Citation Nr: 19123750 Decision Date: 04/01/19 Archive Date: 03/29/19 DOCKET NO. 17-36 212A DATE: April 1, 2019 ORDER The claim of entitlement to an earlier effective date for service-connected nonalcoholic steatohepatitis (hereinafter fatty liver) associated with diabetes mellitus type II (hereinafter DMII) is denied. The claim of entitlement to an increased evaluation in excess of 0 percent for service connected fatty liver associated with DMII is denied. REMANDED The claim of entitlement to service connection for sleep apnea (hereinafter OSA) to include as secondary to posttraumatic stress disorder (PTSD), hypertension, and DMII is remanded. FINDINGS OF FACT 1. The Veteran initially filed a claim for service connection for fatty liver on June 21, 2007, and in a rating decision dated in November 2007, he was granted service connection associated with DMII at a non-compensable (0 percent) rate. 2. The Veteran did not appeal the November 2007 rating decision within the proper time period, no additional evidence relevant to the claim was submitted, and as such, the November 2007 decision became final. 3. The Veteran filed another claim for an already service-connected disability - fatty liver - in January 2014 (which was properly treated as a claim for an increased rating), and in an August 2015 rating decision his noncompensable rating of 0 percent for his fatty liver associated with DMII was continued. 4. The Veteran’s fatty liver throughout the period on appeal manifested with no symptoms. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to an earlier effective date for the award of service connection for fatty liver associated with DMII have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.104, 3.400, 20.302, 20.1103 (2018). 2. The criteria to establish an increased evaluation in excess of 0 percent for service-connected fatty liver associated with DMII have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.7, 4.114, Diagnostic Code (DC) 7312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from June 1965 to April 1969. The Veteran had active duty service in the Republic of Vietnam and was awarded the National Defense Service Medal, the Vietnam Campaign Medal, the Vietnam Service Medal, the Presidential Unit Citation, and two Purple Hearts. These matters are before the Board of Veteran’s Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for fatty liver at 0 percent disabling effective June 21, 2007. Historically the Veteran filed an initial claim for service connection for his “liver problems” in June 2007 and the rating decision of November 2007 added the Veteran’s fatty liver as a non-compensable complication associated with the Veteran’s service connected DMII. The rating decision indicated that secondary service connection was established, and fatty liver was included in the DMII evaluation, which was 20 percent disabling at that time. The Veteran did not file an appeal and no new and material evidence was submitted to the VA within the applicable appeal period. Therefore, the November 2007 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. There was also no correspondence received that could have been considered a Notice of Disagreement (NOD) within the applicable appeal period and no new correspondence regarding fatty liver that could have been considered a claim was received until January 2014. In January 2014, the Veteran filed a Supplemental Claim for Compensation indicating a claim for service connection for fatty liver secondary to exposure. The rating decision of August 2015 found that the Veteran’s claim as stated was moot as he already was service connected for fatty liver associated with DMII - he was assigned a noncompensable evaluation, under 38 C.F.R. § 4.114, DC 7312 due to fatty liver being a diagnosed disability with no compensable symptoms or rating schedule. The rating schedule for VA does not contain a diagnostic code for fatty liver and therefore a 0 percent rating was assigned pursuant to 38 C.F.R. § 4.31 (2018). Entitlement to an earlier effective date for service connected fatty liver associated with DMII The Veteran contends that he is entitled to an earlier effective date for his service connected fatty liver associated with DMII. See Form 9 July 2017. The Board notes that the Veteran does not specify in the record the earlier effective date he is requesting. Therefore, the Board must assume that the Veteran is requesting the earliest effective date available. Pursuant to AB v. Brown, 6 Vet. App. 35, (1993), the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. The effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2)(i). If the grant is based on a claim which has been finally denied and subsequently reopened by the receipt of new and material evidence, the effective date is the date of receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q), (r). The Veteran has received the effective date of June 21, 2007, for service connection for fatty liver associated with DMII from an August 2015 rating decision. As the Veteran’s initial date of claim for service connection was June 21, 2007, this is the earliest effective date that can be given pursuant to 38 C.F.R. § 3.400. The other possible effective dates would be detrimental to the Veteran’s claim as they would all be later than the June 2007 date awarded. For example, the most recent date of claim of January 2014, would subtract at least seven years from the Veteran’s current effective date of service connection. The Board does note that the Veteran’s fatty liver was diagnosed in March 2007 by a liver biopsy. However, since the rating decision of November 2007 was not appealed and became final, the earliest effective date available to the Veteran was the date of claim of June 2007. Id. Therefore, an earlier effective date is not warranted and the claim for an earlier effective date for fatty liver associated with DMII is denied. Entitlement to an increased evaluation in excess of 0 percent for service connected fatty liver associated with DMII The Veteran contends that he is entitled to an increased rating for his fatty liver. The Veteran does not make any specific contentions regarding his fatty liver disease or list any symptoms he asserts are associated with fatty liver. The Board finds, as discussed below, that the preponderance of the evidence is against the Veteran’s claims for an increased evaluation in excess of 0 percent for his service connected fatty liver associated with DMII. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation and does not require specialized educations, training, or experience. See Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159 (2018). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2018). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that the RO determined that the DC 7312 was the closest analogous rating to the Veteran’s fatty liver and that it was the most appropriate DC available to the Veteran under 38 C.F.R. § 4.20 (2018) (finding that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions, affected, but the anatomical localization and symptomatology are closely analogous [omitted]). The Veteran is service connected for fatty liver associated with DMII under 38 C.F.R. § 4.114, DC 7312, at 0 percent. The next highest evaluation is 10 percent which requires symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating requires portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent rating requires a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating requires history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks. Finally, the highest rating of 100 percent requires generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). The Veteran received a VA examination on August 7, 2015, for fatty liver secondary to exposure from Camp Lejeune. The VA examiner indicated that the Veteran clearly suffered from fatty liver disease; however no studies of environmental exposure associated a fatty liver disease when there is an absence of obesity and alcohol. The VA examiner concluded that the Veteran’s exposure to Camp Lejeune is less likely a contributor to the development of his fatty liver given the adequate explanation of the Veteran’s obesity and the lack of medical research connecting the exposure and the disease. The Veteran received a liver condition VA examination in late August 2015 that was not in person nor a video telehealth examination. The VA examiner reviewed the available records of the Veteran as the VA examiner found that the existing medical evidence provided sufficient information on which to prepare the Disability Benefits Questionnaire (DBQ) and such an examination would likely provide no additional relevant information. The VA examiner found that the Veteran was not required to take medication for his fatty liver condition, had no signs or symptoms attributable to the liver diseases as noted on the examination (cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis), and that the Veteran had not had a liver transplant or liver injury. The VA examiner also found that the Veteran had not had any incapacitating episodes with no symptoms of fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain due to the liver condition during the past 12 months. After thorough review of the Veteran’s treatment records the Board finds a lack of symptoms associated with the Veteran’s fatty liver. The Veteran does have instances of nausea and vomiting which he has claimed are due to other disabilities such as vertigo, Meniere’s disease, or are associated with other diagnoses of the Veteran. However, the Veteran’s treatment records contain no symptoms attributable to fatty liver. Further, the Board finds that the Veteran has made no lay statements indicting that he has experienced any symptoms due to or attributed to his fatty liver. DC 7312 of 10 percent requires symptoms such as weakness, anorexia, abdominal pain, and malaise, which have not been found in any VA examination, treatment records, nor indicated by the Veteran. In this case, the absence of any medical evidence of symptoms of fatty liver tends to establish that the Veteran’s fatty liver has no compensable symptoms under VA requirements. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). As the Veteran throughout the period on appeal has not met the criteria for an evaluation in excess of 0 percent, a staged rating is not appropriate. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim for an evaluation for fatty liver in excess of 0 percent is denied. REASONS FOR REMAND The Board notes the Veteran’s honorable active duty service as indicated above. This matter is before the Board of Veteran’s Appeal (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, that denied service connection for OSA. Entitlement to service connection for OSA to include as secondary to PTSD, hypertension, and DMII The Veteran contends that he is entitled to service connection for OSA to include as secondary to PTSD, hypertension, and DMII, alternatively he also contends he is entitled to direct service connection for OSA. See Veteran’s Supplemental Claim of October 2014, Veteran’s Statement in Support of Claim of October 2014, and Veteran’s Form 9 dated July 2017. The Veteran has contended both theories of entitlement for service connection of direct and secondary for OSA. As a general matter, once VA undertakes to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Steff v, Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F. 3rd 1039, 1043-44 (Fed. Cir. 1994). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a) (2018). In determining whether a disability is to be granted a secondary service connection the VA must find 1) that there is a current disability that is not service connected; and 2) that there is at least one service connected disability; and 3) evidence that the non-service connected disability is either, a) proximately due to or the result of a service connected disability; or; b) aggravated beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran received a VA examination for OSA in March 2015, in which the VA examiner indicated the Veteran’s diagnosed OSA from a sleep study in January 2008 and noted persistent daytime hypersomnolence. The VA examiner was asked to provide an opinion as to whether the Veteran’s sleep apnea was at least as likely as not (50 percent or greater probability) proximately due to or the result of his service connected PTSD, DMII or hypertension, and specifically requested a medical opinion for secondary service connection. The VA examiner found that the Veteran’s OSA was less likely than not due to or the result of the Veteran’s service connected condition. The VA examiner’s rationale was as follows: Rationale: Medical records reviewed. Vet was diagnosed with OSA 1/22/2008. Current medical literature does not support PTSD, DM [II] or HTN [hypertension] causing Obstructive sleep apnea. Vet’s obesity is most likely the cause of his sleep apnea. (emphasis added). The Board finds this VA examination to be wholly inadequate for VA purposes. The VA examiner is conclusory in their opinion without explanation as to why the Veteran’s contended service connected disabilities are not related to OSA and does not indicate the literature that they are relying upon for their opinion. Additionally, the opinion is of little probative value when using words such as “most likely”. See Steff v, Nicholson, 21 Vet. App. 120 (2007). Finally, the VA examiner, even though asked for an opinion based on secondary service connection, does not discuss any evidence as to whether the Veteran’s OSA is proximately due to or the result of a service connected disability or aggravated beyond its natural progress by a service connected disability under 38 C.F.R. § 3.310; see also El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013) (finding that examiners frequently do not provide the proper opinion for secondary service connection by failing to apply the appropriate legal standard to consider the appellant’s claim). The Board finds that due to the inadequacy of the VA examination of March 2015 there is no competent medical evidence of record to make a determination on the appeal of the Veteran, and another VA examination must be provided. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds that with the Veteran’s testimony and submission of an article there is more evidence for VA to consider for the Veteran’s claim. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A) (2012); 38 C.F.R. § 3.159 (2018). The matter is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination regarding his OSA. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing all indicated tests and studies, the examiner should address the following: (a.) For the Veteran’s OSA, opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service. (b.) The examiner should also provide an opinion as to whether it is at least as likely as not that his currently diagnosed OSA was either caused by, or aggravated by, a service-connected disability. (c.) The term “aggravation” in the above context refers to a permanent worsening of the underlying condition, beyond its natural progression, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.A. Teich, Associate Counsel