Citation Nr: 1817495 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-23 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a liver disorder, to include residuals of a liver biopsy with stent placement, residuals of cholecystectomy, and liver transplant. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from November 1980 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Louis, Missouri. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDING OF FACT The Veteran's liver disorder clearly and unmistakably existed prior to his period of active service, and was aggravated by his period of active service. CONCLUSION OF LAW The criteria for service connection for a liver disorder, to include residuals of a liver biopsy with stent placement, residuals of cholecystectomy, and liver transplant, have been met. 38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board grants the claim of service connection for a liver disorder. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as cirrhosis of the liver, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. When no pre-existing condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Mere history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Therefore, to rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245-6 (1994) (the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). The Veteran contends that he manifested abnormal liver function tests, along with abdominal pain and jaundice, during service that were either initially manifested therein or represented an aggravation of a pre-existing childhood disorder. The majority of the Veteran's service treatment records are unavailable for review. He has provided copies of certain relevant service treatment records that were in his possession that are of record. A review of those available service treatment records shows that in January 1984, he began to exhibit a chronic elevation of liver enzymes. An in-service General Surgery Service report dated in August 1985 shows that the Veteran was said to have been hospitalized for 146 days from November 1984 to April 1985 because of jaundice and abdominal pain. It was indicated that he had a history of having had a common bile duct exploration for what appeared to be a stricture when he was an infant. A bypass operation was performed at that time, and he did very well except for elevated liver enzymes which became evidence a couple of years earlier, for which he was worked up in service. Following evaluation, he was diagnosed with obstructive jaundice; probable cholelithiasis; status post choledochuduodenostomy for distal biliary atresia at age five weeks. In December 1984, the Veteran underwent a cholecystectomy, intraoperative cholangiogram, common bile duct exploration with revision of the choledochuduodenostomy, and liver biopsy by wedge excision. Following the surgical procedure, he was diagnosed with jaundice, secondary to stricture of previous choledochuduodenostomy (done at the age of five weeks). Following service, private medical records show a history of congenital biliary atresia with cholangitis. The Veteran underwent subsequent multiple biliary operations with a hepaticojejunostomy beginning in 2004. He was shown to have done well until February 2006, when he developed significant jaundice and cholangitis, and had a liver transplant in July 2006. A VA examination report dated in October 2011 shows that the Veteran was diagnosed with congenital biliary atresia. The VA examiner, a nurse practitioner, opined that the Veteran's liver disorder was less likely than not incurred in or caused by active service. The examiner explained that the procedure he had as an infant, was not usually curative, but ideally does buy time until the child can achieve growth and undergo liver transplantation - which occurred in service. The examiner further indicated that the claimed condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that later in the course, complications related to progressive liver disease and portal hypertension occur in more than 60 percent of infants who achieved initial surgical success. The examiner concluded that the activity the Veteran was subjected to most likely made the need for transplant present itself. In an addendum dated in November 2011, the VA examiner appears to retract his prior opinion, concluding that the Veteran's current liver condition was not aggravated beyond its natural progression by service. The examiner explained that the Veteran had a previous liver condition as an infant, and that as he aged, the condition worsened. He reiterated the in- and post-service history, then concluded that the Veteran's current liver condition was not aggravated beyond its natural progression by active service based on the fact that there were no injuries or conditions that occurred while in service. He was said to have had a pre-existing injury and with time, the condition did aggravate. In the present case, the Veteran's entrance examination report is not available, therefore, it cannot be concluded that there was evidence of a pre-existing condition noted at service entrance. Therefore, the presumption of soundness at service entry attaches. Nonetheless, the pre-existing liver disorder was confirmed in the service treatment records when in the August 1985 General Surgery Service report it was indicated that the Veteran had a history of having had a common bile duct exploration for what appeared to be a stricture when he was an infant. Moreover, the Veteran has indicated that such was the case in asserting that the pre-existing disability was aggravated by service. As such, the Board finds that there is clear and unmistakable evidence that a liver disorder existed prior to the Veteran's period of active service. The next prong of the Wagner test, however, is to show by clear and unmistakable evidence that the disability was not aggravated during service. In this case, the Board finds that the condition increased in severity during service. Specifically, the service treatment records show that the Veteran's disability was aggravated to the degrees that he was required to undergo a cholecystectomy, intraoperative cholangiogram, common bile duct exploration with revision of the choledochuduodenostomy, and liver biopsy by wedge excision. The October 2011 VA examiner initially concluded that the in-service treatment was an aggravation of the pre-existing disability beyond its natural progression, and that the activity the Veteran was subjected to most likely made the need for transplant present itself. While the VA examiner appears to retract his prior opinion in a November 2011 addendum, the Board finds that this contradictory opinion by the VA examiner does not amount to the standard of clear and unmistakable evidence that the pre-existing disability did not undergo aggravation in service. As such, the Board concludes that the evidence, in fact, does not clearly and unmistakably demonstrate that the pre-existing liver disability was not aggravated by service. There is no competent medical or lay evidence to suggest that the Veteran's pre-existing liver disability did not increase in severity during his period of active service. The burden to show no aggravation of a pre-existing disease or disability during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). While VA may endeavor to further develop medical evidence in this claim, to do so in this case would only serve the purpose of obtaining negative evidence. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant); see also Douglas v. Shinseki, 23Vet. App. 19, 24 (2009). The record shows a liver disorder in service, and well documented current liver disability. The record also documents a continuity of symptomatology since service. The criteria for service connection are met, and the claim is granted. 38 C.F.R. § 3.102. ORDER Service connection for a liver disorder, to include residuals of a liver biopsy with stent placement, residuals of cholecystectomy, and liver transplant, is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs