Citation Nr: 21072565 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-49 309 DATE: December 3, 2021 ORDER Entitlement to service connection for a liver disability, to include as secondary to service-connected residuals of hepatitis, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a liver disability separate from his service-connected hepatitis residuals, which began during active service, manifested to a compensable degree within one year of service discharge or is otherwise related to service, to include as secondary to service-connected residuals of hepatitis. CONCLUSION OF LAW The criteria for service connection for a liver disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to August 1970 and from June 1971 to August 1973. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a liver disorder. The Veteran's notice of disagreement (NOD) was received in June 2017. The RO issued the statement of the case (SOC) in August 2017, and the Veteran's VA Form 9, substantive appeal was received in September 2017. In May 2019, the Board remanded the case to the RO for further development and adjudicative action. In February 2020 correspondence, the Veteran raised the issue of whether service connection is warranted for coronary artery disease (CAD) as secondary to his service-connected residuals of hepatitis. However, the Veteran has not filed a claim for, or appealed, the issue of service connection for CAD. CAD is in a different anatomical area from the liver and thus outside the scope of the Veteran's current claim for service connection for a liver disability. As such, entitlement to service connection for CAD will not be addressed in this decision. SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310 Entitlement to service connection for a liver disability, to include as secondary to service-connected residuals of hepatitis. The Veteran contends that he has a liver disability that is secondary to his service-connected residuals of hepatitis B, to include as due to various medications he was prescribed for treatment of nonservice-connected disabilities. See December 2017 lay statement; see also January 2004 DRO hearing. Notably, service connection for residuals of hepatitis B was granted in a March 1974 rating decision. Service treatment records (STRs) reveal that, in May 1973, the Veteran was admitted to the hospital for hepatitis associated with I.V. drug abuse. A follow-up treatment note indicates that the Veteran reported using parenteral narcotics before being drug tested, in an attempt to be discharged from active service. A liver biopsy was performed in July 1973 which revealed severe hepatitis with submassive necrosis. The Veteran's separation examination was conducted in March 1973, prior to the Veteran's hospitalization and subsequent diagnosis. Post-service, the Veteran underwent a VA examination in December 1973. The VA examiner noted that the Veteran was diagnosed with acute hepatitis B in May 1973 following the improper use of heroin. The Veteran reported feeling alright but gets tired more easily than he used to. There was no clinical evidence of jaundice and physical examination revealed a soft and flat abdomen and a palpable liver margin which was slightly tender. The examiner provided a diagnosis of residuals of hepatitis. An August 1997 VA treatment note reflects that the Veteran's problem list included "ETOH liver disease." However, the same treatment note indicates that the Veteran's liver was within normal limits. The Veteran underwent a VA examination in January 2002 in connection with an increased rating claim for residuals of hepatitis. The VA examiner noted that no hepatitis has been recorded since March 1974 and that the Veteran's principal health problem has been treatment for alcoholism. The examiner recounted that the Veteran was seen in August 1997 for alcoholism with a brief try of Antabuse and seen again in June 1999 for exposure to organic solvent. The Veteran was admitted for alcohol withdrawal in September 2001 and discharged in October 2001. The examiner noted that the Veteran had been dry since being discharged and has occasional stomach knots and fatigue. The VA examiner stated that the Veteran has not been jaundiced since 1974 when he was found to have hepatitis due to an unclean needle. The examiner noted that the Veteran reported not having done any IV drugs since that time. The Veteran reported that his only complaint is occasional loss of energy. Lab work and liver function tests were conducted which were normal and negative for hepatitis. The examiner concluded that the Veteran had no present hepatitis or liver disease. In January 2004, the Director of the Boise VAMC wrote a letter to the Veteran in response to the Veteran's claims that he has a liver disability secondary to his in-service hepatitis and/or medications prescribed by VA. See also January 2004 VA primary care outpatient note. The Director stated that a review of the Veteran's treatment was conducted by members of the Boise VAMC medical staff and members of the Veteran's treating team. The medical staff noted the Veteran's past diagnosis of submassive necrosis and hepatitis B during service and that, post-service, the Veteran has been treated at Boise VAMC for alcoholism and its sequalae. The letter notes that no fewer than 7 blood tests were conducted in search of liver abnormalities without any abnormalities found. The letter notes that a non-VA specialist was consulted at the Veteran's request and that blood tests and an ultrasound found no evidence of a liver abnormality. The letter further states that only one test in 1997 was positive for the hepatitis B surface antibody and that the same test in 2001 was negative for any such antibody, suggesting either an intrinsic variation in the antibody level or that the Veteran's immunity is waning gradually. The letter then addresses the Veteran's claim that he suffers from liver problems due to medication prescribed by VA and provides a detailed rationale for why this is unlikely. The Veteran underwent a VA examination in June 2017. The VA examiner noted that the Veteran was diagnosed with hepatitis B in 1973. The Veteran reported that he was put on various medications in the early 2000s which he read had all sorts of warnings about potential effects on the liver and warnings on usage with liver disease. He recounted being hospitalized for three months during service for hepatitis B and being discharged with weekly and biweekly follow ups at the VA. He reported that when all his blood tests normalized, he was told he didn't have to be seen anymore. The Veteran reported that he no longer drinks alcohol and has not for "a few years." The examiner found that the Veteran did not have any signs or symptoms attributable to a chronic or infectious liver disease or cirrhosis. The VA examiner conducted a specimen collection which revealed mildly elevated alkaline phosphatase (ALP) with otherwise normal liver function testing on examination. The examiner stated that this is most consistent with a non-liver etiology for elevated alkaline phosphatase, such as bone or intestinal, and was unrelated to hepatitis in 1973. The examiner further stated that the Veteran has demonstrated serologic evidence of a prior acute hepatitis B infection without persistent infection or carrier state and was without radiologic evidence of cirrhosis or other residuals of that hepatitis infection 30 years later in 2003. The examiner explained that examination by an outside hepatologist (liver specialist) in 2003 resulted in an assessment of no chronic residuals of hepatitis in 1973 and indicated that liver-related symptoms, if any, subsequent to recovery from hepatitis in 1973 may be alcohol-related. The VA examiner stated that he concurs with that assessment and that no residuals of hepatitis in 1973, to include a current "liver disorder," are found on the current examination. Based on the foregoing, the examiner concluded that the claimed condition is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected residuals of hepatitis. The Veteran most recently underwent a VA examination in December 2019. The VA examiner found that the Veteran did not have any signs or symptoms attributable to a chronic or infectious liver disease or cirrhosis. Laboratory testing was conducted and was normal except for elevated levels of ALP. In an accompanying addendum opinion, the examiner stated that there is no evidence of a liver disability and that the Veteran's claims file indicates a long history of tobacco and alcohol use which are more significant lifestyle factors. The examiner stated that the Veteran's elevated ALP levels are nonspecific and that there are no current imaging studies which indicate a liver condition such as cirrhosis. The examiner also stated that there is no aggravation of a liver disability due to the service-connected residuals of hepatitis. The examiner noted that laboratory testing did not reveal an elevated level of transaminases and reiterated that there is no evidence of hepatitis or residual problems due to a liver condition. The threshold matter that must be addressed here is whether there is probative evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought. In this case, the record does not show that the Veteran has had a liver disability separate from his service-connected hepatitis residuals at any point during the pendency of the claim. The June 2017 and December 2019 VA examination reports contain a physical examination and laboratory testing confirming this finding. The Veteran's VA treatment records likewise do not support a diagnosis of a liver disability during the pendency of the claim. All diagnostic testing associated with the Veteran's liver did not indicate a positive diagnosis. In this case, the Veteran has not presented any probative evidence showing a liver disability during the pendency of the claim. The Board affords significant probative value to the June 2017 and December 2019 opinions as, taken together, they are consistent with and supported by the evidence of record. Moreover, both were based on an in-person examination of the Veteran and reflect consideration of all relevant facts, specifically citing to service treatment records, post-service treatment records, and the Veteran's lay statements. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, the record does not contain a medical opinion to the contrary. The Board acknowledges that in the May 2019 remand, the Board directed the December 2019 VA examiner to perform all necessary diagnostic testing and, if any testing was not required, to document why such testing was not required. It does not appear that diagnostic imaging was performed during the December 2019 VA examination and no explicit explanation was provided as to why. Nevertheless, the diagnostic imaging section of the Hepatitis, Cirrhosis and Other Liver Conditions DBQ specifically instructs the examiner that, if testing has been performed and reflects the Veteran's current condition, no further testing is required. It is reasonable to infer that the December 2019 examiner determined that laboratory testing alone was sufficient to confirm the prior 2003 ultrasound imaging of the Veteran's liver as the only abnormality shown on laboratory testing was considered nonspecific and attributed to a non-liver etiology such as bone or intestinal issues by the clinicians familiar with the Veteran's case. As such, there was substantial compliance with the May 2019 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall v. West, 11 Vet. App. 268 (1998) requires substantial compliance with remand orders, rather than absolute, or strict, compliance). However, even assuming that the Veteran has a current liver disability, the preponderance of the evidence is against a relationship between a current liver disability and the Veteran's active service, including his service-connected hepatitis residuals. Private and VA medical providers and examiners from 1997 to the present have consistently found no link between the Veteran's service-connected residuals of hepatitis and any current liver disability and have instead concluded that any current symptoms attributable to a liver disability were likely alcohol-related. See e.g. June 2017 VA examination report. While the Veteran submitted an internet article in February 2020 which indicates that one possible reason for high ALP levels is liver trouble, the same article indicates several other reasons for high ALP levels, such as bone issues, gallstones, heart failure, kidney cancer, mononucleosis, or bacterial infection. The Board notes that this internet article is general and not specific to the Veteran; rather, clinicians familiar with the Veteran's case have indicated that his mildly elevated ALP level is more likely due to a bone or intestinal issue. Although the Veteran also asserts that he has a current liver disability due to medications he was prescribed by VA in the early 2000s, none of these medications appear to have been prescribed for his service-connected residuals of hepatitis. Instead, Antabuse and disulfiram were prescribed as treatment for his nonservice-connected alcohol use disorder and bupropion, lithium, respiridol, clonazepam and Celexa were prescribed for nonservice-connected major depressive disorder/dysthymia. Even assuming that the Veteran was prescribed a medication for treatment of the service-connected residuals of hepatitis, the June 2017 VA examiner indicated that any symptoms secondary to the medications he took in the early 2000s had since resolved and that any current liver-related symptoms are more likely alcohol related. See June 2017 VA examination report. While the Veteran sincerely believes that he has a liver disability separate from his service-connected hepatitis residuals that is related to service, he does not possess the medical expertise to provide a diagnosis or a nexus opinion in this case. The Veteran, as a lay person, is competent to report observable symptoms such as fatigue, stomach churning, and nausea. See Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, the issue in this case is medically complex, as it requires specialized medical education/knowledge and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran's lay statements cannot serve as a basis for a diagnosis or nexus in this case. Based on the foregoing, the preponderance of evidence is against a finding that the Veteran has a current liver disability, separate from his service-connected hepatitis residuals, which had its onset during service, has continued since service, manifested to a compensable degree within one year following separation, or is otherwise related to service, to include as secondary to service-connected residuals of hepatitis. Thus, there is no reasonable doubt to be resolved in the Veteran's favor, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.