Citation Nr: 20021575 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-19 378A DATE: March 26, 2020 ORDER Entitlement to service connection for fatty liver disease is granted. FINDING OF FACT The Veteran’s fatty liver disease is caused by his service-connected diabetes. CONCLUSION OF LAW The criteria to establish service connection for fatty liver disease have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to December 1967, December 1970 to October 1973, and in May 1992, including combat and overseas service in Vietnam. See DD Form 214. The Veteran appeals a May 2015 Rating Decision (RD) by the Agency of Original Jurisdiction (AOJ). The Veteran has not shown good cause for failing to report to his rescheduled Board hearing. The Veteran was initially denied service connection in a February 2014 RD. He submitted a Notice of Disagreement (NOD), received and stamped by the AOJ, in April 2015. Therefore, the Board agrees with the AOJ’s finding that the NOD submission was untimely. See May 2015 Correspondence. Nevertheless, the February 2014 RD denied service connection for the Veteran’s liver condition based on a negative nexus opinion. Although the Veteran submitted a positive nexus letter by Dr. J.H. in December 2012, he submitted a different positive nexus letter by Dr. J.H. in November 2014. The Board finds the November 2014 Dr. J.H. letter to be new and material evidence submitted within a year of the February 2014 RD. Therefore, the February 2014 RD did not become final. VA must reconsider the Veteran’s claim for entitlement to service connection for fatty liver disease without regard to the finality of the February 2014 RD. 38 C.F.R. § 3.156(b) (2018). A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran is diagnosed with fatty liver disease. See February 2016 VA Treatment Record. The Veteran is service-connected for diabetes. See April 2016 RD Codesheet. As to nexus, Dr. J.H. submitted letters finding the Veteran’s liver condition is caused by the Veteran’s service-connected diabetes. See December 2012, November 2014, and June 2015 Dr. J.H. Letters. The Board find’s Dr. J.H.’s opinions highly probative. Dr. J.H. is the Veteran’s treating physician. Therefore, the opinions are based on the medical history of the Veteran and expertise of a competent medical provider. The Board finds that there is persuasive evidence of record establishing a link between the Veteran’s fatty liver disease and his service-connected diabetes. Accordingly, the Board finds that a grant of service connection is warranted for fatty liver disease. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate Counsel 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.