Citation Nr: 1322728 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-36 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for residuals of removal of gallbladder. 3. Entitlement to service connection for chronic liver disease, to include residuals of hepatitis, to include fatigue, is denied. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from August 1967 to May 1971. These matters come before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Boston, Massachusetts. In March 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue of entitlement to service connection for asthma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has residuals of removal of gallbladder. 2. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a gallbladder disability causally related to active service. 3. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has chronic liver disease. 4. The competent credible evidence of record is against a finding that the veteran has chronic liver disease causally related to active service, or residuals of in-service hepatitis. CONCLUSIONS OF LAW 1. Residuals of gallbladder removal were not incurred in, or aggravated by, active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Chronic liver disease, to include residuals of hepatitis and fatigue, was not incurred in, or aggravated by, active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in February 2008. VA has a duty to assist the Veteran in the development of the claim. The claims file includes service treatment records (STRs), VA and private medical records, and the statements of the Veteran in support of his claims. The record reflects that the Veteran is in receipt of Social Security Administration (SSA) disability compensation; however, as discussed in further detail below, there is no evidence that it is due to liver disability or residuals of his gallbladder removal. The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records." Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Based on the evidence of record, as discussed below, to include the Veteran's statements as to his symptoms, and the clinical findings as to a lack of symptoms, the Board finds that there is not a reasonable possibility that there are relevant SSA records. Thus, VA need not attempt to obtain them. A VA examination and opinion with regard to the Veteran's claim for entitlement to service connection for a chronic liver disability was obtained in 2008. 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). The Board finds that the Veteran has been provided with an adequate examination and opinion. The examination report reflects that the examiner considered the Veteran's statements, and the claims file, to include the Veteran's STRs and post-service clinical records. In addition, the VA examination report reflects that the examiner spoke with the Veteran's private physician prior to rendering an opinion that the Veteran had no known residuals of his in-service hepatitis. VA has requested the Veteran to provide it with authorization to obtain pertinent private records, but the Veteran has failed to provide adequate authorization or private records. Another attempt to obtain any such records is not warranted because the VA examiner has stated that he has spoken to the private physician and that there are no residuals or symptoms of a liver disability; thus, there would be no pertinent private records of such. There is no reason for the Board to believe that the private examiner was not competent and credible in his discussion with the VA examiner, or that the VA examiner is not competent and credible with regard to the discussion. The Board finds that a VA examination with regard to the issue of entitlement to service connection for residuals of a gallbladder removal is not warranted. The Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion occurs when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). As is discussed in greater detail below, there is no competent evidence that the Veteran has a current disability due to a gallbladder removal or persistent or recurrent symptoms of such, the STRs are negative for any complaint or finding with regard to the Veteran's gallbladder, and there is no competent indication that the Veteran may have a gallbladder removal disability or symptoms associated with the Veteran's service. Thus, a VA examination is not warranted. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Residuals of removal of gallbladder The Veteran avers that he has residuals from the removal of his gallbladder and that his gallbladder removal was causally related to active service. The Veteran testified at the March 2013 Board hearing, that approximately six years earlier (on in approximately 2007), he had his gall bladder removed due to sudden problems. He also testified that once it was taken out, he did not have any residuals or symptoms, and that he felt "good." He also stated that no doctor had told him what may have caused the gallbladder to have to be removed. (See Board hearing transcript pages 10 and 11.) The Veteran surmised that perhaps his hepatitis in service, in 1968, may be related to the necessity for the gallbladder removal 38 years later in 2006. November 2006 records from M. Medical Center reflect that the Veteran was admitted on November 2, 2006 with abdominal pain. It was noted that "[a]apparently the patient was in good health until 2 to 3 days prior to admission when he started with epigastric discomfort and not eating well. He developed fever and chills and notes that his urine was kind of dark." It was noted that he had leukocytosis, pancreatitis, with a stone in the common bile duct, and air was noted in the gallbladder and bilary tree. A November 2, 2006 note reflects that a stone was removed and the Veteran had an impression of colangitis, an infection of the common bile duct. On November 7, 2006, the Veteran had a laparoscopic cholecystectomy (removal of the gallbladder). The discharge summary reflects that postoperatively, the Veteran did "extremely well." The Veteran filed his claim for service connection for residuals of gallbladder removal on November 20, 2007, more than a year after the removal. The Board finds that service connection is not warranted. The Board notes that claim for service-connection of a disability requires, at a minimum, medical evidence of a current disability. In the present claim, there is no competent credible evidence of record that the Veteran has had residuals of gallbladder removal during the pendency of his claim. In addition, the Veteran testified that once his gallbladder was removed, he did not have any residuals or symptoms. (See Board hearing transcript page 11.) As the Veteran does not have any residuals of a gallbladder removal, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997). The Veteran testified that he has acid reflux. Assuming arguendo that the Veteran had acid reflux symptoms as a result of his gallbladder removal, the Board still finds that service connection would not be warranted. The STRs are negative for any complaints of, or treatment for, the gallbladder. They are also negative for any stomach complaints or jaundice, other than with regard to infectious hepatitis symptoms. (See July 2 and July 8, 1968 STRs). Notably, the Veteran testified at the Board hearing that he did not have any digestive or intestinal problems while in service. (See Board hearing transcript page 10.) Moreover, there is no clinical evidence of record that the Veteran's gallbladder removal was in any way related to service. Not only are there no clinical records, but the Veteran testified that no doctor has given him any idea of why his gallbladder would need to be removed. (See Board hearing transcript page 11.) 2006 clinical records also note that the Veteran had been in good health until 2 to 3 days prior to his November 2006 hospital admission; this was more than 35 years after separation from service. when he started with epigastric discomfort and not eating well. Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); however, the Board finds that the Veteran is not competent to provide an opinion as to the etiology of his gallbladder disability. The Veteran has not been shown to have the training, experience, or education necessary to make an etiology determination as to a gallbladder disability in this case. In the present claim, the Veteran separated from service in 1971. He first experienced symptoms related to the gallbladder in 2006, 35 years after separation. Thus, there is no competent credible evidence of continuity of symptoms and the Veteran himself has stated that he did not know if his service, was related to the gallbladder removal. (See Board hearing transcript page 12.) In sum, the competent clinical evidence of record reflects that the Veteran does not have residuals of gallbladder removal during the pendency of his claim; thus, service connection is not warranted. In addition, there is no competent credible evidence of record that the Veteran's gallbladder removal was causally related to active service, or that he had continuity of symptoms since service. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Chronic liver disease The Veteran avers that he a chronic liver disability causally related to active service. The Veteran's STRs reflect that the Veteran was hospitalized from July 9, 1968 to October 30, 1968 for infectious hepatitis. At discharge from the hospital, it was noted that the Veteran had no complaints and no fever during his entire hospitalization. At hospital discharge, his physical examination was normal. He was discharged to light duty for two weeks followed by full duty. Although the Veteran has averred that he has a residual of this hepatitis (i.e. tiredness), he also testified that he was told by a VA physician that she did not see any problem with his liver. (See Board hearing transcript page 17.) The clinical records, as discussed below, are against a finding of a chronic liver disability due to service. The Veteran underwent a VA examination in May 2008. The examiner noted that the Veteran had "no known residuals/squaelae" of the Veteran's in-service hepatitis. As noted above, the examiner not only interviewed the Veteran and reviewed the claims file, but also spoke with the Veteran's private primary care physician. The 2008 VA examiner stated as follows: HAV infection usually results in an acute, self-limited illness, with usually no known longer residuals/sequelae [as reflected in his Discharge physical negative for jaundice as well as in the last 30 years or currently] [most likely this remote [history of] single episode of 'infectious jaundice' at service on 7/1968 was [secondary] to HAV as his current lab test is positive for HepAAb] HAV infection usually results in an acute, self-limited illness, with usually no known longer residuals/sequelae. Usually the treatment is only supportive. The disease gets transmitted predominantly by the fecal-oral route, and was more common in older days. The diagnosis of acute HAV infection is made by the detection of anti-HAV antibodies in a patient with the typical clinical presentation. IgG anti-HAV appears early in the convalescent phase of the disease, and remains detectable for decades. The examiner stated that there is no liver condition present currently or in the past 30 years, in the Veteran. In sum, there is no competent clinical evidence that the Veteran has residuals of his in-service hepatitis. The Veteran has reported that he has GERD (gastroesophageal reflux disease). The VA examiner noted that the Veteran had an unrelated GI (gastrointestinal) issue of mild chronic GERD and noted that no there is no evidence in current medical literature supporting such a relation between reflux esophagitis/GERD symptoms as a sequelae to any infectious hepatitis/jaundice. Thus, the clinical evidence is against a finding that his current reflux esophagitis/GERD is related to service. As noted above, the Veteran testified at the March 2013 Board hearing that he is tired and gets B12 shots every month; he contends that his tiredness is a residual of his hepatitis in service. (See Board hearing transcript page 14.) The Veteran's STRs are negative for a finding of a B12 deficiency or of chronic fatigue. A 2000 VA clinical record reflects that the Veteran has a history of pernicious anemia and has been treated with monthly B12 injections for approximately one year. There is no competent credible evidence that the Veteran has a disability, manifested by fatigue, which is causally related to service. Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); however, the Board finds that the Veteran is not competent to provide an opinion as to the etiology of his tiredness and B12 deficiency, and his GERD and/or acid reflux, as due to in-service hepatitis. The Veteran has not been shown to have the training, experience, or education necessary to make an etiology determination in this case. In addition, the opinion of a physician, who has the training and education, is more probative than that of a lay person with regard to hepatitis symptoms and residuals. The VA examiner has found, after consideration of the clinical evidence, that the Veteran does not have residuals of in-service hepatitis, or a chronic liver disease. As the Veteran does not have any residuals of his in-service hepatitis, to include fatigue and B12 deficiency, and/or chronic liver disease, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997). The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for residuals of removal of gallbladder is denied. Entitlement to service connection for chronic liver disease, to include residuals of hepatitis, claimed as fatigue, is denied. REMAND The Veteran avers that he has asthma causally related to active service. A 2008 VA examination report reflects that the opinion of the examiner that the Veteran had an incident of asthma prior to service, with no evidence of asthma in service. He stated that there was no evidence of worsening of any preexisting asthma in service. The examiner noted that the Veteran's asthma was symptomatic only since early 1990s after a long temporal gap of more than 17-18 years with a history of smoking 1-2 packs per day for 11 - 13 years. The examiner also opined that there is no evidence that the Veteran's current asthma and related respiratory/pulmonary condition has in any way caused by or incurred in or aggravated by, or permanently worsened, by military service beyond its natural course. The examiner opined that, given the known history of preactive duty asthma symptoms and later history of smoking, this most likely would have happened and worsened with time even without military service. The examiner's opinion is based, in part, on the assumption that the Veteran had a preexisting asthma condition. The Veteran's November 1966 report of medical history for pre-induction purposes reflects that he reported that he had previously had asthma. The physician's summary and elaboration of all pertinent data reflects the following: "asthma - 1st attack age 12 or 13- none since." However, the Veteran's November 1966 report of medical examination for pre-induction purposes summary of defects and diagnoses reflects the following: "[local medical doctor] letter states applicant never has had asthma". In addition, no defect was noted with regard to the lungs and chest. The Veteran testified that when he was younger, prior to service, he had bronchitis; he contends that it was not asthma, and that he outgrew it. Based on the above, the Board finds that supplemental opinion is warranted for the opinion to consider that the Veteran did not have preexisting asthma, but may have had a case of bronchitis as a child. In addition, the record reflects that the Veteran is in receipt of SSA disability compensation. The record also reflects that the Veteran is on several medications for his asthma. The Board finds that SSA records may be relevant to the Veteran's claim and VA should attempt to obtain them. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), The earliest clinical record which notes asthma is an initial VA clinical record from 2000. The 2000 record notes that private records had not yet been received, but that the Veteran had a history of well-controlled asthma, and was on various medications for it. VA should attempt to obtain all other pertinent clinical records. Finally, the Board notes that the Veteran testified at the 2013 Board hearing that "it seems like" he had asthma in service. He testified that when he was working around planes, he might sometimes "breathe in over, you know, you just a take a second [inaudible]" and that when he was on the side of a jet taking off, he might have a moment of shortness of breath. The Board finds, for the reasons noted below, that the Veteran is less than credible with regard to asthma symptoms in service, and that the VA examiner need not consider such allegations. First, the Veteran denied any treatment for shortness of breath in service, and testified that he never thought twice about seeking treatment for it. The Board finds that if the Veteran had asthma in service, it would have been reasonable for him to have sought treatment for it. Second, the STRs are entirely negative for any findings with regard to asthma and/or shortness of breath, wheezing, or tightness in the chest. Third, the Veteran was hospitalized for 112 days in 1968 for infectious hepatitis, yet the record is negative for any finding with regard to asthma; the Board finds that if he had asthma, it would have been reasonable for it to have been noted at that time. Fourth, the Veteran's testimony reflects that his memory as to his psychical condition in service is not credible (e.g. he testified that on July 9, 1968, he had been working and when he returned to his barracks, an ambulance came and he was told that he had to go to the hospital. He testified that he was feeling okay and had no symptoms, and does not know why this happened. However, contrary to the Veteran's recollection, the STRs reflect that on July 2nd, he fainted, had a headache and stomach cramps and reported that he felt sick; on July 3rd, he complained of lumbar pain, had laboratory work completed, was treated with antibiotics for a kidney infection, and was relieved of duties for a day; and on July 8th, he complained of stomach pain, weakness, loss of weight, low back pain, was jaundiced and had blurred vision; the clinician impression was infectious hepatitis. On July 9th, he was hospitalized with a "two week history of malaise and dark urine. He was also noted to have sclera icterus (yellowing of the whites of the eyes); thus, the Veteran's recollection of his medical history more than 40 years ago is less than credible. The Board finds that if the Veteran cannot recollect a two week history of illness, to include symptoms of headaches, stomach cramps, lumbar pain, weakness, loss of weight, jaundice, dark urine, and blurred vision, it is less than credible that he can remember occasional shortness of breath while standing next to a jet taking off or when breathing in fumes. Fifth, the Veteran has stated that while in service and hospitalized for hepatitis, a portion of his liver was removed; however, the record is entirely negative for any surgery or that a portion of his liver was removed; again, the Veteran's recollection of his physical condition in service is less than credible. Sixth, in a statement received by VA in 2007, the Veteran stated that he has had asthma for the past 20 years, or since 1987. Based on the foregoing, the Board finds that the VA examiner need not consider the Veteran's statements as to shortness of breath and/or asthma in service. Accordingly, the case is REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for asthma and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for each treatment provider identified, to include records prior to August 2000. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records. 2. Contact the Social Security Administration (SSA) and obtain a copy of all agency records and any decision which awarded or denied the Veteran SSA disability benefits, including all medical records used to make the decision. 3. Thereafter, request the 2008 VA examiner, or another clinician if he is unavailable, to provide a supplemental opinion which considers that the Veteran did not have preexisting asthma prior to service, but merely a case of bronchitis when he was age 12 or 13, and whether this alters the examiner's final opinion. The examiner should consider the entire claims file, to include the following: a.) the Veteran's November 1966 report of medical examination for pre-induction purposes summary of defects and diagnoses which reflects "[local medical doctor] letter states applicant never has had asthma", b) the Veteran's statement that he had bronchitis as a child but that he outgrew it; c) the Veteran's history of smoking; d) the earliest clinical records of asthma, e) the Veteran's alleged exposure to jet fumes and/or toxins in service, and f) that the Veteran is less than credible with regard to asthma in service. 4. If a clinician cannot render an adequate opinion without an examination, schedule the Veteran for a VA examination with a clinician to opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran has a current asthma disability causally related to his military service. The examiner should consider the above noted paragraph. Any opinion expressed should be accompanied by a complete rationale. 5. After undertaking any other development deemed appropriate, the RO should readjudicate the issue of entitlement to service connection for an asthma disability on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs