Citation Nr: 21021625 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-22 018A DATE: April 13, 2021 ORDER Entitlement to service connection for a liver condition, to include as due to asbestos exposure and/or secondary to the Veteran’s respiratory disorder is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s liver condition is caused or aggravated by in-service asbestos exposure or the Veteran’s respiratory disorder. CONCLUSION OF LAW The criteria for service connection for a liver condition, to include as due to asbestos exposure and/or secondary to the Veteran’s respiratory disorder, have not been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to September 1966. He died in February 2013. The Appellant is his surviving spouse. She has been substituted as the appellant in this case. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge in December 2017. The Appellant’s friend, T.T., was present as a witness at the hearing. The hearing transcript is associated with the record. The Board remanded this matter in March 2018, July 2020, and December 2020. The Board finds there has been substantial compliance with its December 2020 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Entitlement to service connection for a liver condition, to include as due to asbestos exposure and/or secondary to the Veteran’s respiratory disorder Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection can 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). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that upon a review of the Veteran’s military personnel record, the Veteran served aboard the U.S.S. Whitehurst and the U.S.S. Hugh Purvis. It was stated that the U.S.S. Whitehurst likely exposed those aboard to asbestos. In addition, in an October 2010 affidavit, the Veteran reported significant occupational exposure to asbestos. Asbestos exposure reportedly occurred serving aboard Navy ships and while working following service in major maintenance boiler overhaul. Thus, the Board concedes asbestos exposure. Service treatment records are silent for complaints, treatment, or diagnosis of a liver condition. In a June 2010 private treatment record, it was noted that the Veteran had a diagnosis of fatty infiltration of the liver. At the December 2017 Board hearing, the Appellant asserted that prior physicians stated that the Veteran’s liver condition was related to asbestos because the longest effect of asbestos reached everything. The Appellant said that the affected lung was no longer functioning, which in turn was not purifying everything. A November 2019 VA opinion was provided; however, the Board determined this opinion to be inadequate in a July 2020 remand. Therefore, the Board will not address the findings in this opinion. In a May 2020 Appellate Brief, the Appellant’s representative referenced to the American Cancer Society findings that exposure to asbestos was a possible cause of certain liver diseases. There was also reference made to another article on mesothelioma.net, which reiterated the findings from the American Cancer Society. Based on the inadequate November 2019 VA opinion, and the studies provided by the Appellant’s representative, which were available in July 2018, another VA opinion was requested by the Board in July 2020. An August 2020 VA opinion was provided; however, the Board determined this opinion to be inadequate in a December 2020 remand. Therefore, the Board will not address the findings in this opinion. In a January 2021 VA opinion, the examiner opined that the Veteran’s liver condition was less likely than not caused or aggravated by his asbestos exposure/respiratory condition. The examiner reviewed the July 2018 American Cancer society and mesothelioma.net findings, and stated that while there was a potentially increased risk of cholangiocarcinoma in individuals with significant asbestos exposure, a review of the Veteran’s claims file did not show any evidence that he had cholangiocarcinoma. Rather, the Veteran appeared to have had NASH, also commonly known as fatty liver disease. This condition did not have any known causal or pathophysiological relationship with asbestos exposure, nor did it seem to have been a significant contributing cause of the Veteran’s death. The examiner also addressed the Appellant’s lay statements and found that these statements were not consistent with any medical or scientific evidence or understanding of the pathophysiology of asbestos exposure. Further, scientific study had not established a correlation or a causal relationship between the Veteran’s fatty liver disease and his history of asbestos exposure. Overall, the evidence of record does not show that the Veteran’s liver condition was caused or aggravated by asbestos exposure and/or a respiratory disorder. The evidence shows that there were no complaints, treatment, or diagnosis of a liver condition in service. The first finding of a liver condition in the records is over 40 years following separation from service; thus, there is no evidence of continuity of symptomatology. Finally, the most probative and competent evidence of record is the January 2021 VA opinion, which was based on a thorough review of the record, including the Appellant’s lay statements and medical findings submitted by the Appellant’s representatives. This evidence, in total, is determinative in finding that the Veteran’s liver condition is not related to service. Additionally, there was no evidence showing any relationship between the Veteran’s liver condition and respiratory disorder, despite the Appellant’s assertions. The Veteran and Appellant have offered their own opinion on etiology, stating that the Veteran’s liver disease was caused or aggravated by asbestos exposure and/or a respiratory disorder. The Board acknowledges that the Veteran, now deceased, was competent to describe his symptoms without any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, the Veteran was not competent to diagnose his symptoms as a specific disease, nor was he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise; the Appellant also does not have the expertise to render diagnosis or etiology of the Veteran’s liver condition. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board affords more probative weight to the January 2021 VA examiner’s opinion than the Veteran’s and Appellant’s own contentions, and there are no medical opinions to the contrary. The Board has considered the doctrine of giving the benefit of the doubt under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that the Veteran’s liver condition was caused or aggravated by asbestos exposure and/or a respiratory disorder, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for liver condition, to include as due to asbestos exposure and/or secondary to the Veteran’s respiratory disorder is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.