Citation Nr: 1331762 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 04-40 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a liver disability, to include due to exposure to herbicides and/or as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. He served in Vietnam from September 26, 1967 to April 28, 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In January 2007, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board denied the Veteran's claim in a March 2011 decision. The Veteran appealed the Board's March 2011 decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2011, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order in November 2011, granting the Joint Motion, and returned the case to the Board. Since then, the Veteran's appeal was remanded by the Board in June 2012 and March 2013 so that he could be provided with appropriate VA examinations with respect to his liver disability and so additional VA records could be obtained. The relevant records were obtained in June 2012, and the Veteran was afforded appropriate examinations in July 2012 and May 2013. Accordingly, the Board finds that there has been substantial compliance with the directives of the previous remands, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). This appeal was processed using the VA paperless electronic claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a liver disability that is related to service, to include herbicide exposure, or to a service-connected disability. CONCLUSION OF LAW A liver disability was not incurred in, or aggravated by, active service or a service-connected disability. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a VCAA notice letter was issued in November 2003. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. A letter addressing the criteria for consideration in the assignment of a disability rating and/or effective date in the event of award of the benefit sought was sent in March 2006. Dingess/Hartman, at 490. Although this letter was not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to him, since he was provided time to respond with additional argument and evidence and the claim was readjudicated and supplemental statements of the case were provided to the appellant in August 2006, October 2007, January 2010, November 2012, and May 2013. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board concludes VA's duty to assist has also been satisfied. The Veteran's service treatment records and VA medical records, to include records from 1985 and 1986, are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA medical examinations and/or opinions with respect to the etiology of the Veteran's liver disability have been obtained in April 2009, July 2012, and May 2013. These opinions were rendered by medical professionals following a thorough examination and interview of the Veteran and/or review of the claims file. The examiners obtained an accurate medical history of the Veteran. The examiners laid factual foundations for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran also testified at a January 2007 Board videoconference hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VLJ asked questions to ascertain the likely etiology and onset of the Veteran's liver symptomatology, and when he began receiving treatment for it. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. The Veteran has not suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection also is permissible on a secondary basis for disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310(a). This includes situations where a service-connected condition has chronically, meaning permanently, aggravated the disability in question, but compensation in this instance is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be: (1) evidence confirming the Veteran has the currently claimed disability; (2) evidence of the service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the currently claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Certain chronic disabilities, such as cirrhosis of the liver, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, Type II Diabetes Mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The Secretary of VA, however, has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following specific conditions: cancer of the oral cavity (including lips and tongue, pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); nasopharyngeal cancer, breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine; cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); amyotrophic lateral sclerosis (ALS); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1). In this case, the evidence confirms that the Veteran served in Vietnam during the prescribed time period. However, the Board notes that a liver disability is not included in the indicated diseases associated with exposure to an herbicide agent. 38 C.F.R. §§ 3.307, 3.309(e). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran contends that he is entitled to service connection for a liver disability. For the reasons that follow, the Board concludes that service connection is not warranted. A January 2008 private liver biopsy report reflected that the Veteran had a diagnosis of mild chronic hepatitis, Grade 1-2, with minimal steatosis, Stage 0. The report noted that the presence of rare plasma cells and some histiocytoid clusters (no definite granulomas) raised a concern about a possible autoimmune component. Thus, the evidence reflects that the Veteran has a current disability, satisfying the first element of service connection. A review of the Veteran's service treatment records does not reveal any liver symptomatology, to include chronic hepatitis. The Veteran's January 1966 entrance examination report reflected that the Veteran was clinically evaluated as normal in all respects. In a January 1966 Report of Medical History, the Veteran denied having had stomach, liver, or intestinal trouble. A June 1970 discharge examination report reflected that the Veteran was clinically evaluated as normal. In a June 1970 Report of Medical History, the Veteran again denied having had stomach, liver, or intestinal trouble. An October 1985 private treatment record diagnosed the Veteran as having mildly abnormal liver tests of uncertain etiology and listed numerous possibilities as to the cause for the abnormal tests, including chronic active hepatitis, drug-induced liver disease, occult alcohol use, toxin exposure, and Wilson's disease. A December 1985 private treatment record reflects that the Veteran had persistently abnormal liver tests of uncertain etiology. A December 1985 liver biopsy report reflects that the Veteran had steatosis. The report noted that some of the hepatic cord cells contain a rather prominent granular eosinophilic material, but no definite hyaline bodies are evident. The features are those of hepatic steatosis, rather marked with focal hepatitis. The Veteran had a clinical history of persistent mild increase in serum glutamic oxalo-acetic (SGOT), serum glutamate pyruvate transaminase (SGPT) and gamma-glutamyl-transferase (GGT). In a September 2003 statement, the Veteran reported that he was told that he had a liver disorder following a blood test at the Madison VA Medical Center in January 1986. A June 2005 VA treatment record noted that the Veteran had a history of fatty liver. A February 2006 private treatment record noted that he had mild chronic renal failure. A June 2006 private treatment record also noted that the Veteran had chronic renal failure. At his January 2007 Board videoconference hearing, the Veteran testified that he had not been treated for any liver disorder and he had not been told that it is disabling. He additionally testified that he first learned of a liver problem after taking blood tests for an Agent Orange examination in 1985 or 1986. An August 2007 VA examination report reflected that the Veteran reported that he had never received any treatment for his liver disease and had no symptoms. The VA examiner found that the Veteran had normal liver studies with no evidence of any liver disease at that point in time. The Veteran reported that he was first told of elevated liver functions at his Agent Orange examination in 1985. He was told that the elevated liver enzymes might be related to alcohol. The Veteran reported that he had not had any alcohol since his liver biopsy in 1985. In a December 2007 treatment note, the Veteran's private gastroenterologist diagnosed him as having nonalcoholic chronic fatty liver. The gastroenterologist indicated that the Veteran was exposed to Agent Orange during the Vietnam War, and noted that Agent Orange exposure has been associated with the development of fatty liver disease. The gastroenterologist stated that the Veteran's other risk factor for fatty liver disease was diabetes, although his diabetes developed at a later time. As noted above, a January 2008 private treatment record reflected that a liver biopsy revealed that the Veteran had mild chronic hepatitis, Grade 1-2, with minimal steatosis, stage 0. The Veteran was evaluated at a VA examination in April 2009. The VA examiner emphasized that there was no mention of any liver condition on the June 1970 separation examination. The VA examiner also noted that the Veteran did not have any risk factors for hepatitis infections, such as a transfusion prior to 1992, past or present intravenous drug use, blood exposure of skin or mucous membranes, sex with men, prostitutes, or any partner known to have hepatitis or sexually transmitted diseases, hemodialysis, tattoo or repeated body piercing, or a history of intranasal cocaine use. The Veteran reported that he was receiving no treatment for hepatitis. He also reported that he was not aware that he had the condition until the 1985 liver biopsy. He denied any symptoms of jaundice, bleeding, nausea, or vomiting. He additionally denied any incapacitating episodes due to hepatitis. The April 2009 VA examiner found that the Veteran had mild chronic hepatitis, grade 1-2, with minimal steatosis (stage 0). He noted that the Veteran had non-alcoholic steatohepatitis (NASH) as evidence by the steatosis on two biopsies. There was no evidence of any chronic hepatitis infection as per multiple hepatitis B and C serology testing (including repeat testing from the April 2009 examination). The Veteran's hepatitis B antibody was mildly elevated, as he had received the vaccine in the past. The negative hepatitis C core antibody proved that he had never been infected with hepatitis B. There was no clinical evidence of autoimmune hepatitis as suggested by the biopsy. His autoimmune antibody tests were all negative except for a slight elevation in the anti-smooth muscle antibody which is not high enough to be clinically significant in this context. The April 2009 VA examiner also found that there was no evidence that the Veteran's completely asymptomatic chronic hepatitis, as seen on liver biopsy (laboratory abnormality only) was caused by or related to his military service. The VA examiner did not see evidence of liver disease in the service treatment records and a prior history of mumps, noted on a January 1966 report of medical history, did not cause liver problems. The VA examiner noted that the Veteran had normal liver function, as evidenced by his normal albumin and international normalized ratio (INR), which were the true indicators of liver function. The report noted that NASH is often associated with dyslipidemia, obesity, and a frequent complication of obesity, type II diabetes mellitus. The VA examiner emphasized that the Veteran had all of these conditions. The VA examiner also noted that as the Veteran already had NASH prior to his diabetes mellitus, type II diagnosis, and there had been no worsening of the disease, his current chronic mild hepatitis with steatosis was not at least as likely as not caused by or aggravated by his service-connected diabetes. In February 2012, the Veteran's private gastroenterologist indicated that the Veteran's risk factors for his diagnosed fatty liver disease included diabetes, obesity, and dyslipidemia; however, the gastroenterologist opined that it was also "possible" that his liver disease was related to Agent Orange exposure while serving in Vietnam. The Veteran underwent a subsequent VA hepatitis, cirrhosis, and other liver disorders examination in June 2012. The examiner diagnosed the Veteran with non-alcoholic steatohepatitis, and opined that there was no evidence that the asymptomatic non-alcoholic steatohepatitis (NASH) was related to the Veteran's military service. The examiner further opined that this diagnosis was often associated with disabilities including diabetes mellitus type II, but that NASH was not at least as likely caused or aggravated by the diabetes mellitus as NASH had been shown on liver biopsy 5 years prior to his diabetes mellitus diagnosis, and there had been no demonstration of worsening of the NASH as evidenced by normal liver function tests. The RO obtained another VA opinion in April 2013. Following a review of the Veteran's claims file, the VA physician opined that the Veteran's liver disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The VA physician acknowledged the February 2012 statement in which the Veteran's private gastroenterologist indicated that the Veteran's risk factors for non-alcoholic fatty liver disease included obesity and diabetes, although it was "possible" that his liver disease was partially related to Agent Orange exposure while serving in Vietnam. However, the April 2013 VA physician explained that Agent Orange had been extensively studied by the Institutes of Medicine, and that NASH was not a known associated condition. In addition, the April 2013 VA physician indicated that there was no medical literature to support the contention that NASH was caused by in any way the Veteran's presumed Agent Orange exposure. He thus disagreed with the private gastroenterologist's February 2012 statement, which he characterized as "unsupported," and concluded that the Veteran's diagnosed NASH/steatohepatitis/fatty liver disease was not likely caused by his presumed herbicide exposure during service. The Veteran has contended that he has a liver disability that is related to service, to include presumed herbicide exposure, or to his service-connected diabetes mellitus. Although a lay person may be competent to report the etiology of a disability, a liver disability is not, in the Board's opinion, the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to have had the requisite medical training. Even if the Veteran were competent to provide an opinion as to the etiology of a liver disability, a disorder typically confirmed by blood tests and a liver biopsy, the Board finds that the probative value of any such opinion is outweighed by that of the VA examiners, who have education, training and experience in evaluating the etiology of liver disabilities. The VA examiners reviewed the Veteran's claims file and opined that the Veteran's mild chronic hepatitis was not related to service, to include presumed Agent Orange exposure, or to a service-connected disability. Based on the above, the Board finds that the evidence is against the Veteran's claim that he has a liver disability that is related to service on direct, presumptive, or secondary bases. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement must be considered -- direct, presumptive and secondary). The Veteran's service treatment records do not indicate that he had hepatitis, or any liver symptomatology, in service. The December 1985 liver biopsy report, dated 15 years after service, first indicated the Veteran had steatosis. The April 2009 VA examiner concluded that the Veteran's mild chronic hepatitis, with minimal steatosis, was not related to service. He also concluded that the hepatitis was not caused or aggravated by his service-connected diabetes mellitus, type II. The June 2012 VA examiner opined that although the Veteran's diagnosis was often associated with disabilities including diabetes mellitus type II, the Veteran's NASH was not at least as likely caused or aggravated by his service-connected diabetes mellitus as NASH had been shown on liver biopsy 5 years prior to his diabetes mellitus diagnosis, and there had been no demonstration of worsening of the NASH as evidenced by normal liver function tests. Finally, the April 2013 VA physician indicated that there was no medical literature to support the contention that NASH was caused by in any way the Veteran's presumed Agent Orange exposure. Moreover, as discussed above, hepatitis is not included in the indicated diseases associated with exposure to an herbicide agent. In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As discussed above, the Board finds the VA examiners' opinions to be of highly probative evidentiary value. These opinions were based upon the medical expert's personal examination of the patient and/or a thorough review of the claims file. Moreover, the medical conclusions offered by the examiners were supported by medical evidence specific to the Veteran. On the other hand, the Board affords very little probative value to the various statements from the Veteran's private gastroenterologist. These statements, including that Agent Orange exposure has been associated with the development of fatty liver disease and that it was "possible" that the Veteran's liver disease was related to Agent Orange exposure while serving in Vietnam, are, at best, speculative and general in nature. The Court has held that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding 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); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Applicable regulations also provide that a finding of service connection may not be based on a resort to speculation or a remote possibility. 38 C.F.R. § 3.102 (2012). Service connection may be granted if there is a showing of continuity of symptomatology. However, in Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Hepatitis is not a disease recognized as chronic by 38 C.F.R. § 3.309(a). Moreover, the Veteran has not alleged that he has had symptoms of hepatitis since service or within one year of service. He has consistently stated that he first learned of the problem in 1985. The most probative competent evidence fails to demonstrate that the Veteran had hepatitis in service or within one year of service, or that a liver disability has been etiologically related to service by competent evidence. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a liver disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs