Citation Nr: 1803383 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-14 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for pulmonary tuberculosis (PTB) of the left upper lung. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance for the Veteran's spouse, T.A, prior to February [REDACTED], 2017. 3. Entitlement to SMC based on the need for regular aid and attendance for the Veteran's spouse, T.A, from February [REDACTED], 2017. ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the Veteran's claims to reopen service connection for PTB based on new and material evidence, and entitlement to aid and attendance allowance for T.A. As background, pertinent to service connection for PTB of the left upper lung, the claim was originally denied in an unappealed April 1969 rating decision. In September 2005, December 2005, May 2011, and October 2012 rating decisions, the RO declined to reopen the PTB claim on the grounds that the Veteran did not submit new and material evidence. The Veteran did not appeal these rating decisions and they became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In May 2016, the Board remanded the claims to the agency of original jurisdiction (AOJ) for further development, to include obtaining outstanding service treatment records. Pursuant to the remand, in July 2016, previously not considered relevant service department records, documenting PTB treatment, were associated with the claims file. Accordingly, as provided in 38 C.F.R. § 3.156 (c), the PTB claim is reconsidered on the merits with no requirement for reopening. FINDINGS OF FACT 1. Clear and unmistakable evidence indicates that PTB of the left upper lung pre-existed active duty service and was not aggravated by active duty service. 2. For the period from February 19, 2013, when the claim for aid and attendance spousal allowance was received, until the spouse's death on February [REDACTED], 2017, the Veteran was not service-connected for any disability. 3. The Veteran's spouse died on February [REDACTED], 2017, rendering moot the issue of entitlement to SMC based on the need for regular aid and attendance for the Veteran's spouse from that date. CONCLUSIONS OF LAW 1. The criteria for service connection for PTB of the left upper lung have not been met. 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. For the period from February 19, 2013 to February [REDACTED], 2017, the criteria for SMC based on the need for the regular aid and attendance of another person (the Veteran's spouse) have not been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.351, 3.352 (2017). 3. For the period from February [REDACTED], 2017, the criteria for SMC based on the need for the regular aid and attendance of another person (the Veteran's spouse) is dismissed as moot. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection- PTB The Veteran claims that his PTB disability is due to active military service because it was diagnosed and treated during active duty. See April 2011 and May 2013 Correspondence. He also claims that weather and living conditions made him more prone to develop PTB during service. See July 1969 Correspondence. Specifically, he stated that swimming, running, and physical exercises such as push-ups and sit-ups, were the immediate cause of his current disability. Id. As noted in the Introduction, the Veteran was originally denied service connection for PTB of the left upper lung in an April 1969 rating decision. The Veteran did not appeal the denial of the claim or submit additional material evidence within one year of its issuance, thus, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103; cf. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). In September 2005, December 2005, May 2011, and October 2012 rating decisions, the RO declined to reopen the Veteran's PTB claim on the grounds that he did not submit new and material evidence. The Veteran did not appeal these rating decisions and they became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to the prior remand, additional relevant service treatment records were added to the claims file in July 2016. Under VA regulations, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA must reconsider the claim. 38 C.F.R. § 3.156(c). Although some service treatment records were of record at the time of the April 1969, September 2005, December 2005, May 2011, and October 2012 ratings decision; pertinent service treatment records showing progress and nursing notes during hospitalizations were not associated with the record at the time of the prior rating decisions. As such, there is no requirement to reopen the claim, rather it is reconsidered on the merits. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including tuberculosis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Here, as discussed in detail below, the Board finds that the Veteran had a pre-existing disability. Accordingly, the chronic disease presumptive provisions are not for application. A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2017). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, 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. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). On January 1968 enlistment, the Veteran's clinical evaluations were normal and there was no notation of a pre-existing disability. The Veteran started active duty in April 1968. One month later, in May 1968, during basic training he was admitted to a hospital to treat a clinical diagnosis of minimally active pulmonary tuberculosis, not bacteriologically confirmed. An August 1968 hospital admission summary states that he he had a positive tuberculosis skin test. On admission, he denied a prior history of tuberculosis. Chest x-ray findings were abnormal suggesting a previous inflammatory process in the left chest wall. In August 1968 the Veteran appeared before a Medical Board. Based on a review of medical history and records, it was determined that his diagnosis of undetermined tuberculosis pre-existed service. Specifically, the Medical Board referenced laboratory studies and chest x-rays showing changes suggestive of a previous inflammatory process with reduction in volume of the left chest. It was noted that hospital course consisted of benign therapy and that the Veteran was presently asymptomatic with normal physical exams. The case history was reviewed by the Veteran's treating VA physician whom concurred that the Veteran's PTB existed prior to service despite lack of previous confirmation of the disease. As such, the Medical Board opined that the Veteran did not meet the minimum requirements for enlistment and recommended discharge due to physical disability that was neither incurred in nor aggravated by active military. The Veteran was hospitalized again in January 1969 on isolation. His physical examination was entirely normal. The narrative summary notes that the Veteran was found to have a positive