Citation Nr: 1332608 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-41 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for cirrhosis of the liver. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from November 1958 to April 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The RO, in pertinent part, denied service connection for cirrhosis of the liver. In February 2011, the Veteran testified at a video-conference hearing before the undersigned. A transcript of that hearing has been prepared and associated with the claims file. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. For the reasons set forth below, this appeal is being REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if further action is required on his part. REMAND The Veteran has been diagnosed with cirrhosis of the liver. He maintains that the condition can be attributed to in-service exposure to carbon tetrachloride (CCl4). He has reported that he was a transmitter repairman for the entire time he was in the military; that he used CCl4 daily, four to five hours per day, for approximately 31/2 years, to clean equipment; that he would dip brushes into the CCl4 and clean off contacts; that the CCl4 was kept in an open container; that it stayed on the work bench until it was either disposed of or stored; that there were no monitors to detect the amount of CCl4 in the air; and that breathing the fumes would occasionally make him gag. He contends that he used CCl4 on almost a daily basis during service, from 1959 to 1962, and that he had "extreme" exposure after he was reassigned to Japan for nine months. Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2013). VA is also required to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). In the present case, the Veteran reported during a July 2010 VA examination that he had undergone yearly physical examinations in the early 1960s, in connection with his work for a phone company, and that he was informed at that time that "a lab reading was not normal but would be monitored." In addition, during the Board hearing in February 2011, the Veteran's representative indicated that the Veteran was receiving ongoing, weekly treatment at the VA Medical Center (VAMC) in West Haven, Connecticut, and that the Veteran's physicians there "have reiterated to him that they still believe, and are very adamant about the [CCl4] as the basis for his cirrhosis." Currently, the claims file does not contain any records of the Veteran's reported annual physical examinations by a phone company in the early 1960s. Moreover, records of the Veteran's treatment at the West Haven VAMC have not been procured since June 23, 2010. Because these records, if obtained, could contain information bearing on the Veteran's appeal, efforts should be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (2013) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). As to the need for a medical examination and/or opinion, the Board notes, as an initial matter, that the Veteran's DD Form 214 shows that his military occupational specialty (MOS) was 30454, Ground Radio Communication Equipment Repairman. As such, his statements with respect to extensive exposure to CCl4 during service are deemed credible. However, it also appears clear from the record that the Veteran has a history of alcohol use to some degree. In March 2006, for example, he reported to a private care provider, Peter R. Huvelle, M.D., that he had had a "problem" with alcohol "years ago," although he denied current use. The record on appeal, as it currently stands, contains statements/opinions from five medical professionals with respect to the likely etiology of the Veteran's cirrhosis. In September 2008, for instance, a treating VA physician (A.S.) noted that the Veteran likely had alcoholic cirrhosis. In November 2008, a physician in the West Haven VAMC's liver clinic (A.N.) observed that the etiology of the Veteran's cirrhosis could be NASH (nonalcoholic steatohepatitis) or chemical exposure. The physician noted that the Veteran "appears to be [a] reliable historian[,] so [alcohol] seems unlikely." In February 2009, the Veteran was again seen in the VAMC's liver clinic, this time by a different physician (A.C.). The physician noted that a liver biopsy was found to show steatohepatitis and cirrhosis. The physician also noted that the Veteran had had a three-year exposure to CCl4, and that recent esophagogastroduodenoscopy (EGD) showed early/grade I varices. The diagnostic impression was that the Veteran had compensated cirrhosis "likely [secondary to] carbon tetrachloride exposure [versus] fatty liver disease." In November 2009, a VA physician (S.K., a gastrointestinal Fellow) noted the Veteran's concern that his claim for service connection for cirrhosis was denied, inasmuch as "he did have 3 years of nearly daily exposure to carbon tetrachloride[,] which is known to cause liver damage and cirrhosis." The clinical impression was that the Veteran had CCl4-induced cirrhosis, and was in the clinic for follow up. Finally, in July 2010, a VA examiner concluded that it was unlikely that the Veteran's cirrhosis was related to CCl4 toxicity during service. In support of her opinion, the examiner conceded that it was as likely as not that the Veteran had exposure to an unknown concentration of CCl4 during service, as described, but that there was no evidence of in-service treatment for symptoms consistent with CCl4 toxicity, such as nausea, vomiting, or headaches. The Board has reviewed the statements/opinions from all five of the foregoing medical professionals. None of them are entirely satisfactory. Although the question presented in this case is complex, the July 2010 VA opinion was obtained from a physician's assistant, rather than from a physician with expertise in liver disease. In addition, although the other referenced opinions were rendered by physicians (three of them from the VAMC's liver clinic), it does not appear that any of those physicians considered the Veteran's entire medical history, as set out in the claims file, in arriving at their conclusions. Significantly, none of those physicians made any comment with respect to the medical significance, if any, of the lack of in-service treatment for symptoms such as nausea, vomiting, or headaches; a fact that the July 2010 physician's assistant apparently found dispositive. As such, a new examination and opinion is required. See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). For the reasons stated, this case is REMANDED for the following actions: 1. Ask the Veteran to provide a release for records of the yearly physical examinations he reportedly underwent in the early 1960s, in connection with his work for a phone company, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 2. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the VAMC in West Haven, Connecticut since June 23, 2010, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination by a physician with appropriate expertise in liver disease. After reviewing the claims file, examining the Veteran, and performing any studies and/or tests deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that (a) the cirrhosis of the Veteran's liver is due, at least in part, to exposure to chemicals (specifically, carbon tetrachloride) during service; and, if not, (b) that cirrhosis of the liver had its onset in, or is otherwise related to, the Veteran's period of active service. In so doing, the examiner should accept as fact that the Veteran had extensive exposure to carbon tetrachloride during service, as he has described. The examiner should review and discuss the prior etiological statements/opinions from other care providers, including in September 2008 (by A.S., a treating VA physician); November 2008 (by A.N., a physician in the West Haven VAMC's liver clinic); February 2009 (by A.C., a physician in the VAMC's liver clinic); November 2009 (by S.K., a gastrointestinal Fellow); and by the physician's assistant who examined the Veteran for compensation purposes in July 2010. The examiner should also discuss the significance, if any, of the facts that the Veteran was treated for colds and upper respiratory infection during service (in January 1959, May 1959, April 1961, and April 1962); and that he was seen for peeling of his hands in February 1960, that a mycotic infection was suspected, and that laboratory culture revealed normal flora. A complete medical rationale should be provided for all opinions expressed. 4. After conducting any additional development deemed necessary, the claims file should again be reviewed. If the claim on appeal remains denied, furnish a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Thereafter, the claims file should be returned to the Board, if otherwise in order. No action is required by the appellant until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2013).