BVA9505769 DOCKET NO. 93-13 470 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for INH treatment for tuberculosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from April 1975 to June 1979. This appeal arises from a December 1991 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA), Regional Office (RO). The denial of service connection for INH treatment for tuberculosis was confirmed and continued by a rating action issued in March 1992. It is noted that the December 1991 rating decision also denied entitlement to service connection for chronic rhinosinusitis, low back strain, left ear hearing loss, a left foot injury, a left ankle injury and plantar hyperkeratosis. The veteran was notified of these decisions by a letter dated January 8, 1992. He submitted a notice of disagreement in March 1992, which disagreed with all of the denials. However, his substantive appeal (which referred to only the issue of service connection for INH treatment for tuberculosis), while dated in December 1992, was not received by the RO until on or about March 9, 1993, more than one year after the date of notification of the original denial. Thus, the appeals of the six issues noted above were not timely perfected. Therefore, these issues are not properly before the Board for appellate review at this time. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends in essence, that he was treated for tuberculosis in service. Therefore, he believes that service connection should be granted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief be a fair and impartial individual that the claim is well grounded. FINDING OF FACT The veteran is not shown by competent medical evidence to suffer from tuberculosis. CONCLUSION OF LAW The appellant has not submitted evidence of a well grounded claim. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, one which is plausible. If he has not presented a well grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As will be explained below, it is found that his claim is not well grounded. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991). Where a veteran has served for 90 days or more during a period of war and tuberculosis becomes manifest to a degree of 10 percent within three years from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). For the showing of a 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 diagnosis including the word "chronic." Continuity of symptomatology 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b) (1994). A review of the service medical records reveals that the veteran made no reference to any difficulties with his lungs during the entrance examination performed in January 1975. An April 1977 notation indicated that he had a positive purified protein derivative test in April 1975. A May 1977 chest x-ray was within normal limits with scattered granulomas. He underwent INH treatment between July 1978 and May 1979. A July 8, 1978 chest x-ray was normal, and his lungs were clear to auscultation and percussion. An August 1978 record indicated that he had been on the treatment since July 25; he was doing well and noted no appreciable problems. A chest x-ray from June 1979 was normal. The separation examination from June 1979 was within normal limits and listed no defects. No tuberculosis was diagnosed. The veteran also submitted private treatment records developed between August 1988 and June 1990. None of these records made any reference to tuberculosis. The service medical records covering his period of service from December 1990 to June 1991 also made no mention of any problems with his lungs. There is no indication that the veteran received any type of treatment between his date of discharge in 1979 and the first post-service treatment records dated in August 1987. Initially, as noted above, the law pertaining to direct service connection clearly requires that there must exist a disability that resulted from disease or injury incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The law referring to presumptive service connection requires that certain disabilities, to include tuberculosis, must manifest themselves to a compensable degree within three years of separation to be service-connected. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Finally, service connection for a chronic disease, established through chronicity of symptomatology, may be proven. 38 C.F.R. § 3.303(b) (1994). In the instant case, the evidence of record does not establish that the veteran suffers from any claimed disability which can be service-connected under any of the above-noted laws. Initially it is noted that the veteran is attempting to claim service connection for the INH treatment which he received in service following a positive PPD test. However, neither this treatment or the positive test results, are diseases or disabilities under the law. While he claims that he received this treatment for tuberculosis, the evidence does not indicate that he ever had this illness, either in service, or within the three years following his discharge. Therefore, the veteran does not currently suffer from any disability for which service connection can be granted. The United States Court of Veterans Appeals has stated that, in order for a claim for service connection to be well grounded, there must be competent medical evidence of the existence or diagnosis of a current disorder that can be linked to the period of service. Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); Rabideau v. Derwinski, 2 Vet.App. 141 (1992). As noted above, there is no competent medical evidence of the current existence of tuberculosis, or any other disability, that can be linked to the veteran's period of service. Therefore, as the appellant's claim for service connection is not well grounded, it must be dismissed. To do otherwise and handle the case on the merits would be inappropriate because it would require the appellant in the future to overcome the inertia of an earlier, adversely adjudicated claim. See Grottveit, at 93. ORDER The appeal of the claim for service connection for INH treatment for tuberculosis is dismissed. So much of the rating of December 1991 as denied this claim on the merits is vacated. C. P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.