Citation Nr: 22018741 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-61 071 DATE: March 30, 2022 REMANDED Entitlement to service connection for a liver condition is remanded. REASONS FOR REMAND The Veteran had active service from October 1980 to April 1981 and from February 2003 to February 2004, with additional service in the Army National Guard of Puerto Rico. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in November 2020 to obtain a VA medical examination and opinion. In a March 2021 decision, the Board denied the service connection claim. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). Through a January 2022 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the March 2021 Board decision and the Court remanded the appeal to the Board. Another remand is required as there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its November 2020 Board remand, the Board directed the RO to Obtain an addendum opinion from an appropriate clinician regardingwhether the Veteran's diagnosed liver conditions, to include fatty liver, liver lesion/cyst, and elevated liver enzymes, at least as likely as not (50 percent probability or greater) had their onset during his active service or are related to an in-service injury, event, or disease. The opinion must reflect consideration of the Veteran's report that he had pain around the area of the liver during his active service. In a December 2020 VA medical opinion, the examiner opined that it was less likely that the Veteran's fatty liver was caused by or a result of service. In support of his opinion, the December 2020 VA examiner explained, in part, that there was "no evidence on service treatment record neither within a year from discharge from service as there is no evidence on [computerized patient record system] or [service treatment records]." However, the VA examiner failed to reconcile his explanation with the Veteran's reports that he had been assessed with fatty liver following his deployment to either Cuba or Iraq. See Miller v. Wilkie, 32 Vet. App. 249, 25960 (2020) (discussing an examiner's role in evaluating lay evidence). Based on the above, the Board finds that the December 2020 VA medical opinion is inadequate because the examiner failed to provide an adequate rationale in support of his opinion. See 38 U.S.C. § 7104(d)(1); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that an examiner must provide "not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). In a May 2011 VA Gulf War Examination, the Veteran reported that, in 2005, "when he returned from Iraq, he underwent routine blood tests" that noted elevated liver enzymes and that "he underwent liver studies with a diagnosis of fatty liver." During a December 2020 VA examination, the Veteran reported that, "after returning from his deployment to Cuba, he was found with elevated liver enzymes" and that "an abdominal ultrasound was done and [he was] found with fatty liver." As such, the parties agree that remand is warranted for a new medical opinion that addresses the Veteran's May 2011 and December 2020 reports that he was assessed with fatty liver following deployment. See Miller, 32 Vet. App. at 259-60. Additionally, the Board finds that an opinion on the pathophysiology of the Veteran's claimed liver condition is needed to adjudicate the Veteran's claim. In a May 2011 VA Gulf War examination, the examiner opined that fatty liver is a disease with a clear and specific etiology and diagnosis and was "not likely related to a specific exposure event experienced by the Veteran during service in Southwest Asia." However, the examiner did not address the pathophysiology of the Veteran's fatty liver. In Stewart, the Court held that, "under the proper interpretation of [38 C.F.R. § 3.317(a)(2)(ii)], an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive," and, here, the examiner did not address whether the pathophysiology of the Veteran's fatty liver was inconclusive. See Stewart, 30 Vet. App. at 390. In Colvin, the Court stated that the Board could consider only independent medical evidence to support its findings and could not reach its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, the Board does not have the expertise to determine in the first instance whether the Veteran's liver condition's etiology or pathophysiology is inconclusive under Stewart or is related to his service in Southwest Asia. Accordingly, consistent with Stewart and Colvin, the Board finds that remand is warranted to obtain independent medical evidence via a new VA examination to assist the Board in making a finding regarding the etiology and pathophysiology of the Veteran's liver condition. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion regarding the likely etiology of the Veteran's liver condition. The claims file, including a copy of this remand, must be made available to the examiner, and the examiner must indicate that the claims file was reviewed. The examiner is asked to address the following: a. Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? In doing so, the examiner should specially consider and address the following: The May 2011 Veteran's reports that, in 2005, "when he returned from Iraq, he underwent routine blood tests" that noted elevated liver enzymes and that "he underwent liver studies with a diagnosis of fatty liver." The December 2020 Veteran's reports that, "after returning from his deployment to Cuba, he was found with elevated liver enzymes" and that "an abdominal ultrasound was done and [he was] found with fatty liver." The addendum opinion should also address the Veteran's individual etiology and pathophysiology for purposes of determining whether the Veteran's liver condition is a medically explained diagnosed illness/disability. In doing so, the examiner should address the following: b. Is the etiology of the Veteran's liver condition not understood, partially understood, or completely understood? c. Is the pathophysiology of the Veteran's liver condition not understood, partially understood, or completely understood? For the purposes of this opinion, the examiner is advised that "pathophysiology" is defined as "the physiology of abnormal states; spec[ifically]: the functional changes that accompany a particular syndrome or disease." Webster's Third New International Dictionary of the English Language Unabridged 1655 (1966). Stewart v. Wilkie, 30 Vet. App. 383, 389-90, n.5 (2018). Furthermore, the examiner is advised that "etiology" is defined as "all of the factors that contribute to the occurrence of a disease or abnormal condition." Id. If either etiology or pathophysiology is only partially understood, or not understood at all, then is the diagnosed illness characterized by overlapping signs and symptoms with features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities? If the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. In this regard, the regulations indicate that chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis will not be considered medically unexplained. In rendering these opinions, the examiner is advised that discussing general risk factors for chronic liver disease does not qualify as conclusive etiology or pathophysiology as it pertains to the Veteran's individual disability. (Continued on the next page) In providing the requested opinion, the clinician should consider the Veteran's reported in-service exposure to environmental contaminants and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported exposure and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be given due to limitations of knowledge in the medical community at large and not those of the particular examiner. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.