Citation Nr: 1755048 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 09-45 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a liver disorder, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to June 1974. This matter comes before 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 Montgomery, Alabama. In May 2016 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The case was most recently before the Board in March 2017, when it was remanded to obtain a medical opinion. FINDINGS OF FACT 1. The Veteran does not have a current liver disorder that was caused or aggravated by service or a service-connected disability, to include the use of medication for service-connected disabilities. 2. There is no clear medical evidence that the Veteran's service-connected posttraumatic stress disorder (PTSD) caused her to use alcohol. CONCLUSION OF LAW The criteria for service connection for a liver disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Cirrhosis of the liver is considered by VA to be a chronic disease. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) The Veteran essentially asserts that she has a current liver disorder as a result of taking medication for her service-connected disabilities or as a result of self-medicating with alcohol as a result of her service-connected PTSD. While more recent medical evidence reveals essentially normal liver test results without a chronic liver disorder, a September 2015 VA ultrasound revealed hepatic steatosis, fatty liver. The Board finds that a current disability is shown during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that there is a current disability for VA purposes when a claimant has a disability at the time a claim is filed or during the pendency of that claim). The evidence is against a finding that the Veteran has a current liver disorder that began during service or is otherwise directly related to military service, or that cirrhosis of the liver manifested to a compensable degree within one year of her separation from service in 1974. Service treatment records show no treatment or diagnoses related to a liver disorder during service. Annual military physicals in 1975 and 1976 both note a normal evaluation of the abdomen, and in connection with those examinations the Veteran specifically noted she had not had any liver problems. In fact, during an April 2017 examination the Veteran indicated she first experienced right upper quadrant pain and was told of elevated liver enzymes in the 1990's. Thus, the current liver disorder is not caused or aggravated by military service nor can it be presumed related to service. The evidence is also against a finding that the Veteran has a current liver disorder that was caused or aggravated by medication taken for service-connected disabilities. In October 2016, a VA psychiatrist was asked whether it was at least as likely as not that medications prescribed for the Veteran's service-connected disabilities (PTSD, cervical spine arthritis, and arthritis of the thoracolumbar spine) caused or aggravated any disorder of the liver. In answering in the negative, the examiner acknowledged that the Veteran had been prescribed medications which can potentially have adverse hepatic effects; however, those medications were for nonservice-connected bipolar disorder and not service-connected PTSD. The examiner further noted that the Veteran had stopped taking these medications at some point, and that the Veteran's history of alcohol use disorder confounded the data as alcohol causes liver damage. The examiner also found it significant that the Veteran had been taking over the counter supplements, including a non-prescribed valerian root known to be toxic to the liver. According to the examiner, it was unknown at what dosage the supplements caused liver damage as they were unregulated, and indicated that taking such supplements was gambling with one's health. The examiner further noted that there was no current liver disorder or chronic liver disease, and that liver function tests look rather well. Regarding fatty liver, the examiner noted this can be a transient condition caused by drinking alcohol; not necessarily due to medications, and that there was no apparent liver disease. Also in October 2016, a nurse practitioner opined that it is less likely than not that the medications the Veteran was taking for her cervical spine arthritis and arthritis of the thoracolumbar spine caused or aggravated any disorder of the liver. She noted that one of the key causes of fatty liver disease (hepatic steatosis) is drinking alcohol. The examiner noted that the medication taken for arthritis may cause elevated serum transaminases; however, her most recent serum transaminases were normal and she had a history of alcohol use. These medical opinions are strong evidence against the claim that the Veteran has a current liver disorder caused or aggravated by medications taken for service-connected disabilities. While the Veteran has training as a nurse, the medical opinions above are afforded more weight than her opinion as the examiners supported their opinions with clear rationale and notation to the relevant history. Importantly, the VA psychiatrist found that the medications which had the potential to affect the liver were not prescribed for service-connected PTSD but rather for nonservice-connected bipolar disorder. He also pointed to alcohol and over the counter supplement use as more likely to cause or aggravate the Veteran's liver disorder. The nurse practitioner explained that while some of the Veteran's arthritis medication could elevate serum transaminases, elevation was not present in this case and suggested that alcohol use was more likely to have caused or aggravated the liver disorder. Service connection can also not be granted on the basis of a liver disorder developing as a result of alcohol usage caused by service-connected PTSD. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. An injury or disease incurred during active military, naval or air service shall not be deemed to have been incurred in line of duty if such injury or disease was the result of abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 U.S.C. § 105 (2012); 38 C.F.R. § 3.301 (2017). Notwithstanding the aforementioned, service connection for alcohol abuse is possible if the abuse of alcohol was acquired secondary to, or is a symptom of, a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (2001). However, "veterans can only recover if they can adequately establish that their alcohol . . . abuse disability is secondary to or is caused by their primary service-connected disorder . . . Such compensation would only result where there is clear medical evidence establishing that the alcohol . . . abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol ... abuse disability is not due to willful wrongdoing." Id. at 1381. The Veteran underwent a Hepatitis, Cirrhosis, and other Liver Conditions examination in April 2017. The examiner was asked if there was clear medical evidence establishing that the Veteran's alcohol use was caused by her PTSD. In answering in the negative, the examiner stated that there were no records directly stating that the Veteran's alcohol use was caused by her PTSD. Other evidence also supports the conclusion that there is no clear evidence that the Veteran's alcohol use was caused by her PTSD. During a January 2016 psychiatric examination the Veteran reported that her grandmother began giving her beer as an infant and when she got older her grandmother would buy her mixed drinks. The Veteran was reportedly in trouble with her mother for this pre-service alcohol abuse. The Veteran reported that while in the military she had occasional, mild alcohol use. By her report, after service, around 1982, she began working the night shift as a nurse and had trouble sleeping during the days so she started drinking alcohol. The alcohol use became heavy alcohol use, although she stopped drinking 10 to 20 years before the examination. The Board has considered the Veteran's statements that she drank alcohol to self-medicate as a result of her service-connected PTSD, and the fact that the Veteran was trained as a nurse and has some medical knowledge. However, in this case the Veteran's statements about the reason for her alcohol consumption are found to be lacking credibility. When asked about alcohol usage in evaluating the severity of her PTSD, the Veteran reported drinking as a child, prior to developing PTSD, and that she started drinking after service as a result of her work schedule rather than to self-medicate. These statements conflict with her statements made in connection with her claim for compensation benefits. In addition, in October 2016 a VA psychiatrist stated that any lay statements regarding alcohol use pattern should be viewed with very little credibility as it "[was] obvious that [the] veteran seeks disability for a condition that appears to be unfounded," and is confounded by other issues, such as possible unreported occult alcohol use, herbal over the counter products, etc. The most probative evidence indicates that the Veteran's alcohol use was not caused by her PTSD. For the reasons above, the Board finds that the evidence is against a finding that the Veteran has a current liver disorder that was caused or aggravated by military service or a service-connected disability. As such, the claim must be denied. ORDER Entitlement to service connection for a liver disorder, to include as secondary to service-connected disabilities, is denied. _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs