Citation Nr: 1340741 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-27 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for Human Immunodeficiency Virus (HIV). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1978 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to the benefit currently sought on appeal. A review of the Virtual VA paperless claims processing system was conducted. Virtual VA contains VA treatment records dated subsequent to the last Statement of the Case (SOC) issued in May 2010. This evidence has been reviewed and is deemed duplicative of the evidence already of record. Therefore, there is no prejudice for the Board to proceed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for HIV. The Veteran states that he was diagnosed with HIV in February 2007 at the VAMC Orlando. See March 2009 personal statement. He contends that he was exposed to and contracted HIV from an ex-girlfriend in October-November 1996 while in-service. See October 2009 personal statement. The Veteran states he has been informed that this ex-girlfriend has HIV. See April 2009 personal statement. The Veteran denies any "illegal drug use requiring injections", blood transfusions or operations and states he has not "engaged in any other activity which could have caused" his HIV. Id. The Veteran contends that his VA immunologist, Dr. C., believes that his HIV began while the Veteran was in-service. See October 2009 personal statement. With regard to the gap between claimed exposure in October-November 1996 and reported diagnosis in February 2007, the Veteran states that Dr. C. explained that the "incubation period for the virus can be anywhere between 9 to 15 years and that during this time no trace can be detected". Id. The Veteran contends that he found further support for the nine to fifteen year incubation period for HIV in "medical journals, in reports from well established organizations in this area and from other specialized physicians in immunology". Id. The Veteran also contends that his post-service civilian medical records show his immune system was "starting to shut down, when I started to get sick a lot" and that while his HIV had not yet "flared up", according to Dr. C., "things were starting to go in that direction, it just didn't become traceable until 2007." See July 2010 Form 9. In sum, the Veteran contends that he was exposed to and contracted HIV while in-service and is thus entitled to service-connection. The Veteran's service treatment records (STRs) are silent for any diagnosis of HIV. The Veteran's October 1997 separation exam notes "HIV neg" and includes the results of a negative HIV test. Earlier negative HIV tests are also in the Veteran's STRs. The Board is not qualified to decide whether the Veteran contracted HIV during service on the basis of the Veteran's lay contentions. Because the Veteran is not competent to relate his in-service risk factors to any currently diagnosed HIV, and such relationship remains unclear to the Board, the Board finds that a VA examination and etiology opinion is necessary in order to fairly decide the Veteran's claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, additional development is also required. As indicated, the Veteran reports being diagnosed with HIV in February 2007 at the VAMC Orlando. See March 2009 personal statement. An October 2007 VA treatment record states the Veteran was diagnosed with HIV in June 2007, while a June 2008 VA treatment record states the patient initiated HIV medications in April 2007. While it appears unclear exactly when in 2007 the Veteran was diagnosed with HIV, there are no VA treatment records from that time frame associated with the file. The file does not contain any VA treatment records after November 2005 until October 2007. In addition, as outlined above, the Veteran contends that a VA immunologist, Dr. C., believes that the Veteran's HIV began in-service. See October 2009 personal statement. The Veteran contends that after his initial denial for entitlement to service connection for HIV he showed Dr. C. his denial. Id. The Veteran stated Dr. C. disagreed with the denial and made corrections to the Veteran's medical records to document that Dr. C. believes the Veteran's HIV began in-service. Id. Also, the Veteran contends that upon the initial diagnosis in February 2007, he informed Dr. C. about the alleged October-November 1996 exposure. Id. There is, however, no evidence in the VA treatment records associated with the file that supports the Veteran's contentions regarding Dr. C.. As there is an indication of additional relevant VA treatment records, any outstanding records must be obtained. Finally, review of the claims file indicates that the Veteran is in receipt of Social Security Administration (SSA) disability benefits related to his HIV. A September 2013 Rating Decision indicates the Veteran's SSA disability records were received by the VA in August 2013, but they are not associated with the file. 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 required. 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). As the September 2013 Rating Decision indicates the Veteran is in receipt of SSA disability benefits relating to the disability at issue on appeal, those records must be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all Social Security Administration disability records. 2. Obtain all pertinent records of VA treatment for HIV, including from November 2005 to October 2007, as well all records from Dr. C. A copy of any negative response(s) should be included in the claim file. 3. After obtaining the above records, afford the Veteran an appropriate examination to obtain a medical opinion addressing the nature and etiology of his HIV. All indicated evaluations, studies, and tests deemed necessary must be accomplished and all findings reported in detail. The examiner must obtain and record the Veteran's complete history as it pertains to HIV risk factors. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's HIV had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner must address the Veteran's contentions that he obtained HIV in October-November 1996 and while he was not diagnosed with HIV until many years later, this was due to the incubation period of HIV. The examiner must also address the Veteran's contention that while his HIV had not yet "flared up", his frequent sickness post service prior to HIV diagnosis was indicative of things "starting to go in that direction". See July 2010 Form 9. In expressing the requested opinion, the examiner is advised that the Veteran's service treatment records reflect a negative HIV test with his separation examination in October 1997. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the requested examiner's opinions do not answer or sufficiently answer the questions posed, return the case to the examiner for corrective action. 5. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).