Citation Nr: 21007561 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 06-09 914 DATE: February 10, 2021 ORDER Service connection for liver disease manifested by fatty liver is granted. Service connection for a prostate disorder is denied.   FINDINGS OF FACT 1. The Veteran’s liver disease manifested by fatty liver is related to in-service radiation exposure. 2. The Veteran’s prostate disorder did not begin during service and is not related to any incident of service, including radiation exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for liver disease manifested by fatty liver are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.311. 2. The criteria for service connection for a prostate disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1957 to April 1961. This case comes to the Board from a June 2005 rating decision. In March 2009, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a Board hearing as to the issues of entitlement to service connection for a liver disorder and a prostate disorder. In December 2015, the Veteran testified at a Board hearing before a different VLJ below with respect to the same issues. In April 2016, the Veteran waived his right to a third hearing with respect to the appeal of the issues listed on the title page. Most recently, in December 2018, the Board remanded the appeal for additional development. By rating decision in April 2020, the RO granted service connection for squamous cell carcinoma as a result of in-service radiation exposure. This represents a full grant of the benefit sought with respect to that issue. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria 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 veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA regulations also provide for service connection for radiation exposed veterans on three different legal bases. The first basis is a presumptive basis for diseases specific to radiation exposed veterans under 38 C.F.R. § 3.309(d). The second is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease as provided in 38 C.F.R. § 3.311. A veteran is also entitled to service connection if he can establish that a disability warrants service connection on a direct or presumptive basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis 1. Service connection for liver disease. The Veteran maintains that his liver disease is a result of in-service environmental exposures, to include radiation exposure, including in association with maintenance of B-47’s loaded with atomic weapons, loading and unloading nuclear weapons from planes, and assisting with cleanup of a radioactive crash site after a B-47 crashed at Dyess Air Force Base in 1958. In that respect, the record reflects a current diagnosis of liver disease or at least functional impairment of the liver as fatty liver has been diagnosed. See November 2019 VA examination report. As such, the current disability element is established. In addition, and although the Veteran’s complete service records are unavailable, the record establishes in-service radiation exposure. See July 2018 rating decision; October 2017 letter from the Director, Compensation service. Thus, an in-service injury is established. As such, the question is whether the Veteran’s current liver disease is related to in-service radiation exposure. Although liver disease is not listed as a presumptive disease associated with radiation exposure under 38 C.F.R. § 3.311, the Veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee, 34 F.3d at 1039. A March 2014 letter from the Veteran’s private ear, nose, and throat doctor notes that the Veteran’s history of having been “exposed to radar in the nose of the plane was like being in a microwave” during service. In addition, and although a July 2016 VA opinion notes that radiation had not been shown to be causative of fatty liver, the medical article cited in the September 2018 submission by the Veteran’s former representative notes radiation may result in liver injury. Moreover, the November 2019 VA examination report reflects that liver disease was diagnosed in 2001, and no history of alcohol abuse or smoking was noted. The examiner stated that based on the evidence, to include the Veteran’s in-service radiation exposure and medical literature pertaining to the occurrence of liver disease associated with radiation exposure, it is at least as likely as not that the Veteran’s liver disease is related to his in-service radiation exposure. The evidence is in at least equipoise. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that his liver disease manifested by fatty liver is related to in-service radiation exposure. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for liver disease manifested by fatty liver is warranted. 2. Service connection for a prostate disorder. For reasons similar to the liver disease claim, the current disability and in-service event elements of this claim are established. The question turns to whether a nexus is shown. In that respect, pursuant to the Board’s December 2018 remand, the Veteran was afforded a VA examination in November 2019. The report of examination reflects a diagnosis of benign prostate hypertrophy (BPH) with mild enlargement of the prostate status post transurethral resection of the prostate (TURP) with chronic prostatitis. The examiner stated that although the Veteran’s history was significant for radiation exposure during service, the medical literature does not establish a nexus between the Veteran’s prostate disorder and radiation exposure. Although the Veteran submitted a September 2018 article addressing the risk of developing prostate cancer in association with diagnostic radiation procedures, the Veteran does not have prostate cancer. Further, none of the medical literature the Veteran cited or the March 2014 letter from the Veteran’s doctor establishes that the Veteran’s prostate disorder is related to any form of radiation or other environmental exposure during service. The Board notes that, although the Veteran is competent to report his symptoms, a determination as to whether the Veteran’s prostate disorder is related to service is a complex matter requiring related medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). As the Veteran has no known or reported medical expertise, he is not legally competent to establish a nexus between these disabilities and service; thus, his opinion as to causation lacks probative value, and an opinion by a qualified medical expert is required to decide the claim. In that regard, the opinion rendered by the VA examiner constitutes such competent medical evidence. Further, as this opinion is unequivocally stated, consistent with the record, and supported by cited evidence of record, the Board finds that this medical opinion is probative evidence against the Veteran’s claim. See also July 2016 VA examination. That is, the medical evidence outweighs the Veteran’s report of recurrent symptoms and his lay opinion on the matter, even if such a theory is intuitively plausible to a lay person. In sum, the record confirms that the Veteran had environmental exposures during service, including radiation, and currently has a prostate disorder (other than cancer); however, the evidence does not show complaints of or treatment for a prostate disorder during service, and the competent post-service evidence does not link the Veteran’s prostate disorder, to service or any incident of service, including radiation exposure. As such, the Board finds the preponderance of the evidence is against the claim and thus, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a prostate disorder is not warranted. C.L. WASSER Acting Veterans Law Judge Board of Veterans’ Appeals STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.