Citation Nr: 21011059 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-46 891 DATE: February 26, 2021 ORDER Entitlement to service connection for tuberculosis of the spine (Pott’s disease) is denied. FINDING OF FACT The most probative evidence of record does not reach the level of equipoise as to whether the Veteran’s tuberculosis of the spine is related to service or was manifested within three years of service to a compensable degree. CONCLUSION OF LAW The criteria for entitlement to service connection for tuberculosis of the spine (Pott’s disease) have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1962 to May 1965. He served honorably in the U.S. Navy, including sea service. The Board thanks the Veteran for his service to our country. The issue of service connection for tuberculosis of the spine was previously before the Board in November 2019, when the Board denied the claim. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2020 Order, granting a September Joint Motion for Remand (Joint Motion), the Court vacated and remanded the November 2019 Board decision consistent with the terms of the Joint Motion. The case has now returned to the Board for further appellate review and readjudication consistent with the terms of the Joint Motion. Entitlement to service connection for tuberculosis of the spine (Pott’s disease) is denied. The Veteran contends that service connection for tuberculosis of the spine is warranted as the disorder was contracted in service when traveling through foreign ports where tuberculosis is prevalent. The Board finds that service connection for the disorder is not warranted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Tuberculosis may be presumed to have been incurred during service if it became disabling to a compensable degree within three years of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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 distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The claimant bears the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). However, when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The benefit of the doubt doctrine, however, is not applicable based on “pure speculation or remote possibility.” Fagan, 573 F.3d at 1287. Rather, the evidence must rise to a state of equipoise for the veteran to prevail. See Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009). Indeed, the Federal Circuit rejected the idea that a veteran must be awarded benefits unless VA produces affirmative evidence refuting the claim. See Skoczen, 564 F.3d at 1329. Instead, the Federal Circuit concluded that if zero evidence is produced in support of a material issue, 1) it may be that no evidence exists to support the particular issue, in which case VA can rule against the claim; or 2) VA may have failed its duty to assist. Id. In this case, no defects were noted in a January 1962 entrance examination. Each component of the PULHES physical profile was assessed as “1” and the physical category was assessed as “A.” A chest x-ray from that day was found to be essentially normal. Another chest x-ray was conducted the next day and interpreted in a February 1962 note as having a calcific density in the right base. The provider suggested that repeat films be taken before leaving boot camp but concluded that it was not currently disabling. In April 1962, a medical officer noted that the Veteran’s profile “A” had been verified and again assessed each component of the PULHES physical profile as “1.” He was noted to be qualified for full duty and physically qualified for transfer. In a December 1962 note, the provider noted that a chest x-ray showed right hilar and basal calcification without evidence of active disease. A February 1964 chest x-ray showed calcification of the right middle lobe; this was concluded to be not currently disabling. A November 1964 chest x-ray was negative. In April 1965 the Veteran was noted to have been examined and found physically qualified for transfer. In a May 1965 separation examination, the only defect noted on clinical evaluation was a vaccination scar on the upper left arm. A chest x-ray from that day was negative. In a January 1991 VA note, the Veteran was admitted for an evaluation of low back pain with L2-L3 compression fracture and a positive chest x-ray with left upper lobe cavitation. He reported no known tuberculosis exposure. Days later, a provider rendered an assessment of pulmolumbar tuberculosis. A March 1991 chest x-ray was positive for left upper lobe cavitary lesion consistent with mycobacterium tuberculosis infection and he was diagnosed with mycobacterium tuberculosis pulmonary infection, pan-sensitive, and Pott’s disease. In a June 2013 statement, the Veteran contended that traveling through foreign ports while on active service in the U.S. Navy was very likely the source of contact with the disease. He stated that tuberculosis was very slow spreading and did not manifest for several years and that his first manifested in 1989. June 2014 chest x-ray imaging showed left hemithorax findings consistent with the known history of tuberculosis. An article associated with the record in September 2014 on tuberculosis in Japan noted that more than half of people with tuberculosis are in their 60s, indicating that they were infected when they were children and the symptoms manifested when their immune systems became weakened. The article noted that, according to government reports, more than 40,000 people in Japan were infected with tuberculosis each year. In a December 2015 statement, the Veteran stated that, according to the Center for Disease Control and Prevention, tuberculosis is spread through the air from one person to another through coughing, sneezing, speaking, or singing. He stated that in his case, he had latent tuberculosis infection which later manifested in his spine. He stated that Hong Kong; Taiwan; Subic Bay, Philippines; and Yokosuka and Sasebo, Japan were his ports of call during service. He stated that these ports of call have extremely large populations with tuberculosis: millions of Chinese people develop tuberculosis every year these days; the Philippines is currently one of the world’s 22 high-burden tuberculosis countries, is the second largest contributor to non-U.S. born tuberculosis cases in the United States, and had a prevalence in 2010 of 502 cases per 100,000 people; and tuberculosis was a widespread disease in Japan after World War II and was identified as the national disease in the early 1950s, when hundreds of thousands of Japanese people were infected by it. He stated that while on active duty he was exposed to a defined population infected with tuberculosis and that it is extremely likely that he because infected with tuberculosis in service and developed a latent form of tuberculosis. In an August 2019 statement, the Veteran stated that Pott’s disease can be carried for years and not manifest until the immune system weakens and that it is likely he was infected while serving in regions where tuberculosis is prevalent. In a September 2019 VA examination report, the examiner noted diagnoses of tuberculosis of the spine and Pott’s disease which, though inactive, had residuals. The examiner concluded that the Veteran’s disorders were less likely than not related to service. Noting that an in-person examination had been conducted and that medical literature from the National Institutes of Health, Infectious Disease Society, and Mayo Clinic had been reviewed in addition to the Veteran’s claims file, the examiner stated that to render an opinion as to whether the Veteran’s disorder was at least as likely as not incurred in service or otherwise related to service would be mere speculation. The examiner explained the pathogenicity of tuberculosis of any type is in stages where the actual pathogen invades the body and is inactive until immunocompromise, when it activates. The examiner continued that there is no scientific evidence that reports “when” Pott’s disease infection occurs in relation to the development of the actual disease state and that there is no timeline to provide evidence as to when the Veteran actually became infected with tuberculosis, as that type of tuberculosis is rare and more research is needed. The examiner added that approximately 66 percent will have an abnormal x-ray and that calcification on an x-ray can have many causes. The Board finds that VA’s duty to assist in obtaining an etiology opinion has been met, as the examiner based the inability to render the opinion without resorting to mere speculation on in-person examination, review of the record, review of literature, and the lack of research and lack of evidence as to when the Veteran was infected. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board finds that preponderance of the evidence is against finding that tuberculosis manifested in service or within three years after separation or that his tuberculosis is otherwise related to service. While there were multiple in-service notations of calcification of the right middle lobe which was concluded to be not currently disabling, there are no notations of tuberculosis, findings consistent with tuberculosis, or findings consistent with a history of tuberculosis. Moreover, as noted by the VA examiner, calcification on an x-ray can have many causes. Chest imaging on separation was negative and the only defect noted was a vaccination scar. Additionally, there is no lay or medical evidence of manifestations of tuberculosis within three years of separation; indeed, the Veteran stated that the disorder did not manifest until 1989. With respect to the Veteran’s contentions that he was infected with tuberculosis in service, the Board further finds that the most probative evidence of record does not reach the level of equipoise. While he is competent to relay his ports of call and may be competent to relay what he has read with respect to their tuberculosis rates of infection while he was in service (the Board notes that the figures cited by the Veteran do not reflect tuberculosis rates in the ports of call while he was in service), he does not identify any known exposure; indeed, as he reported in January 1991, he had no known tuberculosis exposure. Rather, contentions of exposure in ports of call with purportedly high infection rates are “pure speculation or remote possibility.” Further, while he states that he likely was infected with tuberculosis while in service, he is a lay person and does not profess to have the medical expertise required to determine the point at which he was infected. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the VA examiner, acknowledging that tuberculosis of all types is in stages of infection, inactivity, and activity with immunocompromise, concluded that it would be mere speculation to opine as to whether tuberculosis was incurred in or otherwise related to service, as there is no timeline to provide evidence as to when the Veteran actually became infected with tuberculosis and there is no scientific evidence reporting when Pott’s disease infection occurs in relation to its manifestation. As it would be speculation or remote possibility that the Veteran was infected in service while at ports of call and it would be mere speculation to estimate the time of infection based on the manifestation of Pott’s disease, the evidence does not rise to the level of equipoise and the benefit of the doubt doctrine does not apply. Skoczen, 564 F.3d at 1324; Fagan, 573 F.3d at 1287. Hence, after reviewing all the evidence of record, the Board finds that service connection for tuberculosis of the spine (Pott’s disease) is not warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, Associate Counsel 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.