Citation Nr: 1330294	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  07-24 148A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a chronic liver disorder. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel


INTRODUCTION

The Veteran had active service from November 1975 to February 2005. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). 

In July 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. During the hearing, the undersigned identified the issues on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). A copy of the transcript of that hearing is of record. 

In November 2009, the Board remanded the claims of entitlement to service connection for a right foot disorder, and for a liver disorder to the RO via the Appeals Management Center (AMC) for additional development. It was also noted at that time by the Board that the Veteran had withdrawn his claims for increased ratings for degenerative joint disease of the knees, and for status post chronic left shoulder dislocation, with surgical repair and residual degenerative changes. 

In a May 2011 rating decision, the AMC granted service connection for hammertoes, right foot, evaluated as 0 percent disabling effective from March 1, 2005. 

In January 2013, the Board denied the recharacterized issue of service connection for a right foot disorder other than hammertoes with hallux valgus, and degenerative joint disease of the first metatarsophalangeal joint, and remanded the liver disease issue. Thus, the sole remaining issue before the Board is service connection for a liver disorder. 



FINDING OF FACT

The hepatic cyst and elevated liver enzymes shown during and after service are clinically considered incidental findings without associated symptomatology, and a chronic liver disorder is not shown. 


CONCLUSION OF LAW

A chronic liver disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided by the Veterans Claims Assistance Act (VCAA), upon receipt of a complete or substantially complete application, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). 

These VCAA notice requirements apply to all elements of a service-connection claim: (1) Veteran status, (2) existence of a disability, (3) a relationship or correlation between the disability and military service, but also the "downstream" elements, namely, concerning the (4) disability rating and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311   (2007). 

After careful review of the claims file, the Board finds that that VA has satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A letter dated in December 2004 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The initial December 2004 letter did not comply with all dictates of Dingess (indeed, since Dingess had not yet even been issued), the RO and AMC have since have readjudicated his claim in the June 2007 statement of the case (SOC), and the December 2008 and May 2011 SSOC's. So his claim has been reconsidered since providing all required VCAA notice. The timing defect in the provision of the notice, since not all of it preceded the initial adjudication of the claim, therefore since has been rectified. See again Mayfield IV and Prickett, supra. 
 
As for the duty to assist, the RO and AMC obtained the Veteran's service treatment records (STRs), and VA evaluation and treatment records. The Veteran has also has been provided VA compensation examinations, most recently in February 2013 in conjunction with the Board's January 2012 remand to obtain supplemental information from a VA examiner who previously provided a medical opinion regarding the Veteran's claimed liver disorder. The examination findings and the other evidence in the file provide the information needed to address the matter of service connection. So there has been compliance with the remand directives in obtaining this necessary information. See, e.g., Stegall v. West, 11 Vet. App. 268 (1998) (indicating a Veteran is entitled to compliance with remand directives, as a matter of law, and that the Board itself commits error in failing to ensure compliance). Thus, as there is no indication that any other relevant evidence remains outstanding, the duty to assist has been met. 38 U.S.C.A. § 5103A. 

The Board therefore is satisfied that VA has provided all assistance required by the VCAA and that appellate review of this claim may proceed without prejudicing the Veteran.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. 

For the showing of 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). 

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

A Chronic Liver Disorder 

The Veteran asserts that he has a liver disorder that began during his military service. 

The Veteran's STR's reveal diagnoses of fatty liver also with elevated liver function tests. They also show findings compatible with a hepatic cyst. In April 2003, an abdominal ultrasound revealed mild fatty infiltration of the liver. In May 2003 it was reported that elevated liver functions test findings were secondary to fatty liver disease. Computed tomography (CT) scan from August 2003 to October 2005 show lesions on the liver compatible with stable hepatic cysts. 

A January 2005 VA medical examination report shows that the Veteran reported elevated liver function tests dating to 1989. He reported flank pain since then. He had been told that he had benign elevated liver function tests and not to worry. Prior CT scans had shown a liver cyst. The diagnoses revealed a liver cyst, benign, with abnormal ALT. Clinical records in June 2006 reported elevated liver function testing was part of protocol on Zocor. 

In November 2010, a VA medical examination of the Veteran's liver was performed. Among the examiner's diagnoses were: Hepatic cyst, incidental finding on abdominal imaging studies; and elevated liver enzymes, unclear etiology, patient has remained asymptomatic over the years. The examiner then opined that the findings, apparently the liver findings also, were made while the Veteran was in service and are most likely service connected. 

The Board remanded the case to the AMC in January 2013, requesting that the VA examiner in November 2010 provide supplemental information regarding whether any of the Veteran's liver findings that were linked to the Veteran's military service by the examiner, are the result of a chronic liver disorder or themselves result in disability for VA purposes. In a February 2013 report that same VA examiner indicated, after review of the claims folder, that there was no evidence to suggest that there was a chronic liver disorder in this case. It was stated that incidental findings of fatty liver as well as a stable hepatic cyst would have no bearing on elevated (liver) enzymes. It was stated that the lack of specific symptomatology implied that there was no disability related to the findings. Also that further clarification would be beyond the scope of the examination, requiring invasive testing such as a liver biopsy or other more specialized testing under the auspices of gastroenterology.
Analysis

The Board has considered the entire evidentiary data of record regarding this claim, and is compelled to conclude that service connection for a chronic liver disorder is not available. 

A threshold and fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. The Veteran has neither provided nor identified any competent and credible medical or lay evidence indicating that he has a chronic liver disorder. Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). 

The evidence, including that from service, has shown the Veteran has hepatic cysts, and a fatty liver as identified radiographically, as well as elevated liver enzymes shown through liver function tests. It is noted that post-service clinical records have attributed elevated enzymes as protocol for the use of a prescribed medication. In any event, it is important to note that elevated enzymes are not disabilities subject to service connection. Rather, such are a test result. There is no resultant disability associated with the elevated enzymes."Disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. See 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439, 448 (1995). A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). 

There is no medical evidence to suggest or indicate that any of these abnormal findings result in chronic disablement for VA purposes. In 2010, a VA examiner clarified that indeed the Veteran's elevated liver enzymes were shown in service. In fact, although not mentioned at the time fatty liver and hepatic cysts were also shown in service. The VA examiner pointed out at that time that the elevated enzymes had remained asymptomatic. Later, in February 2013, that same examiner also opined that there was no evidence to suggest a chronic liver disorder since there was no disability related to the incidental findings, namely the hepatic cysts and fatty liver and elevated enzymes. 

It is noted that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As a result, the VA examiner's medical opinions are highly probative and are weighted heavily here. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The VA examiner relied on sufficient facts and data and provided a rationale for his opinion with sound reasoning. It is imperative to note that there is no medical evidence to the contrary supporting the assertion that the Veteran's fatty liver, hepatic cysts, and elevated enzymes that indeed were shown in service, result in chronic disablement for VA purposes. 

Therefore, the Veteran has failed to satisfy the most essential requirement for service connection, which as explained is first establishing he has current disability. Absent establishment of this required current disability, there necessarily is no disability to attribute to his military service so as to, in turn, warrant service connection. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). 

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a liver disorder. So there is no reasonable doubt to resolve in his favor, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.



ORDER

Service connection for a liver disorder is denied. 



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs