Citation Nr: 22009019 Decision Date: 02/16/22 Archive Date: 02/16/22 DOCKET NO. 12-19 920 DATE: February 16, 2022 REMANDED Entitlement to service connection for cirrhosis of the liver is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Veteran testified at a hearing before the Board. The following month, the Board remanded the Veteran's claim for additional development. In July 2021, the Veteran testified at a second hearing before the Board. Because the Veteran testified before two different Board members and a Board panel consists of no less than three members, VA must provide the Veteran with the opportunity for another hearing before a third member. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). However, at the last hearing, the Veteran waived this right. 1. Entitlement to service connection for cirrhosis of the liver is remanded. The Secretary must provide an exam or medical opinion when it "is necessary to make a decision on the claim." 38 C.F.R. § 5103(d). A medical exam or opinion is necessary only if the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that the veteran suffered an in-service event, injury, or disease; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to decide on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The third element "requires only that the evidence 'indicates' that there 'may' be a nexus" between the Veteran's symptoms or disability and his military service. McLendon, 20 Vet. App. at 83. "This is a low threshold." Id. Shortly before the appeal period, in November 2003, the Veteran's VA physician assessed abnormal liver function tests (LFTs), which he noted "could be due to his ETOH abuse." The following month, he underwent a liver ultrasound. The radiologist detected "no significant abnormality." The results were the same almost a year later. Several years later, in September 2015, the Veteran's VA healthcare provider again noted elevated LFTs but did not identify a disability. Despite no clear diagnosis, the Veteran testified experiencing persistent symptoms, including loss of sex drive, slurred speech, abdominal pain, and melena. He believes his alcohol problems during and after service caused these symptoms. Consistent with this, medical records in the claims file from May 1987 show he "admits he goes on extreme drinking binges approximately three times a month" and that he "increased alcohol consumption . . . to combat [his mental health problems]." At his hearing, he testified that he continues to suffer from abdomen pain "[t]o this day." Id. ("The types of evidence that 'indicate' that a current disability 'may be associated' with military service include . . . credible evidence of continuity of symptomatology such as pain."). Because the record lacks sufficient competent evidence to decide the claim, the Board finds the criteria for a medical examination met. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's claimed liver disability. The claims file should be made available to and reviewed by the examiner. The examiner should provide an opinion on whether the Veteran has a liver disability which had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. If no active disease or condition is diagnosed, the examiner should describe the Veteran's symptoms and provide an opinion on whether those symptoms cause functional impairment of his earning capacity. If so, the examiner must provide an opinion on whether the Veteran's symptoms had their clinical onset during service or are due to an event or incident of the Veteran's period of active service. If a disorder or functional impairment is identified, the examiner should also indicate whether the Veteran has an alcohol use disorder that was (A) caused or (B) aggravated by his PTSD, to include his attempts to self-medicate, and if so, whether this disorder (A) caused or (B) aggravated a liver disorder. The Board appreciates the examiner's patience with this multi-step question. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. M. Donohue Veterans Law Judge Board of Veterans' Appeals Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, Associate Counsel 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.