Citation Nr: 0814085 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 02-04 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for acquired immune deficiency syndrome (AIDS), claimed as human immunodeficiency virus (HIV). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from April 1977 to September 1980. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2001 rating decision of the Department of Veterans affairs (VA) Regional Office (RO) ) in Nashville, Tennessee, which denied service connection for HIV. The Board Remanded the claim for a Travel Board hearing in June 2002. The veteran cancelled that request, and the Board denied the claim in September 2002. The veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). In June 2003, the CAVC vacated the Board's September 2002 decision. The Board Remanded the claim in January 2004. After the RO readjudicated the claim, the Board denied the claim by a decision issued in September 2005. The veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). The CAVC vacated the Board's September 2005 decision by an Order issued in March 2007. In October 2007, the Board determined that an opinion from a medical expert was required to clarify whether there was any relationship between the veteran's currently-diagnosed HIV and his military service, to include a tattoo obtained in service. The veteran was notified in October 2007 that the medical expert opinion was being sought, and the veteran was provided with a copy of the medical opinion in January 2008. 38 C.F.R. §§ 20.901(d), 20.903 (2008). As 60 days has elapsed since the veteran and his attorney were provided with a copy of the medical opinion, appellate review may proceed. FINDINGS OF FACT 1. The evidence supports a finding that the veteran obtained a tattoo during his period of active service. 2. The medical evidence and record demonstrates that the veteran's tattoo was not his only risk factors for exposure to HIV. 3. The medical evidence establishes that it is far less than 50 percent likely that the veteran contracted HIV as a result of a tattoo he obtained during military service. CONCLUSION OF LAW Human immunodeficiency virus (HIV) was not incurred in or aggravated by service or any incident thereof. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the claims on appeal, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 1. Duty to notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. The veteran's claim was submitted in August 2000, prior to enactment of the VCAA, and the initial unfavorable rating decision was issued in early March 2001, only about three months after the enactment of the VCAA. The March 2001 notice to the veteran of the rating decision provided him with notice of the enactment of the VCAA. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the veteran's claim has been readjudicated, with issuance of a supplemental statement of the case (SSOC) following complete and full notice, including the full text of 38 C.F.R. § 3.159, provided to the veteran in a May 2004 SSOC. Thus, any notice defect has been cured. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). To the extent that any notice defect was not cured, such defect would be presumed prejudicial. However, the record establishes that no prejudice has resulted to the veteran from any notice defect. In particular, during the more than 7 years of the pendency of this claim, the veteran has submitted private clinical treatment records, private medical statements, a photograph, and several lay statements on his behalf. Medical literature related to the veteran's claim has been submitted. The veteran has demonstrated actual knowledge of the types of evidence he could submit and the types of evidence which might be relevant to establish his claim. Moreover, the veteran has been represented by an attorney since January 2003. Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (determining that no prejudicial error to veteran resulted from defective VCAA notice where the veteran, through his counsel, displayed actual knowledge of the information and evidence necessary to substantiate his claim). The record establishes that the veteran is this case had a full and fair opportunity to provide evidence in the adjudication of this claim, and that no prejudice has resulted to him from any notice defect. Any questions as to the appropriate disability rating or effective date to be assigned are moot, so Remand is not required for issuance of notice under Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). There is no allegation from the veteran or the veteran's attorney that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Duty to Assist VA has a duty to assist the veteran in the development of a claim. This duty includes assisting the veteran to procure service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained VA treatment records examinations and opinions, including a November 2007 expert opinion. As noted above, the veteran has submitted his own statements, statements from several other individuals, photographs, and private clinical records. Neither the veteran nor has the attorney identified any additional evidence that should be obtained or might be relevant to the claim other than additional medical opinion. As noted above, a medical opinion was obtained in November 2007, subsequent to the submission of the veteran's argument that prior VA opinions were inadequate. Both the duty to notify and the duty to assist the veteran have been fulfilled. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Facts and analysis The veteran contends that he contracted HIV in service as the result of a tattoo he obtained in 1979. The veteran's service medical records, including January 1980 and November 1981 reports of examination for purposes of separation do not disclose a notation of a tattoo, although a 6 inch vertical scar on the posterior aspect of the right upper arm is noted on those examinations. (The Board notes that the veteran separated from active service in September 1980. It is not clear whether the notation "November 1981" on one "separation" examination report is an inaccurate notation of the date or whether this separation examination may have been conducted for reserve component purposes.) A VA psychological evaluation was conducted during VA hospitalization in August 1997. The report of this examination discloses that the veteran and his wife had been married for 19 years. The veteran began hearing voices. The voices caused him to be nervous, irritable and unable to sleep. There was an assault charge pending against the veteran filed by his wife. The assessment specifically states that the assault charge stemmed from an argument that the veteran and his wife had over another woman with whom the veteran had a long-standing relationship. The veteran was quoted as stating that "loving people is his best quality and women are his greatest weakness." There is no evidence that the veteran's evaluation disclosed any abnormality on any laboratory examination. The evidence also establishes that the veteran had more than one heterosexual contact after he received a tattoo in service. Private clinical records dated in May 2000 reflect that the veteran complained of severe abdominal pain, nausea, and vomiting. Diagnostic evaluations of the veteran's blood disclosed abnormalities, including leucopenia. The veteran denied any risk factors for HIV. A diagnosis of HIV infection was assigned in June 2000. In July 2000, a diagnosis of herpes was assigned for lesions noted in the genital area. VA clinical records dated in January 2001 reflect that the assigned diagnoses were major depression, HIV infection, and genital warts. The veteran reported that his second spouse was HIV negative. These notes also reflect that the veteran had been married for one year, and that this was his second marriage. He provided a history of gonorrhea "as a young man." The Board notes that the service medical records are devoid of evidence that the veteran reported a venereal disease, was tested for venereal disease, or was treated for gonorrhea in service. The veteran did not report that he contracted this disease from either his first wife or his second wife. Thus, this evidence diminishes the credibility of the veteran's report that he had no heterosexual exposure to HIV except through his wife and ex-wife. The veteran has provided a notarized statement that both his wife and his ex- wife have stated to him that they are negative for HIV. In May 2001, VA received a statement from the veteran's ex- wife. She stated she was married to the veteran in 1979, and was with him when he went to get a tattoo on his back in Lafayette, Georgia. The veteran provided a statement indicating that the examiner did not take his shirt completely off during the separation examination, and therefore did not note the tattoo on his back. In June 2001, the RO received a statement from M.D.A., MD. Dr. A. stated the veteran was under his care for HIV. Dr. A. stated that the veteran asked if his HIV could be associated with tattoos. Dr. A. provided an opinion that, depending on the hygiene of the tattoo parlor, it was "unlikely," but that it was "possible" to contract HIV from receiving a tattoo. This statement is somewhat unfavorable to the veteran, since Dr. A. opined that transmission of HIV through tattooing was possible, but unlikely. In October 2002, the RO received letters from the veteran's mother and half-sister. The veteran's mother stated that the veteran had no tattoos when he left for service, but did have a tattoo on his back when he returned home from service in 1980. The half-sibling's statement is consistent with the mother's statement. In May 2004, a statement was received from N.B., who identified himself as a fellow former service member who served with the veteran. N.B. stated that he remembered that the veteran had a tattoo on his back. These items of evidence support the veteran's claim that he obtained a tattoo on his back during service. In October 2003, VA received an opinion from A.S.G., Jr., MD, who stated that the likely methods of acquiring HIV infection were sexual contact, intravenous use of illegal drugs and transmission through blood products. Dr. G. further opined that tattooing with contaminated needles would be a possible source of transmission of HIV. This evidence is neither wholly favorable nor wholly unfavorable to the veteran's claim, since it simply lists possible avenues of transmission of HIV. To the extent that the opinion lists tattooing with contaminated needles as a possible method of transmission of HIV, the opinion is favorable to the veteran. In January 2004, VA received a medical statement from R.F., MD. Dr. F. stated that detailed review of the veteran's clinical records disclosed that the veteran had no homosexual exposure to HIV, no heterosexual contact except with his wife, who was HIV negative, no exposure through use of intravenous drugs, and no transfusions. Dr. F. stated that "[c]ontraction of AIDS from needle sticks is extremely rare but real." He further stated that there were no reported cases of HIV transmission from tattoos. In August 2004, expert medical opinion was obtained from MSH, MBBS. Dr. H. stated that tattooing was a theoretical but not a proven risk for acquiring HIV. Dr. H. also stated that the medical evidence of record did not support a finding that a tattoo in service was the likely cause or was at least as likely as not a cause of the veteran's HIV infection. The reviewer stated that the literature showed that the Centers for Disease Control (CDC) found no reported case of HIV transmission through tattooing or body piercing. The reviewer specifically noted that the veteran's statement of June 2001 which indicated that he had no history of homosexual activity, sex with prostitutes, intravenous drug use, or blood transfusions, did not rule out heterosexual activity as the cause of the veteran's HIV infection. The reviewer further stated that if the veteran received his HIV through the tattoo process, he would be though world's first reported case. The reviewer stated that the record documented two sexual contacts, the veteran's wife and his ex-wife. Dr. H. specifically noted that the veteran's history of gonorrhea, genital warts, and herpes was not explained by the information about the veteran's sexual contacts with his wife and ex-wife. Dr. H. opined that, in the absence of a proven association of HIV transmission through tattooing and the presence of another risk factor, heterosexual contacts, the veteran's claim that the tattoo was the source of his HIV infection was "very weak." The Board has also reviewed the report of a study submitted by the veteran's representative in August 2005, entitled "Elevated Prevalence of Hepatitis C Infection in Users of United States Veterans Medical Centers," published in a January 2005 issue of "Hepatology." Medical treatise information may be regarded as competent evidence where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet. App. 509, 513 (1998). This journal article addresses hepatitis C rather than HIV. This article simply does not discuss any relationship between HIV transmission and tattooing. Generic medical literature that does not apply medical principles regarding causation or etiology to the facts of an individual case generally does not have probative value in deciding issues on appeal. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The final item of evidence is a November 2007 medical opinion from Dr. M. This opinion reflects that the reviewer reviewed all relevant facts in the claims file. The examiner noted that the veteran had been married twice, but that the history as to how many heterosexual partners the veteran had in the past was not clear. The examiner noted the veteran's medical history of trauma to his leg, gonorrhea, genital warts, and herpes simplex. The reviewer concluded that it was less than 10 percent likely, and probably less that 5 percent likely, that the veteran acquired HIV as the result of a tattoo. In particular, the reviewer noted two significant reasons for this opinion. First, the veteran was not diagnosed with HIV infection, and lacked symptoms of HIV, until 2000, nearly 21 years after acquiring a tattoo in 1979. The reviewer noted that it was "extremely unlikely" that the progression of HIV would have taken 20 years. Second, the reviewer noted the veteran's multiple sexually-transmitted diseases, and noted that the information of record as to the veteran's sexual contacts did not account for the occurrence of these diseases. The reviewer noted the much higher possibility that the veteran acquired HIV infection when he acquired gonorrhea, genital warts, or herpes simplex, since there is no explanation of his acquisition of these diseases in the context of the two spouses, as the veteran has not reported any of these sexually-transmitted diseases was acquired through either of his spouses. The reviewer noted in particular that the veteran's statement expressed a sincere belief that neither of his wife had any of the sexually transmitted diseases shown of record, but further noted that the veteran had attested only to his belief that his wife and ex-wife did not have HIV infection, but the veteran provided no clinical records or statements from either his spouse or his ex-spouse to medically support that belief. The reviewer concluded that it was less than 50 percent likely, and probably less than 10 percent likely, that the veteran's HIV transmission resulted from tattooing. The evidence, as a whole, is wholly favorable to the veteran on only one point: He does have a tattoo which appears from the photograph to be on his back. The four favorable lay statements (veteran's mother, sister in law, ex-wife, and former fellow service member) that report that the veteran obtained or had a tattoo on his back during service must be weighed against the negative evidence provided by the service medical records, which are devoid of information about a tattoo on the veteran's back, to at least place the evidence in equipoise. When the favorable evidence is weighed against the negative evidence, the evidence is in equipoise. Therefore, the reasonable doubt as to this point must be decided in the veteran's favor. With resolution of reasonable doubt in the veteran's favor, the evidence warrants a finding that the veteran obtained a tattoo on his back during his active service. The evidence demonstrates that there is a possibility that the veteran incurred HIV infection in-service as a result of a tattoo he obtained during service, but that this possibility is remote, probably between a 5 to 10 percent probability. Each clinician who has provided an opinion, including Dr. A., Dr. F., Dr. G., Dr. H., and Dr. M. Each of these clinicians agrees that transmission of HIV through tattooing needles is possible. The extent of possibility identified varied from provider to provider. One provider (Dr. S) described the possibility of acquiring HIV from a tattoo as "theoretical," and stated that the veteran would be the first documented case of HIV transmission through tattooing reported). Other providers described the veteran's contentions as "possible" (Dr. G); another described the veteran's contention as "possible" but "unlikely" (Dr. A), as "weak" (Dr. H.). to "extremely rare but real." (Dr. F.) to as high as 10 percent (Dr. M). The most favorable opinion of record is the January 2004 opinion from Dr. F., whose opinion basically implied that, since all of the other risk factors for developing HIV had been ruled out, the veteran must have contracted the disease form the tattoo. However, Dr. F.'s favorable opinion was apparently based on the premise that the veteran had only been married to one spouse. The opinion implies that the veteran's spouse was the veteran's only sexual partner during his lifetime, leaving only the tattoo as the likely explanation for the veteran's HIV infection. The fact that the veteran has or has had other sexually transmitted diseases and the risk potential that may or may not imply is not addressed in this opinion. Dr. H. and Dr. M. both expressed their disagreement with the conclusion that, since the veteran had only one sexual partner, who was HIV negative, the veteran should not have had that disease unless it was incurred from the tattoo. Both Dr. H. and Dr. M cited references to diagnosed sexually- transmitted diseases other than HIV as being inconsistent with a finding that the veteran had only his wife and his ex- wife as sexual partners. As Dr. F.'s opinion is based on an incorrect factual premise, the Board need not accept Dr. F's conclusion as correct. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The highest likelihood of HIV transmission through needles used for tattooing, a possibility up to 10 percent, was expressed by Dr. M. However, even a 10 percent likelihood of transmission of HIV by tattooing needles does not meet the standard that service connection is awarded only if it is at least as likely as not that the disease was incurred in or as a result of service. While a 10 percent possibility of HIV transmission in the manner that the veteran contends is significant, it is still far less than likely, and does not meet the criteria for service connection. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Moreover, Dr. M. noted that, since HIV infection decreases CD4 cells by an average of 50 cells per year, it would be highly unlikely that the disease would continue without manifestation of frank symptoms for 20 years or more. With consideration of the small statistical possibility that the veteran acquired HIV from a tattoo, and consideration of the length of time (20 years) from the date the veteran obtained a tattoo (1979) until first diagnosis of HIV (2000), and the facts of record which support a finding that a tattoo was not the veteran's only risk factor for exposure to HIV, the Board finds that the overwhelming preponderance of the evidence is against the claim. As the evidence is not in equipoise, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome. 38 U.S.C.A. § 5107(b). The claim must be denied. ORDER The appeal for service connection for acquired immune deficiency syndrome (AIDS), claimed as human immunodeficiency virus (HIV), is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs