Citation Nr: 24013169 Decision Date: 03/28/24 Archive Date: 03/28/24 DOCKET NO. 20-26 009 DATE: March 28, 2024 ORDER Entitlement to service connection for the aggravation of non-alcoholic fatty liver disease (NASH) is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for acute cholecystitis status post cholecystectomy is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for splenomegaly is remanded. Entitlement to service connection for thrombocytopenia is remanded. Entitlement to service connection for pancytopenia is remanded. Entitlement to service connection for portal hypertension is remanded. FINDING OF FACT The Veteran's pre-existing neurofibromatosis was aggravated beyond the natural progression by service. CONCLUSION OF LAW The criteria for entitlement to service connection for non-alcoholic fatty liver disease (NASH) have been met. 38 U.S.C. §§ 1110, 1111, 1131; 38 C.F.R. §§ 3.303, 3.304(b), 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 26, 2003, to April 21, 2004, and from May 4, 2006, to June 27, 2007. The Veteran had additional service in the Reserves. The Veteran appeared at a November 2021 hearing before the undersigned, and a transcript of that hearing is of record. This appeal arises before the Board of Veterans' Appeals (Board) from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office which is the Agency of Original Jurisdiction (AOJ). 1. Entitlement to service connection for non-alcoholic fatty liver disease (NASH) Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) incurrence or aggravation of a disease or injury in service; 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 (Fed. Cir. 2004). A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A determination that a condition had its onset prior to service may be supported by contemporaneous evidence or recorded history in the record which provides a sufficient factual predicate to support a medical opinion, or a later medical opinion based on statements made by a veteran about the pre-service history of the condition. Miller v. West, 11 Vet. App. 345 (1998), Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. Jensen v. Brown, 4 Vet. App. 304 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Veteran served on active duty from June 26, 2003, to April 21, 2004, and from May 4, 2006, to June 27, 2007. The Veteran had additional service in the Reserves. A March 2006 letter from K.C., M.D., states that the Veteran had been enrolled in a clinical research study conducted at the University of Texas Health Science Center and at a VA hospital. In November 2005, a liver biopsy was performed, and the pathology result showed NASH grade 2/3, stage 3/4. The Veteran then qualified for and participated in a 6-month research study. On an April 2006 Report of Medical History completed prior to deployment, it was noted that the Veteran had a history of a fatty liver and had participated in a research study on non-alcoholic fatty liver disease at a VA hospital that had been completed that month. Based on the above evidence, the Board finds that a diagnosis of NASH clearly and unmistakably pre-existed the Veteran's entrance to the second period of service. Continuing the analysis, the Board must determine if the pre-existing NASH was aggravated during such service. In September 2018, a VA examiner reviewed all available records and opined that the Veteran had a diagnosis of non-alcoholic fatty liver disease that was at least as likely as not aggravated beyond its natura progression during service. The examiner noted the liver enzyme lab reports in the service medical records and specified that after the Veteran's second period of service, the issue of elevated liver enzymes was noted. Additionally, an August 2007 abdominal ultrasound revealed fatty infiltration of the liver. The examiner recognized that the Veteran had been exposed to environmental hazards during his deployments and opined that all of those hazards likely had an impact on the Veteran's overall health. No evidence of record contradicts the opinion of the September 2018 VA examiner. Based on that evidence, the Board finds that service connection for NASH is warranted based on service aggravation. The Board finds that there is no clear and unmistakable evidence to rebut the presumption that a pre-existing disability was aggravated during service where increase in disability is shown during service. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. At a July 2018 VA examination, the examiner noted that the Veteran reported symptoms descriptive of obstructive sleep apnea. The Veteran reported that he previously had a sleep study, but the sleep study was not of record. The examiner opined that sleep apnea was less likely than not incurred in or caused by service, as the examiner stated that the Veteran denied having sleep apnea while in the service, and the service medical records did not reference sleep apnea while the Veteran was in the service. The VA examiner's remarks that the Veteran denied having sleep apnea while in service appear to contradict other evidence of record. The Board notes that in submissions to VA, the Veteran reported that experiencing sleep symptoms while in the service. At a November 2021 Board hearing, the Veteran stated that he had sleep issues that included stopping breathing and loud snoring from the time he was in the service. To the extent that the Veteran described waking from stopping breathing and loud snoring since service, the Board finds the Veteran's statements to be competent and credible. The Veteran is competent to report symptoms, such as gasping for breath, because that requires only personal knowledge as it comes to the Veteran through the Veteran's senses. Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). An examination is inadequate where the examiner does not comment on the Veteran's reports, but instead relies on an absence of medical records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Once VA provides an examination or obtains an opinion, even if not required to do so, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, remand is required to schedule the Veteran for a VA examination for an etiology opinion regarding sleep apnea that is supported by sufficient rationale. 2. Entitlement to service connection for acute cholecystitis status post cholecystectomy is remanded. In April 2018, the Veteran had the gall bladder removed. At a July 2018 VA examination, the examiner opined that the Veteran's cholecystitis and cholecystectomy was less likely than not incurred in or caused by service. For rationale, the examiner stated that the service medical records were silent in reference to any gall bladder problems. An examination is inadequate where the examiner does not comment on the Veteran's reports, but instead relies on an absence of medical records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). An examination is also inadequate when it relies solely on the lack of documentary evidence during service and does not consider the Veteran's lay statements regarding symptoms during and since service. Once VA provides an examination or obtains an opinion, even if not required to do so, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, remand is required to schedule the Veteran for a VA examination for an etiology opinion regarding cholecystitis with cholecystectomy that is supported by sufficient rationale. 3. Entitlement to service connection for fibromyalgia is remanded. The Veteran asserts that fibromyalgia is secondary to exposure to environmental hazards while serving in Southwest Asia. Service personnel records show that the Veteran served in Southwest Asia from September 4, 2003, to March 19, 2004, and from August 26, 2006, to May 15, 2007. The Veteran's reports of diffuse pain are well documented. The Veteran has not been provided a VA examination or medical opinion regarding the claimed symptoms that the Veteran attributes to fibromyalgia. An examination or opinion is needed. The Board must remand the appeal to schedule an examination. 4. Entitlement to service connection for splenomegaly is remanded. 5. Entitlement to service connection for thrombocytopenia is remanded. 6. Entitlement to service connection for pancytopenia is remanded. 7. Entitlement to service connection for portal hypertension is remanded. Current VA medical records show findings of splenomegaly, pancytopenia, thrombocytopenia, and portal hypertension. The Veteran has not been provided VA examinations concerning the claims for service connection for splenomegaly, thrombocytopenia, pancytopenia, and portal hypertension. The VA's statutory duty to assist the Veteran includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Remand is required to provide the Veteran a VA examination, which adequately addresses any relationship between these claimed disabilities, and either service or the service-connected disabilities, to specifically include non-alcoholic fatty liver disease (NASH). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of sleep apnea. The examiner must review the record and must note that review in the report. All appropriate tests or studies should be accomplished, to include a sleep study, and all clinical findings should be reported in detail. The examiner should opine whether it is as likely as not that sleep apnea had its onset in service, was aggravated by service, or is otherwise related to any incident of service, to include as a result of exposure to environmental hazards while serving in Southwest Asia. The examiner should also opine as to whether it is as likely as not that sleep apnea was caused by the service-connected disabilities. The examiner should further opine as to whether it is as likely as not that sleep apnea has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. If it is determined that there is another likely etiology for sleep apnea, that should be stated. A complete rationale for all opinions expressed should be clearly provided. The examiner must consider the Veteran's statements and all lay statements regarding onset in-service and statements regarding the continuity of symptomatology. 2. Schedule the Veteran for a VA Gulf War examination addressing the nature and etiology of the symptoms of fibromyalgia. The examiner must review the claims file and should note that review in the report. The examiner is asked to address the following: (a) Opine whether it is as likely as not that a diagnosis of fibromyalgia is warranted. Discuss the criteria for a diagnosis of fibromyalgia and whether those criteria are met. Reconcile the opinion with the other evidence of record. (b) Please state whether the claimed symptoms of fibromyalgia are attributable to any known clinical diagnosis. Please state each clinical diagnosis for each symptom listed, or for each symptom listed, state that no clinical diagnosis applies. (b) Opine whether the Veteran's disability pattern is consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. (c) If, after examining the Veteran and reviewing the claims file, the examiner determines that the Veteran's disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, then for each disability diagnosed, opine whether it is as likely as not that each disability had its onset during active service, or is otherwise etiologically related to active service, to include conceded environmental exposures during service. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of cholecystitis, splenomegaly, thrombocytopenia, pancytopenia, and portal hypertension. The examiner must review the claims file and should note that review in the report. The examiner should obtain a complete history from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found. As to any cholecystitis, splenomegaly, thrombocytopenia, pancytopenia, and portal hypertension identified on examination, the examiner should opine whether it is as likely as not that any cholecystitis, splenomegaly, thrombocytopenia, pancytopenia, and portal hypertension had onset in service, were aggravated by service, or are otherwise related to any incident of service, to include as a result of exposure to environmental hazards while serving in Southwest Asia. The examiner should also provide an opinion as to whether it is as likely as not (1) that any cholecystitis, splenomegaly, thrombocytopenia, pancytopenia, and portal hypertension, were caused by service-connected disabilities, to specifically include non-alcoholic fatty liver disease (NASH) or (2) that any cholecystitis, splenomegaly, thrombocytopenia, pancytopenia, and portal hypertension have been aggravated (increased in severity beyond the natural progress of the disorder) by service-connected disabilities, to specifically include non-alcoholic fatty liver disease (NASH). The examiner should note that the absence of documentary evidence of symptoms in service is not always fatal to a service connection claim and should consider the Veteran's reports and lay statements of symptoms during and since service. If there is another likely etiology for cholecystitis, splenomegaly, thrombocytopenia, pancytopenia, and portal hypertension, that should be stated. Any opinion expressed should be accompanied by a complete rationale. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Layton, S. 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.