Citation Nr: 21016161 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 13-18 003 DATE: March 22, 2021 ORDER New and material evidence having been received, the claim for service connection for pulmonary tuberculosis is reopened, and to that extent only, the appeal is granted. Service connection for pulmonary tuberculosis is granted. FINDINGS OF FACT 1. A November 1989 rating decision denied service connection for pulmonary tuberculosis. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for pulmonary tuberculosis and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s pulmonary tuberculosis is reasonably shown to be related to or caused by active service. CONCLUSIONS OF LAW 1. The November 1989 rating decision that denied service connection for pulmonary tuberculosis is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received; the claim of service connection for pulmonary tuberculosis is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria have been met for service connection for pulmonary tuberculosis. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1978 to December 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2017 decision, the Board denied reopening the Veteran’s service connection claim for pulmonary tuberculosis finding that new and material evidence had not been received. Subsequently, the Veteran appealed the denial of the claim to the United States Court of Appeals for Veterans Claims (Veterans Court). In an August 2018 Order, the Veterans Court vacated the Board’s November March 2017 decision, denying the reopening of the claim for service connection for pulmonary tuberculosis, and remanded the matter to the Board for action consistent with the Joint Motion for Remand (JMR). In July 2019, the Board remanded the issue of new and material evidence for pulmonary tuberculosis. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). The claim is now once again before the Board. New and Material Evidence New and material evidence has been received to reopen the claim for service connection for pulmonary tuberculosis. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, service connection for pulmonary tuberculosis was denied in a November 1989 rating decision. In the July 2019 remand, the Board noted that in a June 1990 medical history report (as part of a June 1990 VA examination), the Veteran noted that he was treated at the Hampton Virginia VA medical center (VAMC) from July 1989 to June 1990. IF the Veteran was treated at the Hampton, Virginia VAMC, and IF he was treated for his tuberculosis, and IF that evidence was new and material, then those treatment reports were in VA’s constructive possession, and under 38 C.F.R. § 3.156(b), the November 1989 rating decision never became final. In an April 2020 letter, the RO notified the Veteran that it was attempting to obtain and associate with the record any Hampton VAMC treatment records for the period of November 29, 1989 through May 31, 1990. The Veteran was notified that even though the VA has asked for this information, it was his responsibility to see that VA receives it, if he was in possession of it, and VA could not locate it. A May 2020 memorandum noted that the Veteran registered at the Hampton Virginia VAMC in June 1995, and that there was a negative response for records for the period of November 1989 through May 1990. While it does not appear that this memorandum was sent to the Veteran, he was put on notice that the VA was attempting to obtain these records in the April 2020 letter, and in the December 2020 Supplemental Statement of the Case, it mentioned that these records either did not exist or could not be obtained. Because there are no records for the period of November 1989 through May 1990, the November 1989 rating decision became final. The Veteran never submitted a Notice of Disagreement (NOD) nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. Evidence received since that decision includes a January 1993 VA treatment record that reported that the Veteran was coughing up greenish sputum and blood, with the notification of “?[r]eactivation of TB,” a July 2010 VA treatment record showing treatment for a positive purified protein derivative (PPD) test, a September 2018 VA treatment record showing treatment for bronchitis and wheezing, a November 2020 VA examination report for tuberculosis, and a December 2020 VA opinion. This evidence is new to the record, relates to previously unestablished facts to support the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened, and any deficiencies of notification and development in this case will be addressed on remand. [continued on next page] Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection for pulmonary tuberculosis is granted. Factual Background In a November 2020 VA examination report, the examiner noted that the Veteran had never been diagnosed with active or latent tuberculosis. However, shortly after that, in the diagnosis section, the Veteran was diagnosed with latent pulmonary tuberculosis, since 1984. The Board acknowledges that this is internally inconsistent. After this examination report, there were multiple VA opinions, trying to clarify the Veteran’s diagnosis, and whether his claimed pulmonary tuberculosis was related to active service. In the most recent December 2020 VA opinion, the VA examiner opined that it was at least as likely as not that the Veteran’s condition was incurred in or caused by the claimed in-service injury, event, or illness. After a thorough recitation of the Veteran’s tuberculosis history and treatment, the examiner concluded by noted that medical records were consisted with the Veteran having been treated for active tuberculosis in service. Because of this, it was the examiner’s opinion that the Veteran’s current complaints of pulmonary tuberculosis were at least as likely as not related to his tuberculosis complaints in active service. Analysis The Board finds that the Veteran’s statements, combined with the December 2020 VA positive nexus opinion, leads the Board to determine that it is at least as likely as not that the Veteran has a current disability of pulmonary tuberculosis and that it is related to his active service. The Board finds that the evidence demonstrates that the Veteran’s tuberculosis symptoms and residuals, which began during active service and continued to the present, to be competent and credible evidence of continuing symptoms since active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board notes that, under the continuity of symptoms provision, “symptoms, not treatment, are the essence of any evidence of continuity of symptom[s].” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (referencing 38 C.F.R. § 3.303(b)). Based on the above analysis, the Board determines that at the very least, the evidence is evenly balanced for and against (“in relative equipoise”) as to whether the Veteran’s pulmonary tuberculosis is related to active service. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for pulmonary tuberculosis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.