Citation Nr: 1513326 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 09-32 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for tuberculosis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1973. The Veteran is currently in receipt of a 100 percent rating for coronary artery disease, effective November 14, 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Waco, Texas Regional Office (RO). The Board has reviewed the Veteran's electronic records (Virtual VA and VBMS) prior to rendering a decision in this case. FINDING OF FACT The preponderance of the evidence weighs against a relationship between the Veteran's service and his tuberculosis. CONCLUSION OF LAW The Veteran's tuberculosis was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.370, 3.371 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board applies statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014). After his service connection claim was received, the RO advised the Veteran, by letter dated in February 2009, of the elements of service connection and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. The duty to notify is satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. 473 (2006). VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains service treatment records (STRs) and post-service medical treatment records. The Veteran had a VA compensation examination for his tuberculosis claim that is adequate for adjudication. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). The resulting opinion is supported by full explanatory rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has not alleged any prejudice in the examination, nor has he asked for any records to be obtained that have not been requested. The duty to assist is satisfied. In March 2012, the Board remanded this claim so that the Veteran could be scheduled for a hearing. In April 2012, the RO sent the Veteran a letter asking that he elect the type of hearing he wished to receive (i.e. Travel Board or videoconference). Later that month, the Veteran submitted a hearing election form withdrawing his prior hearing request and instead asking that his case be returned to the Board for appellate consideration. In August 2014, the Board remanded this claim to obtain updated medical records and so that the Veteran could be scheduled for a VA compensation and pension examination. Updated records have been associated with the electronic claims file, and the requested VA examination was held in October 2014. Thus, there was substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 147 (1999) (requiring substantial compliance with Board remand directives). Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a) -benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the Board first determines whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet.App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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). As to credibility, VA adjudicators may consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet.App. 498 (1995); Madden v. Brown, 125 F. 3d 1447 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Service treatment records contain a chest X-ray taken in February 1969 that was negative. Another chest X-ray taken in March 1970 revealed no abnormalities. In April 1971, the Veteran was administered a PPD (purified protein derivative of tuberculin) skin test which yielded normal results. The January 1973 service separation examination report reflects that the Veteran had normal lungs and chest. A chest X-ray taken in conjunction with the examination was within normal limits. Private treatment records from June 2005 reflect a positive skin test. The examiner remarked that the date of the Veteran's conversion was not known and it may have been many years ago. He further opined that the Veteran was infected with mycobacterium tuberculosis "perhaps in his travel overseas in the navy". A June 2005 private radiology report revealed chronic obstructive pulmonary disease (COPD) and noted prominent bibasilar pulmonary interstitial changes that "may be related" to the underlying COPD but "superimposed interstitial pneumonia cannot be ruled out." An August 2009 VA Infectious Disease Outpatient Consultation contains X-rays from July 2009 showing "prominent interstitial markings, suggestive of chronic lung change" and diagnosing latent tuberculosis. A March 2010 VA Infectious Disease Clinic Note contains X-rays from July 2009 showing "prominent interstitial markings, suggestive of chronic lung change" but noting that chest X-rays were negative for evidence of active tuberculosis. He was prescribed Isoniazid and pyridoxine. The assessment was "latent TB." A March 2011 VA Primary Care Note reflects a history of a positive PPD test and noting the Veteran's 45-year history of smoking. On VA compensation and pension examination in October 2014, the examiner noted the Veteran's positive PPD test from 2005 and diagnosis of latent tuberculosis from 2009. The Veteran recounted a 50 year history of smoking. The examiner noted the in-service negative PPD test and in-service examination reports. The examiner concluded that the Veteran had inactive pulmonary tuberculosis, and the Veteran did not have non-pulmonary tuberculosis. After performing and examination and reviewing X-rays, the examiner concluded that the Veteran had a current diagnosis of latent tuberculosis, for which treatment was prescribed but not completed. The examiner wrote that the Veteran's current respiratory symptoms were not consistent with active tuberculosis but were consistent with his known diagnosis of COPD related to smoking. His current chest X-ray demonstrated chronicity of an interstitial process which dated back to at least 2009, which was not consistent with tuberculosis. It was specifically noted that the medical records documented a negative test for tuberculosis during active service, and the documentation of a positive test did not occur until 2005. For those reasons, the examiner opined that it was less likely than not that the Veteran's positive skin test for tuberculosis originated in service or was otherwise attributable to military service. As noted, the record is replete with current diagnoses latent inactive tuberculosis. See July 2014 VA compensation and pension examination. This diagnosis satisfies the first element of Shedden. However, the second and third elements of Shedden have not been satisfied. STRs do not show findings or diagnoses regarding tuberculosis. Chest X-rays taken during active duty were all negative for signs of tuberculosis. The Veteran was administered a skin test during active duty which was negative for tuberculosis. The service examination reports are all negative for signs of tuberculosis. The second Shedden element has not been satisfied. Concerning the third Shedden element, the "nexus" requirement, a private examiner remarked in June 2005 that the date of the Veteran's conversion was not known and it may have been many years ago. He further opined that the Veteran was infected with mycobacterium tuberculosis "perhaps in his travel overseas in the navy". Evidence of a mere possibility is too equivocal to substantiate the Veteran's claim. The Court has held that that use of equivocal language such as "possible," or "perhaps" makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus.). As the June 2005 private examiner employed speculative language, his opinion does not satisfactorily establish the necessary nexus. The July 2014 VA examiner opined examiner opined that the disorder was not at least as likely as not caused by, related to, or aggravated by the Veteran's military service. The VA examiner's opinion is highly probative regarding the question of whether the Veteran's latent tuberculosis is related to his service. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The examiner formed his opinion after interview with and examination of the Veteran as well as review of the claims file. He considered the Veteran's reported in-service symptoms and explained that they were not signs of his current disability. The examiner accounted for the Veteran's pulmonary symptoms in his diagnosis. He provided an alternate etiology. His opinion was also supported by a clearly-stated rationale. For these reasons, the Board finds the July 2014 VA examiner's opinion to be the most probative opinion of record. In addition to the medical evidence, the Board has considered the Veteran's contention that his latent tuberculosis is related to service. Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions, such as concerning a form of cancer. See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (discussing this axiom in a claim for rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). The appellant does not have or claim to have any specialized knowledge in the field of medicine. The Board therefore finds that the etiology of his current latent tuberculosis is beyond his competence. Moreover, the question of etiology of this condition is complex in nature. The evidence has suggested more than one possible etiology. Therefore, to the extent he has asserted that he has tuberculosis related to service, the Board finds such assertions to be of little probative value, especially in relation to the VA examiner's opinion, as the Veteran is not competent to opine on this complex medical question. His contentions regarding etiology of his current tuberculosis are outweighed by the medical evidence of record, specifically the opinion of the VA examiner. For all the foregoing reasons, the claim for service connection for tuberculosis is denied. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tuberculosis is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs