Citation Nr: 21028946 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 11-24 159 DATE: May 12, 2021 ORDER Entitlement to service connection for a liver disorder, to include stage IV liver disease, nonalcoholic steatohepatitis (NASH), hepatocellular carcinoma and cirrhosis, is denied. FINDING OF FACT The Veteran's liver disorder was not manifested in service or for many years thereafter and is not shown to be related to his service, including exposure to herbicide agents and/or the use of medications and immunizations during active duty. CONCLUSION OF LAW The criteria for service connection for a liver disorder, to include stage IV liver disease, NASH, hepatocellular carcinoma and cirrhosis are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from October 1968 to October 1976 and again from October 1982 to July 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2017, April 2018 and June 2020, the Board remanded the case for additional development. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995 Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303 (a). Additionally, VA regulations state that certain diseases associated with exposure to toxic herbicide agents maybe presumed to have been incurred in service even if there is no evidence of the disease in service, provided that the requirements of 38 C.F.R. § 3.307 (a)(6) are met. See 38 C.F.R. § § 3.309 (e). Pursuant to 38 C.F.R. § 3.307 (a)(6), a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Notably, these were the key compounds found in the tactical herbicide agents used during that time, with "Agent Orange" being the most common. Service connection is warranted for the following diseases where a veteran has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)): AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. In fact, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309 (e). 1. Entitlement to service connection for a liver disorder is denied. The Veteran contends that he is entitled to service connection for a liver disorder, to include stage IV liver disease, NASH, hepatocellular cancer and cirrhosis. He argues that his liver disorder was due to his exposure to herbicide agents and/or is the result of medication and immunizations required while in service. The Board first received this claim in January 2010. As an initial matter, the Veteran is presumed to have been exposed to herbicide agents as the evidence shows that he served in the Republic of Vietnam. Significantly, the Veteran has not been diagnosed as having any of the disabilities for which presumptive service connection may be granted based on exposure to herbicide agents under 38 C.F.R. §§ 3.307 and 3.309. Next, although the Veteran's liver disorder is not entitled to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309, the Veteran is not precluded from establishing service connection for them with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, as discussed below, the Board concludes that although the Veteran has been diagnosed with liver disorders, the preponderance of the probative evidence weighs against finding that any of them began during service or are otherwise etiologically related to service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304. Initially, the Board finds that the service treatment records fail to document that a liver disorder was incurred in or is related to active duty. The records are silent as to complaints of, diagnosis of or treatment for any liver disorders. Clinical examinations of the abdomen and viscera were determined to be normal. No complaints recorded during active duty by health care professionals were interpreted as being linked to a liver disorder. The post-service evidence also does not indicate that the Veteran has experienced continuous symptoms related to a liver disorder. In a letter dated in January 2010, he wrote that he started experiencing pain in the abdominal area in 2006. He sought treatment and was informed that he had an enlarged spleen, gall stones and liver issues. He has not alleged that he has had liver symptoms from discharge to the present. There is no medical evidence indicating that the Veteran had had liver symptoms from discharge until the present. No health care professional is on record as indicating the Veteran has a liver disorder which was present during the appeal period which is linked to his active duty service on a direct basis. The Veteran argues that his liver disorder is due to exposure to toxins while on active duty including herbicide agents and medication and immunizations. Significantly, there is no competent medical evidence which addresses the Veteran's personal history and links liver disease to active duty via this history. No health care professional has directly opined that the Veteran current has liver disease due to active duty. In support of his claim, the Veteran has submitted the results of medical research he has conducted which includes medical treatises. He has also advanced his opinion that he has a liver disorder due to active duty. In May 2010, the Veteran submitted an article about nonalcoholic steatohepatitis (NASH). In the Veteran's August 2010 notice of disagreement, the Veteran disagrees with the VA examiner's opinion that his NASH was caused by obesity and high cholesterol as he has never been diagnosed to have this. In addition, the Veteran cited to a website indicating that the underlying cause is not clear in NASH. Some who are diagnosed with NASH are not obese, do not have diabetes, and have normal blood cholesterol and lipids. NASH can occur without any apparent risk factor and can even occur in children. Thus, NASH is not simply obesity that affects the liver. Additionally, this website indicates that liver disease can take years, even decades to develop and progress to cirrhosis. In April 2011, the Veteran submitted an article indicating that herbicide agents are linked to liver damage. In September 2011, the Veteran submitted a series of articles that links herbicide agents to liver damage. The first is an Occupational Safety and Health Administration full report indicating that the Veteran was exposed to herbicides that targeted the liver organs. The Veteran also submitted an herbicide spray map indicating that he was exposed to herbicide agents. He submitted a health effects of dioxins article indicating that the dioxins cause damage to the liver. He submitted another article indicating that the government might learn of a Dow study showing that dioxin caused severe liver damage in rabbits. The Veteran submitted an Agent Orange information package indicating that this links to liver damage and having tender liver chloracne symptoms. The Veteran submitted a "Jonathan Campbell, health consultant" article that links dioxin to causing liver disease. The Veteran submitted an article, "Weapons of mass destruction: The case of Agent Orange," that again links herbicide agents to liver disease. The Veteran submitted scientific facts on dioxins indicating that dioxin exposure has increased risk for all cancers, with a longer duration and longer latency and links dioxins to liver disease. Lastly, the Veteran submitted an article, "The effects of Agent Orange and its consequences," indicating that agent orange causes hepatic disorders. The Board notes that a treatise "can provide important support when combined with an opinion of a medical professional" if the treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus). Here, the treatise information does not specifically relate to the facts and circumstances surrounding this particular case. No article pertains specifically to this Veteran and the articles are not combined with any opinion of a medical professional. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Thus, this information, alone, is of very little probative value. There is competent evidence which weighs against a finding that the Veteran has a liver disorder during the appeal period which is linked to active duty service. Several VA examinations were conducted to determine if there was such a link. In October 2017, the Veteran was afforded a VA examination for his liver condition where he was diagnosed with liver cancer and stage IV nonalcoholic steatohepatitis liver disease. The examiner opined that the liver condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner also opined that he is unable to establish a connection between NASH and exposure to herbicides used in Vietnam, nor has the herbicide agents aggravated the condition beyond its normal progression. As rationale, the examiner noted that upon his review of available literature that there were short term and long term effects of herbicide exposure. Short term examiner effects were prominently represented by a rash. The examiner noted there was no evidence of the presence of a rash within one year of exposure to herbicide agents in the medical records. The examiner found it well documented that the Veteran has NASH and noted that a search did not reveal medical literature linking the disorder to herbicide exposure or that herbicide exposure has aggravated the current NASH condition. The examiner concluded that the Veteran retired in 1998 and the first date it was established there were liver abnormalities was 2006 which was 8 years after the Veteran's retirement and 34 years after exposure to herbicides. In September 2019, the Veteran was afforded another VA examination for his liver condition. The Veteran was diagnosed with cirrhosis and hepatocellular carcinoma, in remission. The examiner opined that there is insufficient evidence and no VA presumption that he was aware of connecting agent orange exposure and hepatocellular carcinoma. It is therefore less likely than not incurred in or caused by the claimed in-service injury. In August 2020, an addendum opinion was obtained to address the etiology of his liver condition. The examiner opined that the liver condition was less likely than not incurred in or caused by the claimed in-service injury. As rationale, the examiner noted that there was insufficient medical evidence to establish a nexus or causal relationship between herbicides, dioxins, agent orange, previously prescribed medications/immunizations and the development of the claimed stage IV liver disease, non-alcoholic steatohepatitis, hepatocellular carcinoma, or cirrhosis. The liver cirrhosis was most likely caused by non-alcoholic liver disease. The hepatocellular carcinoma was most likely caused by the liver cirrhosis. The non-alcoholic liver disease was more likely caused by obesity or sedentary lifestyle rather than agent orange exposure/dioxin exposure. The examiner noted that there are numerous treatises reviewed positing a possible association but there is not sufficient evidence to establish causality between agent orange and non-alcoholic fatty liver disease and thus secondary cirrhosis or hepatocellular carcinoma. In October 2020, another addendum opinion was obtained. The examiner found a negative etiology regarding aggravation. As rationale, the examiner addressed the evidence submitted by the Veteran. The examiner stated that each piece of the provided list of evidence (the medical treatises) is either anecdotal or correlational and this level of evidence is insufficient to establish causality or to draw meaningful conclusions. First, the pathophysiology of non-alcoholic liver disease is the most well-established risk factor for cirrhosis in this Veteran's particular case. The weight and quality of this evidence greatly outweighs the weaker evidence provided in the above list of evidence. Cirrhosis was historically classified morphologically as micronodular, macronodular, or mixed. Micronodular cirrhosis, characterized by nodules less than 3 mm in diameter, was believed to be caused by alcohol, hemochromatosis, cholestatic causes of cirrhosis, and hepatic venous outflow obstruction. Macronodular cirrhosis, characterized by various sized nodules larger than 3 mm, was believed to be secondary to chronic viral hepatitis. Although important from a historic perspective, the morphological classification system has a number of limitations and has thus largely been abandoned. First, it is relatively nonspecific with regard to etiology. Second, the morphologic appearance of the liver may change as the liver disease progresses; micronodular cirrhosis usually progresses to macronodular cirrhosis. Third, serological markers available today are more specific than morphological appearance of the liver for determining the etiology of cirrhosis. As an example, antimitochondrial antibodies have a specificity of 98 percent for primary biliary cholangitis. Finally, accurate assessment of liver morphology can only be achieved at surgery, laparoscopy, or autopsy, while in today's clinical practice there are less invasive means to make an etiologic diagnosis. Secondly, the pathophysiology of liver cirrhosis is the most well-established risk factor for hepatocellular carcinoma in this Veteran's particular case. The weight and quality of this evidence greatly outweighs the weaker evidence provided in the treatise evidence. Multiple risk factors for the development of HCC have been identified, and a common characteristic among many of them is injury to the liver parenchyma resulting in cirrhosis. Chronic infection with hepatitis B virus (HBV) or HCV underlies many of these cases. In an analysis of 770,000 cases of HCC occurring worldwide, over 50 percent of cases were attributed to chronic HBV and 20 percent of cases were attributed to chronic HCV infection. However, patients with chronic HBV infection are at risk for HCC even in the absence of cirrhosis. Patients with cirrhosis from any etiology are at risk for developing HCC. It was estimated that up to one-third of patients with cirrhosis will develop HCC during their lifetime, with an annual incidence rate of 1 to 8 percent, based on long-term follow-up studies. Third, the pathophysiology of obesity is the most well-established risk factor for the non-alcoholic liver disease in this Veteran's particular case. The weight and quality of this evidence greatly outweighs the weaker evidence provided in the treatise evidence. There is an abundance of studies that link NAFLD to obesity. Lastly, the pathogenesis of nonalcoholic fatty liver disease has not been fully elucidated. The most widely supported theory implicates insulin resistance as the key mechanism leading to hepatic steatosis, and perhaps also to steatohepatitis. The Board finds the medical evidence weighs against the claim. The Veteran's research was evaluated by a health care professional who determined, based on their medical training, that the treatise evidence did not outweigh the objective medical evidence and that the current liver disorders were not linked to active duty exposure to toxins include herbicide agents, medication and immunizations. This evidence is accorded probative weight. The examiner reviewed the evidence and provided a rationale for why it was found lacking with regard to linking the current liver disorder to active duty based on the studies submitted by the Veteran. Again, the Board notes no health care professional is on record as finding that, in the Veteran's particular situation, his current liver disorder or disorders is due to active duty. Other than the general medical treatises, the only evidence which links a liver disorder to active duty is the Veteran's own allegations. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his disorder. See Jandreau, 492 F.3d at 1377, n.4. Although he can provide competent testimony regarding symptoms, the liver disorder on appeal is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. The Board places no probative value on the Veteran's opinions linking a liver disorder to active duty. (Continued on the next page) By virtue of the foregoing, the Board concludes that the preponderance of the probative evidence is against the Veteran's claim seeking service connection for a liver disorder. The appeal is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hughes 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.