Citation Nr: 1809014 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 95-00 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a liver condition. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 23, 2007. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to October 1970 and from January 1991 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2006 and February 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. By way of background, the Board initially remanded the instant claims in July 2009, to afford the Veteran a requested hearing. In August 2009, he withdrew his hearing request. 38 C.F.R. § 20.704(e) (2017). In January 2010, the Board, in pertinent part, denied the Veteran's claim of entitlement to service connection for a liver condition and remanded his claim of entitlement to a TDIU for the period prior to July 23, 2007, for additional development. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2011 Order, the Court, in pertinent part, vacated the Board's January 2010 denial of service connection for a liver condition and remanded it to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). In December 2011, the Board remanded the liver claim for additional development consistent with the Joint Motion. It again remanded the TDIU claim at that time. In July 2014, the Board, in pertinent part, denied entitlement to a TDIU prior to July 23, 2007, and remanded the claim of entitlement to service connection for a liver condition to the AOJ for further development. The Veteran again appealed the Board's decision to the Court and, in an August 2015 Order, the Court, consistent with another Joint Motion, vacated portions of the July 2014 Board decision, including the denial of entitlement to a TDIU prior to July 23, 2007, and remanded those claims to the Board. The Board remanded both of the instant claims to the AOJ twice more-in January 2016 and July 2016. In November 2017, it sought a Veterans Health Administration (VHA) expert opinion in connection with the Veteran's liver claim, which was received in January 2018. FINDINGS OF FACT 1. A June 1991 abdominal sonogram, conducted in connection with the Veteran's in-service treatment for cholecystitis and cholelithiasis, documented an enlarged liver with sound absorption consistent with fatty change. The final impressions included "fatty liver." 2. In February 1997, the American Red Cross sent the Veteran a letter informing him that testing performed on blood he had recently donated had revealed a positive analysis "for antibodies against the core of . . . hepatitis B." The letter stated that such findings could indicate that the Veteran had been exposed to hepatitis B in the past but had recovered completely; could indicate that he currently had a low level of the virus; or could be a false positive. 3. In August 2006, the Veteran sought treatment at a VA facility for a two-week history of right upper quadrant pain, and the clinician noted that a sonogram conducted at a private facility that month had documented hepatomegaly with severe fatty liver infiltration changes. 4. In March 2012, a VA examiner identified hepatitis B as the Veteran's only liver condition. She opined that it was less likely than not the result of a service-connected disability, because hepatitis was caused by an infection. The examiner also acknowledged the finding of "fatty liver" in the Veteran's records, but stated that it was associated with a variety of conditions and diseases and could be present in many individuals in the absence of a specific liver condition. In connection with that discussion, the examiner cited an UpToDate article addressing the pathogenesis of nonalcoholic fatty liver disease. 5. The Board subsequently asked the 2012 examiner to provide an addendum opinion that addressed whether any current liver condition had its onset in service, given the abnormal liver symptomatology that was documented in June 1991. Additionally, it asked her to address whether the finding of fatty liver was related to hepatitis B or any other liver condition and, if so, whether it had been aggravated by the Veteran's service-connected disabilities. In a December 2015 opinion, the 2012 examiner concluded that the Veteran's fatty liver was not related to his hepatitis B, which she noted was completely asymptomatic. She stated that fatty liver infiltration and hepatomegaly were findings that did not constitute any specific diagnosis and noted that the Veteran had several risk factors for such liver changes, including high cholesterol and obesity. 6. Thereafter, the Board sought a third medical opinion from that examiner, as she had not addressed whether fatty liver was a symptom of hepatitis B. In May 2017, a different VA physician issued the requested opinion. He noted that the most recent imaging study of the Veteran's liver-conducted in July 2012-showed fatty infiltration. The physician concluded that the Veteran's fatty liver was at least as likely as not incurred during service, given that it was diagnosed at that time, and explained that the etiology of that condition was most likely a history of hypercholesterolemia and obesity, as medical literature identified those factors as the most common causes of the condition. The physician also noted that, although fatty liver infiltration could be seen in chronic hepatitis B as a result of the metabolic factors of a specific host, medical literature did not describe fatty liver infiltration as a result of acute hepatitis B. He explained that the Veteran's hepatitis B was not chronic, as a laboratory work-up indicated it had resolved. The physician also concluded that he was unable to establish the onset of the Veteran's hepatitis B. He noted that the Veteran denied exposure to various known risk factors for development of hepatitis B during a hepatitis C screening in 2002 and that many individuals who developed acute hepatitis B did not develop symptoms. The physician also stated that it was less likely than not that the Veteran had acute hepatitis B during his treatment for acute cholecystitis during service, because his symptoms were explained by the presence of cholecystitis and were not of the type typically associated with acute hepatitis B. 7. In January 2018, in response to the Board's request for a VHA expert opinion addressing whether medical literature supported characterizing fatty liver and/or hepatomegaly as a stand-alone disorder, a hepatologist stated that fatty liver or hepatic steatosis was a condition of liver disease in which fat deposition increased in the liver. He explained that the common etiologies for that condition were excessive alcohol use and underlying metabolic syndrome or insulin resistance. He further explained that, in the latter case, the condition was known as nonalcoholic fatty liver disease. The hepatologist concluded that, based on the Veteran's history, there was ample evidence to support the notion that his fatty liver was secondary to nonalcoholic fatty liver disease. 8. The Veteran's TDIU claim was received by VA on July 25, 2006. In his September 2006 VA Form 21-8940, he reported that his education included four years of college. He also reported that, following service, he had worked primarily as a teacher until he retired from that position effective July 1, 2006. He explained that he had needed three additional years to obtain a thirty-year pension but had settled for a reduced pension, as he was unable to walk or stand up to teach due to his service-connected asthma, diabetes, and diabetic complications. A VA Form 21-4192 from the Veteran's employer confirmed that he last worked on June 30, 2006. 9. Prior to the Board's favorable decision, herein, regarding the Veteran's liver claim, from June 1, 2006, to May 22, 2007, his service-connected disabilities-chronic posttraumatic stress disorder (PTSD) and diabetic nephropathy, each rated as 30 percent disabling; Type II diabetes mellitus with bilateral senile cataracts, rated as 20 percent disabling; ischemic heart disease and bronchial asthma, each rated as 10 percent disabling; and right eye pterygium and hearing loss, each rated as noncompensable-resulted in a combined rating that totaled 70 percent and included disabilities with a common etiology that totaled at least 40 percent. From May 23, 2007 to July 22, 2007, his service-connected disabilities additionally included diabetes- related peripheral neuropathy of the left and right lower extremities, each rated as 40 percent disabling. 10. During a July 2004 VA PTSD examination, the Veteran reported experiencing irritability, loss of energy, anxiety, insomnia, and an inability to concentrate. Upon examination, the VA examiner noted a depressed and irritable mood. He concluded that the Veteran's psychiatric symptoms were moderately interfering with his employment functioning. 11. During an October 2006 VA diabetes mellitus examination, the Veteran stated that he had retired from teaching mostly because he had become intolerant of the students and his peers. He also reported that he could not sit or stand for long periods due to a knee condition and described deterioration of his "general health condition" as a result of multiple diseases. The Veteran further reported that he had developed hypoglycemic reactions four times and had needed to abandon his classroom so that he could eat and resolve his symptoms. The VA examiner concluded that the Veteran's service-connected diabetes mellitus with nephropathy and asthma produced only mild functional limitations in his work as a teacher. 12. During an April 2010 VA PTSD examination, the Veteran reported that he had stopped teaching because of his legs; an inability to "coordinate things;" and a tendency to transport himself to the war in front of his students. The examiner described PTSD symptoms that included irritability with angry outbursts, decreased concentration, social isolation, estrangement from others, and an anxious and depressive mood. 13. In an April 2016 memorandum, the Acting Director of Compensation Service concluded that "the totality of the evidence [did] not support the notion that the Veteran was unemployable under any circumstances prior to July 2007." He noted that the Veteran had claimed that he stopped working because of diabetes and asthma, and concluded that "[t]he service-connected conditions [did] not show a condition severe enough to prevent occupational activity until May 2007"-the effective date of the grants of service connection for left and right lower extremity peripheral neuropathy. The Acting Director further noted that the Veteran had also been diagnosed with nonservice-connected disabilities, the occupational effects of which had not been differentiated from the effects of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a liver condition, diagnosed as nonalcoholic fatty liver disease, have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU were met effective July 1, 2006. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Liver Condition Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Regulations also provide that service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board finds that the relevant evidence of record, detailed in the foregoing findings of fact, establishes an in-service onset of ongoing hepatic abnormalities characterized as an enlarged and "fatty" liver. See June 1991 sonogram report; May 2017 VA examination report; January 2018 VHA opinion. Thus, the remaining question in this instance is whether the evidence also establishes that those abnormalities signified the onset of a current, identifiable liver disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability."). The record contains conflicting opinions addressing the foregoing question. However, the Board finds that the January 2018 VHA expert's conclusion that the Veteran's fatty liver is associated with a diagnosis of nonalcoholic fatty liver disease, coupled with the medical literature on that condition that the 2012 VA examiner cited but failed to reconcile with her insinuation that fatty liver was not a "specific liver condition," brings the evidence regarding whether the Veteran has a current, identifiable liver disability at least into equipoise. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary is required to give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Board finds that the criteria for entitlement to service connection for a liver condition, diagnosed as nonalcoholic fatty liver disease, have now been met, and that the Veteran's claim may be granted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). II. Entitlement to a TDIU prior to July 23, 2007 Following review of the evidence of record, the Board finds that the Veteran is entitled to a TDIU prior to July 23, 2007, as, during the period in question, he was unemployed; his service-connected disabilities met the schedular criteria for a TDIU; and, with resolution of reasonable doubt in his favor, those disabilities, alone (i.e., independent of his age and his nonservice-connected disabilities), were of sufficient severity to render him incapable "of performing the physical and mental acts required by employment." See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19. Unfortunately, the evidence addressing the time period at issue is fairly sparse. However, the Board finds the interpersonal difficulties the Veteran discussed during his October 2006 VA diabetes mellitus examination particularly relevant, given that service connection for PTSD was subsequently granted effective January 20, 1993; the April 2010 VA PTSD examiner attributed symptoms such as irritability with angry outbursts and estrangement from others to that service-connected disability; and the Veteran described the detrimental effects of those symptoms on his occupation even before service connection for PTSD had been established. It also finds relevant the Veteran's history of working primarily as a teacher, which may reasonably be presumed to involve frequent and possibly contentious interactions with others. In finding that a TDIU is warranted, the Board acknowledges that the Veteran suffers from a nonservice-connected knee disability that, based on his own reports, also affected his ability to perform his duties as a teacher. It further acknowledges that the VA examiners who addressed his symptoms during or closest in time to the period in question described the occupational effects of his diabetes and asthma as "mild," and those of his psychiatric symptoms as "moderate." See October 2006 VA diabetes mellitus examination; July 2004 VA PTSD examination. Finally, it acknowledges the April 2016 opinion of the Acting Director of Compensation Service, who concluded that the Veteran's "service-connected conditions [did] not show a condition severe enough to prevent occupational activity until May 2007." However, it appears that the relevant opinions of record, even that of the Acting Director of Compensation Service, were not based on consideration of the collective occupational effects of all of the Veteran's service-connected disabilities. In any event, as has already been discussed, any reasonable doubt created by relative equipoise in the evidence must be resolved in the Veteran's favor. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 53-54. Here, in light of the Veteran's statements regarding why he stopped working, and considering his work experience and the collective effects of all of his service-connected disabilities, the Board finds that such a state of equipoise has been reached with respect to the question of whether he was precluded, due solely to those disabilities, from obtaining and maintaining substantially gainful employment prior to July 23, 2007, and, more particularly, since the point of his early retirement. Thus, entitlement to a TDIU is warranted. As that issue was raised, at least in part, during the course of the Veteran's appeal of the initial rating assigned following the grant of service connection for PTSD, an effective date of July 1, 2006-the date on which his retirement began-will be assigned. Rice v. Shinseki, 22 Vet. App. 447, 453-54. ORDER Service connection for a liver condition, diagnosed as nonalcoholic fatty liver disease, is granted. From July 1, 2006, to July 22, 2007, a TDIU is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs