Citation Nr: 1119151	
Decision Date: 05/18/11    Archive Date: 05/26/11

DOCKET NO.  09-07 168A	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for pulmonary tuberculosis (PTB), and if so whether the reopened claim should be granted.

2.  Entitlement to service connection for a chronic back disorder.

3.  Entitlement to service connection for hypertension, to include as secondary to PTB.

4.  Entitlement to service connection for diabetes mellitus, to include as secondary to PTB.


REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Scott Shoreman, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1945 to June 1946.

This matter comes before the Board of Veterans' Appeals (Board) from July 2008 and June 2009 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO).  The appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2010); 38 C.F.R. § 20.900(c) (2010).

The issues of service connection for pulmonary tuberculosis, on the merits; hypertension, to include as secondary to PTB; and diabetes mellitus, to include as secondary to PTB; are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  Service connection for pulmonary tuberculosis was denied in an October 1953 rating decision, which became final when the Veteran did not appeal.

2.  The evidence added to the record since the October 1953 rating decision bears directly and substantially upon the issue of service connection for pulmonary tuberculosis.  In addition, it raises a reasonable possibility of substantiating the claim, and is, by itself or in conjunction with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of this issue, warranting reopening of the previously denied claim

3.  The competent and probative evidence of record preponderates against a finding that a chronic back disorder is related to active military service or any incident thereof, and arthritis was not manifested within a year of active service.


CONCLUSIONS OF LAW

1.  Evidence submitted since the October 1953 decision, wherein the RO denied service connection for pulmonary tuberculosis, is new and material; thus, the claim may be reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.156(a), 20.1103 (2010).

2.  A chronic back disorder was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none.

In January 2008 and May 2009 VA sent the Veteran letters informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA.  The letters informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies.  He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim.  See 38 C.F.R. § 3.159(b)(1).  Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO.

The Board finds that the content of the letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist.  In addition, the July 2008 and June 2009 rating decisions and March 2009 and September 2010 SOCs explained the basis for the RO's action, and the SOCs provided him with additional periods to submit more evidence.  It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices.

In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.  This requirement was fulfilled in January 2008, May 2009, and March 2011 letters which VA sent to the Veteran.

The Board also notes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant.  Such notice was provided in the January 2008 letters to the Veteran.

The RO did not afford the Veteran a VA examination for his back on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees.  In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c).  The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event.  While the record indicates that the Veteran has had complaints of back pain, there is no indication that they are associated with an in-service event, as discussed below in detail.  Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits.  See 38 C.F.R. § 3.159(c).

Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA.  Therefore no useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran.  The Court of Appeals for Veteran Claims has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

II.  Relevant Law, Factual Background, and Analysis

Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010).  Service connection may be granted for a disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

Generally, in order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004).  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a).

Alternatively, service connection based on continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96; see Hickson, supra, at 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

As provided by 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit has stated that competent medical evidence is not required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Instead, under section 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, or diseases such as active tuberculosis become manifest to a degree of 10 percent or more within three years after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309(a) (2010).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service.  38 U.S.C.A. § 1111 (West 2002 & Supp. 2010).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b) (2010).

Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition.  38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).  The Court of Appeals for Veterans Claims has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  Subsequently, a higher court explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be."  Harris v. West, 203 F. 3d. 1347, 1351 (Fed. Cir. 2000).

A pre-existing disability or disease will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b).  Aggravation of a pre-existing condition 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.A. § 1153; 38 C.F.R. § 3.306(b).  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).

Regarding the question of aggravation of a pre-existing condition, essentially, the law as interpreted under Cotant v. Principi, 17 Vet. App. 116 (2003), and VAOPGCPREC 3-2003 (July 16, 2003), mandates that, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.

As noted, under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein.  The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence.  See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993).  The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  38 C.F.R. § 3.304(b)(1).

Determinations regarding the pre-existence of a disability should be based on medical judgment derived from accepted medical principles, and the clinical factors pertinent to the basic character, origin, and development of such injury or disease. History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles regarding incurrence, symptoms, and course of the injury or disease, together with all other lay and medical evidence concerning the inception, development, and manifestations of the impairment.  38 C.F.R. § 3.304(b).

Under longstanding law, once the presumption of soundness at entry has been rebutted, aggravation may not be conceded unless the pre-existing condition increased in severity during service, pursuant to 38 C.F.R. § 3.306.  See VAOPGCPREC 3-2003 (July 16, 2003).  VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C.A. § 1153.  However, if VA fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991).

Under 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Kightly v. Brown, 6 Vet. App. 200 (1994).  New and material evidence is defined as evidence not previously submitted to agency decision makers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2010).  Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented) will be evaluated, in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996).

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim.  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108.  Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).

Before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision.  The Board does not have jurisdiction to consider a claim which has been previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find.  Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b).  If the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim.  See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993).  

A.  New and Material Evidence for Service Connection
for Pulmonary Tuberculosis

With the above criteria in mind, the procedural history and relevant evidence will be summarized.  An October 1953 rating decision denied service connection for pulmonary tuberculosis.  The Veteran did not appeal that rating action, and it therefore became final.  In September 2007 the Veteran filed a request to reopen his claim.

Summarizing the evidence of record at the time of the October 1953 rating decision, the service treatment records show that the Veteran was hospitalized from May 1, 1946, to August 24, 1946, for pulmonary tuberculosis, reinfection type, chronic, minimal, active, left.  The chief complaints on admission were general body weakness, gradual loss of weight, and dull back pain. It was noted that on examination the lungs had rales, hard over the left.  The Veteran's normal weight was 135 pounds and his weight at the time of the treatment was 126 pounds.  May 1946 X-rays showed a patch of infiltration behind the first anterior interspace with fibroid strands, infraclavicular, left.  A July 1946 chest X-ray report indicated that the Veteran had tuberculosis, minimal, fibroid.  An August 1946 chest X-ray report indicated that the right lung was essentially negative and that the left lung had calcified foci in the hilum and was essentially negative overall.  A May 1946 medical board proceedings report states that an X-ray of the chest showed PTB, minimal, fibroid.

The post-service records show that a September 1947 fluoroscopy from a non-VA facility indicated that the right hemithorax was clear and that the left hemithorax had fibroid strands in the first interspace.  A January 1949 chest X-ray showed a questionable abnormality of the chest that could be tuberculosis.  A July 1950 fluoroscopy from the same facility as in September 1947 indicated that the right hemithorax had slight haziness and was apical and that the left hemithorax had minimal infiltrations, infraclavicular, fibro-exudative.  

The Veteran wrote in a July 1950 statement that he was examined around October 1944 by his regimental medical officer and was pronounced healthy and fit for service.  The Veteran felt that he acquired PTB in the course of his official duties because the operations were mostly at night, he was exposed to inclement weather, and he did not have sufficient food.  He wrote that he became weaker and weaker during the course of operations.

November 1950 chest X-rays from the Q. Institute showed ill defined parenchymal infiltrations in the left infraclavicular region.  The remainder of the chest findings appeared within normal limits, and no demonstrable cavity was noted.  X-rays from later in November 1950 showed that the left lung was approximately 40 percent collapsed following induced pneumothorax.  The lesion appeared marred by motion.  December 1950 X-rays showed that the left lung was more re-expanded and that a small amount of fluid was seen in the left costophrenic angle.  The conclusion was that the Veteran had left sided pneumothorax for treatment of moderately advanced PTB, activity undetermined.

J.C., M.D., wrote in February 1953 that he had examined the Veteran in September 1947 and found him to have PTB.  The Veteran was pale, thin, had difficulty walking, had a high fever, and his sputum was full of blood.  He had coughed up blood five times between September 1947 and July 1948.  Q.I., M.D., wrote in February 1953 that the Veteran was bedridden from November 1950 to October 1951.  He was admitted due to profuse bleeding and received a blood plasma transfusion.  A.S., M.D., wrote in a February 1953 statement that he had treated the Veteran for PTB in July 1948 and that he treated him for three episodes of coughing up blood between August 1948 and December 1948.

Regarding the evidence of record submitted in conjunction with the Veteran's request to reopen his claim, records from the Q. Institute indicate that the Veteran was discharged with PTB in August 1946.  He was hospitalized from November 1950 to October 1951, and on admission he had PTB with profuse bleeding.  He was noted to have chronic, minimal PTB when he was treated in July 1958.  A letter from the hospital indicated that the only records available were the enclosed admission cards from 1946 to 1958.  A May 2007 Medical Certificate from the Q. Institute states that the Veteran was hospitalized from August 1946 to May 1947, from November 1950 to October 1951, and from April 1958 to July 1958.  The diagnosis was PTB, class 4 (R), and bronchiectasis, left base.

Chest X-rays from private treatment taken in September 2007 indicate that the Veteran had diffuse calcification throughout the left lung base.  There was no definite acute infiltrate in the visualized lungs.

B.B.L., M.D., wrote in an October 2007 statement that he had known the Veteran since 1950 and that he knew that the Veteran had been treated by Dr. I, who is now deceased, at the same hospital where he worked.  Dr. L continued that the Veteran was hospitalized at the Q. Institute in 1950 due to profuse bleeding, making it necessary for him to undergo pneumothorax treatment for the left lung to stop the bleeding.

C.P., the Veteran's spouse, wrote in an October 2007 statement that the Veteran had been hospitalized for the treatment of various sicknesses since his discharge from military service, including PTB.  He was suffering from adhesion of the left lung and enlargement of the heart due to his treatment.

In June 2008 a VA physician reviewed the Veteran's claims file.  He indicated that the issue was whether the Veteran suffered from reactivation type PTB or primary PTB.  If the Veteran had reactivation type PTB it would imply that it pre-existed service.  The examiner noted that August 1946 chest X-rays showed calcifications, which in a tuberculosis patient is generally a late finding indicating that quite some time had passed since the original infection.  Therefore, the term reinfection type tuberculosis from the treatment records was inappropriately applied because it implies that the Veteran had tuberculosis prior to service that healed on its own and that the Veteran then contracted the disease again.  The VA physician felt that it was more likely that the calcifications represented a disorder that existed prior to service and was reactivated when the Veteran was on active duty.  It was noted that reactivation occurs in about 5 percent of patients and is a result of reactivation of dormant foci of infection.  Symptoms of reactivation tuberculosis include fatigue, anorexia, weight loss, and other non-specific complaints.  Fever and night sweats are a relatively late manifestation of reactivation tuberculosis.

The examiner opined that it was more likely than not that the Veteran had pulmonary tuberculosis prior to service that became active (reactivation tuberculosis) during his period of military service.  It was as likely as not that the Veteran's pre-existing PTB was aggravated by military service.  Furthermore, there were no current symptoms referable to the Veteran's reactivation type tuberculosis.  The examiner noted that there was little evidence of active tuberculosis while the Veteran was on active military service, but that the 9 pound weight loss accompanied by the symptoms of generalized weakness and vague backache, worsened by deep inspiration, were sufficient to find it was at least as likely as not that the Veteran had disease activity during active service.  Furthermore, the medical records for the prior 10 months did not show lung complaints that could be attributed to the past medical history of tuberculosis.  At a January 2008 physical examination, the Veteran's lungs were normal on examination and there was no evidence of acrocyanosis (inadequate oxygenation of blood, evidenced in the nail beds by a bluish tinge to the soft tissues).  The examiner opined that there did not appear to be significant disability to the Veteran occasioned by his tuberculosis.

The examiner wrote that the evidence considered was the Veteran's claims file, current medical records, and Cecil's 19th Edition Textbook of Medicine, and noted that the term "aggravation" implies that the disease course was worsened beyond its normal course.  A small percentage of patients with primary tuberculosis appeared able to manage the original infection without development of overt symptomatology.  Under certain conditions, usually involving a period of decreased host immune response, the contained primary focus activates.  Stressors of military life, including poor hygiene, poor nutrition and lack of sleep may cause or contribute to the immune deficit which allows the dormant foci of infection to activate.

The Veteran testified at a September 2008 RO hearing that he was called to active duty on December 8, 1941, as an ROTC officer and automatically became a member of the United States Armed Forces in the Far East.  He further testified that he was able bodied and physically fit at the time that he joined.  They had no provisions, were hungry and exhausted on a daily basis, and were exposed to the weather.  The Veteran said that he was not aware that he had PTB prior to service.  In a March 2009 statement the Veteran wrote that he could not have survived the hardships of guerilla life if he had been physically disabled or sick at that time.

The Board views the evidence submitted since the October 1953 rating decision as being new and material because, when presumed credible, it contributes to a more complete picture of the origins of the Veteran's PTB.  Therefore, it bears directly and substantially upon the specific matter under consideration and is so significant as to warrant reconsideration of the merits of the claim on appeal.  See Hodge, supra.  Thus, this evidence is new and material, and we may reopen the appellant's claim of entitlement to service connection for a left thigh injury and lumbar spine disability.  Where there is such evidence, "[t]his does not mean that the claim will always be allowed, just that the case will be reopened and the new evidence considered in the context of all other evidence for a new determination of the issues."  Smith v. Derwinski, 1 Vet. App. 178, 180 (1991).

B.  Service Connection for a Chronic Back Disorder

In regard to the Veteran's claim of service connection for a chronic back disorder, the STRs indicate that when he was hospitalized in May 1946 he had dull back pain.  The STRs do not show any further complaints related to the Veteran's back.   

September VA 2007 treatment records indicate that the Veteran complained of pain on the left upper and lower side of his back that he had had for three days.  At January 2008 treatment the Veteran complained of pain in all of his joints.  Later in January 2008 the Veteran had a pain evaluation at which he said that his pain level was 5.  Private treatment notes that are undated but that are from 2007 or 2008 based on the Veteran's listed age of 84 indicate that he had left sided mid-back pain.

The Veteran testified at the September 2008 hearing that he worked as a civil engineer from 1954 to 1972 and that he suffered from back pain during that time.

To the extent that the Veteran complains of back pain, pain itself is not a disability for VA purposes.  A symptom alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability.  Without a pathology to which the complaints of back pain can be attributed, there is no basis to find a back disorder for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted).  

The record does not indicate that the Veteran has ever been diagnosed with a back disorder.  Furthermore, the record does not show that there has been continuity of symptomatology since service.  The Veteran complained of dull back pain in May 1946.  He testified that he had back pain when working as a civil engineer from 1954 to 1972.  The record does not indicate that he had back pain from 1972 until he complained of back pain at September 2007 treatment.

We recognize the sincerity of the arguments advanced by the Veteran that he has a chronic back disorder that is service connected.  However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau, supra; Buchanan, supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, supra.  However, back disorders require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible of lay opinions on etiology.  

Because the evidence preponderates against the claim of service connection for a chronic back disorder, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

New and material evidence having been submitted, the Veteran's claim for service connection for pulmonary tuberculosis is reopened and, to that extent only, the appeal is granted. 

Service connection for a chronic back disorder is denied.


REMAND

The U.S. Court of Appeals for Veterans Claims, in Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), held that once VA undertakes the effort to provide an examination it must obtain a fully adequate one.  In June 2008, the VA physician opined that it is "more likely than not" that the Veteran had pulmonary tuberculosis prior to service that became active (reactivation tuberculosis) during his period of military service.  Under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by "clear and unmistakable evidence" that a disease or injury existed prior to service and was not aggravated therein.  Although the VA examiner found that it is more likely than not that the Veteran had PTB prior to service, this is not sufficient to overcome the clear and unmistakable standard for the presumption of soundness.  See 38 U.S.C.A. § 1111.

The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  In the present case, it is not clear from the record whether the Veteran has had any symptoms related to PTB or a diagnosis of PTB since he filed the current claim in September 2007.  The VA reviewer wrote that there were no current symptoms referable to the Veteran's reactivation type tuberculosis, and that the medical records for the prior 10 months did not show lung complaints which could be attributed to the past medical history of tuberculosis.  However, a September 2007 X-ray from private treatment that was taken due to a history of PTB indicated diffuse calcification throughout the left lung base with no definite acute infiltrate in the visualized lungs.  This implies that there could be some degree of current disability due to PTB.  In view of the seemingly inconsistent findings, a VA examination must be obtained before the claim can be decided on the merits.

The issues of service connection for hypertension, to include as secondary to PTB, and diabetes mellitus, to include as secondary to PTB, are inextricably intertwined with the claim for service connection for PTB.  Therefore, these issues cannot be decided on the merits until the issue of service connection for PTB can be determined.  See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (where facts underlying separate claims are "intimately connected," interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)

1.  Ask the Veteran to provide any medical records relating to pulmonary tuberculosis, hypertension, and diabetes mellitus which are not already of record, or to provide sufficient identifying information and any necessary authorization to enable the RO to obtain such evidence on his behalf.  Obtain VA treatment records from February 2008 to the present.

2.  Arrange for the Veteran to undergo a VA examination for pulmonary tuberculosis.  The claims file, to include a copy of this Remand, must be made available to the examiner, and the report of the examination should include discussion of the Veteran's available service treatment records, contentions, documented medical history, and the lay statements regarding his claimed pulmonary tuberculosis.

a.  All appropriate tests and studies and/or consultation(s) should be accomplished (with all findings made available to the examiner(s) prior to the completion of his or her report), and all clinical findings should be reported in detail.

b.  The examiner should state whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran has had pulmonary tuberculosis, to include inactive PTB, at any time since September 2007.  Please provide a complete rationale, including a discussion of the September 2007 X-ray report from private treatment.

1.  If the answer as to the presence of PTB is affirmative, the examiner should state whether there is clear and unmistakable evidence (i.e., obvious and manifest) that pulmonary tuberculosis existed prior to the Veteran's February 1945 to June 1946 recognized military service and was not aggravated therein, with complete rationale.  

2.  If the examiner determines that it is at least as likely as not Veteran has had pulmonary tuberculosis, to include inactive PTB, at any time since September 2007 AND there is not clear and unmistakable evidence that it existed prior to the Veteran's February 1945 to June 1946 recognized service and was not aggravated therein, the examiner should state whether it is at least as likely as not that it is causally or etiologically related to his military service, to include the tuberculosis he had during service, or whether such incurrence or causal relationship is unlikely (i.e., less than a 50/50 probability), with complete rationale.

c.  Note:  The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

d.  Note:  By regulation, the determination of whether there is "clear and unmistakable evidence" that a defect, infirmity, or disorder existed prior to service should be based upon thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 

e.  If any question cannot be answered without resorting to speculation or conjecture, the examiner must so specify in the report, and provide a complete explanation as to why such question cannot be answered.

3.  Thereafter, readjudicate the Veteran's claim for service connection for pulmonary tuberculosis, hypertension (to include as secondary to pulmonary tuberculosis), and diabetes mellitus (to include as secondary to pulmonary tuberculosis).  If any benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2010).



____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs