TUBERCULOSIS PULMONARY ACTIVE OR INACTIVE

Summary

The Veteran, a Veteran who served from November 1972 to November 1975, appeals the denial of service connection for tuberculosis. The Veteran contends that new and relevant evidence, including lay statements and a positive skin test in 1981, warrants reopening the claim and establishing service connection. The Veteran also asserts a history of tuberculosis contracted and treated during service, possibly in Korea, and that lung cancer was caused by tuberculosis. The Board reviewed service treatment records, VA medical records, and statements made at a Board hearing. Service treatment records from 1972-1975 did not document tuberculosis, showing negative tests and a negative chest X-ray at separation. While a 1981 skin test was positive, a concurrent chest X-ray was negative, and the Veteran received prophylactic treatment. Later VA records noted a history of tuberculosis and a positive skin test, but subsequent imaging and biopsies led to a lung cancer diagnosis, not tuberculosis. A September 2020 VA records review examiner concluded the Veteran was never diagnosed with active or latent tuberculosis, finding the positive skin test less likely than not related to service. The Board found the evidence against a current tuberculosis diagnosis, noting the prophylactic treatment and negative imaging. The Board also found the Veteran's claims of diagnosis and treatment to be misinterpretations of the record. The Board denied service connection for tuberculosis, finding the evidence not in approximate balance.

Rationale

New and relevant evidence received; Veteran's assertions presumed credible for reopening

Full Decision Text

Citation Nr: A26028200
Decision Date: 03/27/26	Archive Date: 03/27/26

DOCKET NO. 210204-138627
DATE: March 27, 2026

ORDER

New and relevant evidence has been received to reopen a claim of entitlement to service connection for tuberculosis, and to that extent only, the claim is granted.

Entitlement to service connection for tuberculosis is denied.

FINDINGS OF FACT

1. New and relevant evidence has been received to reopen a claim of entitlement to service connection for tuberculosis.

2. The weight of the evidence is against a finding that the Veteran had a current tuberculosis disability during or contemporary to the appeal period.

CONCLUSIONS OF LAW

1. The evidence received after an October 2020 rating decision denying service connection for tuberculosis is new and relevant, and the claim for service connection is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

2. The criteria for service connection for tuberculosis are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1972 to November 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA), which is the Agency of Original Jurisdiction (AOJ).

The January 2021 rating decision denied entitlement to service connection for tuberculosis, finding that new and relevant evidence had not been received in support of the claim.

In February 2021, the Veteran filed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), appealing the January 2021 rating decision, and electing the Hearing docket.  A Board hearing was held on August 23, 2024, and a transcript of that hearing is of record.

Therefore, the Board may only consider the evidence of record at the time of the January 2021 AOJ rating decision on appeal, and any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing.  If evidence was submitted either during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or more than 90 days following the hearing, the Board did not consider that evidence in this decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran wants VA to consider any evidence that was submitted that the Board cannot consider, the Veteran may file a Supplemental Claim, VA Form 20-0995, and submit or identify that evidence.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  38 C.F.R. § 3.2501.  Specific instructions for filing a Supplemental Claim are included with this decision. 

1. New and relevant evidence has been received to reopen a claim of entitlement to service connection for tuberculosis, and to that extent only, the claim is granted.

A claimant may request re-adjudication of a previously denied claim.  If new and relevant evidence is presented or secured, VA will readjudicate the claim taking into consideration all of the evidence of record.  New evidence means existing evidence not previously submitted to agency decisionmakers.  Relevant evidence means evidence that tends to prove or disprove a matter in issue.  38 U.S.C. § 5108.

Since the October 2020 rating decision denying service connection for tuberculosis, the record contains additional statements by the Veteran that tend to show that the Veteran may have had a diagnosis of tuberculosis in 1981, several years after separation, which speaks to a possible relationship between any current disability and service.  That exact statement was not previously before agency adjudicators.  The Veteran also reported additional information not previously provided to VA at an August 2024 Board hearing.

As the Veteran's assertions are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, the new medical evidence including the Veteran's lay statement tends to prove or disprove a matter at issue with respect to the claim for entitlement to service connection.  The Board finds that new and relevant evidence has been received.  Therefore, readjudication of the claim of entitlement to service connection is warranted.

2. Entitlement to service connection for tuberculosis.

Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131;
 The Veteran also reported additional information not previously provided to VA at an August 2024 Board hearing.

As the Veteran's assertions are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, the new medical evidence including the Veteran's lay statement tends to prove or disprove a matter at issue with respect to the claim for entitlement to service connection.  The Board finds that new and relevant evidence has been received.  Therefore, readjudication of the claim of entitlement to service connection is warranted.

2. Entitlement to service connection for tuberculosis.

Service connection may be established for disability caused by 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 service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence, generally medical, of a causal relationship between the disease or injury in service and the current disability.  Hickson v. West, 12 Vet. App. 247 (1999).

Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service.  38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992).  The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature.  For the showing of chronic disease in service, a combination of manifestations must exist 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.

Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability.  38 C.F.R. § 3.310.

Certain chronic diseases are entitled to presumptive service connection although not otherwise shown as incurred during or caused by service, if manifested to a compensable degree within certain time limits.  Active tuberculosis is one of those chronic diseases, and it must manifest within three years of separation to qualify for presumptive service connection.  38 C.F.R. §§ 3.307, 3.309.

For pulmonary tuberculosis, presumptive service connection is available for wartime service on or after January 1, 1947.  Evidence of activity on comparative study of X-ray films showing pulmonary tuberculosis within the 3-year presumptive period provided by 38 C.F.R. § 3.307(a)(3) will be taken as establishing service connection for active pulmonary tuberculosis subsequently diagnosed by approved methods but service connection and evaluation may be assigned only from the date of such diagnosis or other evidence of clinical activity.  A notation of inactive tuberculosis of the reinfection type at induction or enlistment definitely prevents the grant of service connection under 38 C.F.R. § 3.307 for active tuberculosis, regardless of the fact that it was shown within the appropriate presumptive period.  38 C.F.R. § 3.371.

For pulmonary tuberculosis shown by X-ray in active service, regarding active disease, X-ray evidence alone may be adequate for the grant of direct service connection for pulmonary tuberculosis.  When under consideration, all available service department films and subsequent films will be secured and read by specialists at designated stations who should have a current examination report and X-ray.  Resulting interpretations of service films will be accorded the same consideration for service-connection purposes as if clinically established, however, a compensable rating will not be assigned prior to establishment of an active condition by approved methods.  38 C.F.R. § 3.370(a).

Regarding inactive disease, where the veteran was examined at time of entrance into active service but X-ray was not made, or if made, is not available and there was no notation or other evidence of active or inactive reinfection type pulmonary tuberculosis existing prior to such entrance, it will be assumed that the condition occurred during service and direct service connection will be in order for inactive pulmonary tuberculosis shown by X-ray evidence during service in the manner prescribed in 38 C.F.R. § 3.370(a), unless lesions are first shown so soon after entry on active service as to compel the conclusion, on the basis of sound medical principles, that they existed prior to entry on active service.  38 C.F.R. § 3.370(b).

Regarding primary lesions, healed primary type tuberculosis shown at the time of entrance into active service will not be taken as evidence to rebut direct or presumptive service connection for active reinfection type pulmonary tuberculosis.
 active or inactive reinfection type pulmonary tuberculosis existing prior to such entrance, it will be assumed that the condition occurred during service and direct service connection will be in order for inactive pulmonary tuberculosis shown by X-ray evidence during service in the manner prescribed in 38 C.F.R. § 3.370(a), unless lesions are first shown so soon after entry on active service as to compel the conclusion, on the basis of sound medical principles, that they existed prior to entry on active service.  38 C.F.R. § 3.370(b).

Regarding primary lesions, healed primary type tuberculosis shown at the time of entrance into active service will not be taken as evidence to rebut direct or presumptive service connection for active reinfection type pulmonary tuberculosis.  38 C.F.R. § 3.370(c).

Service department diagnosis of active pulmonary tuberculosis will be accepted unless a board of medical examiners, Clinic Director, or Chief, Outpatient Service certifies, after considering all the evidence, including the favoring or opposing tuberculosis and activity, that the diagnosis was incorrect.  Doubtful cases may be referred to the Chief Medical Director in Central Office.  38 C.F.R. § 3.374(a).

Diagnosis of active pulmonary tuberculosis by the medical authorities of VA as the result of examination, observation, or treatment will be accepted for rating purposes.  Reference to the Clinic Director or Chief, Outpatient Service, will be in order in questionable cases and, if necessary, to the Chief Medical Director in Central Office.  38 C.F.R. § 3.374(b).

Diagnosis of active pulmonary tuberculosis by private physicians on the basis of their examination, observation or treatment will not be accepted to show the disease was initially manifested after discharge from active service unless confirmed by acceptable clinical, X-ray, or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment.  38 C.F.R. § 3.374(c).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran is competent to provide testimony concerning factual matters based on firsthand knowledge, such as experiencing a physical symptom such as pain.  Therefore, the Board must assess the competence and credibility of lay statements.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997).

A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail.  To deny a claim on its merits, the weight of the evidence must be against the claim.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, every piece of evidence submitted by or on behalf of the Veteran.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence of record.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  Timberlake v. Gober, 14 Vet. App. 122 (2000).

The threshold consideration for any claim for service connection is the existence of a current disability.  In the absence of proof of a present disability, there is no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Veteran contends that service connection is warranted for tuberculosis.

At an October 1972 entrance examination, the Veteran's lungs and chest were not marked as normal or abnormal, apparently having been circled and then scribbled over for lack of a better description.  The examiner noted that the Veteran had hay fever, but that no disqualifying defects or communicable diseases were noted.  On  a medical
 Vet. App. 122 (2000).

The threshold consideration for any claim for service connection is the existence of a current disability.  In the absence of proof of a present disability, there is no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Veteran contends that service connection is warranted for tuberculosis.

At an October 1972 entrance examination, the Veteran's lungs and chest were not marked as normal or abnormal, apparently having been circled and then scribbled over for lack of a better description.  The examiner noted that the Veteran had hay fever, but that no disqualifying defects or communicable diseases were noted.  On  a medical history form, the Veteran reported a history of hay fever, and an adverse reaction to serum, drug, or medicine.  The examiner noted that the Veteran had a penicillin allergy.

A November 1972 tuberculosis tine test was not noted to be positive.  In the section on the same form entitled "Remarks and Recommendations (Including a history of diseases for which any of the above immunizing agents were given with year and place of attack)," no notes were made detailing a history of tuberculosis.

From May 1973 to September 1974, the Veteran was in Hawaii.

June 1973 service medical records note that the Veteran denied a history of tuberculosis but reported a history of pneumonia.

A January 1974 tuberculosis test was not noted to be positive.  In the section on the same form entitled "Remarks and Recommendations (Including a history of diseases for which any of the above immunizing agents were given with year and place of attack)," no notes were made detailing a history of tuberculosis.

From November 1974 to November 1975, the Veteran was in Korea.

November 1975 service medical records document that the Veteran was medically examined and found free from any communicable disease.  A line on the form indicates that a tuberculin skin test or chest X-ray is required, and the examiner circled that a chest X-ray was performed and wrote in the "remarks" section that the chest X-ray was negative.  A November 1975 chest X-ray was within normal limits.

At a November 1975 separation examination, the Veteran's lungs and chest were found to be normal, and the Veteran was found qualified for separation.

A March 1991 state public health medical record notes that the Veteran had a positive reaction to a Mantoux skin test for tuberculosis in April 1981, but a chest X-ray performed on the same day was negative.  The record documents that prophylactic treatment was recommended and that one year of INH therapy was completed in March 1982.

A March 1991 state public health medical record notes that the Veteran had a positive reaction to a Mantoux skin test for tuberculosis in April 1981, but a chest X-ray performed on the same day was negative.  The record documents that prophylactic treatment was recommended and that seven months of INH therapy were completed from April 1981 to March 1982.

July 2001 VA medical records note that the Veteran reported being exposed to and treated for tuberculosis during service.

May 2013 VA medical records note that the Veteran did not have active untreated tuberculosis.

April 7, 2018, VA medical records document a chest X-ray.  The Veteran reported experiencing a wheeze and reported a history of tuberculosis, and that was the basis for scheduling the X-ray.  A lobulated opacity suspicious for underlying malignancy was noted, as were emphysematous changes of the lungs.  The examiner noted that there were no pleural effusions or pneumothorax.

April 27, 2018, VA medical records document that a CT scan of the lungs was performed after an X-ray showed a mass that was suspicious for malignancy.  A spiculated mass was found which the examiner felt was a primary malignancy rather than metastases of prostate cancer, which the Veteran had previously.  The examiner noted minimal tree-in-bud nodularity on the lower left lobe and other subtle groundglass opacity at the left upper lobe, which could be due to an inflammatory or infectious process as seen with an atypical type pneumonia, with metastases not excluded.

May 2018 VA medical records document a CT scan of the abdomen and pelvis conducted for a potential kidney stone.  The report notes that the lung bases were clear.

June 2018 VA medical records note that a biopsy was positive for lung cancer.

At a September 2020 VA examination, conducted by records review, the examiner found that the Veteran did not have and had not ever been diagnosed with active or latent tuberculosis.  The examiner noted that the Veteran had had a positive skin test for tuberculosis without active disease.  The examiner noted that the Veteran had not had a positive
 at the left upper lobe, which could be due to an inflammatory or infectious process as seen with an atypical type pneumonia, with metastases not excluded.

May 2018 VA medical records document a CT scan of the abdomen and pelvis conducted for a potential kidney stone.  The report notes that the lung bases were clear.

June 2018 VA medical records note that a biopsy was positive for lung cancer.

At a September 2020 VA examination, conducted by records review, the examiner found that the Veteran did not have and had not ever been diagnosed with active or latent tuberculosis.  The examiner noted that the Veteran had had a positive skin test for tuberculosis without active disease.  The examiner noted that the Veteran had not had a positive quantiferon-TB gold test without active disease.  The examiner noted that the records showed a positive skin test in April 1981 with a negative chest X-ray, and that the Veteran received prophylactic treatment in the form of isoniazid for one year.  The examiner found that the Veteran did not have and had never been diagnosed with pulmonary tuberculosis or non-pulmonary tuberculosis.  The examiner found that the there was no functional impact.  The examiner found that the Veteran did not have a diagnosis of tuberculosis, and opined that the positive skin test was less likely than not due to or caused by service.  The examiner cited a reference stating that the diagnosis of pulmonary tuberculosis is definitively established by the isolation of the tuberculosis bacterium from a bodily fluid or tissue, such as a biopsy sample, and that X-ray imaging was an important supportive diagnostic tool.

At an August 2024 Board hearing, the Veteran's representative asserted that VA medical records from January 15, no year specified, confirmed a diagnosis.  The Veteran reported having had a tuberculosis test in 1980, was told of having tuberculosis, and received and took some sort of pills for a year.  The Veteran reported having X-rays but was unable to remember details.  The Veteran reported having lung cancer and having a portion of a lung removed and being told tuberculosis was present.  The Veteran reported being told by a particular doctor that tuberculosis must have come from overseas, and the Veteran stated there was no way tuberculosis could have been contracted in the United States.  The representative asserted that the Veteran's primary care doctor provided a medical opinion that tuberculosis was incurred during service.  The representative asked about spots indicative of tuberculosis being seen on a removed portion of a lung, but the Veteran was unable to remember if anyone had said tuberculosis was present after 1980.  The Veteran asserted that colon and lung cancer were caused by tuberculosis.  The Veteran's representative asserted that the case be remanded to the Regional Office for a second examination to assess the presence of a current disability.  The representative asserted that the Veteran had toxic exposure during service, and asserted that exposure to blood-borne pathogens and ship-borne hazards occurred.  The Veteran reported serving in Korea and Hawaii, and asserted that there was a lot of tuberculosis in Korea.  The Veteran reported travelling to foreign assignments by plane.  The Veteran asserted a belief that no tuberculosis tests had been performed in service.  The Veteran reported having a chest cough beginning during service.  The Veteran reported that lung cancer was diagnosed and treated in 2017 or 2018.  The Veteran and representative expressed an intent to obtain a statement or medical opinion from the Veteran's primary care doctor that the Veteran had attributed tuberculosis to Korea.

The Board has considered whether the Veteran had a current tuberculosis disability during or contemporary to the appeal period.  The Board finds that the weight of the evidence is against such a finding.  In September 2020, a VA examiner reviewed the Veteran's medical records and concluded that the Veteran had never been diagnosed with pulmonary or non-pulmonary tuberculosis.  The examiner explained and cited reference material indicating that a diagnosis of tuberculosis is made on testing of tissue by biopsy or testing of bodily fluids for the bacterial pathogen.  VA medical records document that a chest X-ray was performed in April 2018 when the Veteran reported wheezing and a history of tuberculosis.  That X-ray and other images led to diagnosis of and treatment for lung cancer.  No diagnosis of tuberculosis was made on the basis of multiple lung images or a biopsy done after a lobectomy was performed.

The Board has considered the Veteran's contention that service connection is warranted on a presumptive basis because of a positive tuberculosis skin test within seven years of separation from service.  However, the Board notes that presumptive service connection applies to active tuberculosis, and the applicable time limit is three years for active tuberculosis.  38 C.F.R. §§ 3.307, 3.309.  Here the weight of the evidence is against a finding that the Veteran had tuberculosis at any time.  Additionally, the skin test was more than three years after separation even if it had shown active
 of and treatment for lung cancer.  No diagnosis of tuberculosis was made on the basis of multiple lung images or a biopsy done after a lobectomy was performed.

The Board has considered the Veteran's contention that service connection is warranted on a presumptive basis because of a positive tuberculosis skin test within seven years of separation from service.  However, the Board notes that presumptive service connection applies to active tuberculosis, and the applicable time limit is three years for active tuberculosis.  38 C.F.R. §§ 3.307, 3.309.  Here the weight of the evidence is against a finding that the Veteran had tuberculosis at any time.  Additionally, the skin test was more than three years after separation even if it had shown active tuberculosis, which it did not.  Additionally, a chest X-ray taken in conjunction with the skin test was negative, and the Veteran was treated prophylactically.

The Board acknowledges that the Veteran has reported being diagnosed with tuberculosis and treated for tuberculosis in 1981.  State health records document that the Veteran had a positive skin test and was treated prophylactically, but do not document that a diagnosis of tuberculosis was made.  Those records also document that an X-ray was negative for tuberculosis.  The September 2020 VA examiner reviewed and acknowledged that skin test, but ultimately found that a diagnosis of tuberculosis was not supported.  The Board finds that the Veteran's statement represents a mischaracterization or misinterpretation of the evidence.  Prophylactic treatment is preventative treatment.  The Board does not express medical judgment, but notes that the plain meaning of that term is consistent with the September 2020 examiner's findings and tends to support that the treatment was to prevent tuberculosis rather than treat tuberculosis that was already present, and therefore supports that the Veteran was not considered to have tuberculosis after the positive skin test and negative chest X-ray.

The Board acknowledges that the September 2020 VA examiner conducted a records review examination rather than an in-person examination.  However, a chest X-ray, CT scan, and other imaging had recently been performed and were available in VA medical records, and that imaging was conducted initially due to the Veteran's complaints of wheezing and reports of having a history of tuberculosis.  The September 2020 examiner apparently concluded that the medical evidence of record was sufficient to provide the necessary information, and the Board does not find evidence showing that assessment was incorrect.

The Board acknowledges that the Veteran has reported being diagnosed with tuberculosis during treatment for lung cancer.  However, the evidence of record shows that extensive imaging was performed after the Veteran complained of wheezing and reported a history of tuberculosis.  Multiple images, including a chest X-ray and CT scan were conducted, and resulted in a diagnosis of lung cancer, but not of tuberculosis.  The weight of the evidence supports that the Veteran's statement represents a misunderstanding or misinterpretation of statements made by the doctors.  The Board finds it facially implausible that VA doctors would make a diagnosis of tuberculosis and report it to the Veteran but not record it in the medical records or record any discussion of tuberculosis at all.  Multiple imaging studies were performed, and radiologists also did not record a diagnosis of tuberculosis.  Cancer was an incidental diagnosis, as the X-ray was conducted after the Veteran reported wheezing and a history of tuberculosis.  The Board expects that, in that context, VA medical providers would have diagnosed or at least discussed tuberculosis if a diagnosis of tuberculosis was supported by the X-ray or CT scan results.  The Board finds that the weight of the evidence is against a finding that a diagnosis of tuberculosis was made during or contemporary to the appeal period.

The Board acknowledges that the Veteran has made a statement reporting serving in Korea and contracting and being treated for tuberculosis.  That statement could be interpreted to include contraction of and treatment for tuberculosis during service, but weight of the evidence of record is against such a conclusion.  A chest X-ray was conducted during service in November 1975 for the express purpose of assessing whether tuberculosis was present after the Veteran's service in Korea.  That X-ray was negative.  Two tuberculosis tests conducted during service were negative.  Accordingly, the Board finds that the weight of the evidence is against a finding that tuberculosis had its onset during service or that the Veteran was treated for tuberculosis during service.

The Board also acknowledges that statements made at the Board hearing are relevant, but cannot form the basis of a pre-decisional duty to assist error.  The Board acknowledges the representatives request for a new examination or assertion that a new examination was warranted.  However, that was made after the rating decision on appeal and therefore cannot form the basis of a pre-decisional duty to assist error.  The Board does not find that a pre-decisional duty to assist error was made regarding the September 2020 VA examination, as that examiner's findings appear to be based on accurate factual premises
 the Board finds that the weight of the evidence is against a finding that tuberculosis had its onset during service or that the Veteran was treated for tuberculosis during service.

The Board also acknowledges that statements made at the Board hearing are relevant, but cannot form the basis of a pre-decisional duty to assist error.  The Board acknowledges the representatives request for a new examination or assertion that a new examination was warranted.  However, that was made after the rating decision on appeal and therefore cannot form the basis of a pre-decisional duty to assist error.  The Board does not find that a pre-decisional duty to assist error was made regarding the September 2020 VA examination, as that examiner's findings appear to be based on accurate factual premises and the examiner adequately explained the basis for finding that the Veteran had not been diagnosed with tuberculosis.

The Board also acknowledges that the Veteran reported having been told by a doctor that tuberculosis was contracted in Korea during service.  However, the Veteran did not submit a statement or opinion from that doctor.  The Board cannot know the assumptions or factual premise that the doctor would have based such an opinion on.  The Board finds that the weight of the evidence is against a finding that the Veteran was diagnosed with tuberculosis, so statements asserting the existence of an opinion linking tuberculosis to service, in the absence of an actual medical opinion or rationale supporting such an opinion, cannot be assigned any probative weight with regard to the presence of a current disability during or contemporary to the appeal period.  The Board finds that the weight of the evidence is against a finding that the Veteran had a current tuberculosis disability during or contemporary to the appeal period.  That is a threshold issue.

The Board finds that the weight of the evidence is against the claim of entitlement to service connection for tuberculosis.  Accordingly, the claim must be denied.  The Board finds that the evidence is not in approximate balance, and there is no reasonable doubt to resolve in favor of the Veteran.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Hood, 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.