Citation Nr: 1339231 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 08-38 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a liver hemangioma, to include as due to carbon tetrachloride exposure. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Appellant is a Veteran who served on active duty from November 1951 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for the claims for residuals of lung cancer, COPD, and a liver hemangioma, all to include as due to carbon tetrachloride exposure. The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim in June 2010. 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) requires that the VLJ who chairs 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. In this case, the undersigned VLJ set forth the issues to be discussed at the hearing. The Veteran's representative asked questions pertinent to the requirements of service connection, and the case was remanded to obtain evidence that might substantiate the claim. See June 2010 hearing transcript. Thus, any error in this regard is nonprejudicial. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. This matter was remanded by the Board in July 2010 for additional development. In January 2011, the Board denied the service connection claims for residuals of lung cancer, chronic obstructive pulmonary disease (COPD), and a liver hemangioma. Thereafter, the Veteran appealed the Board's January 2011 denials of service connection to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Memorandum Decision, the Court vacated the entire January 2011 Board decision and remanded it to the Board for additional consideration. The Board then remanded the claims in October 2012. In June 2013, the Board denied service connection for chronic obstructive pulmonary disease (COPD) and lung cancer; while remanding the issue of service connection for a liver hemangioma. The case has now been returned for review by the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDING OF FACT The Veteran's liver hemangioma is a congenital defect and a preponderance of the evidence is against finding that the Veteran sustained superimposed disability during service or that this defect results in a disability as defined by VA. CONCLUSION OF LAW A liver hemangioma was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 4.9, 4.57 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, 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 notice requirements apply to all elements of a service connection claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In November 2007, the Veteran received a letter satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1). The letter informed him of the evidence required to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also complied with Dingess by as well discussing the "downstream" disability rating and effective date elements of his claim. He has received all required notice concerning his claim. As for the duty to assist, the RO obtained his service treatment records (STRs), as well as private and VA evaluation and treatment records. During the course of his appeal, the RO has requested that he identify any outstanding records, VA or private, and there is no suggestion there are additional records that need to be obtained, which are obtainable. Pursuant to the Board's June 2013 remand directive, a medical opinion was obtained that addressed the question of whether there was superimposed injury to the congenital defect, liver hemangioma. The September 2013 findings were reported in a manner and format enabling the Board to address the elements needed to show entitlement to service connection. The Board finds that the VA opinion is more than adequate, as it was predicated on a full reading of the VA and private medical records in the Veteran's claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Likewise, the Board finds that there was compliance with its June 2013 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. II. Service Connection for Liver Hemangioma In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of 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 or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). The provisions of 38 C.F.R. § 4.9 make a distinction between congenital and acquired defects. Service connection for congenital or developmental defect is precluded by 38 C.F.R. §§ 3.303(c), 4.9. VA's Office of the General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary disease, for which service connection may be grated, if initially manifested in or aggravated by service. O.G.C. Prec. Op. 82-90, 55 Fed Reg. 45711 (1990); O.G.C. Prec. Op. 67-90, 55 Fed. Reg. 43253 (1990). Defects were defined as "structural or inherent abnormalities or conditions that are more or less stationary in nature." O.G.C. Prec. Op. 82-90, 55 Fed. Reg. 45711 (1990). However, congenital or development defects may be service connected where a superimposed injury occurs during, or as a result of, active service. VAOPGCPREC 82-90. Service treatment records are negative for any complaints, treatment, or diagnoses related to a liver condition. The Veteran underwent examinations in January 1951, August 1951, November 1953, and July 1954. No relevant abnormalities were noted. Private treatment records dated in March 2001 reflect a diagnosis of liver hemangioma. In written statements and testimony, the Veteran detailed his level of exposure to carbon tetrachloride in service, and stated his belief that his liver hemangioma is a direct result of that exposure. As noted above, 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 medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). In this case the Veteran has failed to satisfy this threshold preliminary evidentiary burden of establishing he has current disability on account of the liver hemangioma. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). But see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). As to the etiology of the Veteran's liver hemangioma, the record contains various medical opinions. The first opinion was provided by the Veteran himself, who is a chiropractor. As indicated, the Veteran attributes his liver hemangioma to service, to include as due to carbon tetrachloride exposure. He has submitted various medical articles and literature in support of his claim. The second etiology opinion was provided by the August 2010 VA physician. After having reviewed the claims file and examined the Veteran, the VA physician noted that the Veteran had no history of hepatitis, no history of chronic liver disease risk factors, and no current symptoms. An abdominal examination was normal, and there was no indication of malnutrition or other signs of liver disease. Based on the available information, the VA physician continued the diagnosis of a liver hemangioma, but concluded that the Veteran's liver condition was less likely than not caused by or the result of carbon tetrachloride exposure in service. The physician noted that the available medical literature indicated that carbon tetrachloride was not a known cause of hemangioma. The physician noted further that it could cause hepatocellular injury, but there was no clinical evidence that the Veteran had such an injury. It was also noted that the etiology of hepatic hemangioma was not completely understood, but they were considered to be vascular malformations or hematomas of congenital origin that enlarge by ectasia. Since it was unclear to the Board as to whether this VA examiner's acknowledgement that liver hemangiomas were capable of enlargement seemed to contradict the very nature of a congenital defect, which by definition is generally stationary. The Board requested further clarification from the August 2010 VA physician. Pursuant to the Board's remand another VA examination was conducted in February 2013. This VA physician explained: [A] hemangioma of the liver is a congenital benign finding, unrelated to any toxin and doesn't need any attention or treatment of any kind. It is quite common and is often found incidentally during imaging studies of the liver. It is extremely unlikely to ever cause any problems. It is not expected to ever change [,] and is almost certainly a congenital defect. The examiner also commented on the articles that the Veteran submitted, that, for the most part, were related to lung disorders and carbon tetrachloride. The VA physician dismissed these articles by pointing out the deficiencies in the study models as well as the method used to gather data. The examiner also concluded that the liver hemangioma was unrelated to any toxins. As explained, VA compensation may not be paid for a congenital defect disorder as it is specifically excluded as a disease or injury within the meaning of applicable legislation providing for VA compensation benefits. Therefore, generally speaking, a congenital disorder is not a condition for which service connection is available as a matter of express VA regulation. The only possible exception is if there is additional disability due to aggravation of the congenital defect during service by superimposed disease or injury. Therefore, where the Veteran has been diagnosed with a congenital defect, as is the case here, the issue becomes whether there is any superimposed chronic pathology which was present during active duty. In regard to this VA examiner's conclusions, there were no remarks regarding whether there was superimposed chronic pathology concerning his liver disorder. Therefore, the case was remanded again in June 2013 for additional medical commentary. A VA physician reviewed the Veteran's medical history in September 2013. After reviewing the Veteran's claims file, this physician noted: The hemangioma found on imaging [studies] is the same pathological lesion as a birthmark. It is basically a tangle of blood vessels and is a congenital defect. It is not caused by any known exposure to any toxin. It would not have been caused by or aggravated by anything that occurred during service such as a toxin exposure, injury or disease. Most important, this lesion does not cause any disability of any kind. It is simply an incidental [finding]. It does not lead to liver cancer. Consequently, this physician also concluded that the Veteran's liver hemangioma is a congenital defect; there was no superimposed injury to this developmental defect; and in fact, is essentially a benign finding with no resulting disability. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board notes that the Veteran is a licensed chiropractor and as such, may provide competent medical evidence in this case. In this regard, the medical opinions of record, both for and against his claim, are competent as they were provided by medical professional possessing the necessary medical competence, education, training, qualifications or experience to, according to 38 C.F.R. § 3.159(a)(1), offer medical diagnoses, statements or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). However, the Board also must assess the credibility of these medical opinions to determine their ultimate probative value in relation to each other and, in so doing, may favor one over another provided there is sufficient explanation of the underlying reasons and bases. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). In deciding this claim, the Board must analyze the credibility and thus, the probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons and bases for rejecting or accepting any material evidence. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In this regard, the Board finds the statements of the Veteran, a chiropractor, less credible in light of the overall record and the contrary opinion of the VA compensation examiners. The Veteran bases his opinion on the fact that he was exposed to carbon tetrachloride during service and on some of the information he has collected and submitted in support of his claim. While it is true that the Board found it credible that the Veteran may have been exposed to carbon tetrachloride during service, the Board finds that the Veteran's opinion is mostly limited in terms of credibility and its ultimate probative value because he provides no sound explanation of why in this particular case he concludes that his current liver hemangioma was related to the carbon tetrachloride particularly in light of the explanation and rationale provided by the February 2013 and September 2013 VA examiners. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. A personal history cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. The Veteran's statements simply do not provide sufficient supporting rationale as reason or justification for concluding the currently diagnosed congenital defect suffered any superimposed injury and, in particular, by way of carbon tetrachloride exposure he admittedly may have been exposed to during service. Furthermore, he has not shown that there is any resulting disability from the liver hemangioma. In order to support his arguments, the Veteran submitted general articles regarding carbon tetrachloride and its affects. First, none of these articles directly relate to liver hemangioma. Also, one of the articles that regard the formerly proposed Veterans Carbon Tetrachloride Benefits Act clearly indicates that no such legislation was enacted. In reviewing the remaining treatises/studies, the Board notes that they are not sufficient to demonstrate the requisite medical nexus for a claim for service connection. A medical article as evidence must demonstrate a connection between the present condition and the service-connected disorder. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The literature suggests there may be various consequences to excessive exposure to tetrachloride as well as other chemicals. This literature does not discuss generic relationships with a degree of certainty that, under the facts of this case, serves to establish a link between the Veteran's liver hemangioma and his service. See Sacks v. West, 11 Vet. App. 314 (1998). More importantly, the VA physician in 2013 points to the shortcomings of two of the articles submitted by the Veteran. As such, this literature is of limited probative value to the issue at hand. The Board accepts the opinion from the VA examiners as being the most probative medical evidence on the subject, as such was based on a review of all historical records and an examination of the Veteran. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the medical reports, and the fact that the opinions were based on a review of the applicable record, the Board finds such opinion to be probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). The Board also finds the VA examiners' conclusions are consistent with the evidence of record and afford the opinions of the VA physicians' greater weight than the statement provided by the Veteran. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). Here, the VA compensation examiners considered his in-service chemical exposure. The examiners readily conceded that the Veteran had experienced the type of chemical exposure claimed in service but, as importantly, these examiners also noted that there is no resulting disability. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). For the reasons outlined above, the Board finds that the VA examiners' opinions are more credible and entitled to greater probative weight than that submitted by and on behalf of the Veteran. And since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for liver hemangioma is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs