Citation Nr: 1303067 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-26 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for tuberculosis (TB), to include inactive TB. 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss. ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1954 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for residuals of tuberculosis and continued the Veteran's 0 percent rating for left ear hearing loss. The RO in Roanoke, Virginia, currently retains jurisdiction of the Veteran's claims file. To clarify the procedural history of the current claim, it is noted that following the September 2008 rating decision denying a compensable rating for the service connected hearing loss of the left ear, in March 2009 the Veteran filed a Notice of Disagreement (NOD) with the evaluation of his left ear hearing and also claimed service connection for right ear hearing loss. In April 2009 the RO sent the Veteran a letter indicating that it received his claim of service connection for right ear hearing loss. In May 2009 the Veteran submitted a written statement indicating that he requested revaluation for his overall hearing loss, not just his right ear. In July 2009 the RO issued a Statement of the Case (SOC) regarding only the issue of service connection for tuberculosis. In July 2009 the RO also issued a rating decision granting service connection for right ear hearing loss, with a 10 percent evaluation for bilateral hearing loss, effective March 13, 2008, which was the date the claim for an increased evaluation for left ear hearing loss was received by the RO. In this rating decision, the RO also found that the Veteran's March 2009 NOD did not indicate that he was disagreeing with the decision made for his left ear hearing loss, but was disagreeing with the fact that his right ear was not service connected. The RO then concluded that the July 2009 rating decision represented a complete grant of the issue raised by his March 2009 NOD. After a careful review of the March and May 2009 written statements, the Board finds that the Veteran's March 2009 NOD and May 2009 written statements constitute a NOD as he indicates that he was disagreeing with the rating assigned his left ear hearing loss. Since his service-connected left ear hearing loss is now subsumed within his now service-connected bilateral hearing loss disability, the Veteran has expressed disagreement with the rating assigned his bilateral hearing loss disability. Under these circumstances, a SOC regarding the issue of entitlement to a rating in excess of 10 percent for bilateral hearing loss should be issued. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board is required to remand, rather than refer, this issue. Id. The issues have been re-characterized to better comport to the evidence of record and development of his case. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-88 (2009). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a rating in excess of 10 percent for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The weight of the evidence establishes that TB, to include inactive TB, was incurred in service. CONCLUSION OF LAW TB, to include inactive TB, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). Given the fully favorable decision regarding the grant of service connection for TB, to include inactive TB, discussed below, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the Veteran is moot or represents harmless error. Decision The Veteran contends that service connection for TB is warranted because he acquired TB while serving in Vietnam, and that his latent TB causes reduced breathing capacity. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Furthermore, the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). When there is an approximate balance of positive and negative 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) (West 2002); 38 C.F.R. § 3.102 (2012). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Review of the Veteran's service treatment records (STRs) reveal that on July 7, 1972, he was to be evaluated for treatment due to positive TB tine and PPD tests. It was noted that a July 1972 chest x-ray was within normal limits. STRs dated on July 13 ,1972, show that he was treated with isoniazid (INH) and various other medications. In August 1978 pulmonary function tests (PFTs) were conducted. A June 1975 Annual Flying examination noted that the Veteran had a history of positive TB tine and PPD skin test, and was treated with INH therapy until August 1973, no complications, no sequelae (NCNS). The Veteran's February 1980 retirement examination listed a summary of defects and diagnoses, but did not note TB. August 2006 private treatment records noted that the Veteran's chief complaint was an abnormal CT scan. He presented for further evaluation after an abnormal CT scan. The treating physician noted that in June he was sick for 10 days with associated night sweats, fever, and fatigue. A chest X-ray was done and was abnormal and a CT scan was also conducted. A PPD was placed in spite of having a positive PPD back in 1972, for which he received a year of isoniazid. The physician noted that, not surprisingly, it was positive again. A past medical history of lung scaring and/fibrosis, chronic calcifications, and history of latent TB, positive PPD, treated in 1972 with a year of isoniazid, was given. A December 2006 private treatment record from the August 2006 physician noted that there was no interval change, and that the Veteran was given an impression of positive PPD treated in the past with isoniazide greater than one year ago with an abnormal chest X-ray and abnormal CT with calcified right hilar and mediastinal lymph nodes. A QTC examination was conducted in July 2012 in conjunction with the Veteran's current claim. The examiner noted that the Veteran had not ever been diagnosed with active or latent TB, but has had a positive skin test for TB without active disease and noted that he was probably exposed to TB while serving in Vietnam. A diagnosis of status post prophylaxis for positive PPD was given. The examiner discussed the Veteran's in service treatment for his positive TB tests. The examiner noted that the Veteran then had, or has had, inactive pulmonary TB. It was noted further that he had fatigue and shortness of breath as residual findings, signs, or symptoms due to pulmonary TB. July 2012 PFTs were reviewed. The examiner noted a review of the Veteran's claims file, including his STRs and February 1980 retirement examination. The examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that STRs show that the Veteran "was diagnosed and treated for +PPD history of active TB pneumonia. It is my opinion patient initial +PPD was during active duty therefore result of military service." After review of the evidentiary record, the Board concludes that service connection is warranted for TB, to include inactive TB. The Veteran received treatment during service for a positive PPD test, which was used to evaluate whether he had TB. The July 2012 QTC examiner diagnosed the Veteran with status post prophylaxis for positive PPD, and also noted that the Veteran had, or has had, inactive pulmonary TB. The opinion weighs in favor of finding that the Veteran's positive PPD test during service represents the onset of a chronic TB, or inactive TB, condition and the examiner indicated that the exposure to TB occurred during active service. See 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 498. There is no medical or other competent evidence of record indicating that the Veteran's TB, or inactive TB, was not a chronic condition that had its onset during service. With regard to a current disability, the examiner concluded that the Veteran has inactive pulmonary TB with findings that fatigue and shortness of breath as residuals of TB. The Board notes that Diagnostic Code 6724 evaluates tuberculosis, pulmonary, chronic, inactive, advancement unspecified. As such, the rating criteria allows for inactive TB to be considered as a current disability. The general rating criteria provide the bases for rating inactive pulmonary TB and the evidence includes both a diagnosis of inactive TB and indicate residuals associated with inactive TB. As such, the fact that the diagnosis of the current disability competently related to active service is inactive TB is not a bar to service connection. Given the facts of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for TB, to include inactive TB. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for tuberculosis, to include inactive tuberculosis, is granted, subject to the law and regulations governing the payment of monetary awards. REMAND As explained fully above, following the September 2008 rating decision, in March 2009 the Veteran filed a timely NOD regarding the rating assigned his left ear hearing loss, which, after the July 2009 rating decision, is now service-connected bilateral hearing loss disability, rated as 10 percent disabling. An SOC as not yet been issued regarding the issue of entitlement to a rating in excess of 10 percent for bilateral hearing loss. Under these circumstances, an SOC should be provided to the Veteran so that he can further address his disagreement with the rating assigned for the service-connected bilateral hearing loss and be given an opportunity to appeal this issue to the Board. See Manlicon, 12 Vet. App. at 238. Accordingly, the issue of entitlement to a rating in excess of 10 percent for bilateral hearing loss is REMANDED for the following action: Issue a SOC to the Veteran addressing the issue of entitlement to a rating in excess of 10 percent for bilateral hearing loss. The Veteran must be advised of the time limit in which he may file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs