Citation Nr: 1316779 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-40 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for tuberculosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. In October 2011, the Veteran had a personal hearing before a Veterans Law Judge who is no longer with the Board. A transcript of this hearing was made and associated with his claims folder. Generally, a Veterans Law Judge who conducts a hearing must participate in any decision made on that appeal. 38 C.F.R. § 20.707 (2012). The Veteran was sent a letter offering him another hearing before a current Veterans Law Judge; however, he responded in November 2012 with a written and signed statement waiving his right to a new Board hearing. Thus, remand on that basis is not warranted. This appeal was initially received at the Board in March 2012, at which time it was remanded for additional development. The Board requested the agency of original jurisdiction (AOJ) obtain a VA medical opinion regarding the Veteran's claim. Such an opinion was obtained in April 2012, and has been associated with the claims file. Additional VA treatment records were also added to the claims file. A review of the Virtual VA paperless claims processing system (Virtual VA) reflects that it contains recent VA records and other documents not found within the physical claims folder. These documents have been noted and reviewed by the Board. FINDINGS OF FACT 1. The Veteran had a positive tuberculosis skin test in service, and a calcified left hilar nodule was noted on chest X-ray. 2. The Veteran has a current calcified left hilar nodule which, according to the competent evidence, has been present since service and is likely a residual of tuberculosis exposure. CONCLUSION OF LAW Entitlement to service connection for a calcified left hilar nodule, as a residual of tuberculosis, is granted. 38 U.S.C.A. §§ 1110, 1111, 1112, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. Service Connection for Tuberculosis The Veteran seeks service connection for tuberculosis. He asserts that he was exposed to tuberculosis while in basic training during service, resulting in a current disability. 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 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, active tuberculosis is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as active tuberculosis, become manifest to a degree of 10 percent or more within a specified time period 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). For tuberculosis, the presumptive period is 3 years. 38 C.F.R. § 3.307(a)(3). 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 is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012). If a disorder was not noted on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. If the government meets this burden, the presumption of soundness under 38 U.S.C.A. § 1111 is rebutted, and the veteran is not entitled to service-connected benefits. If the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, a veteran's claim is one for direct service connection. Wagner, 370 F.3d at 1097. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1) (2012). In explaining the meaning of an increase in disability, the U.S. Court of Appeals for Veterans Claims (Court) has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). In determining whether a condition preexisted service, a veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the condition, and lay and medical evidence concerning the inception, development and manifestations of the condition must be considered. 38 C.F.R. § 3.304(b); see Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Veteran was examined for service in August 1965, at which time no abnormalities, including tuberculosis, were noted. A chest X-ray was described as normal, and he was found fit for service. On an August 1965 report of medical history, the Veteran denied any history of tuberculosis. A subsequent October 24, 1965 Tine test for tuberculosis was positive. A December 1965 chest X-ray confirmed a calcified left hilar lymph node. A November 1966 x-ray report noted that calcification in the left hilus remains. The Veteran was seen in December 1966 for an acute upper respiratory infection. He was treated with medication and no further complications were noted. A September 1968 service separation physical examination was negative for any current respiratory abnormalities, including tuberculosis. A concurrent chest X-ray was within normal limits. On his September 1968 service separation report of medical history, the Veteran denied any history of tuberculosis. Following service, the Veteran did not report or seek treatment for tuberculosis or any other respiratory disorder for many years. He worked as a nurse's aid at a state hospital beginning in 1976, and periodic tuberculosis questionnaires dated between 1996 and 2005 were negative for productive coughs, fever, night sweats, fatigue, coughing up blood, or similar symptoms, by the Veteran's own account. Chest X-rays dated in 1998 and 2000 also confirmed a calcified node in the chest, but were negative for other abnormalities or indications of active tuberculosis. The Veteran was afforded a VA medical examination and opinion in April 2012. His claims file was reviewed by the examiner, a VA physician, in conjunction with the examination. An April 2012 CT scan of the thorax and chest region confirmed the presence of a calcified left hilar lymph node, resulting from a remote healed granulomatous disease. This node would have no significant effect on lung functioning, according to the examiner. Review of an August 1965 chest X-ray report confirmed this same calcified node was present on service entrance, according to the examiner. Current chest X-rays also confirmed a tiny 2mm tag or scar along the right minor fissure. No evidence of pulmonary consolidation was present. The examiner determined that while the Veteran may have been diagnosed with pulmonary tuberculosis at one time, such a disease was currently inactive, and he exhibited no current signs, symptoms, or residual findings of tuberculosis. Regarding the Veteran's in-service positive tuberculosis tests, the April 2012 examiner stated first that the August 1965 X-ray which indicated a calcified node was "consistent with" a history of tuberculosis. The examiner acknowledged that a concurrent August 1965 Tine test for tuberculosis was negative, but opined that this test response was merely a "false negative", a result for which the Tine test was well known at the time. For this reason, it was later discontinued for common use, according to the examiner. The Veteran later had a positive October 1965 tuberculosis test, likely due to the "booster" effect of the August 1965 test, which "woke up" the Veteran's immune system, yielding a positive result on the subsequent October 1965 test. After reviewing the totality of the record, the Board finds that service connection for a calcified hilar lymph node, as a residual of tuberculosis, is warranted. While the August 2012 VA examiner found that the Veteran was likely exposed to tuberculosis prior to service, this opinion appears to have been based upon an erroneous reading of the record. Specifically, the examiner made reference to an August 9, 1965 chest X-ray which confirmed calcification in the left hilus. Because this calcification was present prior to service, according to the examiner, the Veteran likely had tuberculosis exposure prior to service. Upon further review, however, the Board finds the examiner was likely mistaken regarding the date of the August 9 X-ray, and this study appears to have been conducted in 1966, not in 1965, which would have been prior to service. On review of the X-ray report, which is dated August 12, 1966, mention is made under "Clinical History" of a past December 1965 X-ray which was "questionable"; therefore, this X-ray could not have been taken in August 1965. Additionally, the Veteran is assigned a rank on the X-ray report, suggesting he was already on active duty. Based on these facts, the Board concludes the chest X-ray which confirmed calcification in the left hilus dates from August 1966, during his active duty period. As the examiner's opinion regarding the Veteran's tuberculosis exposure existing prior to service was based on an incorrect dating of the August 1966 chest X-ray report, it is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based on an inaccurate factual predicate is of no probative value). Rather, the Veteran's service treatment records are the first occasion in the record either that he tested positive for tuberculosis on a skin test, or that a calcified node was found on chest X-ray. According to the August 1965 service entrance examination, the Veteran's chest X-ray was at that time within normal limits. After entering active duty on October 21, 1965, the Veteran had a positive tuberculosis test on October 24, 1965, and a questionable chest X-ray, first in December 1965, and then in August 1966, when a calcified node was confirmed. The Board also notes that, according to his DD-214, the Veteran entered active duty on October 28, 1965. His service personnel records indicate that he reported to basic training on October 21, 1965, and was assigned the rank of PFC on that same date. Additionally, he underwent a tuberculosis test on October 24, 1965, according to his service treatment records. While the Veteran's service personnel and in-service medical treatment records were likely generated at the time he entered active duty service, his DD-214 would not have been generated until his separation from service, several years later. Thus, based on this evidence, the Board must conclude that the Veteran's DD-214 is incorrect, and he was on active duty on October 24, 1965, when he tested positive for tuberculosis. As confirmed by the April 2012 VA examination and CT scan, the Veteran continued to demonstrate a calcified left hilar nodule. This same node was present in 1998 and 2000, according to his employee health records from the state hospital at which he worked. These same records, as well as the April 2012 VA examination report, are all negative for a current diagnosis of active tuberculosis, however. Nevertheless, as the VA examiner opined that the calcified nodule is likely a residual of tuberculosis exposure, and the record indicates such exposure likely occurred in service, service connection for a calcified left hilar nodule is granted. ORDER Service connection for a left calcified hilar nodule, as a residual of tuberculosis, is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs