Citation Nr: 1808276	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  10-22 476A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for hepatic steatosis (fatty liver).


REPRESENTATION

Veteran represented by:	James G. Fausone, Attorney


ATTORNEY FOR THE BOARD

S. Solomon, Associate Counsel 







INTRODUCTION

The Veteran served on active duty from December 1986 to February 1999.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decisions of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for hepatic steatosis (fatty liver) due to contaminated water exposure at Camp Lejeune was denied.

The issue was previously denied by the Board in a September 2016 decision. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (CAVC) and a Joint Motion for Remand (JMR) was issued vacating, in part, and remanding the Board's decision with regard to the above stated issue.  

Notably, the Board's September 2016 decision also remanded claims concerning the Veteran's lung disability, residuals of right inguinal herniorrhaphy, bilateral knee disability, back disability, gastroesophageal reflux disease, bilateral shoulder condition, bilateral lower extremities, and lesions on left forearm and right side of nose for further development.  These matters have not been returned to the Board at this time and they will be addressed in a separate decision after the RO after the return of the appeal.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In the August 2017 JMR, the Court vacated and remanded the Board's denial of service connection for hepatic steatosis (fatty liver) based on the determination that the August 2013 examination was inadequate.   See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Based on the findings of the JMR, a remand is necessary to obtain an additional medical opinion.  

Accordingly, the case is REMANDED for the following action:

1. Update VA medical record

2. Thereafter, schedule the Veteran for a VA examination to determine the etiology of his hepatic steatosis (fatty liver).  The examiner should review the claims file in its entirety and provide an opinion answering the following question:

Is the Veteran's hepatic steatosis at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran's active service?  

The examiner should note that the Veteran serviced in Camp Lejeune and his exposure to contaminated water has been conceded.  

The examiner's opinion should address the duration or extent of the Veteran's exposure to contaminated drinking water at Camp Lejeune. 

A complete rationale should be provided for all opinions and should fully consider the Veteran's lay testimony.  If the examiner finds that the disability is due to another disability, complete rationale for the attribution to this separate disability must be provided.   If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

3.  The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  

4.  Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case to him and his representative and allow the applicable time for response.  Then, return the case to the Board.

The Veteran 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. §§ 5109B, 7112 (2012).



_________________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal.  38 C.F.R. § 20.1100(b) (2017).