to service. The Board acknowledges that, while the Veteran is competent to report symptoms as they come to him through his senses, including possible autoimmune symptoms such as fatigue, abdominal discomfort, joint pain, itching, yellowing of the skin and eyes, spider angiomas, nausea and vomiting, loss of appetite, skin rashes, and dark-colored urine, he is not competent to observe signs such as en enlarged liver. Autoimmune hepatitis is not the type of disorder that a lay person can diagnose or provide competent evidence on questions of etiology. See Layno, 6 Vet. App. at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, 10 Vet. App. 67 at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). The Veteran's autoimmune hepatitis disability is complex, as it requires specialized testing to diagnose, such as anti-liver kidney, anti-nuclear antibody, anti-smooth muscle antibody, serum, and liver function tests, or a liver biopsy. This level of medical testing involves specialized medical knowledge and training. The evidence does not show that the Veteran has the specialized education, training, or experience required to provide a competent opinion on the question of etiology. In sum, the Board finds that the weight of the competent and probative evidence does not demonstrate a relationship between the Veteran's current autoimmune hepatitis and his active duty service. As previously noted, the Veteran had active service from August 1988 to November 1988, from May 1995 to May 1998, from November 2003 to May 2005, and from February 2008 to March 2008. As discussed above, the Veteran's autoimmune hepatitis was diagnosed in 2007. See September 2007 correspondence from Dr. M.C.; see also March 2008 initial medical review report (Veteran stated that he had autoimmune hepatitis and physician noted hepatitis). Therefore, the Board finds that autoimmune hepatitis clearly and unmistakably pre-existed the Veteran's last period of service from February 2008 to March 2008. The Board further finds that clear and unmistakable evidence demonstrates that the Veteran's preexisting autoimmune hepatitis did not permanently increase in severity during the period of service from February 2008 to March 2008, that is, was not aggravated by service. The Veteran's DD Form 220 reflects that the effective date of his active duty service period began on February 27, 2008. The Veteran was released from active duty on March 14, 2008. See Department of the Army Order 074-0005 dated March 2008. In the March 3, 2008 Initial Medical Review report, the physician noted that the Veteran was on medication and had hypertension and hepatitis. The service physician found the Veteran unfit for Army National Guard service and referred the matter to the Medical Duty Review Board. Further, the Board finds that service medical records from February 2008 to March 2008 do not demonstrate any complaints or treatment for autoimmune hepatitis or related symptoms. Accordingly, the Board finds that clear and unmistakable evidence demonstrates that the Veteran's preexisting autoimmune hepatitis did not permanently increase in severity during this period of service. For these reasons, the Board finds that, for the periods of active duty from August 1988 to November 1988, May 1995 to May 1998, and from November 2003 to May 2005, the weight of the competent and probative evidence does not demonstrate a relationship between the Veteran's current autoimmune hepatitis and his active duty service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Additionally, the Board finds that autoimmune hepatitis clearly and unmistakably pre-existed the Veteran's last period of service from February 2008 to March 2008, and clear and unmistakable evidence demonstrates that the Veteran's preexisting autoimmune hepatitis did not permanently increase in severity during this period of service. Accordingly, service connection for a liver disability, including autoimmune hepatitis, is not warranted for any period of active duty service. ORDER Service connection for sinusitis with history of nasal polyps is denied. Service connection for a liver disability, including autoimmune hepatitis, is denied. ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs