Citation Nr: 1802247 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-23 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for tuberculosis (TB). 2. Whether new and material evidence has been received to reopen a claim of service connection for hepatitis B. 3. Whether new and material evidence has been received to reopen a claim of service connection for a right shoulder disability. 4. Whether new and material evidence has been received to reopen a claim of service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active service from May 1979 to April 1995. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge during a September 2016 videoconference hearing. A transcript is of record. 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 2014); 38 C.F.R. §§ §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The issues of whether to reopen his claims for service connection for back and right shoulder disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A June 1995 rating decision denied service connection for hepatitis B. He did not appeal that decision, and it became final. 2. Evidence received since the June 1995 rating decision does not tend to show that the Veteran has active or residuals of hepatitis B; does not relate to the unestablished fact necessary to substantiate a claim of service connection for hepatitis B; and does not raise a reasonable possibility of substantiating such claim. 3. Current diagnoses of active or latent tuberculosis, or disabling residuals of a positive tuberculosis skin test during service is not of record during the appeal period. CONCLUSIONS OF LAW 1. New and material evidence has not been received and the claim of service connection for hepatitis B may not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for tuberculosis are not met. 38 U.S.C.A. § 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105 (West 2014). However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. Id. at 327. A June 1995 rating decision denied the Veteran service connection for hepatitis B based essentially on a finding that there was no evidence of a diagnosis of active hepatitis during the pendency of the claim. The Veteran had failed to show for his VA examination. He did not file a notice of disagreement with that decision or submit additional evidence within the following year, and it likewise became final based on the evidence of record at the time. 38 U.S.C.A. § 7105. Evidence of record at the time of the June 1995 rating decision included, in part, the Veteran's STRs showing diagnosis of positive antibodies for hepatitis B. (See January 1981 STRs). Additional evidence received since the June 1995 rating decision includes treatment records, none of which show a current diagnosis or treatment for any residuals of hepatitis B. This evidence, while new (in the sense that it was not previously in the record) is not material. It does not show, or tend to show, that the Veteran has a current (during the pendency of the instant claim to reopen) diagnosis of hepatitis B. In April 2014, the VA examiner stated, in part, that there was a lack of objective evidence of a chronic hepatitis B infection and treatment thereof. He had a positive surface antigen for hepatitis B in 1981 during service. His surface antigen was repeated and was non-reactive with a positive surface antibody, which was consistent with his recent blood work on March 31, 2014 that showed normal liver function and his hepatitis B surface antigen was nonreactive and surface antibody was reactive meaning he had immunity from hepatitis B. The examiner further stated that his incident in service was acute, self-limiting, with no residuals. The Veteran's own reiterated allegations that he has hepatitis B that was acquired in service are not probative evidence in the matter. He is a layperson without any demonstrated medical expertise, and is not competent to, by his own opinion, establish a diagnosis of an insidious liver disease such as hepatitis B; that requires diagnostic studies. He does not cite to any supporting medical opinion or medical literature. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board finds that even under the "low threshold" standard [for reopening] endorsed by the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010), new and material evidence has not been received, and the claim of service connection for hepatitis B may not be reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). II. Service Connection for TB The Veteran contended that he was exposed to tuberculosis and continues to have tuberculosis. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). In addition, 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). Moreover, in the case of active tuberculosis, service connection is granted if such disease is manifested in service, or manifested to a compensable degree within three years following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Based on a review of the evidence, the Board concludes that service connection for latent or active tuberculosis is denied. Although the Veteran had a positive tuberculosis test during service in June 1986 (and underwent INH treatment), no current disability attributable to that the positive test has been shown during this appeal. Active tuberculosis or any residuals from the positive test have not been shown at any time since the claim for service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. Here, there is no probative medical evidence reflective of a current disability associated with the positive tuberculosis test during service at any time during the appeal period. While the Veteran has claimed he has tuberculosis related to service and he is not a medical professional and not competent to make such a finding. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Therefore, his opinion is not entitled to any probative weight. There is no probative finding of active tuberculosis or residuals thereof. In the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board acknowledges that he was not afforded a VA examination specifically addressing his claim of tuberculosis. On the facts of this case, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. The weight of the evidence demonstrates that there is no competent and probative evidence of current disability. Accordingly, no examinations are required. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for tuberculosis or any residual thereof and service connection must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107 (b). Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for latent or active tuberculosis. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for latent or active tuberculosis is denied. See 38 U.S.C.A §5107. ORDER The appeal to reopen the claim of service connection for hepatitis B is denied. Entitlement to service connection for tuberculosis is denied. REMAND While the Board sincerely regrets the additional delay, the Veteran's claims for his right should and back disabilities must be remanded for further development to ensure that it is afforded every consideration. The Veteran was afforded a VA examination for his right shoulder and back in July 2013. With regard to the right shoulder, the examiner concluded that his current right shoulder disability was not related to service because it was not listed on his retirement examination. However, his service record document that he was hit by a car and injured his right shoulder and upper arm in December 1983. In January 1985, he had muscle injury of the right arm. In May 1985, he complained of stiffness and the records noted "could be related to nerve infringement." Another May 1985 service record noted "possible mild arthritis" of the right shoulder. Therefore, the Board finds the examiner's rationale inadequate for failing to discuss his entire service medical history. With regards to the back injury, the examiner fails to provide a rationale that supports his conclusion. He concluded that the Veteran did not have a current diagnosis of a back disability. However, he was diagnosed with mild discogenic disease at L5-S1in June 2012. On remand, the RO/AMC should obtain an addendum and/or another medical examination. Further, the Veteran stated that he received treatment for his back and shoulder disabilities from Myrtle Beach Physical Therapy, Coastal Orthopedics, Dr. Chambers, and Carolina Bone and Joint Surgery Center. On remand, the RO should attempt to obtain these private records and any other he identifies. Lastly, he Veteran worked as a police officer until he retired. On remand, the RO should obtain any employment records. Accordingly, the case is REMANDED for the following action: 1. Make arrangement to obtain any VA or private treatment records identified by the Veteran that have not been associated with the claims file. 2. Make arrangements to obtain copies of the Veteran's complete employment physicals from the police department where he was employed. 3. Arrange for an appropriate VA examiner to review the Veteran's claims folder and provide an addendum opinion concerning the Veteran's right shoulder and back disabilities and/or provide a new examination if necessary. The entire claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner should identify all right shoulder and back disabilities. With respect to each diagnosed disability, the examiner should provide an opinion as to whether each disability had its clinical onset during active service is related to any incident of active service. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. The Veteran should not be scheduled for an examination unless deemed necessary by the VA medical professional rendering an opinion on this claim. 4. Review the medical examination report(s) obtained to ensure that the remand directives have been accomplished, and return the case to the examiner(s) if all questions posed are not answered. 5. Finally, readjudicate the claims on appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs