Citation Nr: 21025669 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-39 979 DATE: April 28, 2021 ORDER Entitlement to service connection for a liver condition, to include fatty liver, is denied. FINDINGS OF FACT 1. The Veteran has not been diagnosed with a presumptive condition, to include cirrhosis of the liver, during the pendency of the appeal. 2. The symptoms of a liver condition, to include fatty liver, did not manifest to a compensable degree within the applicable time limits following active duty service. 3. The Veteran’s liver condition did not incur in service, nor is it otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a liver condition, to include fatty liver, have not been met. 38 U.S.C. §§ 101, 106, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 3.317, 4.3, 4.114. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1990 to October 1990, November 1990 to August 1991, December 1991 to May 1992, and April 2011, which includes service in the Southwest Asia theater of operations. In addition, the Veteran had military service in the Army National Guard, both active duty for training and inactive duty for training. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran participated in an April 2019 Washington, DC Central Office Board hearing and a February 2021 Board Videoconference hearing. Both hearing transcripts are associated with the claims file. This issue was previously remanded in July 2019 for further development, to include “a VA medical opinion as to the likelihood that the Veteran’s fatty liver may be due to obesity secondary to his service-connected disabilities.” See July 2019 BVA Decision. The matter was remanded again in May 2020 for further development, to include “an addendum VA medical opinion to address the nature and origin of the Veteran’s fatty liver.” See May 2020 BVA Decision. The appeal has been returned to the Board for further action. 1. Entitlement to service connection for a liver condition, to include fatty liver The Veteran contends that he “experienced events” for a fatty liver condition while on active duty in El Salvador. See January 2014 VA Form 21-0958, Notice of Disagreement and April 2015 VA Form 21-0820, Report of General Information. The Veteran also contends that he is not “symptomatic right now” but would “like to have it service-connected in case there’s issues down the road.” See April 2019 Washington, DC Central Office Board hearing transcript. Finally, the Veteran contends that his liver condition is the result of “Gulf War Syndrome” and “was caused by exposure to these (Iraq burn pit and Fort Leonard Wood TCE) toxins.” See August 2016 VA Form 9, Substantive Appeal and February 2021 Board Videoconference hearing transcript. Duty to Notify and Assist VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a). The duty to notify was satisfied by VCAA / DTA Letter dated October 2012 and 5013 / DTA Letter dated October 2015. See also December 2013 Rating Decision Narrative and Notification Letter, June 2016 Statement of the Case, September 2019 and February and August 2020 Supplemental Statements of the Case, and May 2020 Subsequent Development Letter. VA’s duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA’s assistance to the Veteran, the entire record was available to the December 2012, March 2014, August 2019 and June 2020 medical examiners, Gulf War and Liver Conditions examinations were performed, and the testing was sufficient to adequately address all potential rating criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. §§ 3.385, 4.87. Any defects in the January 2019 VA Liver Conditions examination was cured by the June 2020 examination. See July 2019 and May 2020 BVA Decisions. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) to assist the Veteran. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. See April 2019 Washington, DC Central Office Board hearing transcript (“Dr. B. never gave an opinion on [fatty liver], and I don’t know why he did not”), May 2020 Subsequent Development Letter (“identify any private treatment records so that we may request them on your behalf”), and February 2021 Board Videoconference hearing transcript (“I went on the internet and found a bunch of EPA data for [Fort Leonard Wood] which I can add to the file as well”). All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. The RO’s efforts have substantially complied with the instructions contained in the July 2019 and May 2020 Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Service Connection Generally, to qualify for VA benefits, a claimant must be a Veteran. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (holding that status as a “Veteran” is one of the five elements of a claim for service connection benefits). “Veteran” is defined as, “[A] person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” See 38 U.S.C. § 101(2). For members of the Army National Guard, active duty for training is, “[F]ull-time duty under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.” Inactive duty training is “[D]uty (other than full-time duty) under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.” See 38 U.S.C. § 101(22)(C), (23)(C). While service on active duty alone is sufficient to meet the statutory definition of a “Veteran,” active duty for training (or inactive duty training), without more, is not enough to confer “Veteran” status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). A Veteran is entitled to compensation for a disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To establish service connection, evidence 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167) (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of renal pathology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Although the credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, it is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). For chronic diseases defined as such under 38 C.F.R. § 3.309(a), the evidentiary requirements for establishing entitlement to service connection benefits are less stringent. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Chronic diseases listed under 38 C.F.R. § 3.309(a) that manifest either during active service or to a compensable degree within the applicable time limits of 38 C.F.R. § 3.307(a) are sufficient to establish in-service incurrence or aggravation. When a chronic disease is established during active service, subsequent manifestations, however remote, are entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b). If the evidence is not sufficient to establish that the disease was chronic at the time of service, then a continuity of symptoms after service must be shown, which is a distinct and lesser evidentiary burden than the nexus element of the above three-part test. See Walker, 708 F.3d at 1338. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” Walker, 708 F. 3d at 1338-39. When entitlement to a regulatory presumption of service connection for a specific disability is not found, a claim must nevertheless be reviewed to determine whether service connection can be established on another basis. Combee v. Brown, 34, F. 3d 1039, 1044 (1994). Service connection is also warranted for disabilities that are proximately due to, or aggravated, by service-connected disease or injury. 38 C.F.R. § 3.310. To establish service connection on a secondary basis, the record must reflect sufficient evidence to show: (1) that a current disability exists; and (2) the current disability was either (a) proximately caused by or (b) aggravated by a service-connected disability. Presumptive service connection can satisfy both the elements of an in-service event and a nexus to military service. Presumptive service connection can also be granted for those diseases listed under 38 C.F.R. § 3.309(b)-(f), and for Veterans who served in the Southwest Asia theater of operations, diseases listed under 38 C.F.R. § 3.317. Factual Background As mentioned previously, the Veteran served in the Southwest Asia theater of operations during portions of 1991. See August 1991 DD214, Certificate of Release or Discharge From Active Duty. During a medical examination in April 1991, the Veteran demonstrated “Normal Abdomen and Viscera,” with the notation “No problems on deployment” written on his examination report. See April 1991 Report of Medical Examination. On his self-evaluation, completed on the same date, the Veteran wrote, “I am in good health.” The Veteran also denied “Stomach, Liver, or intestinal trouble.” See April 1991 Report of Medical History. Upon his return from deployment in Southwest Asia, the Veteran completed an Occupational Hazards questionnaire. The questionnaire contained the following information: “Date entered theater of operations: (January 1991). Date departed theater of operations: (August 1991). Were you exposed to oil fires or oil fumes? No.” See August 1991 Health Record – Chronological Record of Medical Care – Questionnaire on Occupational Hazards for Soldiers Returning from Southwest Asia. In March 1994, more than 2 years after his active duty in Southwest Asia, the Veteran was examined again, demonstrating “Normal Abdomen and Viscera” and “no significant interval history.” See March 1994 Report of Medical Examination. In a self-evaluation, completed on the same date, the Veteran again denied “Stomach, Liver, or intestinal trouble.” See March 1994 Report of Medical History. Lab reports dated April 2007 documented “Liver enzymes somewhat elevated” and “low fat diet helps the liver!” See April 2007 Campus Town Family Practice General Lab Report. An ultrasound report in January 2009 documented the following: “Examination: Ultrasound of the liver including bile ducts. Comparison: None. Clinical History: Elevated liver enzymes. Liver: Significantly echodense, normal size…Echodense liver can represent either fatty infiltration or steatohepatitis. Ultrasound cannot differentiate between the two. Impression: Fatty liver. Fatty liver typically goes along with increased lipids and overweight. Let’s follow Alanine Transaminase (ALT) / Aspartate transaminase (AST). Continue to encourage him to lose weight then exercise.” See January 2009 Campus Town Family Practice Ultrasound Report. A May 2012 private treatment note recorded, “Physical Examination: Abdomen: Obese, soft, and nontender, No liver, spleen, or masses.” See May 2012 Gateway Medical Center History and Physical. Another private treatment record from September 2012 notes, “Past Medical History…Fatty Liver.” See September 2012 Covenant Family Practice Health Summary. The Veteran participated in December 2012 Gulf War and Liver Conditions VA medical examinations. The purpose of the Gulf War medical examination was to “Identify all systems / areas for any conditions the Veteran has claimed as secondary to Southwest Asia exposure or that could represent ‘undiagnosed illness’ or ‘diagnosed medically unexplained chronic multi-symptom illnesses.’” The examiner noted a “Normal (Physical Examination), except as noted on additional Questionnaires included as part of this report.” See December 2012 VA Gulf War General Medical Examination report. Included on the list of additional (Disability Benefit) Questionnaires was “Liver conditions, including hepatitis and cirrhosis,” a condition for which the Veteran was seeking service connection. See October 2012 VA Form 21-4138, Statement in Support of Claim (“Please accept this as a request to initiate the following claims: * Liver, Fatty Liver”). Under “Remarks, if any,” the examiner included, “Conditions with a clear and specific etiology and diagnosis are the lower back condition, left ankle condition, pulmonary embolism, deep vein thrombosis and fatty liver disease [sic] which are at least as likely as not caused by or incurred during service time in Southwest Asia.” See December 2012 VA Gulf War General Medical Examination report. A VA Liver Conditions examination was completed on the same date at the Gulf War VA examination. The Veteran was diagnosed with “Fatty Liver.” The examiner noted the statements of the Veteran, including the fact that he was diagnosed “in between service,” in approximately 2009. The Veteran also reported that he was having his liver enzymes tested about once per year, and his lab work is currently “normal.” Finally, the Veteran added that he gained “60 pounds since April (2012).” See December 2012 VA Hepatitis, Cirrhosis and other Liver Conditions examination report. At the December 2012 VA Liver Conditions examination, the Veteran was not diagnosed with, nor did he have signs or symptoms of, a chronic or infectious liver disease, including hepatitis C, cirrhosis, biliary cirrhosis, and cirrhotic phase of sclerosing cholangitis. No injury to the liver was documented. No incapacitating episodes were noted by the examiner or reported by the Veteran. No continuous medication was required to control the liver condition. The Veteran was not listed as a candidate for liver transplant. No other pertinent physical findings or complications were noted. The December 2012 examiner noted the endoscopic ultrasound completed in January 2009, which revealed an “echodense liver.” ALT enzymes taken during the examination were slightly elevated (70 units per liter of serum), but AST, Alkaline phosphatase, and Bilirubin were normal. The examiner reported that the Veteran’s fatty liver condition had an impact on the Veteran’s ability to work but stated, “[I]f fatigue is part of the issue, then [sic] would be difficult to discern.” See December 2012 VA Hepatitis, Cirrhosis and other Liver Conditions examination report. In a May 2012 private physical examination, the examiner found: “Abdomen: Obese, soft, and nontender, No liver, spleen, or masses.” See May 2012 Gateway Medical Center History and Physical. A November 2013 CT scan revealed, “Findings…The liver, spleen, adrenal glands, kidneys, pancreas and loops of small bowel appear normal.” See November 2013 Abdomen and Pelvis CT With Contrast. A March 2014 VA Gulf War examination noted medical history for the Veteran as “Digestive and abdominal wall” and recommended an “Intestinal Conditions (other than Surgical and Infectious)” examination. No additional signs or symptoms, including liver conditions, were observed by the examiner or reported by the Veteran. See March 2014 VA Gulf War General Medical Examination report. A May 2015 CT demonstrated, “Liver: There is diffuse mild fatty infiltration of the liver…Impression: Mild fatty liver.” See May 2015 VA Chest, Abdomen & Pelvis CT. An additional CT in December 2015 detailed, “The liver, gallbladder, pancreas, spleen and the bilateral adrenal glands appear unremarkable.” See December 2015 OHRH Health Abdomen and Pelvis CT With Contrast. In a May 2018 nutrition appointment, notes revealed: “Assessment…Morbid obesity…Nutrition Diagnosis: Morbid Obesity. Related to / Etiology: excessive caloric intake, sedentary lifestyle. As Evidenced By / Signs and Symptoms: 3800 calorie estimated intake per food recall.” See May 2018 VA Nutrition Note. A CT taken in September 2018 described, “Liver, gallbladder, biliary system, pancreas, and spleen: Unremarkable.” See September 2018 VA Abdomen & Pelvis CT. Because the December 2012 VA medical examination was inadequate (See July 2019 BVA Decision), an additional examination was performed in August 2019. An in-person examination was performed, and the claims file was reviewed in preparation for the evaluation. The Veteran was diagnosed with “fatty liver.” The examiner considered the statements of the Veteran, including the fact that he was diagnosed with fatty liver in January 2009 after having an ultrasound through a private treatment provider. The Veteran also stated that he was not taking any medication or having any difficulty due to a liver condition. See August 2019 VA Hepatitis, Cirrhosis and other Liver Conditions examination report. No signs or symptoms attributable to a chronic or infectious liver disease, including hepatitis C, cirrhosis of the liver, biliary cirrhosis, and cirrhotic phase of sclerosing cholangitis, were present. No incapacitating episodes were reported by the Veteran. The Veteran was not considered a liver transplant candidate. No other pertinent physical findings or complications were reported by the Veteran or noted by the examiner. Lab studies of enzymes were normal. The Veteran reported no functional impact on his ability to work due to a liver condition. The examiner noted the September 2018 Abdomen and Pelvis CT scan which found the Veteran’s liver to be “[u]nremarkable.” See August 2019 VA Hepatitis, Cirrhosis and other Liver Conditions examination report. In prefacing her medical opinion, the August 2019 examiner explained: “The etiology of fatty liver disease is multifactorial and the most common liver disorder in Western industrialized countries. Factors associated with (Non-alcoholic Fatty Liver Disease) include the male sex, increasing age, and the presence of systemic hypertension, obesity, or diabetes. However, the most recent CT scan of the abdomen dated (September 2018) and liver testing (in August 2019) are all normal, therefore, there is no current diagnosis of fatty liver disease.” See August 2019 VA Hepatitis, Cirrhosis and other Liver Conditions examination report. Adding to her introductory remarks on the topic, the August 2019 examiner continued: “According to UpToDate: ‘Non-alcoholic Fatty Liver Disease is seen worldwide, (with) a reported prevalence of 6 to 35 percent…In the United States, studies report a prevalence of Non-alcoholic Fatty Liver Disease of 10 to 46 percent, with most biopsy-based studies reporting a prevalence of Non-alcoholic Steatohepatitis of 3 to 5 percent. In a prospective study of 400 U.S. military personnel and their families (mean age 55 years), the prevalence of Non-alcoholic Fatty Liver Disease by ultrasound was 46 percent. Factors associated with Non-alcoholic Fatty Liver Disease included the male sex, increasing age, and the presence of systemic hypertension, obesity, or diabetes. In a population-based sample that included 2133 subjects from the U.S. who reported moderate or no alcohol intake, hepatic steatosis was present in 30 and 32 percent (of participants), respectively…In the U.S., the prevalence of Non-alcoholic Fatty Liver Disease has been increasing over time. This increase was demonstrated in a comparison of three cycles of the National Health and Nutrition Examination Survey: Between 1988 and 1994, the prevalence of Non-alcoholic Fatty Liver Disease was 5.5 percent. Between 1999 and 2004, it was 9.8 percent. Between 2005 and 2008, it was 11 percent, accounting for 47, 63, and 75 percent of chronic liver disease during those time periods, respectively.’” See August 2019 VA Hepatitis, Cirrhosis and other Liver Conditions examination report. Regarding service connection, the August 2019 VA examiner concluded: “The claimed condition is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service-connected condition.” In addition, the examiner stated, “As the Veteran has multiple risk factors, including gender, increasing age, and diabetes, as well as obesity, it would not be possible to determine the etiology of the Veteran’s previous diagnosis of fatty liver disease, but it is less likely than not caused by his service-connected disabilities.” See August 2019 VA Hepatitis, Cirrhosis and other Liver Conditions examination report. In formulating her opinion, the August 2019 VA examiner reasoned: “There is no medical evidence that the Veteran’s service-connected disabilities caused him to become obese. The available medical records and (Service Treatment Records) are reviewed. Many factors contribute to the development of obesity over time. Among the behavioral, medical, and socioeconomic factors, lifestyle and diet are the most impactful. The most likely etiology of the Veteran’s obesity is consuming more calories than needed causing weight gain. According to UpToDate: ‘A sedentary lifestyle lowers energy expenditure and promotes weight gain. In an affluent society, energy-sparing devices in the workplace and at home reduce energy expenditure and may enhance the tendency to gain weight. Of all sedentary behaviors, prolonged television (TV) watching appears to be the most predictive of obesity and diabetes risk. The effects of TV on obesity are mediated, in part, by changes in energy intake, rather than changes in physical activity alone. Excess intake of calories from any source, associated with a sedentary lifestyle, causes weight gain and obesity. Diets high in partially hydrogenated fats, red or processed meats, refined carbohydrates, and sugar are associated with weight gain, whereas intake of vegetables, whole grains, yogurt, fruits, and nuts are not.’” See August 2019 VA Hepatitis, Cirrhosis and other Liver Conditions examination report. The May 2020 Board decision asked for an addendum opinion “to address the nature and origin of the Veteran’s fatty liver.” See May 2020 BVA Decision. The same examiner who completed the August 2019 report was used to address the topic of etiology. The June 2020 examiner reviewed the claims file and stated the following: “The condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness.” See June 2020 VA Hepatitis, Cirrhosis and other Liver Conditions addendum opinion. In curing any perceived deficiencies in the August 2019 medical opinion, the examiner clarified: “There is no medical evidence that the Veteran has a diagnosis (of) fatty liver that had its onset in-service or is otherwise related to his active service, to include his service in the Southwest Asia Theater of Operations. The available medical records as well as the (May 2020) BVA remand are reviewed. The Veteran does not have a current diagnosis of fatty liver. The Veteran had a diagnosis of fatty (liver) in (January) 2009 which has resolved. The Veteran is noted to have had a CT scan of the abdomen (in May 2015) [sic] which showed mild diffuse fatty infiltration of the liver; however, the CT of the abdomen (in September 2018) notes the liver to be normal. The CT scan of the abdomen (in December 2019) from the VAMC notes a normal liver. The liver testing performed at the VAMC (in December 2019) is noted to be normal as well. Fatty liver is not a condition noted to be caused by military service or Southwest Asia exposure.” See June 2020 VA Hepatitis, Cirrhosis and other Liver Conditions addendum opinion. An August 2020 telephone consultation noted, “Veteran is taking Warfarin and Vitamin D...he must give a four hour window period between taking Orlistat and his Warfarin and Vitamin D to prevent interaction...We will also monitor his liver enzymes while he is taking Orlistat [sic] as they are mildly increased as of now.” See August 2020 VA Home Telehealth Consult Addendum. Analysis Contemporaneous medical evidence has greater probative value than the Veteran’s reports of history. See Curry v. Brown, 7 Vet. App. 59 (1994). The contemporaneous medical evidence of record demonstrates: 1) no evidence of a liver condition in April 1991 medical examination and self-evaluation reports; 2) no exposure to oil fires or oil fumes in Southwest Asia; 3) no evidence of a liver condition in March 1994 medical examination and self-evaluation reports; 4) no evidence of complaints, diagnosis, or treatment for a liver condition in service medical records, including elevated liver enzymes or a fatty liver; 5) a definitive diagnosis of fatty liver on January 23, 2009; 6) a May 24, 2012 physical examination and November 15, 2013 CT suggesting the fatty liver condition was resolved; 7) a May 20, 2015 CT indicating a “Mild fatty liver;” and 8) a December 2015 CT revealing an “unremarkable” liver. See April 1991 Reports of Medical Examination and History, August 1991 Health Record – Chronological Record of Medical Care – Questionnaire on Occupational Hazards for Soldiers Returning from Southwest Asia, March 1994 Reports of Medical Examination and History, January 2009 Campus Town Family Practice Ultrasound Report, May 2012 Gateway Medical Center History and Physical, November 2013 Abdomen and Pelvis CT With Contrast, May 2015 VA Chest, Abdomen & Pelvis CT, and December 2015 OHRH Health Abdomen and Pelvis CT With Contrast. The diagnosis of “fatty liver” appears to have resolved at some point after May 2015. However, the service connection requirements related to a “current diagnosis” have been interpreted by the courts as needing only existed at some point during the relevant appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that when the record contains a recent diagnosis of a disability prior to a claim for benefits, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). As previously determined by the Board, “the Veteran’s fatty liver is considered a current diagnosis for VA compensation purposes.” See May 2020 BVA Decision. Therefore, the first element of service connection is established. The Veteran has offered several competing theories regarding an in-service event, the second element of service connection. First, the Veteran contends that he was exposed to TCE (Trichloroethylene) at Fort Leonard Wood and fumes from burn pits in Southwest Asia, which resulted in “liver disease.” See February 2021 Board Videoconference hearing transcript. The Veteran has never been diagnosed with liver disease. Further, the Veteran provided a statement upon his return from active duty in Southwest Asia that he was not “exposed to oil fires or oil fumes,” which would necessarily include fuel used in burn pits. See August 1991 Health Record – Chronological Record of Medical Care – Questionnaire on Occupational Hazards for Soldiers Returning from Southwest Asia. Also, the Veteran has provided no evidence of TCE chemicals present at Fort Leonard Wood, how he was potentially exposed to any such chemicals, and what link, if any, exists between any TCE exposure and a fatty liver condition. Second, the Veteran contends that his fatty liver “started [in El Salvador].” See January 2014 VA Form 21-0958, Notice of Disagreement and April 2015 VA Form 21-0820, Report of General Information. While the Veteran was in fact on active duty under Title 10 from April 9 – 23, 2011, he has provided no evidence of complaint, diagnosis, or treatment for any liver condition, including elevated liver enzymes or fatty liver. See April 2011 Department of the Army and the Air Force Joint Force Headquarters, Tennessee National Guard Orders 091-031. The medical evidence of record places a definitive date of manifestation of liver symptoms of January 23, 2009, more than 2 years before the Veteran contends his fatty liver “started in [El Salvador].” See January 2009 Campus Town Family Practice Ultrasound Report. Third, the Veteran contends that his fatty liver is the result of “Gulf War Syndrome.” See August 2016 VA Form 9, Substantive Appeal. Under 38 C.F.R. § 3.317(b), “The following list of signs and symptoms may represent an ‘undiagnosed illness’ or ‘diagnosed medically unexplained chronic multi-symptom illness’ for which a Gulf War Veteran may be presumptively service-connected: Fatigue, Signs or symptoms involving the skin, Headache, Muscle pain, Joint pain, Neurological signs and symptoms, Neuropsychological signs or symptoms, Upper or lower respiratory system signs or symptoms, Sleep disturbances, Gastrointestinal signs or symptoms, Cardiovascular signs or symptoms, Abnormal weight loss, Menstrual disorders.” See 38 C.F.R. § 3.317(b). The Board notes that digestive conditions, including conditions of the liver, are not included on this list. Cirrhosis of the liver is a chronic disease under 38 C.F.R. § 3.309(a), and when a chronic disease is shown in service, “subsequent manifestations of the same chronic disease at any later date, however remote, are service connected.” 38 C.F.R. § 3.303(b) (2017). The Board notes the distinction between a diagnosis of fatty liver and a diagnosis of cirrhosis of the liver. While the Veteran reported that he “experienced events” for fatty liver, there is no documentation of a liver condition in-service, or within the applicable presumptive period after service. See 38 C.F.R. § 3.307. Assuming arguendo that the Veteran was able to establish a factual basis for an in-service incurrence, he would still have to demonstrate an etiology between fatty liver and a chronic disease listed in 38 C.F.R. § 3.309(a), which he has not done. Continuity of symptomatology is required under 38 C.F.R. § 3.303(b), “where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.” Symptoms of a liver condition were first documented by the Veteran in April 2007 lab results with elevated liver enzymes, nearly 15 years after his most recent active duty service. See April 2007 Campus Town Family Practice General Lab Report. A diagnosis of fatty liver was not made until January 2009, almost 17 years after his most recent active duty service. See January 2009 Campus Town Family Practice Ultrasound Report. Statements by the Veteran: 1) “I experienced events for all of the above while on active duty (See January 2014 VA Form 21-0958, Notice of Disagreement);” 2) “A lot of [my] disabilities started [in El Salvador] (See April 2015 VA Form 21-0820, Report of General Information);” and 3) “[I]t was caused by exposure to these (Iraq burn pit and TCE) toxins (See February 2021 Board Videoconference hearing transcript)” are not a sufficient “showing of continuity after discharge” required to support the claim. See 38 C.F.R. § 3.303(b). Assuming arguendo that the Board interpreted any of the aforementioned statements to indicate that his fatty liver condition continued since active duty service, an actual diagnosis of fatty liver or elevated liver enzymes requires objective, medical testing to determine whether it is severe enough to be considered a disability for VA compensation purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The first medical record to suggest a liver condition, i.e., elevated liver enzymes, in the Veteran arrived in a private examination in April 2007, nearly 15 years after active duty service. See April 2007 Campus Town Family Practice General Lab Report. The Veteran does not meet the requirements for presumptive service connection, either by diagnosis in-service or within the prescribed time limits after service, namely the lack of diagnosis of cirrhosis of the liver, or through continuity of symptomatology, evidenced by a 15 year period without signs or symptoms a liver condition, raising a legitimate question of chronicity. Therefore, he is not entitled to the presumption of an in-service incurrence, aggravation in-service, or nexus to service. See 38 C.F.R. §§ 3.303, 3.307, and 3.309. The Board will assess the merits of the third element of service connection, a nexus between a diagnosis and an in-service event or illness in order to address the Veteran’s contentions of exposure to burn pits in Southwest Asia. Despite the fact that the Veteran explicitly denied any such exposure in August 1991 (See August 1991 Health Record – Chronological Record of Medical Care – Questionnaire on Occupational Hazards for Soldiers Returning from Southwest Asia), he provided sworn testimony in February 2021 of “exposure to these toxins.” See February 2021 Board Videoconference hearing transcript. Since the December 2012 VA medical examiner took the initiative to offer a medical opinion in the Gulf War examination, she was obligated under 38 C.F.R. § 4.2, 38 C.F.R. § 4.70, and Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) to provide a factually accurate, fully articulated, soundly reasoned basis for the medical conclusion regarding service connection. Because she did not do so, the opinion is of no probative value, and the examination is considered inadequate for VA rating purposes. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; July 2019 BVA Decision. The August 2019 and June 2020 VA examiner did not find any connection, direct, secondary, or intermediary, between the Veteran’s fatty liver and active duty service. She specifically excluded “Southwest Asia exposure” as a cause of fatty liver. Moreover, she listed several risk factors, including gender, age, a diagnosis of diabetes, and obesity, for the development of fatty liver disease. The Veteran has every risk factor listed by the examiner. See September 2012 Covenant Family Practice Health Summary and April 2007 Campus Town Family Practice General Lab Reports. Further, the examiner stated that the Veteran’s fatty liver was not proximately caused by his service-connected conditions. The Veteran informed the examiner that he was not taking any medication. The examiner concluded that the Veteran’s service-connected disabilities, which includes their medications, did not cause him to become obese. Without pinpointing an exact cause for the Veteran’s fatty liver, the examiner stated that lifestyle and diet, i.e., consuming more calories than needed, was the most likely etiology of the Veteran’s obesity. See August 2019 and June 2020 VA Hepatitis, Cirrhosis and other Liver Conditions examination reports. Conclusion In summary, the Veteran’s service treatment records do not contain any complaints, treatment, or diagnosis of fatty liver, and the Veteran’s clinical and self-evaluations in service do not reflect any findings or complaints for liver conditions. The absence of in-service evidence of a liver condition is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). However, the Veteran’s medical records do not show any treatment for a liver condition until April 2007. Aside from lay statements, no evidence of service connection was provided by the Veteran, who admitted that the condition developed almost 15 years after his most recent deployment and 2 years before another deployment. The greater weight of the evidence is against a finding of elements two and three for service connection, an in-service event and a nexus between his current diagnosis and an in-service event or injury. The Veteran alleges injury to his liver while in-service. The question of whether the Veteran’s fatty liver is related to his active service falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Opining on the etiology of a liver condition requires the expertise of a medical professional, particularly when there has been a significant passage of time without any documentation of symptomatology. While the Veteran can report symptoms that he experiences, he does not have the necessary training to offer medical opinions. There is no evidence of a liver condition and nexus to service, which was adequately addressed in the VA examinations. The August 2019 and June 2020 VA medical opinions are the most probative evidence of record on the question of diagnosis and nexus to service. The opinions were based on an extensive review of all of the evidence, including, but not limited to, statements from the Veteran, the August 1991 and March 1994 service treatment records, and the Veteran’s risk factors for fatty liver, were supported by a detailed rationale, citing applicable research, provided data to support any conclusions, including lab and imaging studies, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The August 2019 and June 2020 VA examiner opinions are consistent with one another and the evidence of record, including the Veteran’s statement that he was diagnosed “in between service” with fatty liver “in January 2009.” Factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The guiding factors in evaluating the probative value of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These standards are met in the August 2019 and June 2020 VA examinations. The August 2019 and June 2020 VA examiner opinions provide compelling evidence against the Veteran’s claim for service connection. The Veteran contends that his claimed disability exists and is related to his active service. This opinion is of no probative value, because he lacks the medical expertise needed to diagnose a liver condition or to attribute it to active military service. There is no competent, credible evidence to refute the VA examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran’s liver condition is causally or etiologically related to any disease, injury, or incident, in service. Consequently, service connection is not warranted. (Continued on the next page) Finally, a clear preponderance of the evidence of record indicates the Veteran does not meet the criteria under 38 C.F.R. § 4.114 for entitlement to service connection for a liver condition. Therefore, his claim must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.