TUBERCULOSIS PULMONARY ACTIVE OR INACTIVE

DONNIE R. HACHEY · 2026 · Case ID: A26012599

MIXED

Summary

The veteran served on active duty from April 1994 to May 1998. The veteran appealed the denial of service connection for tuberculosis, stomach pain/issues, and bilateral hearing loss (BHL), and sought an increased rating for left elbow epicondylitis and a compensable rating for a left elbow scar. The Board reviewed new and relevant evidence submitted with the veteran's supplemental claim, which was not previously before the Agency of Original Jurisdiction (AOJ). For tuberculosis and stomach pain/issues, the Board found that the new evidence met the criteria for re-adjudication and established service connection, citing favorable opinions from Dr. M.T. and service treatment records. Service connection for left shoulder rotator cuff tendonitis, back condition, left knee condition, and right ankle condition were granted on a secondary basis, with Dr. M.T.'s opinions finding a nexus to existing service-connected disabilities or in-service events. The veteran was granted an increased rating of 30 percent for left elbow epicondylitis due to painful motion, but the claim for the left elbow scar was denied as it did not meet compensable criteria. The Board remanded the claims for BHL and an acquired psychiatric disorder due to duty to assist errors in scheduling examinations.

Rationale

Dr. M.T. found onset during active duty, persisting to present.; Service treatment records indicate tuberculosis during service.; Veteran entered service without tuberculosis.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250327-532397

Full Decision Text

Citation Nr: A26012599
Decision Date: 02/11/26 Archive Date: 02/11/26

DOCKET NO. 250327-532397
DATE: February 11, 2026

ORDER

New and relevant evidence having been submitted, the claim of entitlement to service connection for tuberculosis warrants re-adjudication.

New and relevant evidence having been submitted, the claim of entitlement to service connection for stomach pain/issues warrants re-adjudication.

New and relevant evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss (BHL) warrants re-adjudication.

Entitlement to service connection for tuberculosis is granted.

Entitlement to service connection for a stomach condition is granted.

Entitlement to service connection for left shoulder rotator cuff tendonitis is granted.

Entitlement to service connection for a back condition is granted.

Entitlement to service connection for a left knee condition is granted.

Entitlement to service connection for a right ankle condition is granted.

Entitlement to an increased rating of 30 percent, but no higher, for left elbow epicondylitis is granted.

Entitlement to a compensable rating for left elbow scar is denied.

REMANDED

Entitlement to service connection for BHL is remanded.

Entitlement to service connection for an acquired psychiatric disorder is remanded.

FINDINGS OF FACT

1. In March 2014 and January 2019 rating decisions, the Agency of Original Jurisdiction (AOJ) denied service connection for tuberculosis, stomach pain/issues, and BHL. The Veteran did not appeal. Therefore, those rating decisions became final. The Veteran then filed a VA Form 20-0995 supplemental claim in November 2024.

2. At the time of the March 2014 and January 2019 rating decisions the record did not contain evidence showing a current disability regarding the claimed conditions. After the decisions, and with his supplemental claim, the Veteran submitted additional statements and medical evidence. This evidence is new and relevant, as it was not previously part of the actual record before agency adjudicators and tends to prove or disprove a matter at issue in the claims.

3. The Veteran's tuberculosis started during service.

4. The Veteran's stomach condition started during service and continued since service.

5. The Veteran's left shoulder rotator cuff tendonitis is caused by his service-connected left elbow condition.

6. The Veteran's back and left knee conditions are caused by his service-connected bilateral lower extremity shin splints and pes planus.

7. The Veteran's right ankle condition started during service and continued since service.

8. The Veteran's left elbow epicondylitis is more closely manifested by limitation of flexion to 70 degrees.

9. The Veteran's left elbow scar is not noted to be painful/unstable, or cover a large enough area to warrant a compensable rating.

CONCLUSIONS OF LAW

1. The criteria for re-adjudicating the claim for service connection for tuberculosis have been met. 38 C.F.R. §§ 3.156(d), 3.2501(a).

2. The criteria for re-adjudicating the claim for service connection for stomach pain/issues have been met. 38 C.F.R. §§ 3.156(d), 3.2501(a).

3. The criteria for re-adjudicating the claim for service connection for BHL have been met. 38 C.F.R. §§ 3.156(d), 3.2501(a).

4. The criteria to establish service connection for tuberculosis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria to establish service connection for a stomach condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria to establish service connection for left shoulder rotator cuff tendonitis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

7. The criteria to establish service connection for a back condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

8. The criteria to establish service connection for a left knee condition have been met.
. The criteria to establish service connection for left shoulder rotator cuff tendonitis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

7. The criteria to establish service connection for a back condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

8. The criteria to establish service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

9. The criteria to establish service connection for a right ankle condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303.

10. The criteria for an increased rating of 30 percent, but no higher, for left elbow epicondylitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7, 4.71a, Diagnostic Code 5206.

11. The criteria for a compensable rating for left elbow scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7, 4.118, Diagnostic Code 7802.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1994 to May 1998.

The Veteran's VA Form 21-526EZ original claim and VA Form 20-0995 supplemental claim were received in November 2024. The rating decision on appeal was issued in February 2025. The Veteran timely appealed to the Board of Veterans' Appeals (Board) and requested the evidence submission review docket. See March 2025 VA Form 10182. The Veteran has waived the opportunity to switch to a different Board docket. See December 2025 correspondence.

The Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like the Department of Veterans Affairs (VA) to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

A veteran is entitled to Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110.

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a
the line of duty in active service. 38 U.S.C. § 1110.

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d).

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

1. Tuberculosis

The Veteran claims exposure to tuberculosis in June 1995. See May 2013 VA Form 21-526. An August 2024 examination by Dr. M.T. found the Veteran is diagnosed with tuberculosis, that he was diagnosed with tuberculosis during active duty, and that the condition had its onset during active service which persists to present day. Dr. M.T. provided an adequate rationale. The Board finds Dr. M.T.'s opinion probative. Service treatment records (STRs) indicate the Veteran had tuberculosis during service. See April 1998 STRs. The Veteran entered service without tuberculosis. See October 1993 STRs.

The Board finds that there is persuasive evidence of record establishing a link between the Veteran's tuberculosis and service. Accordingly, the Board finds that a grant of service connection is warranted for tuberculosis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

2. Stomach Pain

The Veteran claims that he has had stomach issues since service. See May 2013 VA Form 21-526. The Veteran is competent to attest to having stomach pains since service. The Board finds the Veteran's statements credible.

Here, the Veteran is not diagnosed with a specific stomach condition. However, in Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, "the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. The Board considers the Veteran's stomach pain amounts to such disabling functional impairment as contemplated in Saunders. The first Shedden element is met.

An August 2024 examination by Dr. M.T. found the Veteran has stomach pain and spasms which have their onset during active duty and persist to present. Dr. M.T. provided an adequate rationale. The Board finds Dr. M.T.'s opinion probative. The Veteran would be treated for stomach/abdominal pain during service and that same stomach pain was indicated on the separation examination. See January 1996 and April 1998 STRs. The Veteran entered service without stomach pains. See October 1993 STRs.

The Board finds that there is persuasive evidence of record establishing a link between the Veteran's stomach pain and service. Accordingly, the Board finds that a grant of service connection is warranted for a stomach condition. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Left Shoulder

The Veteran is diagnosed with left shoulder rotator cuff tendonitis. See November 2024 examination report. The Veteran is service connected for a left elbow condition. An August 2024 examination by Dr. M.T. found the Veteran's left shoulder condition is as likely as not directly and causally related to compensation due to the Veteran's left elbow condition. Dr. M.T. provided an adequate rationale. The Board finds Dr. M.T.'s opinion probative. The Veteran entered service without left shoulder issues. See October 1993 STRs.

The Board finds that there is persuasive evidence of record establishing a link between the Veteran's left shoulder condition and his service-connected left elbow condition. Accordingly, the Board finds that a grant of service connection is warranted for left shoulder rotator cuff tendonitis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

4. Back

The Veteran is already service connected for bilateral lower extremity shin splints and pes planus.

An August 2024 examination by Dr. M.T. found the Veteran has back pain which impacts daily physical activity, pain at flexion to 40 degrees, and that the back condition is as likely as not directly and causally related to compensation due to the Veteran's pes planus and shin splints. Although the Veteran is not diagnosed with a back condition, the Board finds his functional limitations noted above amounts to such disabling functional impairment as contemplated in Saunders. The first Shedden element is met. Dr. M.T. provided an adequate rationale. The Board finds Dr. M.T.'s opinion probative. The Veteran entered service without back issues. See October 1993 STRs.

The Board finds that there is persuasive evidence of record establishing a link between the Veteran's back condition and his service-connected bilateral lower extremity shin splints and pes planus. Accordingly, the Board finds that a grant of service connection is warranted for a back condition. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

5. Left Knee

The Veteran is already service connected for bilateral lower extremity shin splints and pes planus.

An August 2024 examination by Dr. M.T. found the Veteran has left knee pain which impacts walking and causes pain to 70 degrees flexion, and that the left knee condition is as likely as not directly and causally related to compensation due to the Veteran's pes planus and shin splints. Although the Veteran is not diagnosed with a left knee condition, the Board finds his functional limitations noted above amounts to such disabling functional impairment as contemplated in Saunders. The first Shedden element is met. Dr. M.T. provided an adequate rationale. The Board finds Dr. M.T.'s opinion probative. The Veteran entered service without left knee issues. See October 1993 STRs.

The Board finds that there is persuasive evidence of record establishing a link between the Veteran's left knee condition and his service-connected bilateral lower extremity shin splints and pes planus. Accordingly, the Board finds that a grant of service connection is warranted for a left knee condition. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

6. Right Ankle

An August 2024 examination by Dr. M.T. found the Veteran has right ankle pain which impacts walking, causes decreased range of motion, and that the right ankle condition had its onset during active duty which persists to the present. Although the Veteran is not diagnosed with a right ankle condition, the Board finds his functional limitations noted above amounts to such disabling functional impairment as contemplated in Saunders. The first Shedden element is met. Dr. M.T. provided an adequate rationale. The Board finds Dr. M.T.'s opinion probative. The Veteran entered service without right ankle issues. See October 1993 STRs. The Veteran was treated for right ankle pain during service. See January 1998 STRs.

The Board finds that there is persuasive evidence of record establishing a link between the Veteran's right ankle condition and service. Accordingly, the Board finds that a grant of service connection is
duty which persists to the present. Although the Veteran is not diagnosed with a right ankle condition, the Board finds his functional limitations noted above amounts to such disabling functional impairment as contemplated in Saunders. The first Shedden element is met. Dr. M.T. provided an adequate rationale. The Board finds Dr. M.T.'s opinion probative. The Veteran entered service without right ankle issues. See October 1993 STRs. The Veteran was treated for right ankle pain during service. See January 1998 STRs.

Increased Rating

When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.

Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102.

For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).

The Board notes that 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part, "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited
, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).

When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016).

The Veteran's left elbow condition is rated under Diagnostic Code 5206, for forearm limitation of flexion, which, regarding the major dominant extremity, provides a noncompensable rating for flexion limited to 110 degrees, a 10 percent rating for flexion limited to 100 degrees, a 20 percent rating for flexion limited to 90 degrees, a 30 percent rating for flexion limited to 70 degrees, a 40 percent rating for flexion limited to 55 degrees, and a 50 percent rating for flexion limited to 45 degrees.

An August 2024 examination by Dr. M.T. found the Veteran has painful left elbow flexion to 75 degrees. The November 2024 examination report indicated that the Veteran is left hand dominant, that there is constant daily pain, moderate flare-ups, and impact on lifting items, opening doors, driving, and typing.

Given noted painful flexion to 75 degrees and potential worsening during flare-ups, the Board finds the Veteran's dominant left elbow condition more closely approximates that of limitation of flexion to 70 degrees. As such a 30 percent rating is warranted.

However, a higher than 30 percent rating is not warranted. The Board has already liberally construed the evidence in awarding the higher rating, to include consideration of flare-ups. Medical evidence does not indicate limitation of flexion to 55 degrees or less. The Veteran is also still generally able to complete daily activities and use his left arm/elbow. Limitation of extension is also indicated to be normal. The Veteran has not expressed an inability to move his left elbow or that he has ankylosis of the left elbow. The evidence also does not indicate impairment of the flail joint, radius/ulna, or supination/pronation as to warrant consideration under those other Diagnostic Codes.

Regarding the left elbow scar. The Veteran is noted to have one associated left elbow scar. However, the scar is not noted to be painful or unstable, or cover a large enough are to warrant a compensable rating. See November 2024 examination reports. The Veteran also has not alleged the existence of such. As such, the claim regarding a higher rating for the left elbow scar is denied.

REASONS FOR REMAND

1. BHL

An August 2024 examination by Dr. M.T. found the Veteran has an estimated 20 percent hearing loss in the left ear and 30 percent in the right ear, and that his BHL is as likely as not directly related to in-service acoustic trauma. However, the record does not include a current audiological examination to determine whether the Veteran's does in fact have BHL for VA compensation purposes, which requires numerical threshold measurements for certain frequencies. The evidence includes correspondence from the Veteran indicating discrepancies with scheduling examinations. See January 2025 VA Form 27-0820. The failure in obtaining an audiological evaluation is a pre-decisional duty to assist error. Remand is required to afford the Veteran an examination regarding his BHL.

2. Acquired Psychiatric Disorder.

The Veteran claims both generalized anxiety disorder and depressive disorder. See November 2024 VA From 21-526EZ. The Board will expand the scope of the Veteran's claim to encompass any acquired psychiatric condition. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009). The Veteran claims his friend was killed during service in Fall of 1997. See October 2024 VA Form 21-0781. An August 2024 examination conducted by social worker M.P. diagnosed the Veteran with generalized anxiety disorder and depressive disorder, and that the conditions are likely as not related to military experiences. Here, the Veteran has not had a formal examination from a certified psychiatrist/psychologist to properly diagnose his mental health disorder. The record includes discrepancies in scheduling the Veteran's examinations. See January 2025 VA Form 27-0820. The failure in scheduling the Veteran for a mental health examination is a pre-decisional duty to assist error. Remand is required to afford the Veteran an examination to determine the nature and etiology of his acquired psychiatric disorder.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination to determine the nature and etiology of his BHL. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.

After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry:

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's BHL was incurred in, or is otherwise related, to his time on active service?

In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions.

A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

2. Schedule the Veteran for an examination to determine the nature and etiology of his acquired psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.

After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry:

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's acquired psychiatric disorder was incurred in, or is otherwise related, to his time on active service?

If posttraumatic stress disorder (PTSD) is diagnosed, the examiner should identify the specific stressor(s) that led to the condition.

A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

(Continued on the next page)

If an opinion cannot be provided without resorting to ere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Zheng, Andrew

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not

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