Citation Nr: 0813369	
Decision Date: 04/23/08    Archive Date: 05/01/08

DOCKET NO.  07-23 375	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North 
Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for tuberculosis (TB).


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

Chris Yegen, Associate Counsel




INTRODUCTION

The veteran served on active duty from December 1983 to 
August 1989, from November 1996 to November 2000, and from 
February 2003 to May 2004.

This appeal to the Board of Veterans' Appeals (Board) is from 
a November 2006 rating decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in North Little Rock, 
Arkansas.

In February 2008, as support for his claim, the veteran 
testified at a hearing at the Board's offices in Washington, 
DC, before the undersigned Veteran's Law Judge (VLJ).  This 
type of hearing is often referred to as a Central Office 
hearing.  


FINDINGS OF FACT

1.  The RO's attempts to obtain additional service medical 
and personnel records from February 2003 to May 2004 were 
unsuccessful.  However, the veteran submitted a couple of 
service medical records corroborating his positive 
purified protein derivative (PPD), of tuberculin, test in 
April 2004.  However, these same records also show that a 
military examiner opined that the veteran's positive PPD test 
was not likely to result in a claim against the government 
for future care.  Indeed, a letter from the Arkansas 
Department of Health in May 2005 confirms TB germs were in 
his body but also notes that he had received prophylactic 
treatment, isoniazid (INH) medication, from June 2004 to 
March 2005 to knock out the infection before it had a chance 
to develop into TB, and that a chest X-ray had shown no 
evidence of active or inactive TB.

2.  There is insufficient medical evidence to establish the 
veteran currently has active TB to account for his positive 
PPD test in service.




CONCLUSION OF LAW

The veteran does not have active TB from a disease or injury 
incurred or aggravated in service or that may be presumed to 
have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 
1112, 1113, 1131, 1137 (West Supp. 2005); 38 C.F.R. §§ 3.303, 
3.307, 3.309 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist

VA has complied with the duty-to-notify provisions of the 
Veterans Claims Assistance Act (VCAA).  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 
16 Vet. App. 183, 197 (2002).  In particular, letters from 
the RO in March 2006 and January 2007 (1) informed the 
veteran of the information and evidence not of record that 
was necessary to substantiate his claim; (2) informed him of 
the information and evidence that VA would obtain and 
assist him in obtaining; (3) informed him of the information 
and evidence he was expected to provide; and (4) requested 
that he provide any evidence in his possession pertaining to 
his claim, or something to the effect that he should 
"give us everything you've got pertaining to your claim."  
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini 
II).  

VA also has complied with the Court's holding in 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd 
sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which 
states that the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service-connection claim:  (1) veteran status; (2) 
existence of a disability; (3) a connection between the 
veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  The RO 
complied with the requirements in Dingess when it sent a VCAA 
notice letter in January 2007 discussing the downstream 
disability rating and effective date elements of the claim 
and then went back and readjudicated the claim in the August 
2007 supplemental statement of the case (SSOC).  This is 
important to point out because the Federal Circuit Court 
recently held that a statement of the case (SOC) or 
supplemental SOC (SSOC) can constitute a "readjudication 
decision" that complies with all applicable due process and 
notification requirements if adequate VCAA notice is provided 
prior to the SOC or SSOC.  See Mayfield v. Nicholson, 499 
F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV).  As a matter 
of law, the provision of adequate VCAA notice prior to a 
readjudication "cures" any timing problem associated with 
inadequate notice or the lack of notice prior to an initial 
adjudication.  See also Prickett v. Nicholson, 20 Vet. App. 
370, 376 (2006).

Even if arguably there is any deficiency in the notice to the 
veteran or the timing of the notice it is harmless error.  
See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) 
(finding that the Board had erred by relying on various post-
decisional documents for concluding that adequate 38 U.S.C.A. 
§ 5103(a) notice had been provided to the appellant, but 
determining nonetheless that the evidence established the 
veteran was afforded a meaningful opportunity to participate 
effectively in the adjudication of his claims, so found the 
error was harmless).

