Citation Nr: 21001565 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 14-22 205 DATE: January 8, 2021 ORDER Entitlement to service connection for liver fibrosis, to include as secondary to service-connected fibromyalgia or irritable bowel syndrome (IBS), is denied. FINDING OF FACT The Veteran’s liver fibrosis (that was shown) is not an undiagosed illness or a medically unexplained chronic multisymptom illness (MUCMI); is not shown to be related to his service, to include as due to exposure to burn pits; and is not shown to be a chronic separately compensable manifestation of, or shown to have been caused or aggravated by, his service-connected fibromyalgia or IBS. CONCLUSION OF LAW Entitlement to service connection for liver fibrosis, to include as secondary to service-connected fibromyalgia or IBS, is denied. 38 U.S.C. §§ 1110, 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1987 to March 1995; April 2002 to September 2002; November 2004 to September 2005; August 2009 to May 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision. In September 2017, a Travel Board Hearing was held before the undersigned; a transcript is in the record. In January 2018 and January 2020, the case was remanded for development. The Board finds that there has been substantial compliance with its remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); it has not been alleged there was not. Entitlement to service connection for liver fibrosis, to include as secondary to fibromyalgia and IBS, is denied. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated, by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the claimed disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf Era, service connection may be presumed for a qualifying chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) MUCMI that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(2)(i). The term “MUCMI” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s military occupational specialty (MOS) was craftsman for equipment and pavements. He attributes his liver fibrosis to exposure to burn pit smoke in service, or alternatively that it was caused or aggravated by his service-connected fibromyalgia or IBS. The Veteran’s service treatment records (STRs) contain no mention of stomach, liver, or intestinal trouble. On February 1987 service entrance examination, he reported that he did not have a history of hepatitis, and did not have it then. On July 2010 service separation examination, he reported he did not have stomach, liver, or intestinal trouble. A February 2008 consultation report notes a physician’s opinion that the Veteran’s use of statins (for treatment of elevated lipids) caused his abnormal liver tests prior to December 2006 (because liver function improved once he stopped taking them). The physician noted recent abnormal liver function studies and attributed them to a new over-the-counter preparation. It was noted that the Veteran always had a slight elevation of liver enzymes and alkaline phosphatase. In a September 2012 consultation report, a gastroenterologist noted that the Veteran had abnormal liver function tests before 2008 and had a liver biopsy (which showed minimal nonspecific inflammation) in 2008, when a specific diagnosis could not be made. He denied having any history of IV drugs, tattoos, previous known hepatitis, jaundice, or cirrhosis. He reported that he was a nondrinker, but chewed tobacco. On April 2013 Gulf War General Medical Examination Disability and Benefits Questionnaire (DBQ) evaluation, it was noted that a January 2013 liver biopsy confirmed liver fibrosis. It was indicated that he had an undiagnosed illness manifested by liver fibrosis (with no known symptoms) of undetermined etiology (because he had not undergone more extensive evaluation to determine the etiology of the liver mass), with no known signs or symptoms, that was potentially disabling. The examiner stated that the liver fibrosis was not a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis. The examiner stated that therefore a medical opinion with supporting rationale addressing whether it was related to a specific exposure the experienced during service in Southwest Asia; and whether it was related to a hazardous environmental exposure [in service] could not be provided. In a May 2013 consultation report, a gastroenterologist noted that the January 2013 liver biopsy showed focal minimal periportal inflammation with mild portal fibrosis, but also noted that it has not progressed since an August 2008 liver biopsy. The provider indicated that the cause for the minimal inflammation and very mild fibrosis picture was uncertain. At the time of the report, the Veteran’s liver tests were normal, except for an elevated alkaline phosphatase of 187 (upper-limit of normal being 170). In a December 2016 gastroenterology note, it was noted that a November 2016 liver biopsy showed stage II grade I disease with some sinusoidal and pericellular fibrosis along with portal fibrosis and some mild inflammation within the portal triads (which was rather nonspecific). At the September 2017 Board hearing, the Veteran testified that he has a diagnosis of liver fibrosis and underwent three liver biopsies. He further testified that he was exposed to burn pits/dust storms in service and took potassium bromide pills for nerve agents. He stated that he had no family history of liver problems. On May 2018 VA Hepatitis, Cirrhosis, and other Liver Conditions DBQ, the consulting provider cited to the May 2013 gastroenterologist’s finding that the exact nature of the Veteran’s liver disease was uncertain, and that the etiology was unknown. She referred to various studies (indicating that there is no correlation between burn pits and liver disease, that dusts/particles are not known risks for liver disease, that there is insufficient/inadequate evidence to determine whether an association exists between Anthrax and long term effects, and that there is no correlation or unlikely health effect from anti-nerve agent pills). She 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. In the January 2020 remand, the Board requested an addendum medical opinion identifying the likely etiology (service-related or nonservice-related) of the liver fibrosis, to include an 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.” In a February 2020 DBQ medical opinion, the May 2018 VA examiner identified several possible etiologies for the Veteran’s liver fibrosis (auto-immune hepatitis, nonalcoholic steatohepatitis, or Phila “idiopathic”). The examiner noted that the last MRI of the abdomen did not find a liver abnormality. The provider cited to Gulf War and Health Volume 10: Update of Health Effects of Serving in the Gulf War, stating “structural GI disease” falls under “inadequate/insufficient evidence to determine whether an association exists.” On review of the record, the provider opined that it is less likely than not that the Veteran’s liver fibrosis is related to any environmental exposures in Southwest Asia. The examiner further explained that IBS and fibromyalgia are not [known] causes of liver fibrosis, and it is less likely than not that the liver fibrosis is proximately due to or aggravated by either of these conditions. The Veteran has established service connection for fibromyalgia and IBS. Despite the recent [February 2020 DBQ] notation that the last MRI of the Veteran’s liver found no liver abnormality (raising a question whether the pathology had resolved), it is not in dispute that he has (during the pendency of this claim) had a diagnosis of liver fibrosis, because a finding of such pathology is shown in his VA medical records (as he asserted in sworn hearing testimony). As liver fibrosis is a known clinically-established pathology (defect) of an organ (the liver), with some known possible (nonservice-related) etiologies and is not a medically unexplained chronic multisymptom illness, the presumptive provisions of 38 U.S.C. §§ 1117 do not apply. Notably, as the record does not show that it has had any known signs or symptoms (or resulted in any impairment) it cannot be found to have been a compensable disability or undiagnosed illness. To substantiate the claim of service connection for liver fibrosis, it must affirmatively be shown that there remains such pathology (what was found was not an acute abnormality on a diagnostic study that had some disabling effects and had not resolved) (or as alternatively argued, that it was caused or aggravated by, or is a manifestation of, a multisystem illness for which service connection is established, in which case it would be considered service-connected and encompassed by the rating for such illness). The Board finds that the preponderance of the evidence is against the claim of service connection for liver fibrosis under both direct and secondary service connection theories of entitlement. Regarding the direct service connection theory of entitlement, the Veteran’s STRs contain no mention of liver complaints and that VA medical records consistently indicate that the etiology of the liver fibrosis that had been found could not be pinpointed. VA examiners (in a May 2013 consultation report and on February 2020 DBQ evaluation) have found that the Veteran’s liver is normal, and the only time that he had abnormal liver tests were when he was on medication for elevated lipids. As there liver fibrosis is of itself a known abnormality with known risk factors (none here shown), it is not an undiagnosed illness or a multisystem illness (as it is pathological finding relating to a single organ, and here not shown ot have had disabling effects). Furthermore, as it appears to have resolved (and when incidentally found, had no known signs or symptoms) it cannot be found to have been chronic. While studies have not established the cause of the liver fibrosis when it was shown, it is not affirmatively shown to have been etiologically related to exposures in Gulf War service (and, as it is not currently shown, development for further studies to determine its etiology, would be fruitless, and is not warranted. Considering the foregoing, the preponderance of the evidence is against this claim under a direct (to include under Persian Gulf service presumptive provisions) theory of entitlement. Regarding the alternate asserted)theory of entitlement to service connection for liver fibrosis, that it is secondary to/a manifestation of a multisystem illness for which he has established service connection, it is initially noteworthy that since the liver fibrosis is no longer shown (and when noted on MRI was not shown to have any disabling effects), it cannot be found to be/have been a chronic disability entity warranting separate service connection). If it had had disabling effects when shown, to warrant a separate award of service connection (a separate rating) it would have had to be shown that it had compensably ratable disabling effects that were separate and distinct from those encompassed by the criteria for rating the service-connected multi-system disabilities. Furthermore, the Board observes that the etiology of liver fibrosis is a medical question that is beyond the scope of common knowledge or resolution by lay observation. See Jandreau, supra. It requires medical expertise (informed by diagnostic studies). The Veteran is a layperson and is not competent to establish by his own opinion that liver fibrosis is a manifestation of/secondary to his service-connected multisystem illnesses. The competent (medical) evidence of record regarding the etiology of the liver fibrosis that was shown during the pendency of this claim is in the May 2018 and February 2020 medical opinions obtained by VA in connection with this claim (earlier opinions had indicated that an opinion could not be offered based on information available). The Board finds that the opinions by the May 2018 VA examiner, including in a February 2020 addendum are probative evidence in the matter. The provider opined that it is less likely than not that the liver fibrosis is proximately due to or aggravated by IBS or fibromyalgia. She included a clear explanation of rationale, citing to supporting clinical data and medical principles (based on up-to date medical treatise and studies conducted). Noting that there also is no evidence of current liver fibrosis (that the findings of such were acute and resolved), she explained, in essence, that there is no support in medical literature for the proposition that liver fibrosis is/may be manifestation of, or is caused or aggravated by the multisystem illness that are here established to be service connected. Because the Veteran has not presented any competent (medical opinion) evidence to the contrary, her opinion is persuasive. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for liver fibrosis, under all theories of entitlement raised, and that the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chu 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.