Citation Nr: 1325844 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-05 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a liver condition, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for psoriatic arthritis, to include as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1971, with service in Vietnam from July 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran submitted a Notice of Disagreement (NOD) with this determination in October 2009, and perfected his appeal in January 2010. In January 2010, the Veteran requested to be scheduled for a local hearing with a Decision Review Officer (DRO). A June 2010 Informal Conference Report noted after contact with the Veteran's representative, that a DRO hearing was not needed, and was therefore cancelled. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of service connection for psoriatic arthritis 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. FINDING OF FACT The evidence does not demonstrate that the Veteran's current liver condition, steatohepatitis, is related to his active service. CONCLUSION OF LAW The criteria for a grant of service connection for a liver condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in July 2009 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. This letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board acknowledges that, to date, the Veteran has not been afforded a VA Compensation and Pension (C&P) examination in regard to his claim of service connection for a liver condition. In determining whether the duty to assist requires that a VA examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, no examination is necessary in order to adjudicate the Veteran's claim of entitlement to service connection for a liver condition. Specifically, there is no indication, besides the Veteran's own statements, that his exposure to Agent Orange in Vietnam was the cause of his liver condition. Additionally, there is no medical evidence of record suggesting an association between the Veteran's liver condition and his active service, to include exposure to Agent Orange. However, the Veteran's private treating physician has associated the Veteran's liver condition with alcohol and his overweight state. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining service treatment records, and VA and private medical records. Significantly, neither the Veteran nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Legal Criteria Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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. Certain listed disabilities may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Background The Veteran contends that his liver condition is a result of exposure to Agent Orange while serving on active duty in Vietnam. The Veteran's March 1967 enlistment and October 1971 separation examinations are void of a diagnosis of any liver condition. Additionally, the Veteran's service treatment records did not reveal any complaint, diagnosis, or treatment for a liver condition. VA and private treatment records show a history of elevated liver testing. A June 2009 VA treatment record noted that the Veteran had an abnormal liver testing, consisting of a positive fatty liver. Additionally, the Veteran received private treatment for his liver condition. In an August 2009 record, the physician noted the Veteran's liver condition history. The Veteran was evaluated in 2006 for liver disease and a biopsy was performed, which showed steatohepatitis, only mild inflammation, and moderate fatty infiltration, but no fibrosis. An ultrasound of the abdomen done at Backus Hospital in the summer of 2008 showed slight increase in size from 12 cm to 14 cm, resulting in a referral to his office. The follow up January 2009 ultrasound of the liver showed enlarged chogenic and heterogeneous liver, suggesting fatty infiltration. The physician concluded that the Veteran had fatty infiltration of the liver, secondary to alcohol and overweight state, most likely steatohepatitis. Liver function tests were a bit better off of alcohol. Analysis The Board finds that the weight of the competent evidence shows that the Veteran is not entitled to service connection for a liver condition. Although he has a current diagnosis of a liver condition, steatohepatitis, the existing medical evidence does not show that this condition manifested in-service or is otherwise related to service, to include exposure to Agent Orange. First, the Board will discuss entitlement to service connection on a presumptive basis. Certain Veterans-namely, those who served in Vietnam between January 9, 1962, and May 7, 1975-are presumed by law to have been exposed to herbicides during service. 38 U.S.C.A. § 1116. Generally, the presumption of herbicide exposure does not apply to Vietnam-era Veterans unless they served within the land borders of Vietnam during the prescribed period. Haas v. Peake, 525 F.3d 1168, 1172 (Fed. Cir. 2008) (holding that Veterans who served on ships off the coast of Vietnam but who never set foot within the land borders of Vietnam are not entitled to the presumption of herbicide exposure). Similarly, certain diseases are presumed by law to have been caused or aggravated by herbicide exposure. 38 U.S.C.A. § 1116; see also 38 C.F.R. §§ 3.307, 3.309. The Veteran's service personnel records show that he served in the Republic of Vietnam during the Vietnam era from July 1969 to April 1970. There is no affirmative evidence in the record to establish that the Veteran was not exposed to herbicides during service. Therefore, he is entitled to a presumption of exposure to herbicide agents. However, even though it is presumed that the Veteran was exposed to herbicide agents while serving in Vietnam, in order for him to be entitled to presumptive service connection on the basis of that presumed Agent Orange exposure, the record must also establish that he has a disease to which this presumption applies. Unfortunately, the Veteran's liver conditions, steatohepatitis and fatty liver, are not on the list of presumptive conditions associated with exposure to Agent Orange or other herbicides. See Notice, 68 Fed. Reg. 27630-27641 (2003). Even though the presumptive service connection for a disability based on exposure to herbicides may not apply, however, does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving exposure to Agent Orange). However, there is no evidence of record showing proof of direct causation due to Agent Orange exposure, as indicated below. Concerning in-service incurrence, the Veteran's service treatment records are completely unremarkable for any relevant complaints, treatment, or diagnosis of a liver condition. There is no objective indication of a liver condition while he was in service. This is probative evidence against the notion that the Veteran has a liver condition as a direct result of disease or injury incurred during his active military service. See Struck v. Brown, 9 Vet. App. 145 (1996). Further, the Veteran also has failed to provide any objective indication of a liver condition until a 2006 liver testing and biopsy, more than three decades after his military service ended. The lapse of so many years after his separation from service and the first documented suggestion of this claimed disorder is also probative evidence to be considered in determining whether this claimed disability may be traced back to his military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Of equal or even greater significance, while the Veteran has submitted medical evidence indicating he has been diagnosed with a liver condition, there simply is no medical evidence of record etiologically linking a liver condition to the Veteran's military service, to include Agent Orange exposure. As previously mentioned, the Veteran's private treating physician noted in an August 2009 evaluation that the Veteran had fatty infiltration of the liver, secondary to alcohol and his overweight state, most likely steatohepatitis. The Veteran's liver function tests were a bit better off when the Veteran discontinued drinking alcohol. The Board has carefully considered the Veteran's assertions that he has a liver condition that is related to his in-service exposure to Agent Orange while serving in Vietnam. However, as a layperson with no demonstrated medical training or experience, he is not competent to give a medical opinion on the complex medical question of whether his liver condition is a result of in-service exposure to Agent Orange. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg). The Board acknowledges that the Veteran is competent to give evidence about the symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, the Board rejects the Veteran's unsubstantiated lay contentions because medical evidence in the file shows that his liver condition did not have its onset in-service, but first manifested more than three decades after service. Additionally, contrary to the Veteran's assertions and as stated in the private treatment evaluation above, the competent evidence establishes that the Veteran's liver condition was also not a result of Agent Orange exposure, but secondary to the Veteran's alcohol use and overweight state. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful, and the Veteran is sincere in his belief that his has a liver condition that is related to exposure to Agent Orange. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. The Board has also carefully considered the benefit of the doubt rule, but as the preponderance of the evidence is against the claim, the evidence is not in equipoise, and there is no basis to apply it. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a liver condition is denied. REMAND A review of the record discloses that further development is necessary prior to the adjudication of the Veteran's claim of service connection for psoriatic arthritis. The Veteran contends that his psoriatic arthritis is a result of exposure to Agent Orange while serving on active duty in Vietnam. As stated above, due to the Veteran's service in Vietnam, he is entitled to a presumption of exposure to herbicide agents. However, the Veteran's psoriatic arthritis is also not on the list of presumptive conditions associated with exposure to Agent Orange or other herbicides. See Notice, 68 Fed. Reg. 27630-27641 (2003). Even though the presumptive service connection for a disability based on exposure to herbicides may not apply, however, does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving exposure to Agent Orange). The Veteran's March 1967 enlistment and October 1971 separation examinations are void of a diagnosis of psoriatic arthritis. Additionally, the Veteran's service treatment records did not reveal any complaint, diagnosis, or treatment for psoriatic arthritis. However, multiple service treatment records note that the Veteran had complained of back pain and was diagnosed with a lumbar sacral strain, and dull aching left ankle pain, which was noted to be osteoid-osteoma of the distal left tibula. VA treatment records show that the Veteran is being treating for psoriatic arthropathy. Additionally, private treatment document a diagnosis of psoriatic arthritis involving the Veteran's hands, wrists, and ankle areas. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the etiology of the Veteran's psoriatic arthritis. Although the Veteran has been seeking treatment from the VA for this condition, it remains unclear to the Board whether the Veteran's psoriatic arthritis had its onset in service or is related to any aspect of his military service, to include exposure to Agent Orange. A medical opinion regarding an etiology of the Veteran's psoriatic arthritis is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1) Ensure that the Veteran's VA outpatient treatment records are up to date. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2) After the foregoing, schedule the Veteran for a VA examination to determine whether his psoriatic arthritis is related to the Veteran's service. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies should be performed, and all findings should be reported in detail. The VA examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's psoriatic arthritis had its onset in service or is causally related to military service, to include as due to his presumed exposure to herbicides during service. For purposes of making this determination, the examiner should accept as true that the Veteran was exposed to herbicides during service. In rendering the opinion, the examiner should acknowledge and discuss the Veteran's service treatment records, VA treatment records, private treatment records, lay statements, and any additional relevant information. Please discuss whether there is any medical literature supporting a relationship between exposure to Agent Orange and psoriatic arthritis. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3) Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs