Citation Nr: 1336608 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 06-19 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for human immunodeficiency virus (HIV). 2. Entitlement to service connection for an acquired psychiatric disorder, to include a major depressive disorder. 3. Entitlement to a separate rating for erectile dysfunction. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to November 1978 and from January 1979 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in May 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. It was remanded by the Board to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, in March 2010, January 2011, and most recently in December 2012, so that needed development could be undertaken. Following the AMC's attempts to complete the requested actions, the case has since been returned to the Board for further review. The Board herein addresses the merits of the appellate issues of entitlement of the Veteran to service connection for HIV and an acquired psychiatric disorder. The issues of the Veteran's entitlement to a separate rating for erectile dysfunction and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. FINDINGS OF FACT 1. HIV is not shown in service or after service until at least July 1995; a preponderance of the evidence is against a showing that the Veteran's HIV originated in service or is otherwise attributable thereto. 2. An acquired psychiatric disorder is not shown in service or after service until at least January 1995; a preponderance of the evidence is against a showing that any such disorder originated in service or is otherwise attributable thereto. CONCLUSIONS OF LAW 1. HIV was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. An acquired psychiatric disorder, to include a major depressive disorder, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder, including that which is part of his virtual claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran 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(s). The Veteran 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 Veteran). Preliminary Matters As indicated above, the Board remanded this matter to the AMC in 2010, 2011, and 2012 so that additional development actions could be undertaken. The actions sought in 2010 and 2011 were prompted by the submission of additional documentary evidence that had not been considered by the agency of original jurisdiction and the basis of the 2012 remand, as pertinent to this claim, was the conduct of a VA medical examination and solicitation of a medical opinion as to the nexus, if any, between any diagnosed entity and military service. The requested actions were accomplished on remand. Specific notice is taken that the VA examiner in 2013 was asked to indicate whether a review of Virtual VA records was undertaken, with identification of those records. On remand, however, the VA examiner(s) reported that a review of the entire VA claims folder had been accomplished, albeit without specific reference to Virtual VA records. Nonetheless, inasmuch as the VA examiner specifically set out that a review of the claims folder had been undertaken, and, additionally, the Virtual VA file does not identify any VA or non-VA medical treatment records, the Board finds that substantial compliance with the terms of the 2013 remand was achieved. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). No further development actions are thus deemed necessary. Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notification obligation in this case was accomplished by way of May 2004, January 2005, and August 2007 letters from the RO to the Veteran, addressing his claims for service connection herein at issue. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini, supra. Here, full VCAA notice, including that pertaining to the assignment of ratings and effective dates occurred subsequent to RO's initial adjudicatory action in May 2005, in contravention of Pelegrini. However, any timing error was effectively cured by the subsequent readjudication of the claims at issue, followed by issuance of an additional decisional document. See Mayfield, 444 F.3d at 1333; Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006). In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The record includes the Veteran's service treatment records, in addition to a various medical examination and treatment reports compiled during postservice years. It further includes the Veteran's many written statements and those of one or more treating physicians regarding the issue in question, as well as records compiled by the Social Security Administration with respect to the Veteran's claim(s) for disability benefits. Moreover, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on their merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that the Veteran has been afforded a VA examination in reference to his HIV claim. No VA examination has been provided regarding the claim for service connection for a psychiatric disorder, and none is warranted in the absence of any showing thereof either by complaint or finding within service treatment records and the absence of any diagnosed psychiatric disability until after the Veteran's last discharge from active duty. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As for the HIV examination undertaken during 2013, such evaluation entailed a complete review of the Veteran's VA claims folder, as well as a clinical examination and detailed medical history, followed by entry of medical opinions, which were clarified by one or more addenda. In all, the reports provided as a result, inclusive of the findings and opinions therein, are found to be sufficiently detailed and predicated on a review of all the pertinent evidence so as to permit fair and equitable consideration of the merits of the issue presented. Id. On that basis, further development as to either of the issues herein addressed is not required. In view of the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. Service Connection Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The requirement that there be a current disability is satisfied when the disability is shown at any time during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence as to ongoing symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 38 U.S.C.A. § 1154(b) (West 2002) provides that, in the case of a veteran who engaged in combat with the enemy during a period of war and the claimed disease or injury is combat-related, lay evidence of inservice incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. In this instance, the Veteran does not allege, nor does the record show, that the Veteran was engaged in combat against the enemy and sustained either claimed disorder as a result. To that extent, the pertinent provisions of 38 U.S.C.A. § 1154 are not for application. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A.§ 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Id., see also, 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's principal allegation, as reflected in his claim documents, is that his HIV and depression or other psychiatric disorder originated in service. In the alternative, it is argued on his behalf that his depression is secondary to his HIV, but he further notes that his depression was present prior to his actual HIV diagnosis. He reports having been treated for stress and a variety of other illnesses while he remained on active duty, which may have precluded identification of his symptoms or entry of diagnoses in the military. The Veteran contends that his depression began within a couple of months after his last discharge from service and that his HIV was initially diagnosed in 1995, only after lengthy medical evaluation and testing. He recalls that while he was on active duty he was last tested for the HIV infection in 1991. Service department records do not identify any complaint, finding, or diagnosis of HIV infection or any acquired psychiatric disorder. HIV testing in March 1982, January 1988, August 1988, May 1989, September 1990, and May 1991 was negative. Although it was the Veteran's recollection that no further HIV testing was subsequently undertaken, an HIV test in July 1992 is demonstrated, which was also negative. No additional HIV testing in service is, however, shown. As relevant, postservice medical data reflect the Veteran's complaints of anxiety and depression, beginning in January 1995 at the time of a VA vocational rehabilitation counseling session in connection with his claim for Chapter 31 training. The Veteran's adjustment to civilian life after his military career was at that time noted to be difficult due to his inability to obtain competitive employment. The Veteran's complaints of anxiety and depression were attributed by himself to immense familial responsibilities and meager financial resources. In July 1995, blood testing for viral load and cluster of differentiation 4 (CD4) was initially found to be abnormal, ultimately leading to entry of a diagnosis of HIV infection and its eventual treatment. Psychological evaluation and testing in November 1999 disclosed a mild cognitive deficit, and it was the opinion of the examiner that such was the result of alcohol-induced encephalopathy or subacute intoxication syndrome. An HIV encephalopathy was noted to be unlikely in the presence of preserved immune function, but some cases were noted to have been reported in the literature prior to immune system deterioration. Also, HIV was noted typically to produce a subcortical neurobehavioral profile, whereas the Veteran's profile was cortical as opposed to subcortical. Chronic anxiety and depression were judged to be present and related to his HIV illness, as well as family and occupational stressors. The diagnostic impressions recorded in November 1999 were of a cognitive disorder, not otherwise specified; alcohol abuse; and an adjustment disorder with mixed anxiety and depression. Medical evidence subsequently developed identify various diagnoses, including those of depression and depression due to HIV, dysthymia, panic attacks, and major depressive disorder, as well as an anxiety disorder, general anxiety disorder, affective disorder, polysubstance abuse, and alcohol and cocaine dependence. When evaluated in 2008, the Veteran reported to an attending medical professional that his HIV infection was likely the result of being overly promiscuous when under the effects of excessive alcohol. Of record is a medical report, dated in January 2009, from an attending physician at the Portsmouth Naval Medical Center in which it was indicated that the Veteran was initially diagnosed with HIV infection in April 2005, following the Veteran's retirement from the Army in 2004. Review by the treating physician of Department of Defense testing data was noted to reveal that the last negative test for HIV in service was in May 1991 and that he was not then tested again while on active duty or upon retirement. On that basis, the clinician determined it was probable that the Veteran had contracted HIV while on active duty. Such opinion is, however, based on an inaccurate factual premise that the last HIV test in service was in May 1991, inasmuch as the record clearly indicates that further negative testing was undertaken in July 1992. Moreover, the record is quite clear as well that the Veteran was last discharged from active duty in April 1994, not 2004. On that basis, the opinion is discredited as it is predicated on an incorrect factual account. In February 2013, the Veteran underwent a VA examination, findings from which yielded a pertinent diagnosis of HIV, positive, with the year of diagnosis being 1995. The VA examiner(s) noted no record to substantiate an HIV or acquired immunodeficiency disease diagnosis prior to 1994 and the Veteran was reported to be unaware of any either. The VA examiner(s) noted specifically the negative HIV test in July 1992 and the absence of any problem noted on the Veteran's separation medical examination in 1994. Further opinion from the same examiner(s) in April 2013 was that it was less likely than not that the Veteran developed HIV as a result of active duty, noting that the record did not reflect onset of infection or infection during active duty and that a review of the record failed to show any sign or symptom including flu illness suggestive of HIV infection while on active duty. The Board has considered the evidence of record and finds that the VA clinicians' nexus opinions in February and April 2013 are 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 clinicians supported their opinions on the basis of their detailed review of the claims folder, including the pertinent facts identified by the evidence, and it is repeated that such a review or accurate reporting of relevant facts did not accompany the opinion offered by the service department physician who found that the Veteran's HIV was likely of service onset. The latter opinion is not entitled to any probative weight as to the question of nexus on the basis of an inaccurate factual foundation. While the Board acknowledges the relative proximity of a July 1995 diagnosis of positive HIV to the Veteran's service discharge in April 1994, the fact remains that the salient evidence of record fails to identify the service onset of the Veteran's HIV. No other medical professional, other than the discredited opinion of a service department physician referenced above, furnishes medical finding or opinion linking the Veteran's HIV to his periods of military service. 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, supra; 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 opinions of 2013, which concluded that his HIV was not of service onset or otherwise related to active service. Similarly, an acquired psychiatric disorder is not shown in service or after service until at least January 1995, when evidence of anxiety and depression, albeit related to family, financial, and employment concerns, was initially disclosed. Service treatment records identify no pertinent complaint and, thus, offer no corroboration of the Veteran's report of inservice stress or other relevant symptoms of possible acquired psychiatric disablement. The Veteran has alleged that his acquired psychiatric disorder is of service onset, but has reported also that he did not suffer from depression until two or so months following his last discharge from service. No psychosis is alleged or shown either in service or thereafter. Various psychiatric disorders are diagnosed after service or, more particularly, at a point beginning some nine months following the Veteran's last discharge from active duty; however, none of those entities are linked by medical finding or opinion to active service or any event therein. No medical professional has determined that a nexus to service exists with respect to any diagnosed acquired psychiatric disorder, and the fact that one or more medical professionals has defined a link to the Veteran's HIV does not afford a basis for a grant of service connection, inasmuch as the Veteran's HIV is not herein adjudicated to be service-connected. It, too, is noted that the Veteran's abuse or dependence on alcohol or one or more illicit drugs likewise is not a basis for a grant of service connection. In this regard, notice is taken that applicable law and regulation provide that compensation shall not be paid if the disability was the result of one's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2013); see also Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388 (prohibits (effective for claims filed after October 31, 1990) payment of compensation for a disability that is a result of one's own alcohol or drug abuse); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In all, the evidence contraindicating entitlement to service connection for an acquired psychiatric disorder outweighs evidence supportive of entitlement, which is essentially limited to the Veteran's own statements as to its service incurrence. As the evidence presented preponderates against entitlement to the benefits sought, the Board must deny the Veteran's appeal for service connection for HIV and an acquired psychiatric disorder, to include major depression. Because the evidence in this case is not approximately balanced with respect to the merits of these claims, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for HIV is denied. Service connection for an acquired psychiatric disorder, to include as major depressive disorder, is denied. REMAND This appeal also entails the question of whether the Veteran is entitled to a separate evaluation for erectile dysfunction as a manifestation or residual of his service-connected back disorder, as well as the intertwined claim for a TDIU. The Board by its December 2012 remand directed the AMC to afford the Veteran a VA examination in order to more clearly ascertain the relationship of the Veteran's erectile dysfunction and his service-connected back disability. This was attempted in April 2013 and that evaluation culminated in entry of a diagnosis of erectile dysfunction. The VA examiner in response to the question posed as to the etiology of the Veteran's erectile dysfunction noted that the Veteran had gradually lost desire to engage in sexual activity following his HIV diagnosis and, as to the question of whether it was at least as likely as not that his erectile dysfunction was attributable to one of the diagnoses listed in Section 1 of the report or its treatment, the VA examiner responded in the negative, although no diagnoses other than erectile dysfunction were listed in Section 1. The primary question at issue is whether the Veteran's erectile dysfunction bears a relationship to his service-connected back disorder and, if so, what the nature of that relationship is. The opinion furnished to date is inadequate and remand to obtain clarifying opinion is necessary in order to assure compliance with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The issue of the Veteran's entitlement to a TDIU is inextricably intertwined with the issue of entitlement to a separate rating for erectile dysfunction. The Board will defer action on the TDIU matter until such time as the erectile dysfunction issue is resolved. See Smith V. Gober, 236 F.3d 1370 (Fed Cir. 2001); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this case is REMANDED for the following actions: 1. Obtain for inclusion in the claims folder any and all pertinent VA treatment records not already on file. 2. Return the disability benefits questionnaire for male reproductive system conditions prepared in February 2013 by T. Do, M.D., for the preparation of an addendum to his/her earlier provided opinion. That addendum should address the question of the relationship, if any, between the Veteran's erectile dysfunction and his service-connected back disability, to include whether his erectile dysfunction is part and parcel of that back disability, a secondary result of or aggravated by the back disorder. The Veteran's VA claims file must be furnished to the VA reviewer for use in the study of this case and the author of the addendum should indicate whether the claims folder was provided and reviewed. Following a review of the claims folder, the reviewing VA medical professional is asked to address the following question, providing a complete rationale with citation to the record for the medical opinion furnished: Is it at least at likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is a manifestation of, part and parcel, or a secondary result of his service-connected back disability. If so, then evaluate the nature and severity of the Veteran's erectile dysfunction so that a separate rating may be assigned therefor. The VA medical professional is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a proposition as against. More likely and as likely support the contended relationship; less likely weighs against the claim. 3. Lastly, readjudicate the issues of the Veteran's entitlement to a separate rating for erectile dysfunction as secondary to a service-connected back disability and to a TDIU. If any benefit sought on appeal is not granted to the Veteran's satisfaction, then furnish to him a supplemental statement of the case and afford him a reasonable period in which to respond, prior to returning the case to the Board for further review. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs