Citation Nr: 20009969 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 18-01 724 DATE: February 6, 2020 ORDER Entitlement to service connection for tuberculosis (TB) is denied. REMANDED Entitlement to service connection for gout is remanded. FINDING OF FACT The most probative (competent and credible) evidence is against finding that the Veteran currently has TB or has at any time since the filing of this claim or contemporaneous to that, much less because of his service or that was worsened by his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for TB. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1986 to August 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for TB Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 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 relevant disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases, including heart disease and arthritis as examples, are considered chronic, per se, and therefore will be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran’s discharge from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.   Service connection also may be established on a secondary basis for disability that is proximately due to, the result of, or being aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has TB because of his service. But the Board finds that there is no current diagnosis of TB upon which to predicate a claim for service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Here, the post-service treatment records show a report from the Veteran that he was treated for possible TB exposure while in service, but there is no indication he was ever in fact determined to have TB. Records also indicate he had negative TB screenings in February 2012 and May 2013. To qualify for entitlement to compensation, a Veteran must prove the existence of a disability and one that has resulted from a disease or an injury that occurred during active military service. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Symptoms, alone, are not a disability for which service connection may be granted. See id. A more recent Federal Circuit Court case held that a diagnosis is not required to meet the current disability requirement and that pain, alone, can constitute disability if it causes impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). This holding does away with the notion, including cited in Sanchez-Benitez, that “pain alone is not disability” in all circumstances, but this concept is still valid in that a Veteran still needs to show disability due to disease or injury in service to get service connection. Here, despite his assertions that he has TB, the Veteran has not offered any competent and credible medical evidence supporting his assertions nor has he demonstrated that he has the knowledge, training, or education required to diagnose this type of medical disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board therefore finds that service connection for TB is not warranted as there is no current diagnosis of this claimed disability or required showing of impairment in earning capacity if equating the symptoms the Veteran claims to experience to the “pain” scenario discussed in Saunders. REASONS FOR REMAND Entitlement to service connection for gout is remanded. The Veteran asserts that his gout was caused by ingesting water contaminated with fuel while in service. While a VA examination was performed in response to this claim, inexplicably no opinion was offered as to whether the Veteran’s currently diagnosed gout is related to his service, including especially to his alleged consumption of water contaminated with fuel. The Board, therefore, is obtaining a medical opinion concerning this before deciding this claim. This matter is REMANDED for the following action: Have the Veteran examined for a medical opinion concerning the nature and etiology of his gout, to include especially to address his contention that his gout is from consumption of drinking water during service contaminated with fuel. All pertinent symptomatology and findings must be reported in detail and all indicated diagnostic tests and studies accomplished. The claims file must be made available to the examiner, including a complete copy of this decision and remand. The examiner must elicit from the Veteran and record in the examination report a history of this claimed disability. The examiner must consider the Veteran’s lay statements regarding this claimed disability.   After examining the Veteran and reviewing the evidence of record, including his lay statements, the examiner is asked to provide an opinion on whether it is at least as likely as not the Veteran’s gout originated during his service from November 1986 to August 1989, within a year of his discharge, so by August 1990, or is otherwise attributable to his service – including especially to his alleged consumption of drinking water during service contaminated with fuel. When responding, it is essential the examiner provide explanatory rationale for all opinions expressed, regardless of whether favorable or unfavorable to this claim, preferably citing to supporting evidence in the file and/or accepted medical authority. If the examiner cannot provide the requested opinion without resorting to mere speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. As examples, the examiner must indicate whether there was any further need for information or testing necessary to make a determination, whether an opinion could not be rendered due to limitations of knowledge in the medical   community at large and not those of the particular examiner, or whatever other reason precludes a sufficiently definitive response. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.