tuberculosis test, and, because the Veteran had a brief duration of active service, his pulmonary tuberculosis must have existed prior to enlistment and should have disqualified him from enlistment. Chest x-rays continued to show infiltrate, left apex, pulmonary tuberculosis, not bacteriologically confirmed. That same month, in January 1969, the Veteran was discharged from service. His DD-214 notes that he was discharged due to a physical disability that existed prior to entry on active duty. After service, the Veteran obtained a medical certificate, dated June 1969, signed by a private physician. The physician stated that he examined the Veteran on January 10, 1968, prior to active duty service, during which time medical x-ray imaging showed an impression of normal clear lungs. The Veteran received private treatment in 2004 for six months to treat PTB. April 2005 CT scans showed tuberculosis infiltration in the left upper lobe. Again, in 2006 he received private treatment for one year for PTB. The Veteran was afforded a VA pulmonary tuberculosis examination in July 2005 and VA general medical examinations in January 2007 and November 2009. He complained of a cough attributed to his PTB disability. Examination reports document his claim that PTB occurred during active duty service. No medical opinions were provided. Additional post-service private treatment records contain February 2011 and May 2013 chest x-rays showing PTB, left upper lung. Based on the foregoing evidence, the Board finds that service connection for PTB of the left upper lung is not warranted. As an initial matter, with regard to the existence of a pre-existing condition, at the outset, the Veteran's PTB was not "noted" on the entrance examination. Clinical evaluation of the lungs was normal. As such, per the applicable statute and regulation, PTB was not "noted" at entry. Thus, the Board must analyze the Veteran's claim by way of the presumption of soundness under 38 U.S.C. § 1111. There is nonetheless clear and unmistakable evidence of record that PTB of the left upper lung pre-existed the Veteran's active duty service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.304(b). Notably, a PTB disability was diagnosed one month after he started active duty service during basic training. An August 1968 Medical Board, along with a VA treating physician, concluded based on medical principles and clinical evidence that the Veteran's PTB condition pre-existed service. His DD-214 indicates that he was discharged from service due to a pre-existing physical condition. The Board acknowledges the June 1969 private medical certificate stating that the Veteran had normal clear lungs on January 10, 1968 prior to service; however, no rationale or supporting clinical documents, to include referenced medical images, were provided. Thus, the evidence supports a findings that the Veteran's PTB disability clearly and unmistakable existed prior to service. As such, the first prong needed to rebut the presumption of soundness has been met. 38 U.S.C. § 1110 (2012). Next, VA must show that the Veteran's preexisting PTB clearly and unmistakably was not aggravated by his period of active duty. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran need not produce any evidence of aggravation in order to prevail under the no-aggravation prong to rebut presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it was not aggravated or that any increase in severity was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Here, the only medical opinion of record regarding whether aggravation occurred as a result of the Veteran's active duty is from the August 1968 Medical Board and is against the claim. This opinion was based on consideration of the Veteran's medical history, statements, and provided adequate rationale for reaching its conclusion. Further, the medical opinion is consistent with evidence of record showing that on August 1968 hospital admission, the Veteran's PTB was described as asymptomatic with normal physical examinations. Similarly, at his subsequent January 1969 admission, physical examinations were again normal. In light of this, the Board finds the Medical Board opinion to be particularly probative. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (A medical opinion is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one'"). The Board acknowledges the Veteran's argument that his current PTB is related to his active duty service. However, there is no indication that the Veteran has expertise in medical matters. The Board recognizes that it is contrary to the law to categorically reject non-expert diagnoses or nexus/causation opinions, based solely on the fact that the person offering the opinion is not an expert. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Whether non-expert (lay) diagnoses or nexus opinions are competent evidence depends on the on the question at issue and the particular facts of the case. The cause of PTB and whether it was aggravated beyond normal progression during active duty service is a complex question not answerable by a non-expert and not answerable by the observation of a person's senses. Accordingly, the Veteran's opinion as to whether his current PTB disability is related to his active duty service is not competent evidence. Accordingly, clear and unmistakable evidence demonstrates that the Veteran's PTB disability pre-existed active duty service and was not worsened beyond normal progression during service. Therefore, the presumption of soundness is rebutted. Accordingly, the appeal must be denied and there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). III. SMC Increased compensation may be payable to a veteran by reason of the veteran's spouse being in need of aid and attendance. 38 C.F.R. § 3.351 (a)(2) (2017). The statute authorizing such compensation states that a veteran must have a service-connected disability rated not less than 30 percent in order to qualify for the benefit. See 38 U.S.C. § 1115 (2012). Here, that prerequisite is not met. The Veteran does not have any service-connected disability. Consequently, the claim must be denied as the Veteran does not qualify for the SMC benefit. The Board recognizes that as of February [REDACTED], 2017, the Veteran's spouse is deceased. Thus, as of this date, the issue of aid and attendance is moot as the spouse was the individual upon which the claim of entitlement to an aid and attendance spousal allowance was based. (CONTINUED ON NEXT PAGE) ORDER Service connection for PTB of the left upper lung is denied. For the period from February 19, 2013 to February [REDACTED], 2017, entitlement to SMC based on the need for the regular aid and attendance of another person is denied. For the period from February [REDACTED], 2017, entitlement to SMC based on the need for the regular aid and attendance of another person is dismissed as moot. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs