Citation Nr: 19155472 Decision Date: 07/17/19 Archive Date: 07/17/19 DOCKET NO. 18-29 245 DATE: July 17, 2019 ORDER New and material evidence having been received, the claim of entitlement to service connection for a disability manifested by chest pain is reopened. Service connection for costochondritis, claimed as a disability manifested by chest pain, is granted. Service connection for tuberculosis is denied. FINDINGS OF FACT 1. A January 2003 rating decision denied service connection for chest pain on the basis that there was a lack of evidence of a medical diagnosis associated with the chest pain reported by the Veteran. 2. A June 2006 rating decision declined to reopen the chest pain claim as no new and material evidence showing a diagnosis had been received. 3. The Veteran did not appeal either the January 2003, or the June 2006 decision and evidence showing a diagnosis associated with the chest pain was not received within one year of either of those decisions. 4. The evidence added to the record subsequent to the June 2006 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. 5. The Veteran’s costochondritis began during active service. 6. A positive purified protein derivative (PPD) test is not a disability subject to service connection. 7. There is no evidence that the Veteran experiences any current disability as a result of his in-service positive PPD test; and active tuberculosis did not manifest within three years of service discharge. CONCLUSIONS OF LAW 1. New and material evidence was received to reopen the claim for service connection for a disability manifested by chest pain. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for service connection for costochondritis, claimed as a disability manifested by chest pain, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for tuberculosis are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence – Chest Pain The Veteran claimed service connection for chest pain in August 2002, the same month of his separation from active service. This claim was denied by way of a January 2003 rating decision on the basis that there was no evidence of a medical diagnosis associated with the Veteran’s reported chest pain. The Veteran did not file a notice of disagreement or any new evidence showing a diagnosis within one year of the January 2003 decision; therefore, that decision became final. 38 U.S.C. § 7104(b) (1991); 38 C.F.R. §§ 3.104, 20.1103 (2002). In 2005 and 2006, the Veteran submitted ongoing records showing complaints of chest pain and in June 2006, the RO issued a rating decision declining to reopen the claim because no new and material evidence had been received. The Veteran also did not file a notice of disagreement or any new evidence showing a diagnosis within one year of the June 2006 decision, so that decision became final. 38 U.S.C. § 7104(b) (2005); 38 C.F.R. §§ 3.104, 20.1103 (2005). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this case, in September 2014, the Veteran reported having been diagnosed with costochondritis related to his chest pain. He submitted a copy of an emergency room report dated in July 2013 showing the diagnosis. In February 2018, a VA examiner confirmed the diagnosis and opined that it is at least as likely as not that the Veteran’s condition initially had its onset during his active service. Further, in June 2018, a statement received from the Veteran’s VA treating physician indicates that the Veteran has a history of costochondritis that causes him chest discomfort. These records are not cumulative or redundant of the evidence previously of record. Rather, they show the presence of a diagnosed disorder associated with the Veteran’s chest pain, which is evidence that was not present before, the lack of which was the basis for the prior denials. Moreover, these records are material in that they establish a basis for granting the claim. Accordingly, reopening of the claim for service connection for chest pain is warranted. Service Connection - Costochondritis The Veteran contends that he has a current disability that is manifested by chest pain and that it initially started during his active service. The Board concludes that the Veteran has a current diagnosis of costochondritis causing his chest pain, which began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s service treatment records show that he entered service free of any reports of chest pain, but was seen for various reports of chest pain with indications that the chest pain could not be associated with any cardiac disorder. A history of chest pain was also noted at separation. In November 2014, the Veteran submitted a statement recalling the initial onset of discomfort in his chest being in his active service. In February 2018, the Veteran filed another statement and with this statement, he submitted a copy of an emergency room report dated in July 2013 showing the diagnosis of costochondritis. In February 2018, a VA examiner again confirmed that there is no cardiac cause for the Veteran’s chest pain, and noted the emergency room treatment and the diagnosis made at that time and opined that it is at least as likely as not that the Veteran’s condition initially had its onset during his active service. The examiner explained that there was no chest pain described at the time of the Veteran’s enlistment into service, and that there was a twenty-year history of chronic non-cardiac chest pain. Further, in June 2018, a statement received from the Veteran’s VA treating physician indicates that the Veteran has a history of costochondritis that causes him chest discomfort. The Veteran’s competent and credible lay reports related to his history of symptoms, which are corroborated within the in-service records and since, establish that the Veteran had an onset of chest discomfort in service, which has been ongoing ever since. Both the VA examiner and the Veteran’s VA treating physician have confirmed that the Veteran has costochondritis and that it is the reason for his chest discomfort. Thus, the Board concludes that the preponderance of the evidence establishes that the Veteran’s costochondritis began during his active service. Accordingly, the Board finds that service connection for costochondritis is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). Tuberculosis The Veteran asserts that entitlement to service connection is warranted for tuberculosis. He reported with his claim that he was diagnosed in 1988 and treated with a medication regimen for one year. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for a disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for certain chronic diseases, such as tuberculosis, may also be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent or more within three years 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). Service connection may also 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). The Board acknowledges that service treatment records reflect the Veteran had a positive PPD test in 1978 and prescribed INH. It was noted that he denied symptoms such as shortness of breath and nausea and reported occasional sweating, but not at night. August 1978 chest x-ray noted the “+PPD” and confirmed there was no evidence of any active lung disease. Later records, such as in August 1980, show a reported history of one year of INH. The Veteran again had a positive PPD test in December 1987. January 1988 records confirm that there was again no report of symptoms, no cough, and a negative chest x-ray. A one-year regimen of INH began in March 1988. There is no indication in the service records of treatment for 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. 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 actually 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 test. 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 his in-service positive PPD test; and active tuberculosis did not manifest within three years of service discharge. 38 C.F.R. §§ 3.307, 3.309. Both in-service and post-service medical treatment records are all negative for a diagnosis of symptoms associated with tuberculosis. The Veteran’s lungs and chest have been clinically evaluated as normal on numerous subsequent diagnostic testing. Additionally, the many years of post-service clinical records within the claims file show no active tuberculosis or other pulmonary disease. A February 2018 VA examiner confirmed the history of a positive PPD test in service, but also confirmed that there was no evidence at any time of active tuberculosis and no symptoms of the disease. The examiner indicated that the positive PPD is at least as likely as not “latent TB (+PPD) occurred during service.” Even though the Veteran did have in-service positive PPD test results, neither tuberculosis, nor any other chronic pulmonary disorder was shown in service or shown since that time. Congress specifically limits entitlement to service connection where disease or injury has resulted in a disability. See 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). 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 active 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. Thus, the benefit of the doubt doctrine is not for application. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel