Citation Nr: 1328118 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-22 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for human immunodeficiency virus (HIV). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to July 1983. He also served from July 1983 to December 1986 and was discharged under other than honorable conditions (OTHC). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the Veteran's claim. The Veteran was scheduled to appear at the Atlanta RO to have a personal hearing with a Veterans Law Judge. The Veteran failed to appear for said hearing, and he has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND Initially, the Board notes that, in a December 2008 administrative decision, the RO determined that the character of the Veterans service from July 1983 to December 1986 was a bar to the payment of VA benefits based on that service. Accordingly, the Board will consider the Veteran's service connection claim is based only upon his initial period of service from August 1975 to July 1983. Here, the Veteran has asserted entitlement to service connection for HIV, which he contends was incurred during his military service. Specifically, the Veteran argues that he contracted HIV when he was stationed at the Brooklyn Naval Yard from 1978 to 1980. See the Veteran's notice of disagreement (NOD) dated October 2007. He also endorsed having sex with prostitutes during encounters in Charleston, South Carolina, Jacksonville, Florida, and Naples, Italy, although he did not provide the dates of such contact. Id. Service treatment records reflect that he was infected with gonorrhea. See the April 1979 reenlistment examination. Additionally, the Board takes judicial notice that no test to identify HIV/AIDS was available until 1985, and that no such test appears to have been performed at the time of the Veteran's OTHC December 1986 military discharge. In the Veteran's claim for benefits in November 2006, he reported treatment at the Ryan White Wellness Center beginning in 1999. Records from that facility dated from 2004 to 2006 have been associated with the claims file, but earlier records have not. There is currently no medical opinion of record that adequately addresses the question of service connection with respect to the HIV claim. Thus, this issue presents certain medical questions that cannot be answered by the Board. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); see also Colvin v. Derwinski, 1 Vet. App. 191 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern medical nexus and must be addressed by an appropriately qualified VA examiner upon remand. Additionally, review of the claims file demonstrates that the Veteran has indicated that he is receiving Social Security Administration (SSA) disability benefits. See the private treatment records dated December 2004 and January 2006; see also the VA treatment records dated May 2006. The records associated with his SSA disability claim are not of record. SSA decisions are not controlling for VA purposes, but they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering those records. Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992) (where SSA disability benefits have been granted, a remand to obtain SSA records is necessary); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) (possibility that the SSA records could contain relevant evidence cannot be foreclosed absent a review of those records). Therefore, the Board finds additional development is required prior to appellate review. Further, review of the record (including the Veteran's physical VA claims file as well as his Virtual VA file) reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Request from SSA the records pertinent to the Veteran's claim for Social Security disability benefits and the medical records relied upon concerning that claim. 2. After obtaining the appropriate release of information forms where necessary, procure records of any treatment or evaluation that the Veteran received from the Ryan White Wellness Center from 1999 to 2004 and from 2006 to present. Also associate records from the VA Medical Center (VAMC) in Dublin, Georgia, or any other VA facility that the Veteran received treatment, since September 2008. All such available documents should be associated with the claims file. 3. Then, schedule the Veteran for an appropriate VA examination for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his currently diagnosed HIV was incurred in his active military service dating from August 1975 to July 1983. The examiner must review the claims file and must note that review in the report. Any laboratory testing deemed necessary should be included. The examiner should provide a complete rationale for any opinion given, including discussion of evidence contrary to the opinion rendered. If the examiner is unable to render an opinion without resorting to mere speculation, he/she must so state and provide reasoning as to why an opinion cannot be given and whether any additional evidence or testing would assist in providing such opinion. 4. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (the Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).