Citation Nr: 1617512 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 06-39 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a liver disability secondary to diabetes mellitus. 2. Entitlement to service connection for glaucoma, to include as secondary to diabetes mellitus. 3. Entitlement to service connection for prostatic hypertrophy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969, to include service in the Republic of Vietnam. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. The case was certified the Board by the Roanoke, Virginia RO. In February 2008, a hearing was held before the undersigned. The issue of entitlement to direct service connection for a liver disorder was remanded by the Board in May 2008, August 2010 and January 2012. In December 2013, the Board denied entitlement to direct service connection for a liver disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). At the Court, the appellant did not contest the Board's finding that a liver disorder was not directly related to service. The Court, however, granted a joint motion for remand directing the Board to address whether a liver disorder was secondary to the appellant's service-connected diabetes mellitus. In April 2015, the Board remanded the secondary service connection issue. In December 2013, the Board remanded the issue of entitlement to service connection for glaucoma, to include as secondary to diabetes mellitus. In the April 2015 remand it was noted that the December 2013 directives remained unfulfilled and the Board incorporated them by reference. This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. The issues of entitlement to service connection for glaucoma and for prostatic hypertrophy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran has a liver disorder (non-alcoholic fatty liver disease) proximately due to service-connected diabetes. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, secondary service connection for a liver disorder (non-alcoholic fatty liver disease) is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable decision herein, a detailed discussion as to how VA satisfied its duty to notify and to assist is not required. See 38 U.S.C.A. §§ 5103 and 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Analysis As set forth in the introduction, the issue of entitlement to service connection for a liver disorder is being pursued on a secondary basis only. Accordingly, this discussion will focus on whether secondary service connection is warranted and the evidence pertinent to that determination. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision of the Court in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). 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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Review of VA and private medical records indicates the Veteran has a history of intermittent transaminitis thought to be attributed to non-alcoholic fatty liver disease. A June 2011 VA liver progress note indicates the Veteran was referred for an evaluation given that a persistently elevated alanine transaminase level was noted on prior labs. The remainder of his liver enzymes were normal. Imaging of the abdomen showed small hepatic cysts but no mass lesion or irregular parenchyma. The physician noted that the alanine transaminase had since normalized. He indicated that given the appellant's history of diabetes and obesity, this more than likely represented fatty deposition in the liver. In an addendum also dated in June 2011, the physician stated: If, in fact, he does have [non-alcoholic fatty liver disease], there is a clear relationship between [diabetes mellitus] and [non-alcoholic fatty liver disease], and therefore we could classify his liver disease as service connected (although not related to the episode of acute hepatitis). Since it is not possible to conclusively diagnose [non-alcoholic fatty liver disease] without a biopsy, we cannot definitively state that this is the case; however, I believe it is more likely than not that it is, which is generally the burden of proof in establishing service connection. Considering the foregoing, the Board remanded the issue to obtain a VA opinion on secondary service connection. The directives indicated that any liver biopsy should be performed only if the appellant's provided his informed consent. In July 2015, the representative submitted a May 2015 medical statement prepared by a hepatologist and waived RO consideration of this document. The hepatologist indicated that he had seen the Veteran for evaluation of intermittently abnormal liver enzyme tests and the possible diagnosis of non-alcoholic fatty liver disease. The physician stated his evaluation consisted of a review of records, history and a physical examination. He further stated: In the setting of diabetes mellitus and even prediabetes nonalcoholic fatty liver disease is extremely common. [The appellant] has mild liver enzyme elevations and there has been no other explanation for these elevations after extensive testing. While imaging does not suggest fatty infiltration these studies often underestimate the true incidence of nonalcoholic fatty liver disease. There is no question a biopsy would make a definitive diagnosis but I do not believe it is necessary in this case. It is not standard of care to perform biopsy to document nonalcoholic fatty liver disease in patients who have no significant evidence of advanced liver disease such as cirrhosis. In fact biopsy in this situation would almost be punitive as it has side effects including temporary pain and in the [worst] case scenario internal bleeding and, rarely, even death. The non-alcoholic fatty liver disease is clearly related to his non-insulin dependent diabetes mellitus as he is not overweight and does not have hyperlipidemia. In summary I believe that [the Veteran] has non-alcoholic fatty liver disease secondary to his diabetes mellitus and that a diagnostic biopsy is not necessary. In October 2015, VA obtained an opinion from a board certified gastroenterologist. The examiner noted the Veteran was evaluated in the VA liver clinic in 2014 and repeat liver function tests were found to be normal. He had a nonalcoholic steatohepatitis fibrosure test that was negative for steatosis and no significant fibrosis. The examiner noted the Veteran was going to bring in additional documentation. The examiner stated there were four major causes of fatty liver: obesity, alcohol, hypertriglyceridemia, and diabetes, but that the Veteran did not have any of these. (The Board notes the Veteran is service-connected for diabetes.) The examiner indicated that with the results currently available, she did not see evidence to suggest fatty liver. In a November 2015 addendum, the examiner stated that the Veteran brought in private medical records and there was no evidence of fatty liver or steatohepatitis according to these tests. On review, the record contains evidence both for and against finding that the Veteran has non-alcoholic fatty liver disease. That is, multiple VA outpatient records suggest he has this disorder and the May 2015 private medical statement, which was based on a review of records, test results, and physical examination, indicates that he does. This statement also indicates that a biopsy is not needed and suggests that the disease is often underestimated in imaging studies. The October 2015 VA opinion, which is based on review of the claims folder and other test results, did not find evidence of fatty liver. The Board observes that the requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Both the private and VA opinions were provided by experts in the field and the Board does not find a sufficient basis for favoring one over the other. Thus, the evidence is at least in equipoise as to whether or not the Veteran has non-alcoholic fatty liver disease that is related to service-connected diabetes. Resolving reasonable doubt in his favor, the Board finds that he does. Accordingly, service connection is warranted. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding...benefits."). ORDER Entitlement to service connection for a liver disorder (non-alcoholic fatty liver disease) as secondary to service-connected diabetes is granted. REMAND Glaucoma The Veteran underwent a VA examination in June 2010 following which the assessments included open angle glaucoma. The examiner indicated that glaucoma was unlikely to be related to mild diabetes. In December 2013, the Board remanded the issue for an addendum to the prior examination. Specifically, the Board was seeking opinions on both direct and secondary service connection, to include based on aggravation. Additional VA opinion was obtained in November 2015. The examiner reviewed the claims folder and provided a negative opinion on both direct and secondary service connection as follows: There is no dilated eye exam within the service treatment records to comment on whether or not he showed signs of glaucoma during his service. There is an exam from outside the VA on 4/27/98 showing him as 'glaucoma suspect'. The diagnosis of glaucoma and induction of treatment for glaucoma followed this date. At the same time in his medical records he showed no signs of diabetic retinopathy. I can conclude that his diagnosis of diabetes did not result in his development of glaucoma. In the March 2016 informal hearing presentation, the representative essentially argued that the opinion was inadequate and not supported by sufficient rationale. On review, the Board agrees that additional opinion is needed. First, the opinion on direct service connection seems to be based solely on the absence of in-service findings. Second, the basis for finding that diabetes did not result in glaucoma is not clear. Third, the examiner did not address aggravation as directed in the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Hence, further development is required. Prostatic hypertrophy In June 2015, VA denied entitlement to service connection for hypertrophy of the prostate. Additional evidence was received within the appeal period and in March 2016, VA confirmed and continued the previous denial. The Veteran subsequently submitted a notice of disagreement. A remand is needed so that a statement of the case can be furnished. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Return the November 2015 VA opinion for addendum. If the November 2015 ophthalmologist is not available, the requested information should be obtained from a similarly qualified examiner. The examiner is to be provided access to the claims folder, the VBMS file, the Virtual VA file and a copy of this remand. The examiner must specify in the report that these records have been reviewed. The examiner is requested to answer the following: (a) is it at least as likely as not that the Veteran's glaucoma was manifested during, or as a result of active military service. In making this determination, the examiner may not rely solely on the absence of in-service findings documenting glaucoma. The examiner is advised that she/he must discuss the Veteran's self-reported symptom history. The physician is advised that while the Veteran is not competent to state that he has glaucoma due to service, he is competent to report his symptoms. The physician is further advised, however, that while the absence of corroborating clinical records may NOT be the determinative factor, the terms competence and credibility are not synonymous. (b) If glaucoma is not directly due to service, is it at least as likely as not that glaucoma is proximately due to service-connected diabetes. In making this determination, the examiner is asked to discuss the significance of the absence of diabetic retinopathy in this setting. (c) If glaucoma is not directly caused by diabetes mellitus, is it at least as likely as not that glaucoma is aggravated (permanently worsened) by service-connected diabetes. If aggravation is found, the examiner should specify the baseline level of disability. The examiner must consider and address the appellant's lay statements, and a complete rationale must be provided for all opinions offered. 2. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documents his/her consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. Thereafter, readjudicate the claim of entitlement to service connection for glaucoma, to include as secondary to diabetes mellitus. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. 4. Issue a statement of the case addressing entitlement to service connection for prostatic hypertrophy. If, and only if, the appellant completes his appeal by filing a timely substantive appeal on the aforementioned issue should it be returned to the Board. 38 U.S.C.A. § 7104 (West 2014). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs