Citation Nr: 18144482 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-36 814 DATE: October 24, 2018 ORDER Service connection for tuberculosis is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of tuberculosis or residuals of tuberculosis. CONCLUSION OF LAW The criteria for service connection for tuberculosis have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1990 to November 1994. VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duty to notify was met in a letter to the Veteran. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. With respect to the duty to assist in this case, the Veteran’s service treatment records (STRs), private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran was also provided with an examination. The Veteran and his representative have not made the regional office or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issue addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of the issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. Entitlement to service connection for tuberculosis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including active tuberculosis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). In order for the presumption to apply, the claimant must be a veteran with 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1). The STRs show that in November 1990 the Veteran had a positive PPD skin test. He subsequently underwent INH therapy for a year. There was no diagnosis of active tuberculosis. At April 2003 post-service private treatment, the Veteran was noted to have a history of tuberculosis. The Veteran had an examination arranged through VA in December 2014. The examiner noted that the Veteran was never diagnosed with active or latent tuberculosis and that there was a positive skin test in 1990. It was also noted that the Veteran had never had or been diagnosed with pulmonary tuberculosis. There had also never been any residual findings, signs, and/or symptoms due to pulmonary tuberculosis. The Veteran had also never been diagnosed with non-pulmonary tuberculosis and did not have residuals. There were no other physical findings, complications, signs, and/or symptoms related to tuberculosis. The examiner opined that the “claimed tuberculosis” was at least as likely as not incurred or caused by the tuberculosis during service based on the May 1991 treatment records discussed above. The Board notes that the examiner also found that the Veteran had never been diagnosed with active or latent tuberculosis and did not have residuals thereof. Therefore, the Board finds that the examiner’s nexus opinion only pertains to the positive in-service skin test, and not active tuberculosis during or after service. The nexus aspect of the opinion is therefore not of any probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“…[M]ost of the probative value of a medical opinion comes from its reasoning” and the Board “must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.”). The STRs do not show a diagnosis of active tuberculosis after the positive skin test. The post-service records do not contain a clinical diagnosis of active tuberculosis or residuals thereof. Furthermore, given the lack of a clinical diagnosis of active tuberculosis, the April 2003 notation from treatment appears to be the Veteran reporting the in-service skin test. Simply put, no current disability attributable to the in-service positive test, such as active tuberculosis or any residuals from the positive test, has been shown at any time since the claim for service connection was filed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.”) Without such evidence, service connection is not warranted. While the Veteran has made statements to the effect that he has tuberculosis, he is not competent to make a determination that he has or has had active tuberculosis, because this is a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In summary, the Board concludes that the Veteran has never had active tuberculosis or residuals thereof. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Therefore, the claim for service connection must be denied. Because the evidence preponderates against the claim of service connection for tuberculosis, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-57 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel