Citation Nr: 1319176 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-16 554A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for human immunodeficiency virus (HIV). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1996 to February 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Decatur, Georgia, Regional Office of the Department of Veterans Affairs (VA), which denied the Veteran's claim of entitlement to service connection for HIV. The case has since been transferred to the custody of the Baltimore, Maryland, VA Regional Office, which is now the agency of original jurisdiction over the current appeal. In a VA Form 9 substantive appeal received by VA in June 2008, the Veteran had requested a hearing before the Board. He was duly scheduled for the requested hearing, and notified via correspondence dated in February 2012, that his hearing was to be held at the Board's offices in Washington, D.C., in April 2012. However, prior to the hearing, his representative notified the Board in March 2012 that the Veteran requested the hearing be cancelled. The Veteran has therefore essentially withdrawn his hearing request. In August 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development, including scheduling the Veteran for a VA medical examination in order to obtain a nexus opinion and to verify any periods of post-service active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) that the Veteran may have had in the Naval Reserve. Thereafter, the denial of VA compensation for HIV was confirmed in a March 2013 rating decision/supplemental statement of the case. The case was returned to the Board in April 2013 and the Veteran now continues his appeal. FINDING OF FACT The Veteran's active HIV did not have its onset, nor was an HIV infection contracted during active military service. CONCLUSION OF LAW The Veteran's HIV was not incurred in active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, and a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the service connection claim decided herein, generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The claim on appeal stems from the Veteran's application for VA compensation, which was filed in September 2005. In response, VCAA notice letters addressing the applicability of the VCAA to this specific claim and of VA's obligations to the Veteran in developing this claim were dispatched to the Veteran in October 2005, which addressed the matter and satisfied the above-described mandates. Although the notice did not discuss the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006), as this decision is denying the claim for service connection for HIV, any such discussion pertaining to degree of disability and effective date for an award of VA compensation in this regard is rendered moot. Therefore, this defect in VCAA notice is not prejudicial to the Veteran's claim. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. The Board observes that the Veteran's service treatment records and all relevant post-service VA medical records for the period from 2005 to 2013 have been obtained and associated with the claims file or are otherwise accessible and viewable on the Virtual VA electronic database. The Veteran has been afforded ample opportunity to submit evidence in support of his claim or otherwise notify the Board of any additional relevant evidence that is not presently associated with his claims file. Pursuant to the Board's instructions in its August 2012 remand, the Veteran was provided with a VA examination in December 2012 to address his HIV claim, during which the examining VA clinician had an opportunity to review the Veteran's pertinent medical history, perform an examination, and provide a nexus opinion regarding onset of his HIV infection in the context of this clinical history. Therefore, the Board finds this examination to be adequate for purposes of adjudicating the claim decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board further finds that the RO/AMC has at least substantially complied with the Board's remand instructions of August 2012 with regard to developing the record as it relates to any ACDUTRA/INACDUTRA service the Veteran may have had in the Naval Reserve. The Board notes that in correspondence dated in August 2012, it requested the Veteran to provide information regarding what reserve units he was assigned to and what dates he served on ACDUTRA/INACDUTRA that would support his assertion that his HIV infection was acquired coincident with a period of ACDUTRA/INACDUTRA in the Naval Reserve. The Veteran's claims file reflects, however, that he did not respond to VA's query despite being provided with ample opportunity to do so. The United States Court of Appeals for Veterans Claims (Court) has held that the duty to assist is not always a one-way street and that if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran has failed to cooperate with VA to verify any alleged ACDUTRA/INACDUTRA service in the Naval Reserve, and (as will be further discussed below) as the record indicates that the Veteran's Naval Reserve contract was summarily voided a few months after his enlistment into the Naval Reserve once his HIV-positive status was discovered, the Board finds that the Veteran did not have any creditable periods of ACDUTRA/INACDUTRA. Therefore, an additional remand for further corrective action for compliance with the August 2012 remand is not warranted. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board is ultimately satisfied that the evidence is sufficiently developed for appellate adjudication and that no further development is necessary with respect to the claim for VA compensation for HIV. Based on the foregoing, the Board finds that VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his service connection claim decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of the HIV claim on appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes at this juncture that service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In this regard, the Board observes that the Veteran is presently service-connected only for pseudofolliculitis barbae. However, the Veteran does not assert that that his HIV is secondarily related to the aforementioned service-connected disability, and the medical record does not otherwise objectively indicate or aver any such relationship. Therefore, the Board concludes that there is no evidence that would allow the Veteran's claim for VA compensation for HIV on this basis. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102 (2012). As relevant, post-service VA medical records dated 2005 - 2013 establish that the Veteran is currently diagnosed as HIV-positive and that he is on a prescribed regimen of anti-retroviral medications designed to control his HIV infection. His service medical records show that he tested negative for HIV during the entirety of his period of active duty, including tests conducted proximate to his separation from active duty in February 2005. Post-service medical records indicate that he first tested positive for HIV in August 2005, approximately six months following his discharge from service. The Veteran had contracted to serve in the Naval Reserve in February 2005 after his discharge from active duty and was activated and deployed overseas in 2005, after he reportedly tested positive for HIV in August 2005. He was re-tested in January 2006 and his HIV-positive status was confirmed. His Naval Reserve contract was thusly voided on this basis and he was released from his Naval Reserve obligation after having served on no creditable period of ACDUTRA/INACDUTRA that can be determined from the current record. In February 2012, the Veteran appeared for a schedule VA medical examination to determine the likelihood that his HIV had its onset in active service, or that an HIV infection was otherwise contracted during the latter part of his active service and subsequently manifested as a positive HIV test result within months after separating from service. The February 2012 examination report contains a succinct summary of the Veteran's medical history and a synthesis of all the relevant evidence. The nexus opinion presented therein is predicated on the examining clinician's consideration and review of this aforementioned summary. In pertinent part, the examiner's opinion is as follows: Review of the medical record reveals that (the Veteran) had 8 tests for HIV when in the service, all of which [were] negative [including in January 2005. The Veteran was discharged from active duty in February 2005. Negative HIV test results were also obtained post-service in March 2005 and May 2005]. He tested positive [for HIV in August 2005,] which revealed a viral load of 1555 with CD4 count of 395. [The Veteran admitted to a history of engaging in high HIV-risk sexual activity during and after active service.] [The Veteran's HIV is] less likely than not (less than 50 percent probability) incurred in or caused by [an] in-service [event]. Rationale: The veteran had multiple negative tests for HIV in early 2005 while still in the military and as late as May 2005, 3 months after his active duty ended. He admitted to having unprotected sex with two partners. . . in January 2005, prior to being diagnosed with HIV in August 2005. His first CD4 count, taken the day after [he] tested positive for HIV, was low at 395, but a repeat test two months later was 667. [Although a physician opined that a low CD4 count of 395 in August 2005 suggested a remote onset of HIV infection, the] medical literature states that because CD4 counts can vary and are affected by factors such as time of day and stress, treatment decisions should not be made on the basis of only one count. The literature reveals that at the initial onset of HIV infection, within the first 2 to 6 weeks, there is typically a very high spike in viral load, at which time there may be symptoms such as fever, headache and rash. Subsequently the viral load falls sharply and then rises very slowly over time. The CD4 count may transiently decrease in the first few weeks and then resume a higher level with a slow subsequent decline. In this case, the initial CD4 of 395 may have been due to a temporary factor such as stress or variation based on time of day, as subsequent levels just two months later and over the following months were well within the normal range. At the time the VA [infectious disease] specialist who first saw the veteran in September 2005 surmised that maybe the veteran's HIV was of remote onset, she did not have the benefit of seeing. . . all the prior HIV test results nor did she have the benefit of knowing that the subsequent high CD4 counts would make it clear that the veteran was not in fact in the phase of infection in which CD4 counts were falling with long-established disease. The veteran was likely at least 4 to 6 weeks out from initial infection when tested in August 2005 since his viral load was low with a subsequent gradual increase. But it is also likely that either the initial CD4 count was measured as artificially low due to transient factors such as stress or time of day, or it was temporarily low because it was very early in the course of his infection, within a 2 to 6 week window of initial infection, and quickly recovering. It is extremely unlikely that the veteran would have contracted his HIV infection prior to leaving the service in February 2005. This is because, although a person could have a negative HIV test right after being infected, the test would turn positive within 1 to 6 weeks after infection, depending on the specific test used. It is practically inconceivable that the HIV test would still be negative as long as 3 months after initial infection. In this case, the veteran left active service [in February 2005] but he was HIV negative [in January 2005], again [in March 2005], and again [in May 2005]. The overwhelming evidence points toward the veteran having contracted his HIV infection between [May 2005] and [August 2005]. If the infection was contracted prior to [May 2005], it is almost certain to have occurred after [March 2005]. The Board has considered the evidence of record and finds that the VA clinician's nexus opinion of December 2012 is highly probative for demonstrating that the Veteran's current HIV diagnosis was due to an infection by this virus that occurred after he separated from active duty. The reporting clinician supported her opinion by a discussion of the characteristic phases of an initial HIV infection, as accepted by current medical knowledge of this infectious disease, and based on the fact that the Veteran was still HIV negative as of May 2005, she concluded that the earliest onset date would have been in March 2005. As previously stated, the record does not currently reveal any creditable period of ACDUTRA or INACDUTRA coincident with the time period that the VA clinician determined that the Veteran acquired his post-service HIV infection that would permit an award of service connection on this alternative basis. See 38 U.S.C.A. § 101 (22), (23), (24) (West 2002). Although lay persons such as the Veteran are competent to provide opinions on some medical issues, the specific matter here (HIV as an infectious disease and the time such disease was acquired) falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose HIV). To the extent that the Veteran states that he experienced physical symptoms in service that he believes to have been related to HIV infection, the Board notes that HIV is a disease that is not readily amenable to mere lay diagnosis, as the evidence shows it is verifiable only through medical examination and blood tests obtained under clinically monitored laboratory conditions by a trained physician or infectious disease specialist. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); & Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran is not competent to self-diagnose his HIV and he has not been shown to possess the requisite medical training, expertise, or credentials needed to render such a diagnosis or a competent opinion as to its medical causation. Otherwise, nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in diagnosing and evaluating infectious diseases. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). In addition, to the extent his lay assertions and statements are competent and probative regarding the existence of relevant symptomatology both during and after service, they are found to be outweighed by the more competent and probative medical opinion of December 2012, which concluded that such symptoms and the medical evidence of record were not sufficient to link the onset of the Veteran's HIV to active service. In view of the foregoing discussion, the Board must deny the Veteran's appeal for service connection for HIV as the preponderance of the evidence is against allowing his claim. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for HIV is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs