Citation Nr: 1331634 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 07-36 958 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a liver disorder, secondary to a service connected skin disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from July 1968 to February 1970. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision by the RO. In November 2009, the Veteran testified at a hearing before a Veterans Law Judge who has subsequently retired. The Veteran was provided an opportunity to have an additional hearing, as per 38 C.F.R. § 20.707, via a letter sent to him in November 2011. The Veteran responded in November 2011 that he did not wish to appear at an additional hearing, and the Board may proceed with its consideration of the issue remaining on appeal at this time. The transcript is of record. In March 2010, the Board remanded the claim for additional development of the record to include a VA examination. In February 2012, the Board remanded the claim for additional development of the record. The Veteran's virtual VA file has been reviewed. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable a chronic liver disorder in service or for many years thereafter. 2. The currently demonstrated hepatic steatosis (fatty liver) is not shown to be due to an event or incident of the Veteran's period of active service or to have been caused or aggravated by medication used to treat his service-connected skin disability. CONCLUSION OF LAW The Veteran's liver disability manifested by hepatic steatosis (fatty liver) is not due to disease or injury that was incurred in or aggravated by service; nor is it proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). A February 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in February 2011. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in August 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination was adequate as the examiner reviewed the record, evaluated the Veteran and provided an opinion as to whether the Veteran's liver disorder was related to his service connected skin disability. The opinion was speculative based upon the data of record. In December 2012, the Board remanded the claim to attempt to obtain available records from the Veteran's private physician, dated prior to October 2005, which the VA examiner noted would be needed in order to make a definitive decision. In February 2012, the Veteran was asked to submit a 4142 authorization for Dr. DP, so the VA could assist in obtaining additional records. However, no response was received. As will be discussed, the examiner's conclusion without any additional data, meets the standards set forth in Jones v. Shinseki, 23 Vet. App. 382 (2009). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection 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, 1131; 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 a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cirrhosis of the liver is a listed chronic disease under 38 C.F.R. § 3.309(a) but there has been no diagnosis of cirrhosis. Service connection can be granted on a secondary basis. Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 the claimant. The Veteran contends that his current liver disorder was caused by medication, including oral Lamisil, and topical Lamisil cream, used to treat his service-connected skin disability. The Veteran does not contend, nor does the evidence suggest, that he has a liver disorder that was manifested in service. The VA treatment records show that the Veteran was prescribed oral Lamisil in April 2004. At the time, he denied having a prior medical history of liver disease, hepatitis or diabetes mellitus. A November 29, 2005 treatment note reported that an ultrasound of liver showed enlarged fatty liver with transaminitis as well and that the Veteran's outside physician stopped several of his meds including Lipitor, Tricor and hctz (hydrochlorothiazide). In a December 2005 letter, Dr. DP reported that, at his last visit in November 2005, the Veteran's liver function tests were abnormal with SGOR at 201, SGPT of 125 with bilirubin of 1.4 and that a liver ultrasound showed fatty liver with no other abnormalities. At the time, Dr. DP stopped the Lipitor and Tricor, and the Veteran also stopped his felodipine on his own for unknown reasons. Dr. DP instructed the Veteran to go back on felodipine, getting repeat lipid and liver panel and noted that, based on those results, would decide if the Veteran needed to be put back on statins. Dr. DP recommended that, if he still had liver function abnormality, then he would follow up with Dr. BT. The additional tests were conducted in December 2005 and January 2006 with a handwritten notation in January 2006 from Dr. DP noting "liver ok." In August 2010, a VA examination was conducted. The Veteran reported having a history of increased alcohol consumption in the past with present consumption of a six pack per month of beer with occasional beverage that might include up to four oz. of liquor per month. Approximate monthly average was 10 drinks. The Veteran had a history of positive ultrasound for fatty liver during the time frame of April 2005 and November 2005. A July 2010 ultrasound of the abdomen diagnosed hepatic steatosis (fatty liver). The VA examiner was asked to address whether the Veteran's liver disorder was associated with treatment for his skin disease. The examiner noted the Veteran's history. The Veteran had a history of elevated liver enzymes and fatty liver diagnosed by an outside physician. He had a history of dyslipidemia that was diagnosed and therapy initiated prior to his being seen for the first time by VA in April 2004. The Veteran had a spike in his liver enzymes apparently in November 2005 well after he had completed a cycle of oral Lamisil (April 2004 through June 2004) though he was still on topical. While on oral Lamisil, the dermatology report noted that he had denied alcohol consumption. An April 2005 alcohol screening was negative. The VA examiner noted that there were a couple of issues that could elevate the Veteran's liver enzymes and also account for a fatty liver: alcohol consumption which was apparently mild, dyslipidemia treated with Lipitor and Tricor, obesity noted in November 2005 as weighing 203.9 with a BMI over 30 and had a 12 pound weight gain from July 2004 to November 2005 to reach this weight, and Lamisil (liver enzyme elevation). When the Veteran's liver enzymes elevated, a work up was obtained by his outside physician which included a liver ultrasound. His outside physician temporarily took him off all medications that were cleared through the liver. A VA primary care note of November 29, 2005 was that of "gastrointestinal: ultrasound of liver showed enlarged fatty liver, had transaminitis as well, outside physician stopped several of his meds including Lipitor, Tricor and hctz." The VA examiner found that a review of medical history suggested his elevated liver enzymes were likely multifactorial and had resolved without repeat elevation. The question remained concerning his "fatty liver," but the examiner could not state this was caused by a past usage of Lamisil. While his weight was improved, he still remained overweight (BMI 29.24), had known dyslipidemia, although now under excellent control because of his lipid lowering agents. In answering the question of whether the Veteran's skin condition and subsequent treatment with Lamisil caused hepatic steatosis, the examiner noted that a letter from Dr. DP stated that he had elevated liver enzymes apparently between October 26, 2005 and November 18, 2005 as well as a "liver ultrasound showed fatty liver." The examiner noted that she did not have the labs to review nor the actual ultrasound report and, in fact, there were no lipid profiles to review prior to 2006 or labs showing any liver enzyme elevation. The examiner found that the data were insufficient to draw any firm conclusions and to even begin to make a decision as his lab work including his lipid profile prior to being placed on Lipitor (at least proceeding April 6, 2004) and hopefully and presumably his associated lipid profiles were needed before any decision could be made. At this time, the VA examiner was more likely to state that his fatty liver was more likely related to metabolic cause then secondary to the use of any medication but to be fair, the examiner noted that the other data were needed. The examiner reported that, with the data now present for review, she could not come to a conclusion concerning the matter without resorting to mere speculation. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id. at 390. It must also be clear that the physician has considered "all procurable and assembled data." Id (citing Daves v. Nicholson, 21 Vet. App. 46 (2006)). Finally, the physician must clearly identify precisely what facts cannot be determined. Id. The examiner explained the basis for her opinion that it was more likely that the Veteran's fatty liver was due to a metabolic cause then secondary to the use of any medication as the cause of fatty liver is multifactorial. The examiner has considered, and identified in detail, all assembled data. The examiner identified that as there were no copies of any of the Veteran's liver function tests and lipid profiles prior to him being placed on Lipitor, his liver condition prior to then was indeterminable. The examiner determined that the cause of his elevate liver enzymes had resolved. She also determined that the cause of his fatty liver was multifactorial and noted the Vetearn's weight and dyslipidemia. Thus, the only medical opinion of record is against the claim. As a general matter the Board must consider whether a veteran's particular disability is the type of disability for which lay evidence is competent. Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether hepatic steatosis (fatty liver) was caused by prescription medication including Lamisil, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The weight of the evidence is against a finding that his liver disability was caused or aggravated by medication taken for service-connected skin disorder, to include Lamisil. As such, service connection is not warranted. ORDER Service connection for a liver disorder, to include as secondary to service connected skin disability, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs