Citation Nr: 21069003 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-02 144 DATE: November 17, 2021 ORDER Service connection for fatty liver disease is denied. Service connection for gout is denied. Service connection for hypothyroidism is denied. FINDINGS OF FACT 1. The Veteran has a current disability of fatty liver disease. 2. There was no in-service injury, disease, or event relevant to liver disease. 3. The Veteran has a current disability of gout. 4. There was no in-service injury, disease, or event relevant to gout. 5. Symptoms of gout were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. 6. The Veteran has a current disability of hypothyroidism. 7. There was no in-service injury, disease, or event relevant to hypothyroidism. 8. Symptoms of hypothyroidism were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. CONCLUSIONS OF LAW 1. The criteria for service connection for fatty liver disease have not been met. 38 U.S.C. §§ 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for gout have not been met. 38 U.S.C. §§ 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for hypothyroidism have not been met. 38 U.S.C. §§ 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army during Peacetime from September 1983 to July 1986. The Veteran filed a claim for service connection for a liver condition, gout, and hypothyroidism in October 2012. The Agency of Original Jurisdiction (AOJ) denied service connection for all three issues in a July 2013 Rating Decision. As the Veteran filed a timely appeal, the July 2013 Rating Decision is the basis of the current decision. On the December 2016 Form 9, the Veteran requested a hearing before the Board. A hearing was scheduled for January 2021, but the Veteran requested the hearing be rescheduled on account of being hospitalized. The hearing was rescheduled for September 2021, but the Veteran did not appear for the hearing. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As to the duty to assist, VA must obtain a medical examination in service connection claims when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence of an in-service event, injury, or disease; (3) an indication that the current disability may be associated with the in-service event; and (4) otherwise insufficient evidence to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case the duty to assist was not triggered because the weight of the evidence showed no relevant in-service injuries, diseases, or events to which a current disability could be related by a nexus opinion. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). 1. Service connection for fatty liver disease The Veteran contends that the fatty liver disease began during service, specifically that he experienced symptoms of tiredness that led him to seek treatment in service. See August 2016 Decision Review Officer Hearing. The Veteran's representative has stated that the Veteran incurred some injuries during service that were misdiagnosed and left untreated, and that this resulted in the fatty liver disease. At an August 2016 hearing before a Decision Review Officer, the Veteran described feeling tired and often calling in sick during service. The Veteran claimed this was evidence of liver disease in service. The evidence shows a current disability of fatty liver disease. A liver biopsy performed by VA in October 2012 revealed a fatty liver (also referred to in the records as steatohepatitis). See October 2012 VA Treatment Records; May 2015 VA Treatment Records. After weighing the evidence, lay and medical, the Board finds that the weight of the evidence shows no in-service injury, disease, or event relevant to liver disease. The service treatment records, which are complete, reflect that the Veteran reported other injuries and symptoms or complaints during service for which he did seek treatment that include sinus complaints; however, the remaining service treatment records show no complaints, symptoms, or findings suggestive of a liver injury or disease or event. The Veteran presented for treatment of other conditions including sinus infections, lice, and nausea, among others. In consideration of the other evidence included in the service treatment records showing complaints and treatment for various disorders, it is likely that any history of injury, complaints, symptoms, or findings for a liver injury or disease would similarly have been mentioned and/or detected during service, that is, any liver injury or symptoms or findings would have been recorded in the service treatment records had such injury or symptoms occurred during service; as a result, the absence of any in-service complaint, symptoms, or findings for a liver disorder weighs against finding an in-service liver injury or disease or chronic symptoms of a liver disorder during service. The absence of any in-service report of injury, or complaint, or finding for a liver disorder or related symptoms under the facts of this case is one factor, among other factors considered by the Board including no post-service symptoms until 26 years after service, and filing a claim after service and not mentioning the liver, that weighs against finding an in-service liver injury or disease or chronic symptoms during service. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). In addition, the Board notes that after service the Veteran did not file a claim for service connection for a liver disorder when seeking service connection for other disorders believed to be related to service. The record includes a rating decision prior to the July 2013 rating decision on appeal that include adjudications for disorders, none of which include claims for service connection for a liver disorder or include even oblique references to a liver injury or symptoms of a liver disorder. When the Veteran first applied for compensation benefits in August 2010, the Veteran claimed service connection for sinusitis and streptococcal pharyngitis. This claim supports the evidence that the symptoms in service are attributable (and were initially attributed by the Veteran to) sinus issues, not liver disease. Given these facts, as well as the absence of any in-service complaint, finding, or reference to treatment for a liver disorder or related symptoms, the Board finds that the Veteran's recently reported history of an in-service liver injury and symptoms made pursuant to this claim for compensation is inconsistent with and outweighed by the other, more contemporaneous lay and medical evidence of record, and is not credible. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (recognizing that a lengthy period of absence of medical complaints for condition can be considered as one factor in resolving claim). For these reasons, based on the multiple factors stated in this decision, the Board finds that there was no in-service liver injury, disease, or event during service, including no chronic symptoms of liver disorder during service. After separation from service, the first lay or medical evidence of liver disease are VA treatment records from October 2012. An ultrasound performed by VA showed a new diagnosis of a fatty liver. In the August 2016 hearing, the Veteran also stated that he first became aware of a potential liver issue during service when he was tested and found to have a high white blood cell count in service. The Board finds that this statement is not credible, as it is contradicted by more contemporaneous evidence, including the Veteran's own reports of symptoms during service, VA treatment records that show the Veteran first complained of and sought treatment for leukocytosis (high white blood cell count) in 2002, and service treatment records that show no relevant symptoms or findings of leukocytosis. See October 2012 VA Treatment Record. The Veteran was not provided with a VA medical examination or medical opinion for the issue of service connection for fatty liver disease. As explained above, the weight of the evidence demonstrates no relevant liver injury during service, no relevant liver disease during service, and no liver event during service, to include chronic symptoms or findings; rather, the weight of the evidence shows that the fatty liver disease was manifested many years after service. There is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection without being speculative because any purported opinion would be an attempt to relate a current liver disorder to an in-service injury or disease that in fact (based on the weight of the evidence) did not occur. VA adjudications are to be based on evidence that shows some probability, and are not to be based on "pure speculation or remote possibility." 38 C.F.R. § 3.102. Any medical opinion which purported to provide a nexus between the Veteran's current liver disability and service would necessarily be based on an inaccurate history assuming some relevant injury, disease, or event occurred in service; therefore, the purported opinion based on the inaccurate factual premise would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Because the weight of the evidence demonstrates no injury or disease of the liver occurred in service, a VA examination is not needed, as there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection. See 38 U.S.C. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant... if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); see also Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the Veteran's claim for service connection for fatty liver disease. For these reasons, the appeal must be denied. 2. Service connection for gout Gout (as a type of arthritis) is a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases such as gout become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran contends that the gout began during service, specifically symptoms of breathing symptoms, rashes, and limping led to the Veteran seeking treatment in service. See August 2016 Decision Review Officer Hearing. The Veteran's representative has stated that the Veteran incurred some injuries during service that were misdiagnosed and left untreated, and that this resulted in the gout. The evidence shows a current disability of gout with arthritis in the knees, ankles, and arms. See October 2012 VA Treatment Records. The evidence shows a diagnosis of gout and treatment from VA as early as February 2006. See February 2006 VA Treatment Records. After weighing the evidence, lay and medical, the Board also finds that there was no relevant in-service injury, disease, or event of gout. The weight of the evidence also shows that symptoms of gout were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. The service treatment records, which appear to be complete, contain many treatments for sinus symptoms, and single treatments for lice, tonsilitis, and a negative reaction to an antibiotic (nausea and vomiting), but show no show complaints, symptoms, or findings suggestive of gout. In consideration of the other evidence included in the service treatment records showing complaints and treatment for various disorders, it is likely that any history of injury, complaints, symptoms, or treatment for gout would similarly have been mentioned and/or detected during service, that is, any gout or symptoms would have been recorded in the service treatment records had such injury or symptoms occurred during service; as a result, the absence of any in-service complaint, finding, or reference to treatment for gout or related symptoms weighs against finding in-service gout or chronic symptoms of gout during service. With regard to the Veteran's contention that he experienced symptoms of gout in service, which he identified as breathing difficulty, rashes, and limping, the Board notes that these are not symptoms of gout. As gout is the build-up of urates around the joints, gout is generally manifested by either painful or swollen joints. National Institute of Arthritis and Musculoskeletal and Skin Diseases, "Gout," National Institutes of Health. After separation from service, the first lay or medical evidence of gout is VA treatment records from February 2006. The attending physician noted that the Veteran had been treated for gout beginning four years ago (indicating an onset of gout in 2002). After service the Veteran did not file a claim for service connection for gout when seeking service connection for other disorders believed to be related to service. The record includes a rating decision prior to the July 2013 rating decision on appeal that include adjudications for disorders, none of which include claims for service connection for gout or include even oblique references to gout. The Veteran was not provided with a VA medical examination or medical opinion for the issue of service connection for gout. As explained above, the weight of the evidence demonstrates no relevant gout symptoms during service, to include symptoms, and including chronic symptoms of gout; rather, the weight of the evidence shows that the gout was manifested many years after service. There is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection without being speculative because any purported opinion would be an attempt to relate a current disorder to an in-service injury or disease or event that in fact (based on the weight of the evidence) did not occur. Any such medical opinion that purported to provide a nexus between the Veteran's current gout and military service would necessarily be based on an inaccurate assumption that some in-service injury, disease, or event occurred; therefore, any purported opinion based on this factual inaccuracy would be of no probative value. For this reason, this finding of fact by the Board ends any further duty to assist with a VA examination or nexus opinion. For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the Veteran's claim for service connection for gout. For these reasons, the appeal must be denied. 3. Service connection for hypothyroidism The Veteran contends that he experienced hypothyroidism (manifested by tiredness) symptoms during service, and that the hypothyroidism was not diagnosed until after separation from service. See August 2016 Decision Review Officer Hearing; October 2021 Representative' s Statement. The Veteran has alleged experiencing tiredness during service, which he contends was a symptom of hypothyroidism. The Veteran's representative avers that diagnosis within a year of separation and continuous treatment since then are evidence of hypothyroidism in service. See October 2021 Representative's Statement. The evidence shows a current disability of hypothyroidism. VA lab studies as early as November 2012 show possible acute or chronic thyroiditis, and later VA treatment records indicate a diagnosis of hypothyroidism. The Board finds the weight of the lay and medical evidence shows no relevant in-service injury, disease, or event relevant to hypothyroidism, and that the symptoms of hypothyroidism were not were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. The service treatment records, which appear to be complete, reflect no complaints, symptoms, or findings relevant to hypothyroidism. While the Veteran characterized his hypothyroidism as manifesting with tiredness in service, the service treatment records do not contain any signs, symptoms, or notations of tiredness or any other symptoms of hypothyroidism; rather, the service treatment records only contain treatments and symptoms of sinusitis, lice, tonsilitis, and a single instance of nausea and vomiting due to side-effects from an antibiotic. After service the Veteran did not file a claim for service connection for hypothyroidism when seeking service connection for other disorders believed to be related to service. The record includes a rating decision prior to the July 2013 rating decision on appeal that include adjudications for disorders, none of which include claims for service connection for hypothyroidism or include even oblique references to a thyroid symptoms or problems. As explained above, the weight of the evidence demonstrates no relevant thyroid symptoms during service, to include symptoms of hypothyroidism, and including chronic symptoms of hypothyroidism; rather, the weight of the evidence shows that the hypothyroidism was manifested many years after service. There is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection without being speculative because any purported opinion would be an attempt to relate a current disorder to an in-service injury or disease that in fact (based on the weight of the evidence) did not occur. The lay and medical evidence weighs against the contentions of the Veteran and his representative that the Veteran was diagnosed with hypothyroidism within one year of service. The first indication in the VA treatment records of a thyroid issue are from November 2012, 26 years after separation from service. No private treatment records detailing an earlier onset of hypothyroidism are in the record. As noted above, the Veteran first applied for benefits in 2010, and did not claim benefits for hypothyroidism. As such, the statements regarding a diagnosis of hypothyroidism immediately after separation with continuous treatment since service are not credible. For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the apeal for service connection for hypothyroidism. For these reasons, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Plambeck, Charles 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.