Citation Nr: 1744827 Decision Date: 10/10/17 Archive Date: 10/17/17 DOCKET NO. 14-02 184 ) 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), to include as secondary to service-connected hemorrhoids and rectal bleeding. 2. Entitlement to an initial compensable rating for hemorrhoids and rectal bleeding. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from September 1992 to December 1997. He also had 2 years, 2 months, and 13 days of prior active service. These matters come before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO denied service connection for HIV and granted service connection for hemorrhoids and rectal bleeding and assigned an initial noncompensable disability rating, from January 19, 2011. The Veteran testified before a Decision Review Officer (DRO) and the undersigned Veterans Law Judge (VLJ) at hearings dated in December 2016 and May 2017, respectively. Transcripts of the hearings have been associated with his file. FINDINGS OF FACT 1. In March 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the issue of entitlement to a higher initial rating for hemorrhoids and rectal bleeding. 2. The evidence is at least evenly balanced as to whether the Veteran's HIV was caused by his service-connected hemorrhoids and rectal bleeding. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran, as to the issue of entitlement to a higher initial rating for hemorrhoids and rectal bleeding, are met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for HIV, secondary to service-connected hemorrhoids and rectal bleeding, are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. In the present case, the Veteran indicated in a March 2017 letter that he "no longer wish[ed] to continue the appeal for a compensable evaluation for hemorrhoids and rectal bleeding so that portion of the appeal can be withdrawn." As the Veteran has withdrawn the appeal as to this issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue on appeal, and the appeal is dismissed. II. Service Connection The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). As the Board is granting the claim of service connection for HIV, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. In relevant part, 38 U.S.C.A. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the present case, a May 2012 VA HIV examination report reveals that the Veteran has been diagnosed as having HIV. Thus, a current disability has been demonstrated. The Veteran contends that his HIV was caused, at least in part, by his service-connected hemorrhoids and rectal bleeding in that he contracted HIV via unprotected anoreceptive intercourse while he was experiencing hemorrhoids and rectal bleeding. In this regard, there are conflicting medical opinions. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The physician who conducted the May 2012 VA HIV examination opined that the Veteran's HIV was not likely ("less likely than not"/"less than 50 percent probability") proximately due to or the result of his service-connected hemorrhoids and rectal bleeding. He reasoned that there is no relationship between HIV and bleeding from hemorrhoids. Bleeding brings blood out of the body, not in, and does not cause HIV infection. In an August 2012 letter, a VA infectious disease specialist (F.E.H.) reported that he had been treating the Veteran for 18 months. In early 2010 the Veteran seroconverted to HIV positivity given a positive high risk exposure. In the setting of any rectal mucosa lesions (i.e., hemorrhoids, tears, fissures, fistula, ulcers, etc.) exposure to HIV infected body fluid would be regarded as high risk for infection. Rectal mucosal lesions with direct access to the blood stream and lymphatics would be bathed in highly infectious body fluid. Therefore, the presence of hemorrhoids in the Veteran would have been a major predisposing factor to acquiring the HIV infection. Thus, F.E.H. opined that the likely portal of entry was rectal and that the presence of hemorrhoids contributed in a major way to acquiring the infection. In January 2013, F.E.H. completed an "HIV-Related Illnesses Disability Benefits Questionnaire" form (VA Form 21-0960I-2) on which he opined that the Veteran's hemorrhoids and rectal bleeding were permissive in a proximate way to the Veteran acquiring HIV. There was no further explanation or rationale provided for this opinion. In November 2013, a VA physician reviewed the Veteran's claims file and opined that his HIV "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." He explained that a review of the Veteran's medical records revealed a history of contact and exposure to HIV in 2008, with positive testing in 2008. This was prior to his claimed hemorrhoidal issue. The opinion that his service-connected hemorrhoids and rectal bleeding "was the contributing factor of the infection is speculative." A second VA physician reviewed the Veteran's claims file in February 2017 and explained that HIV is transmitted through the exchange of certain bodily fluids, most commonly through intravenous drug use and anoreceptive intercourse. Although it is theoretically true that the presence of bleeding hemorrhoids may increase the likelihood of HIV transmission, it is the act of anoreceptive intercourse with an HIV infected person, without protective measures taken, that is the cause. Hemorrhoids increasing the risk is only theoretical, as this has never been shown to be the cause. Additionally, risk is not cause. Also, this increased risk only occurs if the intercourse occurred when rectal bleeding was occurring. All unprotected anointercourse with a person who is HIV positive is a cause of HIV transmission. The presence of bleeding (and only bleeding) hemorrhoids increases this risk. The fact of having anoreceptive intercourse while having rectal bleeding is never mentioned in the record. Therefore, the physician opined that the Veteran's HIV was not a secondary complication of his hemorrhoids and rectal bleeding. In an addendum to an April 2017 VA infectious disease note, F.E.H. explained that the Veteran experienced acute HIV seroconversion in 2010 after anoreceptive intercourse in the setting of hemorrhoids and a history of bleeding. Per the Centers for Disease Control and Prevention (CDC), anoreceptive intercourse has clearly been linked to HIV transmission. Thus, the hemorrhoids with rectal bleeding are likely ("at least as likely as not") related to acquiring HIV infection. The November 2013 and February 2017 opinions are of limited probative value because they are based, at least in part, on an inaccurate history. Aside from the fact that the actual November 2013 opinion addresses direct service connection (as opposed to secondary service connection), the opinion is nonetheless based on a finding that the Veteran was found to be HIV positive in 2008, prior to the time that he experienced hemorrhoids with bleeding. Although there is a June 2008 treatment record from Paul. D. Wenzel, M.D. which documents a diagnosis of HIV, the Veteran has explained on several occasions that this diagnosis was erroneously entered on that date and that he did not have a positive HIV test until 2010. In December 2013, Dr. Wenzel confirmed that no HIV test was conducted in June 2008 and he amended the 2008 treatment record to remove the diagnosis. A review of the Veteran's treatment records further reveals that there were no positive HIV tests prior to 2010. Furthermore, the February 2017 opinion appears to be partly based on the absence of evidence that the Veteran actually engaged in anoreceptive intercourse while experiencing bleeding hemorrhoids. To the contrary, he has confirmed that these were the circumstances under which he contracted HIV. Hence, the November 2013 and February 2017 opinions are partly based upon an inaccurate history and are therefore of little probative value. Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal v. Brown, 5 Vet.App. 458, 461 (1993)). By contrast, the May and August 2012 and April 2017 opinions are based upon an examination and treatment of the Veteran and are accompanied by specific rationales which are consistent with the evidence of record. Hence, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, although the January 2013 opinion is not accompanied by a specific rationale, it at least supports the conclusion that the Veteran's current HIV was caused, at least in part, by his service-connected hemorrhoids and rectal bleeding. In light of the Veteran's reported history and the medical opinions of record, the Board finds that the evidence is approximately evenly balanced on the question of whether the Veteran's current HIV is, at least in part, the result of his service-connected hemorrhoids and rectal bleeding. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. Hence, service connection for HIV, as secondary to service-connected hemorrhoids and rectal bleeding, is granted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. ORDER The appeal as to the issue of entitlement to an initial compensable rating for hemorrhoids and rectal bleeding is dismissed. Entitlement to service connection for HIV, secondary to service-connected hemorrhoids and rectal bleeding, is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs