Citation Nr: 18146179 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-36 941 DATE: October 30, 2018 ORDER The claim of entitlement to service connection for tuberculosis is denied. REMANDED The claim of entitlement to service connection for traumatic brain injury (TBI) is remanded. FINDING OF FACT A positive purified protein derivative (PPD) test is not a disability subject to service connection; there is no evidence that the Veteran experiences any current disability as a result of her in-service PPD tests; and active pulmonary tuberculosis did not manifest within three years of service discharge. CONCLUSION OF LAW The criteria for a grant of service connection for pulmonary tuberculosis are not met. 38 U.S.C. §§ 1110, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from August 1991 to March 2000. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110 (2012). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 1. The claim of entitlement to service connection for tuberculosis The Board acknowledges that service treatment records reflect that the Veteran had at least two positive PPD tests while on active duty. However, this is not the same thing as a medical diagnosis of active tuberculosis. A PPD test result is considered to be a laboratory finding used in exploring a possible diagnosis of tuberculosis. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1506, 1979 (32nd ed. 2012). Service connection applies only to diseases and the residuals of injury, not symptoms or clinical findings found in laboratory test results. See 38 C.F.R. §§ 4.1, 4.10; see also 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses such as hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities, and are not appropriate entities for the rating schedule). Thus, service connection is not available based solely on a showing of a positive PPD. Rather, the record must reflect this positive PPD test was evidence that the Veteran developed a chronic disability, such as pulmonary tuberculosis. A thorough review of the evidence of record does not reflect the Veteran experiences any current disability as a result of her in-service PPD test; and active tuberculosis did not manifest within three years of service discharge. See 38 C.F.R. §§ 3.307, 3.309. The Veteran’s November 2017 VA examination revealed no latent or active tuberculosis. The Veteran was not undergoing any treatment, nor had she completed treatment for a tuberculosis condition, including active tuberculosis. Similarly, she never had a diagnosis of pulmonary tuberculosis. Her chest x-ray was normal, but a pulmonary function test was not performed as the Veteran’s blood pressure was significantly elevated. The Veteran did not report any other chronic symptomatology associated with her positive PPD tests. In short, even though the Veteran did have in-service positive PPD tests, neither tuberculosis nor any other chronic pulmonary disorder has been shown since that time. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.§ 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that the structure of these statutes “provided strong evidence of congressional intent to restrict compensation to only presently existing conditions,” and VA’s interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA’s interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. The Board acknowledges that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also 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, even if no disability is present at the time of the claim’s adjudication. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had pulmonary tuberculosis or any other pulmonary disability at any time during the pendency of this claim. Inasmuch as there is no evidence of a current disability as a result of the in-service positive PPD test, or current pulmonary disease, the Board finds that the preponderance of the evidence is against this claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. REASONS FOR REMAND 1. The claim of entitlement to service connection for traumatic brain injury (TBI) is remanded. The Veteran contends that she is entitled to service connection for TBI. The Veteran’s service treatment records reflect that she sought treatment for a head injury in February 1992 and December 1997. In December 1997, she was diagnosed with a tension headache after she reported hitting her head four months prior to the treatment date. The November 2017 VA examiner evaluated the Veteran and determined that she did not have a diagnosis of TBI, nor did she suffer residuals of a head injury from service. The examiner noted an in-service injury, including a laceration to her head after a fall from her bike, during which she did not experience a loss of consciousness. She claimed that the site of the laceration was still sensitive. The Veteran also reported that a hatch fell on her head in 1996 but she received no treatment. She also stated that, to date, the condition had not been formally diagnosed. The Veteran reported no symptoms related to her purported TBI, though endorsed an occasional headache when stressed. The examiner concluded that the Veteran’s claimed condition was less likely than not due to her active duty service. The examiner noted that the laceration to her head had healed, and she did not have general headaches. She subjectively reported a tender spot on the back of her head, but there was no evidence in the record of concussion or TBI. Examination revealed no impairments in memory, judgment, social interaction, orientation, motor activity, visual or spatial orientation, neurobehavioral effects, communication, or consciousness. The Veteran did not endorse any subjective symptoms. The Board finds that the Veteran should undergo a scar examination to determine whether there is any residual scaring from the in-service laceration to the head. The matter is REMANDED for the following action: 1. Schedule the Veteran for a scar examination by an appropriate clinician to determine the nature and etiology of any residual scaring from an in-service laceration to the head. The examiner must opine whether it is at least as likely as not related to an in-service laceration to the head. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel