Citation Nr: 20003887 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 14-22 205 DATE: January 16, 2020 REMANDED Entitlement to service connection for liver fibrosis, to include as secondary to service-connected fibromyalgia, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1987 to March 1995, from April 2002 to September 2002, from November 2004 to September 2005 and from August 2009 to May 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 Department of Veterans Affairs (VA) rating decision. In September 2017, a Travel Board Hearing was held before the undersigned; a transcript is in the record. In January 2018, the claim was remanded for additional development. Entitlement to service connection for liver fibrosis. The Board is aware that this matter is long-pending, and has been remanded before (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions (and the record is insufficient to decide the appeal), another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2018, the Board remanded this matter for an examination to ascertain the likely etiology of the Veteran’s liver fibrosis. The remand directed the examiner to identify the likely etiology of the Veteran’s liver fibrosis, and provide rationale that includes expression of agreement or disagreement with the April 2013 VA examiner’s statement “that an opinion addressing the likely etiology [of the Veteran’s liver fibrosis] cannot be provided”. On May 2018 VA Hepatitis, Cirrhosis and other Liver Conditions Disability Benefits Questionnaire (DBQ) evaluation, the examiner opined that it is less likely than not that the Veteran’s liver fibrosis is related to his service; and less likely than not that it was caused or aggravated by his service-connected fibromyalgia. However, the examiner failed to address the April 2013 opinion, as directed. The opinion did not comment on the prior examiner’s statement that the etiology of the liver fibrosis could not be determined. Furthermore, the opinion does not identify an alternate (nonservice-related) etiology for the liver fibrosis (but does identify a likely or possible etiology for other liver diagnoses to include autoimmune hepatitis and NASH, unrelated to service or service-connected disabilities). Finally, while the explanation suggests that burn pit smoke is not shown to have resulted in liver disease, a VA Office of Public Health publication, citing to an Institute of Medicine study indicates that long-term health effects of exposure to burn pit smoke may include liver pathology. A Board remand confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders. D’Aries v. Peake, 22 Vet. App. 97 (2008). The matter is REMANDED for the following: 1. Secure for the record complete and updated (to the present) clinical records of all VA evaluations and treatment the Veteran has received for his liver (and specifically fibrosis). If any such records are unavailable, the reason must be explained for the record, and the Veteran should be so advised. 2. Then arrange for the Veteran’s record to be returned to the May 2018 VA examiner (if that provider is unavailable, to an appropriate physician) for further review and an addendum medical advisory opinion regarding the likely etiology of the Veteran’s liver fibrosis that responds to the following [If further examination of the veteran is necessary, such should be arranged.]: (a) Identify, to the extent possible, the likely etiology of the Veteran’s liver fibrosis. If such is not possible, explain why that is so [the information available is insufficient (if so, identifying what further information) is needed; or that current state of medical knowledge is inadequate; etc. [The rationale provided should include comment on (expression of agreement or disagreement with, with explanation) the April 2013 VA examiner’s opinion indicating in essence that the etiology of the liver fibrosis cannot be determined.] (b) Opine specifically, whether it is at least as likely as not (a 50 percent or better probability) that the Veteran liver fibrosis is related to his (acknowledged) environmental exposures in Southwest Asia (to fumes from burn pits and oil wells, dust, etc. and the inhalation of ammonia and/or chlorine gas) or otherwise during his military service. The rationale for the opinion must include comment on (expression of agreement or disagreement with) the VA Office of Public Health publication observation ( “individual chemicals that may be present in burn pit smoke have been shown to cause long-term effects on the […] liver”). If the liver fibrosis is determined to be unrelated to the Veteran’s service and environmental exposures therein, opine further whether is was caused or aggravated [the opinion must include aggravation] by his service-connected disabilities (which include fibromyalgia and IBS). (c) If the Veteran’s liver fibrosis is determined to not have been incurred in service or caused or aggravated by a service-connected disability (and it is possible to identify the etiology of the liver fibrosis), identify the nonservice-related etiology for the liver fibrosis that is considered to be more likely, and explain why that is so. All opinions must include rationale. Citation to medical texts/treatises/studies would be helpful. [ GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Norman R. McNeal The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.