Citation Nr: 18119034 Decision Date: 07/18/18 Archive Date: 07/17/18 DOCKET NO. 15-12 507 DATE: July 18, 2018 ORDER Service connection for tuberculosis exposure, to include psychiatric residuals, is denied. Service connection for head injury residuals is denied. Service connection for a back condition is denied. Service connection for a neck condition is denied. FINDINGS OF FACT 1. 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 exposure, to include psychiatric residuals due to tuberculosis exposure. 2. 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 head injury residuals, to include headaches and stitches to the eyebrow. 3. The preponderance of the evidence is against finding that a back condition began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that a neck condition began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for tuberculosis, to include psychiatric residuals due to tuberculosis exposure, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for head injury residuals, to headaches or stitches to eyebrow, are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a back condition are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a neck condition are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Navy from October 1972 to September 1976. He also had subsequent service in the Reserves. These matters are on appeal from a September 2013 rating decision. In September 2017, the Veteran testified in a Board of Veterans’ Appeals (Board) videoconference hearing. The Veteran’s representative stated during the September 2017 hearing that the Veteran’s service treatment records were incomplete and submitted a December 1974 hospitalization record for pes planus that had not been included in his service treatment records. However, pes planus is not a claim currently on appeal before the Board, and the Veteran had not stated nor testified that he was ever hospitalized for any of the four claims currently before the Board. Rather, he testified that he had been treated in sick bay. Therefore, the Board finds that VA fulfilled its duty in obtaining the Veteran’s service treatment records, and with respect to the Veteran’s claims herein, 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; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Service connection for tuberculosis exposure, to include psychiatric residuals due to tuberculosis exposure Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S. § 1131; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As tuberculosis is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection will be presumed for tuberculosis, if manifest to a compensable degree within three years after discharge from service. 38 U.S.C. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309 (2017). Evidence of activity on comparative study of x-ray films showing pulmonary tuberculosis within the 3-year presumptive period provided by § 3.307(a)(3) will be taken as establishing service connection for active pulmonary tuberculosis subsequently diagnosed by approved methods. 38 C.F.R. § 3.371(a). A diagnosis of pulmonary tuberculosis will be acceptable only when provided in: (1) service department records; (2) VA medical records of examination, observation or treatment; or (3) private physician records on the basis of that physician’s examination, observation or treatment of the Veteran and where the diagnosis is confirmed by acceptable clinical, x-ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment. 38 C.F.R. § 3.374. In Tubianosa v. Derwinski, 3 Vet. App. 181, 184 (1992), the Court held that, pursuant to the regulatory provisions of 38 C.F.R. §§ 3.371 and 3.374, VA may not grant service connection for pulmonary tuberculosis unless a claimant submits VA or service physician diagnoses thereof, or submits the diagnoses of a private physician supported by clinical, x-ray, or laboratory studies or evidence of hospital treatment. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to satisfy Shedden element (1). The Veteran contends that he was exposed to tuberculosis during boot camp in San Diego, California in 1972, and that since then, he has experienced fear that he would pass tuberculosis symptoms onto his children and that the tuberculosis symptoms would affect his employment. The Veteran stated that the exposure had an emotional effect on him in his April 2015 Substantive Appeal and he testified about the psychiatric residuals due to the fear caused by tuberculosis exposure in the September 2017 hearing. During his September 2017 hearing, the Veteran acknowledged that he had never been diagnosed with tuberculosis, nor was anything regarding a potential tuberculosis diagnosis missing from the records associated with his file. Rather, he testified that VA processed his claim incorrectly, as he intended on filing a service connection claim for the fear that arose from his tuberculosis exposure, and that the exposure had affected him mentally and emotionally. The Board notes that the Veteran’s claim has been processed as one for tuberculosis exposure, not as a claim including psychiatric residuals due to tuberculosis exposure. As such, the clarification to include psychiatric residuals due to tuberculosis exposure is characterized on the title page. The Veteran’s service treatment records showed that there was repeated testing for tuberculosis exposure, but did not contain any diagnoses of active tuberculosis or a psychiatric condition, to include due to tuberculosis exposure. Notably, in May 1973, the Veteran was found positive on a purified protein derivative (PPD) skin test. However, all testing after May 1973 showed that the Veteran did not have another positive PPD skin test nor tuberculosis, including a February 1974 medical record stating that he had a negative PPD skin test. All post-separation medical records also did not contain complaints of or treatment for tuberculosis, or a psychiatric condition due to tuberculosis exposure. Significantly, there was no probative evidence of record of any active pulmonary symptomatology attributed to tuberculosis. Based on the evidence above, the Board finds that the Veteran is not entitled to service connection for any disability manifested by the positive PPD test from May 1973. There is no evidence or assertion that the Veteran has ever been diagnosed with active pulmonary tuberculosis or chronic residuals related thereto, including psychiatric residuals. There is only evidence of one positive PPD converter skin test and preventive treatment afterwards while he was still in service. A positive PPD test is not the same as a medical diagnosis of active tuberculosis, nor is it by itself considered a disability that can be service-connected. Rather, a PPD test result is considered to be a laboratory finding used in exploring a possible diagnosis of tuberculosis; that is, a purified protein derivative examination is used to test for exposure to Mycobacterium tuberculosis. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1498, 1962 (30th ed. 2003). Therefore, the positive PPD skin test is more analogous to a laboratory result or symptom, rather than to a disease or injury, and may not be considered a disability for purposes of VA compensation. The Board notes that, under 38 C.F.R. § 4.1, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); 61 Fed. Reg. 20,440 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol or actual laboratory results are not, in and of themselves, disabilities). It is crucial to note that no underlying disability, tuberculosis or residual related to tuberculosis, has been diagnosed. These residuals include psychiatric residuals that arose from tuberculous exposure. There are no records of diagnosis, treatment, positive x-rays, or laboratory studies that indicate the Veteran had active pulmonary tuberculosis either in service or after service. The Board further finds that active tuberculosis is a disease that is diagnosed based on tests and studies and is beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability from the positive PPD test finding or any psychiatric residuals, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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 claims for service connection for tuberculosis exposure, to include psychiatric residuals due to tuberculosis exposure. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Service connection for head injury residuals, to include headaches or stitches to eyebrow The Veteran contends that he fell while onboard the USS Frederick, and received a serious cut above his left eye, requiring him to receive stitches, tetanus shot, and pain medication for his head injury. In the September 2017 hearing, the Veteran also testified that he experienced headaches ever since the fall due to his head injury. Again, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to satisfy Shedden element (1). The Board concludes that the Veteran does not have a current diagnosis of head injury residuals, to include headaches or stitches to the eyebrow, as a result of a head injury during active duty, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 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). The Veteran’s service treatment records are silent regarding treatment for a head injury. The Veteran underwent several medical evaluations during the years of active duty, and none of the medical evaluations noted complaints of or findings of head injury residuals, including headaches or stitches above the eyebrows. Furthermore, in VA evaluations done after his separation from active duty, the first notation of a left eyebrow scar is in May 1989 Reserve physical, which is more than a decade after his active duty separation. The examination do dote the cause of the scar; however, the Veteran had not stated at the time that it was related to a fall during a period of service. The Veteran denied suffering from headaches on medical evaluations, from those performed during active duty, and after separation from active duty. The Veteran’s private physician records are silent regarding any head injury or head injury residuals; and the Veteran denied suffering from headaches during his appointment evaluations. While the Veteran believes he has a current diagnosis of head injury residuals, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge. Jandreau, 492 F.3d 1372 at 1377 n.4. Additionally, there are no medical records in the Veteran’s file that showed the Veteran suffered from a head injury during active duty, or that he had endured head injury residuals as a result. Therefore, based on the medical evidence, the Board finds that service connection for head injury residuals, to headaches or stitches to the eyebrow, must be denied. In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for head injury residuals, including headaches and stitches to eyebrow, and the benefit of the doubt doctrine is not for application. See generally Gilbert, 1 Vet. App. at 53; Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 3. Service connections for a back condition or neck condition The Veteran contends that he fell while performing duties required by his military occupation specialty as a Hub Maintenance Technician on the USS Frederick. He testified in his September 2017 hearing that the fall is what caused both his back and neck conditions. Again, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has diagnoses of cervical and lumbosacral spondylosis, satisfying Shedden element (1). However, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, thus not satisfying the needed Shedden elements (2) and (3). 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are silent regarding any fall during active duty; nor were there any complaints of or treatment for a back and neck injury. As noted above, the Veteran underwent multiple examinations such as annual physicals during his active duty and Reserve periods of service. The Veteran did not complain of nor were any back or neck conditions noted on these evaluations. Private physician records showed complaints of and treatment for back and neck disorders. A motorcycle accident from the 1990’s was also noted. The Veteran underwent several imaging tests for his cervical and lumbosacral spondylosis as ordered by private physicians. Notably, in November 2005, the Veteran underwent a thoracic spine MRI which showed small central disc protrusion at T8-9, and no evidence of focal disc extrusion or spinal stenosis. In June 2008, the Veteran complained of neck stiffness and was diagnosed with degenerative disc disease. In August 2008, a cervical spine MRI showed broad based mild posterior disc protrusion at the C3-4 level, and in April 2009, a lumbar spine MRI showed prominent degenerative disease involving the L3-4 disc. In August 2015, a cervical spine x-ray showed degenerative disc disease and spondylosis of the cervical spine without acute abnormality, and a potential of carotid atherosclerotic disease. In December 2015 and August 2017, the Veteran was diagnosed with cervical radiculopathy. In July 2013, the Veteran was afforded a General Medical – Pension Disability Benefits Questionnaire. He was found to have cervical spondylosis with degenerative joint disease (DJD), as well as degenerative disc disease (DDD) of the lumbar spine. During the examination, the Veteran stated that the pain in both areas began inservice, although he denied any specific trauma. Having carefully reviewed the record, the Board has determined that service connection is not warranted for a neck or back condition. Initially, the Board notes that the record does not show that arthritis of either the lumbosacral spine or cervical spine is shown during, or within one year, of the Veteran’s separation from active service. Thus, service connection on a presumptive basis is not warranted. Although the evidence reveals that the Veteran has current back and neck diagnoses of lumbosacral and cervical spondylosis, as well as DJD and DDD, the medical evidence of record, to include the Veteran’s service treatment records and private physician records, does not etiologically link them to his service. The Board notes that while the Veteran is competent to relay his experience, such as suffering consistent neck and back pain, the Veteran himself, through his statements, is not competent to diagnose the cause of his pain or establish a connection between his lumbosacral and cervical disabilities and his service. The Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses and opinions of etiology. Jandreau, supra. In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claims for service connection of a neck or back condition, and the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, 274 F.3d at 1361. The appeal must therefore be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel