Citation Nr: 21068621 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-45 682 DATE: November 10, 2021 ORDER Entitlement to service connection for a liver disability, to include as due to exposure to herbicides and chemicals, is denied. FINDING OF FACT The preponderance of the evidence is against finding that a liver disability began during active service, or is otherwise related to an in-service injury, event, or illness, to include exposure to herbicides and chemicals. CONCLUSION OF LAW The criteria for entitlement to service connection for a liver disability, to include as due to exposure to herbicides and chemicals, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1958 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision. This matter was most recently before the Board in May 2021, at which time the Board remanded the case for additional development. It has since been returned to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. A presumption exists for veterans who served in Republic of Vietnam during the Vietnam era where certain diseases associated with exposure to herbicidal agents used in support of military operations in the Republic of Vietnam will be considered to have been incurred in service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Specifically, presumptive service connection is warranted for certain diseases if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. The Board notes that liver cysts are not listed as a disease presumptively associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). As such, service connection for liver cysts cannot be presumed. Notwithstanding the inapplicability of the presumption, the United States Court of Appeals for the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease claimed to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Entitlement to service connection for a liver disability, to include as due to exposure to herbicides and chemicals, is denied. The Veteran claims entitlement to service connection for a liver disability, to include as due to herbicides and chemicals (specially fuel) while serving in the Republic of Vietnam. The question for the Board is whether the Veteran has a current liver disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of liver cysts, he was presumed to have been exposed to herbicides, and he was exposed to chemicals while refueling aircrafts, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of liver cysts began during service or is otherwise related to an in-service injury, event, or disease. In connection with his claim, the Veteran was afforded a VA examination in October 2019. Based on an in-person examination and review of the Veteran's VA e-folder, the examiner noted that the Veteran has a cyst on the liver, but there was no diagnosis of a cystic liver disease. The examiner opined that the Veteran's liver cysts condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the examiner explained that the Veteran's service treatment record indicates a cyst on the liver; however, no chronic diagnosis of the liver related to cyst. The examiner further explained that the cause of the development of cyst is unknown, but can be present early in life; however, no correlation is suggestive of the cyst on liver and exposure to herbicides or jet fuel. The cyst of liver is not considered liver disease and is therefore least likely related to exposure. See October 2018 VA examination report. The Veteran was afforded another VA examination in November 2020. Based on a review of the Veteran's VA e-folder, service medical records, post service treatment records, and the Veteran's lay statements, and an examination via approved video telehealth, the examiner noted that the Veteran reported an onset of liver cysts in 2005 when he was diagnosed with colon cancer and was then told he had cysts on his liver. The examiner noted the Veteran's diagnosis of liver cysts in 2010 and that multiple cysts were seen in the liver during a September 2010 CT examination of the abdomen and pelvis. The examiner noted that the Veteran had symptoms including intermittent nausea and right upper quadrant pain, but that he had never been diagnosed with hepatitis C; he had no signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis; he had no injury to the liver; and he had no other pertinent physical findings, complications, conditions, signs, or symptoms related to liver cysts. As a result of the VA examination, the examiner opined that the Veteran's liver cysts were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, to include presumed in-service exposure to herbicide agents and chemicals associated with the fueling of aircraft. The examiner explained that the cause of simple liver cysts isn't known, but they may be the result of a malformation present at birth; rarely, liver cysts may indicate a serious, underlying condition such as polycystic liver disease, an inherited disorder; echinococcus infection, a parasitic infection; and liver cancer. The examiner cited Case Studies in Environmental Medicine Jet Fuel Toxicity Monograph 1991 Hepatic Effects and explained that jet aircraft fueling attendances were reported to have enhanced antipyrine clearance, suggesting that occupational exposure to jet fuel can cause enzyme induction in the liver. However, other laboratory tests of liver function were normal in this group, which suggests that jet fuel is not significantly hepatotoxic in humans. Liver function tests were normal in a group of 12 persons who were exposed to high levels of jet fuel during the course of cleaning fuel cells and who experienced signs and symptoms of CNS depression. See November 2020 VA examination report. The record includes an August 2021 addendum opinion provided by the November 2020 examiner, who noted that the Veteran's currently diagnosed liver disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the examiner explained that the service treatment records were reviewed, including the enlistment exam on February 20, 1958, but did not note any liver pathology, and other exams including a re-enlistment exam on February 12, 1970; a detailed periodic physical exam on February 22, 1974; and a retirement exam on May 20, 1986 were all silent about a liver pathology. The examiner noted that the Veteran is documented as having been exposed to herbicides and fueling gas which is known to cause various liver pathology. In support of his opinion, the examiner cited a medical study conducted to investigate liver disease's rapid growth in the American population which noted that many instances of liver disease are linked with environmental pollutants such as pesticides and heavy metals. See August 2021 VA medical opinion. In his September 2021 addendum opinion, the November 2020 examiner and author of the August 2021 addendum opinion explained that the etiology of liver cysts is unknown, and that exposure to herbicides and fueling gas is known to cause various liver pathology, but not liver cysts. He explained that the Mayo Clinic states that the cause of simple liver cysts is not known, but that they may be the result of a malformation present at birth; rarely, liver cysts may indicate a serious, underlying condition such as polycystic liver disease, an inherited disorder; echinococcus infection, a parasitic infection; and liver cancer. The examiner explained that Healthline defines liver cysts as resulting from a malformation in the bile ducts, although the exact cause of this malformation is unknown; bile is a fluid made by the liver, which aids in digestion, and this fluid travels from the liver to the gallbladder through ducts or tube-like structures. The examiner further explained that some people are born with liver cysts, whereas others don't develop cysts under they are much older, and even when cysts are present at birth, they might go undetected until symptoms arise later in adulthood. The examiner also noted that there is a link between liver cysts and a parasite called echinococcus, which is a parasite found in areas where cattle and sheep live; one can become infected if he or she ingests contaminated food, and the parasite can cause the development of cysts in different parts of the body, including the liver. The examiner noted that, in the case of polycystic liver disease (PLD), this disease can be inherited when there's a family history of the condition, or the disease may occur for no apparent reason. See September 2021 VA addendum opinion. Read together, the October 2018 and November 2020 examiners' opinions and addendum opinions establish that the Veteran's diagnosed liver disability is not at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicides or chemicals. Collectively, they are probative, because they are based on an accurate medical history, cite to medical literature and scientific studies, and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A review of the Veteran's private treatment records reveals a May 2021 abdominal ultrasound showing an overall normal liver with hepatic cysts present. The liver was normal in size, shape, and echogenicity without intrahepatic biliary ductal dilatation, several hepatic cysts measured up to 3.0 centimeters, and the portal vein was patent with normal hepatopetal flow. See May 2021 private treatment records. There are no positive medical opinions of record. The Board acknowledges that the Veteran believes he has a liver disability that was due to herbicide or chemical exposure during service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinions of the October 2018 and November 2020 examiners. The Board accordingly finds that service connection for a liver disability is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a liver disability. As such, that doctrine is not applicable as to that issue, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.