NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ANDRE L. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7108
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-2026, Judge William A.
Moorman.
___________________________
Decided: November 23, 2010
___________________________
ANDRE L. JACKSON, of Little Rock, Arkansas, pro se.
KIMBERLY I. KENNEDY, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
JACKSON v. DVA 2
and HAROLD D. LESTER, JR., Assistant Director. Of coun-
sel on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and AMANDA R. BLACKMON, Attorney,
Office of the General Counsel, United States Department
of Veterans Affairs, of Washington, DC.
__________________________
Before BRYSON, PLAGER, and CLEVENGER, Circuit Judges.
PER CURIAM.
Andre L. Jackson appeals from the final decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“BVA”) to deny his claim for service
connection of tuberculosis (“TB”). See Jackson v. Shin-
seki, No. 08-2026 (Vet. App. April 10, 2010). We affirm.
I
Mr. Jackson was exposed to TB during active military
service. The available medical service records confirm the
exposure with a positive test result in April of 2004 for
purified protein derivative (“PPD”) of tuberculin. Because
of the TB infection in his body, Mr. Jackson was treated
from June 29, 2004 until March 11, 2005 with a prophy-
lactic treatment, isoniazid (“INH”) medication, to knock
out the infection before it had a chance to develop into
active TB. Mr. Jackson’s medical service records for the
time at which he was exposed to TB and for his in-service
INH medication could not be found, despite a diligent
search by the Department of Veterans Affairs (“agency”).
The agency’s Schedule for Rating Disabilities provides
a 100 percent rating for service-connected TB as an active
disease. See 38 C.F.R. § 4.88b, diagnostic code 6311. The
schedule also provides a 100 percent rating for inactive
3 JACKSON v. DVA
TB, but only if a veteran has first acquired active TB. See
38 C.F.R. § 4.88c. Thus, in order for a veteran to obtain a
100 percent rating for active or inactive TB, the veteran
must first establish that he acquired TB as an active
disease.
II
Mr. Jackson served on active duty in the United
States Army from December 1983 to August 1989, from
November 1996 to November 2000, and from February
2003 to May 2004. During his final tour of duty in Ku-
wait and Iraq, he was exposed to TB, a fact which the
agency does not dispute. Mr. Jackson asserts that the
record of his separation medical examination in May of
2004 would show that he “was diagnosed with the virus
TB,” the residuals of which still remain in his body. Mr.
Jackson also refers to medical treatment he received after
separation from the Army, showing that he indeed had
been exposed to TB and had been treated with INH
medication that prevented the TB germs from manifest-
ing themselves as active TB.
In January 2006, Mr. Jackson filed a claim seeking
service connection for TB. The agency’s regional office
denied his claim on November 29, 2006, on the grounds
that “medical evidence of record fails to show that [TB]
has been clinically diagnosed.” Mr. Jackson appealed that
adverse ruling to the BVA. At a hearing before the BVA
in February 2008, Mr. Jackson confirmed that he had
been exposed to TB during service, and that during
treatment he was told he should “take medicine for nine
months . . . to get it under control” and that “[i]t would
never go away, but [he] would have to, maybe one day
take some more medications and get check ups to keep it
under control.” The BVA concluded that Mr. Jackson did
JACKSON v. DVA 4
not have a current diagnosis of TB, and that he was not
competent to diagnose such a condition on his own.
Because a veteran is required to have a current malady in
order to establish service connection, the BVA affirmed
the denial of his claim by the regional office.
Mr. Jackson appealed to the Veterans Court. The
Veterans Court reiterated that though Mr. Jackson had
been exposed to TB during service and had been treated
for the exposure, “there is no medical indication that the
veteran ever actually developed either active or inactive
TB.” The Veterans Court further noted that Mr. Jackson
did not allege that the missing medical records contain
information that he previously was diagnosed with active
TB nor did Mr. Jackson contend that he has a current
diagnosis of TB, active or inactive. Because the law
requires a current disability in order to sustain a vet-
eran’s claim to benefits, see D’Amico v. West, 209 F.3d
1322, 1326 (Fed. Cir. 2000), and because the record fails
to show that Mr. Jackson has ever been, or is now, diag-
nosed with TB, the Veterans Court affirmed the BVA’s
denial of Mr. Jackson’s claim to service connection for TB.
III
Mr. Jackson timely appealed to this court. Pursuant
to 38 U.S.C. §§ 7292(a) and 7292(d), this court has limited
jurisdiction to review final decisions of the Veterans
Court. We, in essence, are restricted to deciding legal
issues that arise in a veteran’s case because we are ex-
pressly barred from deciding factual issues unless such
factual issues are entwined in constitutional issues.
Mr. Jackson’s brief to this court refers to certain legal
provisions that he believes were misapplied. His refer-
ence to 38 C.F.R. § 3.310 (calling for compensation for
5 JACKSON v. DVA
residuals) is misplaced, because that provision requires
proof of a service-connected disability before residual
conditions associated with such a disability can be
awarded. Because the record discloses only a diagnosis of
exposure to TB, not a diagnosis of the TB disease itself,
section 3.310 is of no benefit to Mr. Jackson. Similarly,
we reject his assertion that the agency failed to satisfy its
duty to assist him under 38 C.F.R. § 3.159 when the
agency was unable to find his service medical records
concerning his exposure to TB and his treatment immedi-
ately thereafter. The full record before the BVA, which
this court specifically requested and fully reviewed, shows
that the agency made reasonable efforts to find the miss-
ing records. In other missing record cases, we have
declined to draw adverse inferences against the agency
due to its inability to find pertinent records. See Cromer
v. Nicholson, 455 F.3d 1346, 1350-51 (Fed. Cir. 2006). We
thus will not infer that the missing medical records in fact
disclose a diagnosis of active TB.
Mr. Jackson also alludes to 38 U.S.C. § 1111, which
creates a statutory presumption of soundness when a
veteran’s entry medical examination reveals no disabili-
ties. The provision is not helpful to Mr. Jackson, other
than to note that the agency does not contend that he was
exposed to TB earlier than when in service in Kuwait and
Iraq. The fact that Mr. Jackson was free of TB germs
when he entered service does not prove that he was ever
diagnosed with having the disease of TB.
In sum, Mr. Jackson’s case turns entirely on whether
he has ever been diagnosed with the TB disease. There is
no question that he has been exposed to TB, and that he
carries enough TB germs in his system to test positive for
inactive TB. We repeat the advice given to him by the
BVA:
JACKSON v. DVA 6
If at some point in the future the veteran actually
develops TB, his prophylactic treatment to pre-
vent this notwithstanding, then he is encouraged
to file another claim for this condition. But unless
and until that occurs, there is no basis for grant-
ing his claim because he does not have this al-
leged condition, as would be established by the
required diagnosis of it.
In connection with the BVA’s advice to Mr. Jackson,
we note that the agency does not disagree with Mr. Jack-
son’s specific claim that he is entitled, as part of the
agency’s duty to assist, to be provided with an agency
medical examination to determine if he currently has TB
as a disease.
IV
At base, we are left with the factual question of
whether Mr. Jackson has ever been diagnosed with the
TB disease, as opposed to being diagnosed with exposure
to TB. As a jurisdictional matter, we must accept the
finding by the Veterans Court that Mr. Jackson has not
demonstrated service connection for TB because he has
not yet shown that he has been diagnosed with the TB
disease. Having rejected Mr. Jackson’s legal arguments,
we affirm the final decision of the Veterans Court.
COSTS
No costs.