Citation Nr: 18152256 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-31 147 DATE: November 21, 2018 ORDER 1. The appeal to reopen a claim of service connection for cirrhosis of the liver, to include as secondary to service-connected hepatitis B and C, is granted. 2. The appeal to reopen the claim of service connection for fibromyalgia as secondary to service-connected hepatitis B and C is granted. 3. Service connection for cirrhosis of the liver as secondary to service-connected hepatitis B and C is granted. REMANDED 4. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected hepatitis B and C is remanded. 5. Entitlement to service connection for type 2 diabetes mellitus, to include as secondary to service-connected hepatitis B and C is remanded. 6. Entitlement to service connection for cholelithiasis, to include as secondary to service-connected hepatitis B and C is remanded. 7. Entitlement to service connection for lymphocytosis, to include as secondary to service-connected hepatitis B and C is remanded. FINDINGS OF FACT 1. A final July 2009 rating decision denied service connection for chronic liver disease/cirrhosis on the bases that such disease was not clinically diagnosed and that any such disability was not related to service. 2. Evidence received since then July 2009 rating decision shows a diagnosis of cirrhosis; relates to an unestablished fact necessary to substantiate the claim of service connection for cirrhosis; and raises a reasonable possibility of substantiating the claim. 3. A final July 2009 rating decision denied service connection for joint pain and fatigue, finding that the complaints were consistent with a diagnosis of fibromyalgia (and were symptoms of service-connected hepatitis B and C, and not separately compensable disabilities). 4. Evidence received since the July 2009 rating decision includes September 2010 correspondence from the Veteran’s treating physician that noting that he has a diagnosis of fibromyalgia (a separately ratable disability); relates to an unestablished fact necessary to substantiate the claim of service connection for fibromyalgia, and raises a reasonable possibility of substantiating the claim. 5. Competent medical evidence establishes that the Veteran’s service-connected hepatitis B and C were etiological factors for his development of cirrhosis of the liver. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for cirrhosis may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received, and the claim of service connection for fibromyalgia may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. Secondary service connection for cirrhosis of the liver is warranted. 38 U.S.C. §§ 1110,1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1974 to January 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The U.S. Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. The appeal to reopen a claim of service connection for cirrhosis of the liver as secondary to service-connected hepatitis B and C is granted. A final July 2009 rating decision denied service connection for cirrhosis on the basis that a clinical diagnosis of such was not shown. Evidence received since July 2009 includes a report of a November 2016 VA examination when cirrhosis was diagnosed. Such evidence pertains to an unestablished fact necessary to substantiate the claim of service connection for cirrhosis, raises a reasonable possibility of substantiating the claim, and is material. Accordingly, new and material evidence has been received, and the claim of service connection for cirrhosis, as secondary to service-connected hepatitis B and C may be reopened. 2. The appeal to reopen a claim of service connection for fibromyalgia, to include on a secondary basis, is granted. A final July 2009 rating decision denied service connection for joint pain and fatigue, in essence, on the basis that they were symptoms of the Veteran’s service-connected hepatitis C, and not a separately compensable disability entity. Evidence received since July 2009 includes September 2010 correspondence from the Veteran’s treating physician stating that he has a diagnosis of fibromyalgia (a known compensable disability entity manifested by joint pain and fatigue), pertains to an unestablished fact necessary to substantiate the claim of service connection for a disability manifested by joint pain and fatigue, and raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been received, and the claim of service connection for fibromyalgia, as secondary to service-connected hepatitis B and C may be reopened. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. § 3.310 (a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 3. Service connection for cirrhosis of the liver as secondary to service-connected hepatitis B and C is granted. A September 2008 liver biopsy was negative for cirrhosis or malignancy. In February 2009 correspondence the Veteran’s treating physician noted that he had chronic liver disease secondary to chronic hepatitis C and likely had cirrhosis with hepatic encephalopathy. On April 2009 VA examination the examiner opined that it was less likely as not that his chronic liver disease is caused by or a result of hepatitis B or C. The examiner explained that the Veteran’s hepatitis C was not active at the time; however, his liver enzymes remained elevated. The examiner attributed this to non-alcoholic steatohepatitis. A January 2010 treatment record notes that the Veteran likely had cirrhosis with portal hypertension, and despite eradication of hepatitis C may have progressive liver disease due to concurrent fatty liver disease. February 2010 correspondence from the Veteran’s treating physician notes that he has chronic liver disease, and had first been treated for chronic hepatitis C. The treating physician noted that the Veteran had chronic fatty liver disease, and that it was caused, and contributed to, by hepatitis C. In September 2010 correspondence the Veteran’s treating physician stated that he had both chronic hepatitis C and fatty liver disease. In November 2011 correspondence the Veteran’s treating physician opined that he had chronic liver disease from both chronic hepatitis C and fatty liver disease. On January 2012 VA examination the examiner opined that it was less likely than not that the Veteran’s steatohepatitis was caused by hepatitis B or C because the April 2009 examiner opined that the steatohepatitis condition was less likely than not related to hepatitis C. In March 2014 correspondence another provider noted that the Veteran has chronic liver disease and fatty liver disease related to chronic hepatitis C. A June 2015 liver fibrosis panel showed a hepascore of .85 and liver fibrosis PnL Metavir of F2-F4 (portal fibrosis and few septa-cirrhosis). On October 2016 VA examination the examiner opined that it was less likely than not that the Veteran’s steatohepatitis was aggravated beyond its natural progression by his service-connected hepatitis B or C. On November 2016 examination on behalf of VA the diagnoses were hepatitis B and C and cirrhosis of the liver. The examiner opined that new conditions [cirrhosis] were found, and are directly due to/related to the service-connected [hepatitis] diagnoses. The examiner stated that the Veteran’s hepascore was .85 and that literature supports that it has a moderate predictive value for cirrhosis. The examiner noted that a liver fibrosis metavir score of F2-4 also suggests cirrhosis. It is not in dispute that the Veteran has cirrhosis of the liver (which has been diagnosed on VA examination). There are conflicting medical opinions in the record regarding the etiology of the cirrhosis. The Board notes that the Veteran’s private providers formed their opinions based on observation of continuing care the Veteran required and received, are by providers who may be presumed to be knowledgeable in determining the diagnosis and etiology of cirrhosis, and merit substantial probative value. The Veteran’s private treating physician has consistently opined that his chronic liver disease (cirrhosis and fatty liver) was caused and contributed to by hepatitis C. And in March 2014 the Veteran obtained a second opinion concurring that his chronic liver disease and fatty liver disease were related to chronic hepatitis C. On November 2016 VA examination the consulting provider indicated that in addition to his service connected diagnosed hepatitis B and C the Veteran has a diagnosis of cirrhosis of the liver (which was characterized as a new condition related to the service connected diagnoses. The Board finds that the cumulative effect of this evidence places at least in equipoise the matter of whether the Veteran’s cirrhosis is secondary to his service connected hepatitis B and C. Resolving reasonable doubt in his favor, as required, the Board finds that secondary service connection for cirrhosis is warranted. REASONS FOR REMAND 4. Service connection for fibromyalgia, to include as secondary to service-connected hepatitis B and C is remanded. The Board finds that further development of the record is necessary. In September 2010 correspondence the Veteran’s treating physician opined that his history of hepatitis C more than likely contributed to his joint pain and fibromyalgia. In February 2011 correspondence the treating physician again opined that the Veteran’s history of hepatitis C more than likely contributed to his joint pain and fibromyalgia. In February 2011 the Veteran submitted medical literature pertaining to a relationship between fibromyalgia and hepatitis C. A diagnosis of fibromyalgia was noted on August 2012 VA examination. The examiner opined that it was less likely than not that the fibromyalgia was related to the Veteran’s service-connected hepatitis B and C. The examiner noted the medical literature submitted by the Veteran, but concluded that there was inadequate or insufficient evidence to determine a causative association between fibromyalgia and the service-connected hepatitis B and C. In October 2012 correspondence the Veteran’s treating provider opined that his hepatitis C history more than likely contributed to his joint pain and fibromyalgia. In March 2014 correspondence the private provider noted that the Veteran’s experience with hepatitis C infection and treatment more than likely initiated the chronic pain [which the provider earlier indicated was fibromyalgia]. On October 2016 VA examination the examiner opined that it was less likely than not that the Veteran’s fibromyalgia was aggravated beyond its natural progression by the service-connected hepatitis B and C condition. The record currently contains multiple statements by the Veteran’s private treatment provider that connect (without supporting rationale) the Veteran’s fibromyalgia to his service-connected hepatitis B and C. The record also contains reports of two VA examinations that found that the fibromyalgia is unrelated to the Veteran’s hepatitis B and C. The etiology of fibromyalgia is a complex medical question; the Board in unable to reconcile the conflicting medical opinions in the matter without further guidance. 5. Service connection for type II diabetes mellitus, to include as secondary to service-connected disability, is remanded. The Board finds that (in light of a recent CAVC holding) further development of the record is necessary. See Frost v. Shulkin, 29 Vet. App. 131 (U.S. 2017). As the VA opinions in this matter imply that there is a temporal requirement inherent in 38 C.F.R. § 3.310(a), the Board finds that a new medical opinion is necessary. In November 2011 correspondence the Veteran’s private physician stated that the Veteran was unable to exercise or lose weight after developing hepatitis B and C which lead to weight gain which contributed to an increase in insulin resistance and contributed to the development of type 2 diabetes mellitus. The record contains two VA opinions (in January 2012 and on October 2016 VA examination) indicating that the Veteran’s type 2 diabetes mellitus is not related to his service (and was not caused or aggravated by service-connected disabilities). They also do not address the raised theory of entitlement that the Veteran’s service connected liver diseases limited his activities causing obesity which, in turn, was an intermediate factor in his development of diabetes. 6. Service connection for cholelithiasis, to include as secondary to service-connected disability, is remanded. This claim requires further development of medical evidence. On January 2012 VA examination the examiner opined that the Veteran’s cholelithiasis was less likely than not proximately due to or the result of service-connected hepatitis B and C, but further stated that “there is no direct causality of viral hepatitis causing cholelithiasis, but the development of cirrhosis can.” A medical advisory opinion that encompasses consideration of the award of service connection for cirrhosis is necessary. 7. Service connection for lymphocytosis, to include as secondary to service-connected disabilities, is remanded. In April 2010 correspondence the Veteran’s treating physician stated that his previous lymphocytosis was secondary to hepatitis. On October 2010 VA examination the examiner opined that it was less likely than not that the Veteran’s lymphocytosis was due to service-connected hepatitis B and C. The examiner noted that the current lab results and lymphocytosis represented a new onset of malignant lymphoma that was not associated with the service-connected hepatitis B and C. An October 2012 treatment record notes that it is possible that the Veteran’s history of hepatitis C may be the cause of reactive lymphocytosis. A May 2015 treatment record notes that he had lymphocytosis for eight years, and it was thought to be due to chronic infection from his history of hepatitis C. On November 2016 VA examination the examiner opined that it was less likely than not that the Veteran’s lymphocytosis was proximately due to or the result of the Veteran’s service-connected condition. The examiner noted that his lymphocyte count was unchanged by the hepatitis C treatment. The Board is unable to reconcile the conflicting opinions in this matter without further medical guidance. The matters are REMANDED for the following: 1. The AOJ should arrange for a rheumatology examination of the Veteran to ascertain the likely etiology of his fibromyalgia. On review of the record and interview/examination of the Veteran the consulting provider should respond to the following: (a.) Is it at least as likely as not (a 50% or greater probability) that the diagnosed fibromyalgia disability was caused by the Veteran’s service-connected hepatitis B and C or cirrhosis? (b.) Is it at least as likely as not (a 50% or greater probability) that the Veteran’s fibromyalgia was aggravated (increased in severity beyond the natural progression) by his service-connected hepatitis B and C or cirrhosis? The examiner must include rationale with all opinions. 2. The AOJ should arrange for the Veteran’s record to be forwarded to an appropriate physician for review and a medical advisory opinion regarding the etiology of his type 2 diabetes. On review of the record the consulting physician should provide an opinion that responds to the following: (a.) Identify the likely etiology for the Veteran’s diabetes? Specifically, is it at least as likely as not (i.e. a 50% or better probability) that it was caused or aggravated by any service-connected disability? (b.) The consulting provider should note that, pursuant to the CAVC’s holding in Frost v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1747 (Nov. 30, 2017), secondary service connection for type 2 diabetes mellitus is not barred merely because type 2 diabetes mellitus was diagnosed prior to the already service-connected disabilities. The consulting provider must include rationale with all opinions, citing to accurate supporting factual data and/or medical literature, as deemed appropriate. [ 3. The AOJ should also arrange for the Veteran’s record to be forwarded to an appropriate clinician for review and a medical advisory opinion that addresses secondary service connection for cholelithiasis encompassing consideration of the award of service connection for cirrhosis. The consulting provider should respond to the following: Is it at least as likely as not (a 50% or greater probability) that the Veteran’s cholelithiasis was caused or aggravated by his service connected disabilities, to specifically include cirrhosis? The examiner must include complete rationale with the opinion. 4. The AOJ should also arrange for the Veteran’s record to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the etiology of his lymphocytosis. The consulting provider should respond to the following: Is it at least as likely as not (a 50% or greater probability) that the Veteran’s lymphocytosis was caused or aggravated by his service-connected hepatitis B and C or cirrhosis? The opinion must include complete rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel