Citation Nr: 1328076 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 08-15 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a chronic liver disability, status post liver transplant. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from June 1965 until his retirement in October 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Montgomery Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran's liver disease was diagnosed as alcoholic cirrhosis, with heterozygosity to alpha-1 antitrypsin deficiency, which required a liver transplant in 2005. 2. The only medical opinion of record links the Veteran's liver disease to moderate alcohol use during active service. 3. The Veteran's alcohol use during service does not arise to the level of alcohol abuse or willful misconduct. CONCLUSION OF LAW A chronic liver disability, status post liver transplant, was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA is required to meet statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Given the favorable outcome below, no conceivable prejudice to the Veteran could result from the grant of service connection for the Veteran's claimed liver disease. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, 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 order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). At present, the law states, "no compensation shall be paid if the disability is the result of the veteran's own willful misconduct or abuse of alcohol or drugs." 38 U.S.C.A. §§ 1110, 1131; see also 38 C.F.R. §§ 3.1(n), 3.301. The language of 38 U.S.C.A. § 1131 allows for service connection for an alcohol or drug abuse disability if it is an aspect of or secondary to a service-connected disability. Allen v. Principi, 237 F. 3d 1368, 1381 (Fed. Cir. 2001). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). In the line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.1(m). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. 38 C.F.R. § 3.301(c)(2). The Veteran claims service connection for liver disease, which resulted in a liver transplant. He has predominantly alleged that his liver disability is related to the medication, Aldomet, which was prescribed to him for hypertension during service, and which he claims caused elevation of his liver enzymes during service. He has also more generally alleged that he was exposed to asbestos, herbicides, including Agent Orange from service in Vietnam, experimental anti-malaria drugs during Vietnam service, and numerous other chemicals, including benzene, toluene and trichloroethylene, which may have harmed his liver. Additionally, he has reported that he became ill while stationed in Korea with symptoms of vomiting blood, nose bleeds, and bloody stools, at which time he was told that he may have had a small ulcer; and that he became sick while stationed in Egypt, possibly due to exposure to ticks or other parasites. The record clearly establishes that the Veteran has liver disease, which ultimately required a liver transplant. The service treatment records do show that the Veteran experienced elevated liver function test (LFT) results showing elevated liver enzymes as early as May 1978 and that the elevated enzymes were found to be "probably secondary to taking Aldomet." The medication was discontinued in May 1978 but the Veteran was subsequently found to have abnormal LFTs in November 1978. In April 1981, it was noted that the Veteran's serum glutamic oxaloacetic transaminase (SGOT) level had returned to normal while abstaining from alcohol. However, in October 1985, the Veteran was found to generally have an "abnormal hematologic picture that could have possibly been from alcohol use." Findings included an SGOT level of 56 and a serum glutamic pyruvic transaminase (SGTP) level of 48, within a range where normal is up to 50. Subsequently, at his August 1987 retirement examination, the Veteran's abdomen and viscera were normal and on his report of medical history at separation, he did not report any stomach liver or intestinal trouble or jaundice or hepatitis. The records also show occasional gastrointestinal symptomatology, including vomiting blood in December 1974, diarrhea attributed to viral syndrome in February 1975, and diarrhea while stationed in Cairo in October 1981. A notation on the retirement examination report of medical history indicates "ETOH - Mod" (moderate alcohol use). The post-service medical evidence of record shows an elevated SGOT finding of 61 in June 1995 and an elevated SGOT finding of 107 in September 1997. The Veteran was again found to have elevated liver enzymes in May 2002, at which point he reported that the enzymes had been elevated for the past 20 years. In June 2002, he was diagnosed with thrombocytopenia, without significant bleeding. In December 2002, a VA examination diagnosed cirrhosis, with portal hypertension, probably due to alcohol and decreased platelet counts, Banti syndrome. Subsequently, a liver biopsy was performed, which confirmed this diagnosis, and the Veteran's condition worsened to the point of requiring the liver transplant. Private medical records dated from 2002 reveal abnormal liver function test results and suspected diagnoses of cirrhosis. As noted above, the diagnosis of cirrhosis was confirmed by liver biopsy and was initially diagnosed as cryptogenic cirrhosis, which is cirrhosis of an essentially unknown etiology. In March 2005, the Veteran received a liver transplant at the Mayo Clinic. The medical records related to the transplant surgery are extensive and contain pre-surgical evaluations, as well as surgical records, and post-surgical follow-up reports. Based upon the extensive pre-transplant evaluation, the diagnosis of the Veteran's liver disease was assigned the diagnosis of alcoholic cirrhosis, with heterozygosity to alpha-1 antitrypsin deficiency. In June 2013, a VA examination of the Veteran was conducted. The examiner stated that the Veteran's "current liver condition is as least as likely at not (50%) related to, or caused by, his time in the service." The examining physician's rational is that the diagnosis of "alcoholic cirrhosis with MZ [monozygotic] phenotype for alpha-1 antitrypsin deficiency" was the correct diagnosis as it was made the Mayo Clinic, the facility that ultimately conducted the liver transplant. The physician acknowledged the Veteran's documented alcohol use during and after service but also acknowledged the recent August 2012 Synopsis of Army Substance Abuse Program Assessment Activities which indicated that the Veteran did not meet the criteria for alcohol dependence. The physician stated that "in the setting of the genetic mutation, the amount of alcohol use needed to cause cirrhotic transformation is less than expected. On the other hand the type of mutation wound not have caused cirrhosis without the alcohol use." MZ phenotype for alpha-1 antitrypsin deficiency is described as a genetic mutation, which can result in liver disease when combined with the use of alcohol. This is not a congenital or developmental defect which would preclude service connection. 38 C.F.R. § 3.303(c). Rather, it is a familial condition, which combined with the use of alcohol to cause liver disease; this would permit service connection. VAOGCPREC 82-90, 56 Fed. Reg. 45711 (1990). The Veteran reported that although he drank daily to a moderate degree, two to three drinks per night, for a large part of his adult life and the bulk of his military career, prior to permanently abstaining from drinking in August 2004. This is supported by his August 1987 military retirement examination report which indicates "ETOH - Mod" (moderate alcohol use). He reports that he never experienced any legal, job, or social problems due to alcohol which supported by the fact that he served over 22 years as an Army officer without any documented discipline actions and no diagnosis of any alcohol related disorders in the service treatment records. A series of psychiatric evaluations were conducted at the Mayo Clinic from January to April 2005 in preparation for the Veteran's potential liver transplant. These records indicate diagnoses of alcohol dependence and that the Veteran received outpatient treatment as part of the protocol for his upcoming liver transplant. These records do not indicate the date of onset of the diagnosis of alcohol dependence. The record also indicates that when assessed in August 2005, the Veteran did not meet the DSM-IV criteria for any substance related disorder. There is no diagnosis of alcohol dependence or abuse during active service. Rather, the service treatment records indicate that the Veteran had moderate alcohol usage. Further, there is absolutely no evidence of record of any social, behavioral, or disciplinary problems during or after service which would be indicative of a diagnosis of alcohol abuse or alcohol dependence. To the extent that the January 2005 Mayo Clinic records indicate a diagnosis of alcohol dependence, they do not indicate the onset date of the condition, or indicate that it was present during service. Moreover, this diagnosis is countered in August 2005 by the 2012 Synopsis which indicates that the criteria for any such diagnosis were not met. Thus, the Board finds the evidence is in equipoise and must be resolved in the Veteran's favor. The Veteran has a genetic mutation, which when combined with alcohol use resulted in liver disease. The 2013 VA medical opinion indicates that the Veteran's alcohol use during service, which of itself is not willful misconduct, combined to cause the Veteran's liver disease which ultimately required a liver transplant. The only medical evidence of record links the Veteran's liver disease, at least in part, to his moderate alcohol use during active service. The evidence does not support findings of willful misconduct or alcohol abuse which would preclude service connection. Accordingly, service connection for chronic liver disability, status post liver transplant, is warranted. ORDER Service connection for a chronic liver disability, status post liver transplant, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs