NOTE: This disposition is nonprecedential.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 Department of Justice, of Washington, DC, for respondentappellee. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, 
JACKSON v. DVA 2

and HAROLD D. LESTER, JR., Assistant Director. Of counsel 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. Shinseki, 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 prophylactic 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 Kuwait 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 manifesting 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 veteran’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, diagnosed 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 expressly 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 reference 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 immediately 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 missing 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 disabilities. 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 prevent this notwithstanding, then he is encouraged 

to file another claim for this condition. But unless 

and until that occurs, there is no basis for granting his claim because he does not have this alleged 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. Jackson’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.