Citation Nr: 18156422 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-47 614 DATE: December 11, 2018 ORDER Entitlement to service connection for tuberculosis is denied. REMANDED Entitlement to service connection for radiculopathy of the right lower extremity is remanded. FINDINGS OF FACT 1. The Veteran had positive purified protein derivative (PPD) test results during service and received isoniazid (INH) as preventative treatment. 2. The probative evidence of record does not demonstrate that the Veteran has been diagnosed with tuberculosis at any time during the period on appeal. CONCLUSION OF LAW The criteria for service connection for tuberculosis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.370, 3.371, 3.374. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 2007 to September 2008, and from November 2011 to September 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (AOJ). The Veteran’s Form 9 indicates that he did not request a Board hearing. Entitlement to service connection for tuberculosis is denied. Service connection is warranted where the evidence of record demonstrates that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty during active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may be found to be service-connected where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection for a disability requires competent and credible evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, the presumption of service connection set forth in 38 C.F.R. § 3.303(b) attaches to certain diseases enumerated in 38 C.F.R. § 3.309(a), including active tuberculosis. See Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2013). Where a veteran has served for at least ninety days during a period of war or after December 31, 1946, and develops an enumerated chronic disease to a compensable degree within one year from the date of separation from service, such disease shall be presumed to have been incurred or aggravated in service even though there is no evidence of such disease during the period of service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology may also be demonstrated to establish service connection for diseases recognized as chronic for VA purposes. See Walker, 708 F.3d at 1338-1339. The threshold question for every service connection claim involves whether the veteran has established evidence of the disability for which service connection is sought; in the absence of such proof, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Where the veteran seeks to establish the existence of a tuberculosis disability, VA regulations require that x-ray evidence alone may establish a diagnosis of tuberculosis for service connection purposes. See 38 C.F.R. § 3.370; Murillo v. Brown, 9 Vet. App. 322 (1996). Where x-ray evidence from the Veteran’s entrance physical examination is not available and there is no other evidence of active or inactive re-infection type tuberculosis existing prior to entrance into active service, 38 C.F.R. § 3.370(b) provides that inactive tuberculosis must also be demonstrated by x-ray evidence as provided in § 3.370(a) in order to establish that it was incurred during service. Similarly, 38 C.F.R. § 3.371 also requires x-ray evidence of active pulmonary tuberculosis within the three-year presumptive period provided by 38 C.F.R. § 3.307 in order to establish direct service connection for this disease. See 38 C.F.R. §§ 3.307, 3.371. Finally, 38 C.F.R. § 3.374 provides that a service department diagnosis of active pulmonary tuberculosis will be accepted unless a board of medical examiners, Clinic Director or Chief, Outpatient Service certifies, after considering all the evidence, including the favoring or opposing tuberculosis and activity, that such diagnosis was incorrect, and a VA diagnosis of active pulmonary tuberculosis will be accepted for rating purposes. See 38 C.F.R. § 3.374(a), (b). Diagnosis of active pulmonary tuberculosis by private physicians on the basis of their examination, observation or treatment will not be accepted to show the disease was initially manifested after discharge from active service unless confirmed by acceptable clinical, x-ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment. See 38 C.F.R. § 3.374(c). Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Where the evidence relating to the benefits sought is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). The Veteran contends that he is entitled to service connection for tuberculosis on the grounds that he was evaluated for a positive PPD test and prescribed INH while in service. However, after careful review of the evidence of record, the Board finds that such evidence is insufficient to establish a tuberculosis diagnosis, and, therefore, a preponderance of the medical evidence of record weighs against a finding that the Veteran has ever been diagnosed with tuberculosis as defined by VA regulations. The Board acknowledges the veracity of the Veteran’s assertion that his service treatment records reflect that he was evaluated for a positive PPD test administered on January 17, 2008. Subsequent service treatment records dated January 25, 2008, indicate that, during a follow-up appointment on the same date, the Veteran’s chest x-rays and liver function tests were found to be normal, he was found to have no fever, chills, night sweats, or chronic cough, and he reported feeling fine. Nonetheless, the Veteran was prescribed INH on what was apparently a prophylactic basis, as service treatment records dated February 4, 2008 indicate that at a follow-up appointment on the same date, the Veteran was diagnosed with a non-specific reaction to tuberculin PPD without active tuberculosis. The Veteran has also submitted two letters from private physicians in support of his contention that he was diagnosed with tuberculosis while in service. In a letter dated November 2015, a private physician (Dr. Z) states that the Veteran was “diagnosed with Tuberculosis (TB) on 17 January 2008. He received therapy for 6 months with Isoniazide,” and, thus, the Veteran “has a diagnosis of Tuberculosis.” In a second letter dated February 2016, another private physician (Dr. G) states that the Veteran’s “records show that he was tested for and treated for tuberculosis while in service. Moreover, his treating physician, [Dr. Z], opined that he was diagnosed with tuberculosis while in service as well. Based on this overwhelming evidence I believe that the veteran’s tuberculosis more likely than [sic] arose while he was in service.” In January 2016, a VA examiner conducted an examination of the Veteran and concluded that the Veteran had never been diagnosed with active or latent tuberculosis. The examiner acknowledged that in January 2008, the Veteran had been diagnosed with a positive skin test for tuberculosis without the active disease. Accordingly, the VA examiner diagnosed the Veteran with remote treatment for positive PPD with no current diagnosis of active tuberculosis. The Veteran reported to the VA examiner that although he had taken INH for 6 months while in service and had experienced difficulty breathing ever since, he had never been hospitalized or diagnosed with “clinical” tuberculosis. The VA examiner acknowledged that no x-rays or pulmonary function testing were performed, and further opined that the Veteran did not have a current diagnosis of active tuberculosis or any residuals of tuberculosis. Inexplicably, the VA examiner then stated that the Veteran “has a diagnosis of (a) tuberculosis that is at least as likely as not (50 percent or greater probability) incurred in service as demonstrated by a positive ppd test during service because the condition is documented in [the Veteran’s service treatment records. The Veteran] is not known to have current active [tuberculosis] and not currently known to have any residuals of [tuberculosis].” Based on a thorough review of the record, the Board finds that the probative evidence of record weighs against a finding of service connection for tuberculosis, as the record contains no x-ray evidence as required by VA regulations to confirm that the Veteran has received a tuberculosis diagnosis at any time during the course of the appeal. As noted above, VA regulations require that an award of service connection for tuberculosis may only be awarded where a diagnosis is confirmed either by (a) x-ray evidence; or (b) by private physicians on the basis of (i) their examination, observation, or treatment; and (ii) acceptable clinical, x-ray, or laboratory studies, or findings based upon acceptable hospital observation or treatment. See 38 C.F.R. §§ 3.370, 3.374(c). In this case, although the Veteran’s service treatment records indicate that his January 2008 PPD test result was positive, and that he was subsequently treated with INH on a prophylactic basis, the record contains no x-ray evidence confirming a tuberculosis diagnosis at any time during the period on appeal. In fact, as stated above, the Veteran’s in-service x-rays and liver function tests reflected normal results, and no disability or impaired functioning has been indicated due to the positive testing. In addition, the Veteran has not presented any medical evidence that tuberculosis manifested during within a presumptive period following service. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.371. Accordingly, the record contains no evidence that the Veteran was ever diagnosed with tuberculosis during service or during the pendency of his claim, as neither INH nor a positive PPD test indicate a medical diagnosis of tuberculosis or a disability that warrants service-connection under VA regulations. Therefore, because the Veteran’s in-service x-rays were normal and not indicative of tuberculosis, VA regulations provide that service connection for tuberculosis may not be awarded in this case. In addition, because the Veteran was not treated for tuberculosis by private physicians, the provisions of Section 3.374(c) are not applicable to his claim. Further, the Veteran has conceded that he was never treated or observed for tuberculosis in a hospital setting. See 38 C.F.R. § 3.374(c). The Board acknowledges that the record contains three medical opinions positively linking a purported diagnosis of tuberculosis to the Veteran’s military service. However, the Board finds that all three of these opinions lack probative value for multiple reasons. First, each of the three medical opinions relies exclusively upon a mischaracterization of the Veteran’s 2008 service treatment records as constituting a diagnosis of tuberculosis, when, as set forth above, the 2008 service treatment records do not establish a diagnosis of tuberculosis for VA purposes. See Swann v. Brown, 5 Vet. App. 229, 233 (1993). Second, each of the three medical opinions concurrently fails to acknowledge that applicable VA regulations require x-ray evidence to confirm a tuberculosis diagnosis before service connection can be awarded. See 38 C.F.R. §§ 3.370, 3.374(c); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Finally, none of the three medical opinions rely upon any medical or clinical tests or evaluations conducted prior to rendering the diagnoses or upon any supporting medical records or x-rays to support the conclusions. See 38 C.F.R. § 3.370; see also Black v. Brown, 5 Vet. App. 177, 180 (1993). The Board has also considered the lay statements provided by the Veteran contending that he suffers from tuberculosis and that he has experienced difficulty breathing ever since taking INH prophylactically in 2008. However, while the Board does not doubt that the Veteran is sincere in his belief that he suffers from tuberculosis, it finds that as a lay person, the Veteran does not possess the education, training, or experience to competently opine on the matter. See 38 C.F.R. § 3.159(a)(2). Although lay testimony may be competent to establish the presence of observable symptomatology supporting a claim of service connection, it is only sufficient to establish a diagnosis of a condition where (1) a layperson is competent to identify the medical condition; (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). In this case, the Board finds that although lay persons are competent to provide opinions on certain medical issues, tuberculosis is a complicated medical condition not capable of lay diagnosis, in large part because confirmatory x-ray evidence is required to establish its existence. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Moreover, the record in this case is devoid of any evidence that the Veteran possesses the necessary skills, training, or experience to identify and diagnose the presence of tuberculosis, or of a contemporaneous medical diagnosis of tuberculosis comporting with VA regulations. See Jandreau, 492 F.3d at 1377. Finally, as set forth above, the Board finds herein that all three medical opinions of record lack probative value for the purposes of establishing a diagnosis of tuberculosis warranting service connection. Accordingly, the Board finds that the Veteran’s lay statements lack the competency required to establish the presence of tuberculosis at any time during the period on appeal. There can be no doubt that the Veteran rendered honorable and faithful service for which the Board is grateful, and that he is sincere in his belief that he has a diagnosis of tuberculosis that is related to his active military service. However, the Board has carefully reviewed the record in depth and has been unable to identify a basis upon which service connection may be granted for tuberculosis. Accordingly, in light of the foregoing, the Board finds that a preponderance of the competent and credible evidence of record weighs against the Veteran’s claim for service connection for tuberculosis. Therefore, the benefit of the doubt doctrine does not apply to this claim, and service connection for tuberculosis is not warranted in this case. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-54. REASONS FOR REMAND Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to a service-connected low back disability, is remanded. Unfortunately, the Veteran’s service connection claim for radiculopathy of the right lower extremity must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that he currently suffers from radiculopathy of his right sciatic nerve caused by his service-connected low back disability. A March 2016 rating decision denied service connection for radiculopathy on the grounds that two VA examinations, in April 2014 and in June 2015, found no radicular pain or any other signs or symptoms of radiculopathy. In March 2017, within one year of the March 2016 rating decision, the Veteran submitted a private medical opinion issuing a diagnosis of right sciatic radiculopathy; however, a subsequent VA examination in August 2017 finding no radiculopathy failed to address this diagnosis. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In light of the foregoing, the Board finds that the evidence of record contains competent evidence of a current disability of radiculopathy, as well as evidence that such disability may be causally related to the Veteran’s service-connected low back disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). However, the Board cannot make a fully informed decision on the issue of service connection for the Veteran’s radiculopathy because no VA examiner has opined whether the Veteran’s disability is related to the Veteran’s active service. Accordingly, the Board finds that the current evidence of record is insufficient to determine the etiology of the Veteran’s radiculopathy, and in the absence of sufficient clarification, the Board lacks the requisite medical expertise to determine its nature and etiology. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Board finds that another VA examination is necessary to determine whether the Veteran’s radiculopathy is causally related to his service-connected low back disability or otherwise related to his active military service and thus entitled to service connection on any basis. See McLendon, 20 Vet. App. at 81. Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all outstanding VA and private treatment records, since October 2008. 2. After obtaining all necessary records, forward the claims folder to an examiner suitable to determine the nature and etiology of the current condition. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: (a) The examiner must clarify whether the Veteran has a current diagnosis of radiculopathy or sciatica. The examiner must discuss the March 2017 private report and the lay report of symptoms. (b) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s radiculopathy is due to or otherwise causally or etiologically related to his military service, including whether it is causally related to the Veteran’s service-connected low back disability. In this regard, the examiner should note that a rationale is required for any etiological opinion. (c) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s radiculopathy manifested to a compensable degree within one year of separation from service. In this regard, the examiner should note that a rationale is required for any etiological opinion. (d) In providing these opinions, the examiner should specifically comment on the March 2017 private medical opinion issuing a diagnosis of right sciatic radiculopathy. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel