Citation Nr: 21014813 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-12 340 DATE: March 15, 2021 ORDER Entitlement to service connection for tuberculosis (TB) for substitution and/or accrued benefits purposes is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran’s TB was related to his military service, to include exposure to TB and herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for TB for substitution and/or accrued benefits purposes have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to October 1969. The Veteran passed away in May 2019. The Appellant is his surviving spouse and was substituted as the claimant in the Veteran’s appeal in April 2020. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran presented testimony before a Veterans Law Judge who is no longer at the Board. A transcript of the hearing is of record. In May 2016, the Veteran was informed of his right to another Board hearing, which he declined in June 2016. In October 2017 and in May 2020, the Board remanded the appeal for development. Such development has been completed. The Board notes that the instant appeal arrived at the Board with a second claim for service connection for abscesses. Service connection for abscesses was granted in a December 2020 rating decision. As this represents a full grant of the abscess matter on appeal, the matter is no longer before the Board. Entitlement to service connection for tuberculosis (TB) for substitution and/or accrued benefits purposes is denied. Accrued benefits are benefits to which a Veteran was entitled at death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits; (ii) the Veteran had a claim pending at the time of death; (iii) the Veteran would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran’s death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The substance of the survivor’s claim is purely derivative from any benefit to which the Veteran might have been entitled at his death; that is, the survivor cannot receive any such attributed benefit that the Veteran could not have received upon proper application therefore. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include tuberculosis, manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection may also be established based on herbicide agent exposure. 38 C.F.R. § 3.307 (a)(6). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307 (a)(6)(iii). If the veteran is presumed to have been exposed to herbicide agents, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309 (e). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on a review of the record, the Board finds service connection is not warranted for the Veteran’s TB because it has not been shown to be at least as likely as not related to his military service, to include exposure to herbicide agents. Initially, the Board notes that the Veteran did not meet the criteria for presumptive service connection. The Veteran’s TB would have had to manifest to a compensable degree within three years of the Veteran’s separation from service. However, the earliest medical evidence of active TB comes from 2013. The Board also notes the Veteran did not allege his TB developed within three years after service. Moreover, TB is not a disease presumptively linked to exposure to herbicide agents. Therefore, service connection is not warranted based upon the Veteran’s presumed exposure to herbicide agents during active service or on the basis of a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a), and 3.303(b). Notwithstanding the foregoing, the Board has considered whether service connection is warranted under a direct theory of entitlement. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). Regarding the first element of service connection, a current disability, the Board notes that VA treatment records show the Veteran was diagnosed with reactivated mycobacterium tuberculosis in October 2013. Further VA treatment records indicate he underwent successful treatment in 2015. Thus, the Veteran was diagnosed with tuberculosis during the pendency of the appeal and the first element of service connection is satisfied. Regarding the second element of service connection, an in-service incurrence, the Board notes that the Veteran’s service treatment records reveal he was exposed to a fellow servicemember with TB from January 1966 to June 1966. Thus, an in-service incurrence, exposure to TB, exists and the second element of service connection is satisfied. While the Veteran had a current disability and a documented in-service event, there is no competent medical evidence linking the Veteran’s TB to his known in-service exposure to TB. At his October 2015 hearing, the Veteran reported that while he was hospitalized to treat his TB, he was visited by an infectious disease physician who specialized in treating TB. According to the Veteran, the physician told him that his TB was not one found to be “prevalent” in the United States, but rather in “third world countries.” The only country the Veteran had visited in his lifetime that met the description set out by the physician was the Republic of Vietnam. Further, the Veteran reported that the physician indicated his type of TB was able to lay dormant for years, until one’s “immune system weakens” due to age, disease, or treatments such as chemotherapy. The Board notes that at the time, the Veteran was in his seventies and had been receiving chemotherapy treatment for his service-connected cancer. Unfortunately, this physician’s opinion is not in the Veteran’s medical records and his treatment records are otherwise void of etiological opinions linking his TB to his military service. In October 2017, the Board remanded the appeal for additional development, to include obtaining a VA examination on the etiology of the Veteran’s TB. This opinion was obtained in March 2019. In May 2020, the Board remanded the appeal for another VA etiology opinion because the March 2019 VA examination report was found inadequate for failing to address the Veteran’s October 2015 assertions. To remedy this, the Board obtained an addendum opinion in December 2020. The examiner noted a positive diagnosis of mycobacterium TB found during the Veteran’s treatment for cancer and noted that this strain of TB is known to lay dormant and could reactivate in such a setting of immunosuppression, but concluded that the TB was less likely than not related to the Veteran’s military service. The examiner noted follow up testing for TB during service returned negative results and the Veteran’s separation examination lacked notes of TB. Further, the examiner noted that mycobacterium TB is not unique to the Republic of Vietnam and can be found in the United States, which the Board notes is consistent with what the Veteran reported at his October 2015 hearing—that the physician told him it was not “prevalent in the United States.” The Board finds this medical opinion persuasive and highly probative as it reflects consideration of all relevant facts and the examiner provided a cogent rationale for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Finally, while the Veteran asserted that his TB is related to his military service, he was not competent to do so. This issue is medically complex, as it requires complicated diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which preponderates against this claim. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. As such, his claim for entitlement to service connection must be denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante, 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.