If there was any deficiency in the notice to the veteran, the 
Board finds that the presumption of prejudice on VA's part 
has been rebutted:  (1) based on the communications sent to 
him over the course of this appeal, and his responses, 
he clearly has actual knowledge of the evidence he is 
required to submit and needed to substantiate his claim; and 
(2) based on his contentions he is reasonably expected to 
understand from the notices what was needed.  See Sanders v. 
Nicholson, 487 F.3d 881 (2007).  

VA also fulfilled its duty to assist by obtaining all 
relevant evidence concerning the claim under 38 U.S.C.A. 
§ 5103A and 38 C.F.R. § 3.159.  The RO obtained all 
available medical records the veteran identified as 
pertinent.  Concerning this, despite the RO's efforts to 
obtain his service medical and personnel records from 
February 2003 to May 2004, it was determined that most of 
them are missing.  


In these situations where at least a portion of the service 
medical records are not available for consideration, in 
addition to the duties imposed by the VCAA, VA's duty to 
assist is heightened and includes an obligation to search for 
alternative forms of records that might support the veteran's 
case.  Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).  
There is also a heightened obligation to explain findings and 
to carefully consider the benefit-of-the-doubt rule in cases 
where records are presumed destroyed while in the possession 
of the government.  Milostan v. Brown, 4 Vet. App. 250, 252 
(1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 
(1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).

That said, although there is a heightened obligation to more 
fully explain the reasons and bases for a decision - when, 
as here, there are missing SMRs - this does not obviate the 
need to have medical nexus evidence supporting the claim.  
See Milostan, citing Moore and O'Hare.  See also Collette v. 
Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996) and Arms v. West, 
12 Vet. App. 188, 194-95 (1999).

In other words, missing SMRs do not lower the threshold for 
an allowance of a claim.  There is no reverse presumption for 
granting a claim.  The legal standard for proving a claim is 
not lowered; rather, the Board's obligation to discuss and 
evaluate evidence is heightened.  Russo v. Brown, 9 Vet. App. 
46 (1996).

VA has a duty to provide a medical examination and/or seek a 
medical opinion when such examination or opinion is necessary 
to make a decision on the claim.  VA considers an examination 
or opinion necessary to make a decision on the claim if the 
evidence of record (1) contains competent evidence that the 
claimant has a disability, or persistent recurring symptoms 
of disability; (2) indicates the disability or symptoms may 
be associated with his military service; and (3) contains 
insufficient medical evidence for VA to make a decision on 
the claim.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 
3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 
(2006).



Here, though, as will be explained, there is no evidence 
confirming the veteran has a current diagnosis of active or 
inactive TB.  In addition, the only evidence suggesting an 
etiological link between this claimed condition and his 
military service is his unsubstantiated lay allegations.  
These statements are insufficient to trigger VA's duty to 
provide an examination; VA is not obligated to provide an 
examination for a medical nexus opinion where, as here, the 
supporting evidence of record consists only of a lay 
statement.  See Duenas v. Principi, 18 Vet. App. 512, 519 
(2004).  

Accordingly, the Board finds that no further assistance is 
needed to meet the requirements of the VCAA or Court.

II.  Whether the Veteran is Entitled to Service Connection 
for TB

Service connection is granted for disability resulting from 
disease or injury incurred in or aggravated by service.  See 
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, 
service connection requires (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).

TB (if active) will be presumed to have been incurred in 
service if manifested to a compensable degree within one year 
after service.  This presumption, however, is rebuttable by 
probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.



The veteran's available service medical records (SMRs) 
confirm he had a positive PPD test in April 2004.  The 
medical examiner noted this infection was incurred in the 
line of duty and was not the result of alcohol or drug abuse.  
However, this examiner also indicated the infection was not 
likely to result in a claim against the government for future 
care.  Indeed, a May 2004 letter from the Arkansas Department 
of Health confirms the positive PPD test, but further 
explains that the reaction that had developed on the 
veteran's arm from the tuberculin skin test merely indicated 
he had some TB germs in his body and, therefore, was at risk 
of developing TB in the future - also noting that a recent 
chest X-ray had shown no evidence of TB.  A chest specialist 
therefore recommended the veteran be seen for discussion of 
giving a course of medicine to knock out the infection before 
it had a chance to develop into TB.

During his Central Office hearing in February 2008, the 
veteran claimed that he had exposure to chemicals in service 
prompting the positive PPD test in April 2004.  He also said 
that his private physician, Dr. J.T, indicated this condition 
would never go away.  Based on other statements from Dr. J.T, 
the veteran also contended that his positive PPD test caused 
changes in his red and white cell blood counts, urine and 
other aspects of his body.  However, a veteran's account of 
what a physician purportedly said, filtered as it is through 
a lay person's sensibilities, is not competent medical 
evidence.  See Robinette v. Brown, 8 Vet. App. 69, 77 (1995).  
See also, LeShore v. Brown, 8 Vet. App. 406, 409 (1995).

Moreover, other records show VA provided prophylactic 
treatment (INH medication) from June 2004 to March 2005 to 
prevent the development of active or inactive TB.  And there 
is no medical indication the veteran ever actually developed 
either active or inactive TB.  In this regard, Dr. J.T., his 
private physician only indicated a positive PPD test and TB 
exposure in February 2007.  This doctor never actually 
diagnosed active or inactive TB.  Hence, this evidence tends 
to show that VA has, so far at least, successfully treated 
the TB germs in the veteran's body and thwarted the 
development of active or inactive TB.



The Board realizes the veteran did not have a positive PPD 
test until he returned from the Gulf War.  Nevertheless, 
despite his positive PPD test, he has never received the 
required diagnosis of TB - again, either active or inactive.  
A positive PPD test, in and of itself, is merely a laboratory 
finding that may or may not be an underlying symptom of a 
chronic condition, such as active or even inactive TB.  Cf. 
61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (indicating similar 
diagnoses of hyperlipidemia, elevated triglycerides, and 
elevated cholesterol are actually laboratory results rather 
than disabilities, and therefore are not appropriate entities 
for the rating schedule to address).

Since the veteran has not received the requisite diagnosis of 
an underlying disability (TB, etc.) to account for his 
positive PPD test in service, the positive laboratory test 
results are not indicative of a disability or disease 
incurred during his active military service or that may be 
presumed to have been incurred in service.  38 U.S.C.A. §§ 
1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 
3.307, 3.309.  Cf. Degmetich v. Brown, 8 Vet. App. 208 
(1995); 104 F.3d 1328, 1332 (1997) (holding that compensation 
may only be awarded to an applicant who has a disability 
existing on the date of the application, and not for a past 
disability).

With respect to the veteran's unsubstantiated allegations 
that he has TB, a layman is generally incapable of opining on 
matters requiring medical knowledge.  Routen v. Brown, 10 
Vet. App. 183, 186 (1997).  See also Bostain v. West, 
11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 
Vet. App. 492 (1992) (a layperson without the appropriate 
medical training and expertise is not competent to provide a 
probative opinion on a medical matter, to include a diagnosis 
of a specific disability and a determination of the origins 
of a specific disorder).  Lay testimony is competent, 
however, to establish the presence of observable 
symptomatology and "may provide sufficient support for a 
claim for service connection."  Layno v. Brown, 6 Vet. App. 
465, 469 (1994).



When a condition may be diagnosed by its unique and readily 
identifiable features, the presence of the disorder is not a 
determination "medical in nature" and is capable of lay 
observation.  In such cases, the Board is within its province 
to weigh that testimony and to make a credibility 
determination as to whether the evidence supports a finding 
of service incurrence and continuity of symptomatology 
sufficient to establish service connection.  See Barr v. 
Nicholson, 21. Vet. App. 303 (2007).

Lay 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.  Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

But unlike the varicose veins in Barr or dislocated shoulder 
in Jandreau, active or inactive TB is not a condition capable 
of lay diagnosis, much less the type of condition that can be 
causally related to service.  See Espiritu and Woelhaert v. 
Nicholson, No. 05-2302 (U.S. Vet. App. August 24, 2007).

If at some point in the future the veteran actually develops 
TB, his prophylactic treatment to prevent this 
notwithstanding, then he is encouraged to file another claim 
for this condition.  But unless and until that occurs, there 
is no basis for granting his claim because he does not have 
this alleged condition, as would be established by the 
required diagnosis of it.  And since, for these reasons and 
bases, the preponderance of the evidence is against his 
claim, there is no reasonable doubt to resolve in his favor.  
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.




ORDER

The claim for service connection for TB is denied



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs