Citation Nr: 21069125 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-30 770 DATE: November 17, 2021 ORDER Entitlement to service connection for a liver disability is denied. REMANDED Entitlement to a compensable rating for asbestosis is remanded Entitlement to a compensable rating prior to February 22, 2016 and in excess of 10 percent thereafter for a residual scar, status-post removal of a pilonidal cyst, is remanded. FINDING OF FACT The Veteran's hepatitis B in service was acute and is resolved; he does not currently have a liver disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a liver disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in July 2019 for further development. In December 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board clarifies that it previously mistakenly stated this matter also comes from January 2014 (mailed January 24, 2014) and March 2016 rating decisions. It is noted that the notice of disagreement (NOD) for this matter was received on January 30, 2015. Thus, the decision on appeal is only the December 2014 rating as noted above. After the Board's July 2019 remand, the issue of service connection for bilateral plantar fasciitis was granted. See May 2021 rating decision. Because that decision represents a full grant of the benefit sought, the issue is no longer on appeal. The Board notes that the Veteran submitted written statements that could be interpreted as withdrawal of the issues of entitlement to increased ratings for a residual scar, status-post removal of a pilonidal cyst, and asbestosis. See April 2016 correspondence; April 2016 statement; June 2021 correspondence. The Board finds these communications to be ambiguous. Specifically, the Veteran merely passively stated that the issues can "expire" or that he "accepts" the current rating instead of actively withdrawing the issues. As a result, the Board finds that none of these communications are valid withdrawals and the issues remain on appeal. In the future, if the Veteran wishes to withdraw an issue in a written statement, he is encouraged to do so explicitly and unambiguously. In April 2016, the Veteran reported that he was experiencing severe nail deterioration as a result of his service-connected asbestosis. In August 2015, he reported psychological symptoms as a complication of his service-connected asbestosis. In light of Bailey v. Wilkie, 33 Vet. App. 188 (2021), a claim of service connection for nail deterioration and a psychological disorder secondary to asbestosis is referred to the agency of original jurisdiction (AOJ) for appropriate consideration and handling in the first instance. Finally, the Board notes that the Veteran stated that he was having trouble with a scar on his right leg. See June 2021 correspondence. The Veteran is not service-connected for a scar on his right leg, and it is outside the scope of the current appeal. He is welcome to file a claim of service connection for that disability with the AOJ at any time. Entitlement to service connection for a liver disability. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain with functional impairment can be considered a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In November 2020, a VA examiner discussed that there was no history of liver disease or dysfunction that the Veteran was aware of but there were unexplained rashes, nausea, and vomiting while he was in the military. The examiner opined it is at least as likely as not that he was suffering an acutely contracted case of hepatitis B during service that spontaneously resolved. The examiner discussed that the Veteran had mild elevation in liver enzymes in 2010 that normalized by 2011 with hepatitis B testing that indicated prior active infection but no sign of chronic ongoing liver inflammation disease or ill effects to indicate long-term damage from the virus. Given his original symptoms and timing with travel in the service including unprotected intercourse while in the Philippines and Guam, the examiner opined that it was at least as likely as not that the Veteran had hepatitis B in service, but that it had resolved. The Veteran asserted the November 2020 VA examination was inadequate because he had not received a comprehensive examination of his liver since 2011. He reported that, at that time, his primary care provider in Kenosha found benign cysts on his liver. See June 2021 correspondence. He also testified similarly about cysts on his liver during his December 2018 Board hearing. The Board notes that, VA treatment records from the Veteran's primary care physician in Kenosha reflect benign cysts on the Veteran's pancreas rather than his liver. See, e.g., January 2012 VA treatment records. Therefore, to the extent that the Veteran asserted that his primary care provider in Kenosha found benign cysts on his liver, the Board finds the Veteran's statements not credible. To be clear, the Board is not questioning the Veteran's honesty or moral character. The Board's finding should not be interpreted as stating that the Veteran purposefully misrepresented the facts. Rather, the Board understand that he is attempting to recollect events that transpired a long time ago and that with passage of time memories fade. That, along with the inconsistencies noted above, compels the conclusion that the Veteran is not an accurate historian as to these particular statements. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (the Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record). As a result, the Board assigns the Veteran's statements regarding cysts on his liver no probative weight. The Veteran underwent laboratory testing in November 2020 as a result of his VA examination. The examiner discussed the laboratory results, and the results are also of record. In light of the findings above regarding the Veteran's assertions of liver cysts, there is no evidence that the November 2020 VA examination is inadequate. Thus, the Board finds the November 2020 VA examination and medical opinion to be adequate for appellate review. The examiner relied on examination of the Veteran and a review of the file, and he provided a full and detailed rationale that included discussion of symptoms in service, laboratory results, and lay statements of reported history. As a result, the November 2020 VA examiner's opinion that the Veteran's hepatitis B is resolved is given significant probative weight. There is no indication in the file that the Veteran has a current liver disability. Indeed, the Veteran testified that he was not aware of being diagnosed with a liver disability. See December 2018 Board hearing. Any medical articles discussing liver disabilities provided by the Veteran are assigned no probative weight because they are general and do not reflect a diagnosis of a current liver disability for the Veteran. Although the November 2020 VA examiner also diagnosed elevated liver enzymes, that is considered a laboratory finding and is not considered a disability for VA purposes. There evidence reflects that the Veteran's elevated liver enzymes do not cause pain or functional impairment. See November 2020 VA examination. After consideration of the November 2020 VA examination and the Veteran's credible lay statement that he has not been diagnosed with a liver disability, the Board finds that the preponderance of the evidence reflects that the Veteran does not have a current liver disability and service connection must be denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for asbestosis. The Veteran's asbestosis is primarily rated pursuant to results of pulmonary function tests (PFTs). One such test is the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)). See 38 C.F.R. § 4.97, Diagnostic Code (Code) 6833. If the DLCO (SB) test is not of record, asbestosis is to be evaluated based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). During the Veteran's February 2016 and May 2021 VA respiratory examinations, DLCO (SB) results were not provided. Each examiner stated that such testing was not required because it was "not indicated" by the Veteran's condition or his particular case. This language is ambiguous, and it is unclear why such testing was not completed. As a result, remand for a new examination is necessary. Similarly, the rating criteria for asbestosis includes consideration of results of exercise capacity testing. See 38 C.F.R. § 4.97, Code 6833. The Veteran has not undergone any exercise capacity testing and it is unclear why such testing was not completed. As a result, remand for a new examination is required on this basis as well. 2. Entitlement to a compensable rating prior to February 22, 2016 and in excess of 10 percent thereafter for a residual scar, status-post removal of a pilonidal cyst. A May 2021 VA examiner stated that she conducted an in-person examination of the Veteran. However, in June 2021 correspondence, the Veteran reported that he had not had a recent examination of his scar. In an effort to rectify this disparity, the Board will remand the matter for a new examination. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from September 2020 to the present. 2. After the above development is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected asbestosis. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. Additionally, the examiner is requested to respond to the following: (a.) If DLCO (SB) is not indicated, please explain why the test was not performed. (b.) If the Veteran did not undergo exercise capacity testing, please explain why such testing was not performed. 3. After the development in the first directive is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected residual scar, status-post removal of a pilonidal cyst. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.