Citation Nr: 22014485 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 15-03 902A DATE: March 14, 2022 REMANDED Entitlement to service connection for a liver disability, to include as secondary to service-connected diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1967 to January 1971, to include service in Vietnam. His decorations include the National Defense Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The issue on appeal was previously before the Board in November 2018 and September 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On both occasions, after taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. Entitlement to service connection for a liver disability The Veteran seeks to establish service connection for a liver disability. He maintains, in essence, that the condition is secondary to service-connected diabetes mellitus, type II. Alternatively, his representative appears to be advancing argument to the effect that the condition could be the result of exposures during the Persian Gulf War (although, notably, there is no evidence that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War). See February 2022 Written Brief Presentation; 38 C.F.R. §§ 3.2(i) 3.317(e). In September 2021, the Board remanded the claim at issue for a VA examination. In the body of the remand, the Board noted that in November 2010, a VA examiner had diagnosed the Veteran with elevated liver function tests of unknown etiology. The Board noted that the examiner had not provided an opinion as to whether the Veteran's elevated liver functions constituted a disability that resulted in functional impairment, and if so, whether such disability was caused or aggravated by his service-connected diabetes mellitus. The Board also noted that an addendum opinion was provided in October 2019 by a different examiner, who found that the Veteran did not have a liver disability. The Board noted that the examiner had not discussed the November 2010 VA examination finding of elevated liver function tests and that it was unclear if that finding was considered. On that basis, the Board found the October 2019 opinion inadequate and remanded for another examination. On remand, an addendum opinion was obtained in October 2021. The examiner found that "there is no evidence at this time that the [V]eteran has any liver injury." The examiner noted that the Veteran's liver enzymes were mildly elevated in 2010 and that the Veteran was told that it was due to medications, but there was no diagnosed etiology. The examiner reported that laboratory work in 2021 indicated that the condition had resolved. As noted above, a November 2010 VA examiner diagnosed the Veteran with elevated liver function tests of unknown etiology. Under applicable law, even though the Veteran may not have had a diagnosis of a liver condition at the time of the September 2021 examination, he can still be service connected for the condition if he had a "disability" of the liver at any time during the pendency of his claim, even if the condition has since resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Because it is still not entirely clear whether the November 2010 VA examination report can be read to suggest the presence of a liver disability, an addendum opinion is required. Furthermore, in a February 2022 brief, the Veteran's representative requested information pertaining to the qualifications and experience of the September 2021/October 2021 VA examiner, to include the examiner's curriculum vitae. In this regard, the United States Court of Appeals for the Federal Circuit has held that once a request is made for information as to the competency of an examiner, "the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist." Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (citations omitted). In light of the Federal Circuit's holding in Francway, a remand is required to address the representative's request for information pertaining to the October 2021 VA examiner's qualifications. This matter is REMANDED for the following action: 1. Undertake efforts to obtain the curriculum vitae and other information regarding the qualifications of the September 2021/October 2021 VA examiner. The information received should be associated with the claims file and made available for review by the Veteran's representative. If the information sought is not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Arrange to provide the record on appeal to the VA examiner who previously offered opinions with respect to the Veteran's claimed liver condition in October 2021. The examiner should be asked to review the record and offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has had a disability of the liver at any time since May 2010 (when he filed his claim for service connection), even if the condition has since resolved. To clarify, under the law, in order to be considered to have had a "current" disability, the Veteran only needs to have had a disability when the claim was filed or during the pendency of the claim (i.e., at any time since May 2010), even if the condition has since resolved. In offering an opinion, the examiner should specifically consider whether the November 2010 VA examination report of elevated liver function tests of unknown etiology is indicative of the presence of a liver "disability" at any time during the period on appeal. In that regard, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran has suffered actual functional impairment associated with a liver abnormality at any time since May 2010, or whether it is more likely that the evidence demonstrates the presence of a mere laboratory finding, without any associated functional impairment. To clarify, the term "disability" as used for VA purposes generally contemplates functional impairment resulting in loss of earning capacity. The examiner should take into account the Veteran's statements regarding elevated triglycerides and postprandial swings and that his oral diabetes medications were adversely affecting his liver. If, and only if, it is the examiner's conclusion from review of the November 2010 VA examination report and other evidence of record that it is at least as likely as not that the Veteran has suffered functional impairment as the result of a liver abnormality at any time since May 2010, the examiner is asked to provide opinions as to each as the following questions: a. Is it at least as likely as not that the Veteran has had a liver disability at any time since May 2010 that had its onset in service or is otherwise related to service, to include as due to his presumed in-service exposure to herbicides? b. If not, is it at least as likely as not that the Veteran has had a liver disability since May 2010 that was caused by his service-connected diabetes mellitus, type II, to include as due to the medication he was being prescribed to treat his diabetes mellitus? c. If not, is it at least as likely as not that the Veteran has had a liver disability at any time since May 2010 that has been aggravated by his service-connected diabetes mellitus, type II, to include the medication he was being prescribed to treat his diabetes mellitus? If the October 2021 examiner is no longer employed by VA, or is otherwise unable to provide the opinion requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner's personal limitations (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.