Citation Nr: 21065347 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-25 835 DATE: October 25, 2021 ORDER Entitlement to service connection for a liver condition, other than cancer, to include residuals of Hepatitis C and Cirrhosis, and to include as due to Camp Lejeune service is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected liver disease, to include liver cancer, Hepatitis C, and Cirrhosis is remanded. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran's liver condition to include residuals of Hepatitis C and Cirrhosis was incurred in or the result of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a liver condition other than cancer to include as due to Camp Lejeune Service are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(7), 3.309(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to May 1975. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were previously remanded by the Board on multiple occasions and most recently in April 2021; and, for the reasons described herein, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, due to the disposition outlined below, another remand will be warranted to determine the Veteran's rating. The Veteran seeks entitlement to service connection for a liver condition other than cancer, to include as due to the consumption of contaminated drinking water at Camp Lejeune. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7)(i). The diseases listed in § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. § 3.307(a)(7)(iii). Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in § 3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307(a)(7)(iv). If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin's lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson's disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309(f). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, the service treatment records (STRs) do not indicate at any point the Veteran voiced complaints of, or received treatment for any condition related to the liver. The service personnel records (SPRs) indicate he was stationed at Camp Lejeune for longer than 30 days. In March 2004, private medical records indicate he was diagnosed with Hepatitis C. In November 2015 he was diagnosed with liver cancer; which resolved after liver surgery in June 2016. In September 2018, he underwent a VA liver conditions examination report which indicated he had a diagnosis of Hepatitis C and experienced daily fatigue. In February 2019, the Board remanded the Veteran's claim to acquire a medical opinion to determine if his Hepatitis C was the result of active service. In October 2019, he underwent a VA Hepatitis, Cirrhosis, and Other Liver conditions examination report which included a diagnosis of Cirrhosis of the liver. Moreover, his Cirrhosis resulted in the following symptoms: daily weakness, intermittent abdominal pain, and near constant and debilitating malaise. Additionally, the report determined he experienced the following symptoms attributed to chronic or infectious liver disease: near constant fatigue, malaise, and daily right upper quadrant pain. The examiner determined his diagnosed Hepatitis C was not the result of active service; however, the examiner did not render an opinion as to his Cirrhosis. In October 2020, the Board again remanded the Veteran's claim to acquire the outstanding opinion and in December 2020 an opinion was rendered which determined his Cirrhosis had overlapping symptoms with his liver cancer; specifically, lethargy and an enlarged liver. The opinion also noted that Cirrhosis of the liver is "often a precursor for liver cancer." However, in April 2021, the Board found the December 2020 opinion to be inadequate. Specifically, the Board determined, "The examiner noted the Veteran's symptoms of lethargy and enlarged liver only. These symptoms were noted to be found as a symptom of both liver cancer and cirrhosis. The Board notes that the record includes additional symptoms which were not addressed within the medical opinion." Moreover, the Board determined a remand was also warranted to determine the severity of his service-connected liver cancer residuals; specifically determining: In October 2019, the Veteran's VA examination noted that he suffered from near-constant and debilitating fatigue and malaise. He was also noted to suffer from daily right upper quadrant pain. Then, the examiner found that Veteran did not suffer from incapacitating episode as a result of his liver condition. The Board finds the two findings are inconsistent. Then, the September 2018 VA examination noted that the Veteran suffered from daily fatigue but did not address whether he suffered from any incapacitating episodes. Lastly, in June 2018, the Veteran's VA examination notes symptoms including near-constant and debilitating fatigue, anorexia, and nausea. He was also noted to suffer from daily right upper quadrant pain. Again, the examiner did not find that the Veteran had incapacitating episodes, which the Board finds contradicts the finding of near-constant and debilitating symptoms. Also, in April 2021, a VA treatment record indicates he has a current diagnosis of liver Cirrhosis. In May 2021, the Veteran underwent another VA Hepatitis, Cirrhosis, and Other Liver Conditions examination report. This report determined the Veteran's Hepatitis C resolved as of March 2017. Additionally, the report noted a diagnosis of Cirrhosis of the liver but later noted he did not experience any symptoms. As to the requested medical questions by the Board, the examiner determined he had diagnoses of cirrhosis of the liver, Hepatitis C (resolved), and laparoscopic left portal hepatectomy (liver cancer). In the medical rationale section for the diagnoses, the examiner stated, "it should be unequivocally clear that the Veteran does have documentation of having had hepatitis C and liver cirrhosis since 2004 and this is clearly documented in the claims file since 2004." As to the residuals of the Veteran's liver cancer, the report stated in pertinent part, "The diagnosis as sent liver cancer residuals is not an actual diagnosis but rather a lay term with no explanatory function." The examiner ultimately opined: It is less likely than not that the Veteran's diagnosed hepatitis C (resolved), cirrhosis of the liver, and laparoscopic left portal hepatectomy are, as asked, etiologically related to service... The Veteran was diagnosed with hepatitis C and cirrhosis of the liver in 2004... The Veteran was treated successfully for his hepatitis C and went on to develop hepatocellular carcinoma, a liver malignancy for which hepatitis C is a clear and unequivocal risk factor with proof of causation medically established. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record is in relative equipoise as to whether his liver condition, other than cancer, to include residuals of Hepatitis C and Cirrhosis, is related to active service. In this case, the Board acknowledges the May 2021 VA examiner provided a negative nexus opinion for the Veteran's Hepatitis C, Cirrhosis, and laparoscopic left portal hepatectomy. However, his laparoscopic left portal hepatectomy was a procedure performed to treat his service-connected liver cancer. Thus, the examiner rendered a negative nexus opinion for an already service-connected condition which the Board finds to be a fatal error. By doing so, the nexus opinions as to the Veteran's Hepatitis C and Cirrhosis disabilities cannot reasonably be relied on as accurate and provides little probative value. In that regard, the Board acknowledges the complex medical questions in this case. Specifically, the issue of rendering an adequate medical opinion as to the Veteran's liver conditions that also considers his already diagnosed and treated liver cancer. In this case, the Veteran is already-service connected for liver cancer as a result of Camp Lejeune service and the evidence indicates he was diagnosed with Hepatitis C and is diagnosed with Cirrhosis of the liver and thus he fulfills the first two elements of a service connection claim. See Shedden, 381 F.3d at 1167. As to a medical nexus, considering the evidence outlined above and the four prior Board remands, the Board finds that to remand for a fifth time seeking answers to such complex medical questions is futile and would simply contribute to "the hamster-wheel reputation of Veterans law." Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). In cases such as this when there is an approximate balance of positive and negative evidence the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, the Board finds the evidence of record to be in relative equipoise as to whether the Veteran's liver condition to include Hepatitis C and Cirrhosis are the result of active service and the benefit of the doubt rule applies. Id. Thus, the Veteran's claim of entitlement to service connection for a liver condition to include Hepatitis C and Cirrhosis, is granted. REASONS FOR REMAND The Veteran seeks entitlement to a disability rating in excess of 20 percent for his liver disease residuals to include cancer, Hepatitis C, and Cirrhosis. In this case and as of the date of this decision, the Veteran is service connected for liver disease to include the residuals of cancer, Hepatitis C, and Cirrhosis. However, while the Board acknowledges the May 2021 VA examination, the examiner did not provide the Board any information regarding the Veteran's symptoms resulting from his liver disease residuals. Specifically, the examiner wrote, "The diagnosis as sent liver cancer residuals is not an actual diagnosis but rather a lay term with no explanatory function." However, the October 2019 and December 2020 VA examinations determined he experienced these symptoms and that these symptoms were due to his liver cancer. The Veteran's liver condition is rated under 38 C.F.R. § 4.114, Diagnostic Codes 7343-7345. Diagnostic Code 7343 assigns a 100 percent rating for six months after the surgical procedure and then is to be rated based "on residuals." As such, he was assigned a 20 percent rating under Diagnostic Code 7345 for "Chronic Liver Disease without Cirrhosis" (emphasis added). A 20 percent rating is warranted for the following symptoms daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. The above symptoms are what the Board has referred to as his liver cancer residuals. Accordingly, and considering the above, the Veteran's claim for a disability rating in excess of 20 percent for liver disease, to include liver cancer, Hepatitis C residuals, and Cirrhosis is remanded to determine the severity of the symptoms. This matter is remanded for the following actions: 1. Effectuate the grant of service connection for liver condition other than cancer, to include residuals of Hepatitis C and Cirrhosis. 2. After the above is completed, acquire a VA examination, if necessary, to determine the severity of the symptoms associated with his liver disease residuals, to include cancer, Hepatitis C, and Cirrhosis as outlined under 38 C.F.R. § 4.114, Diagnostic Codes 7345. 3. After the above is completed, in addition to any other development deemed necessary, readjudicate the Veteran's claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.