Citation Nr: 1751277	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  09-44 170	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for HIV.

2. Entitlement to service connection for a stomach condition.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. Ryan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1980 to 1984. He served in the National Guard and Army Reserves from 1994 to 2003.

This matter comes before the Board of Veterans' Appeals (Board) from March 2005 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

The Veteran presented testimony at a videoconference hearing before the Undersigned Veterans Law Judge (VLJ) in October 2015. A transcript of the hearing is associated with the record.

The issues are REMANDED to the Agency of Original Jurisdiction (AOJ).


REMAND

The Veteran contends that he is entitled to service connection for HIV and a stomach condition. For the following reasons, remand is warranted for both conditions.

In May 2016, the Veteran underwent Compensation and Pension (C&P) examination in which the examiner determined it was less likely than not that the Veteran's HIV was related to service, as there was no indication in the Veteran's Service Treatment Records that the Veteran received a diagnosis of HIV in service. The Board cannot treat as adequate a medical examination that relies on the absence of an injury in the service treatment records as dispositive.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible). Furthermore, the examiner is asked to discuss HIV's period of dormancy and how that could affect the date of the Veteran's diagnosis.

In October 2015, the Veteran testified that he received care from a private gastroenterologist, Dr. Guzman. Although the Board directed the RO to obtain those records, the RO did not specifically request those records or obtain the address from the Veteran. Before adjudication, such records must be obtained.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an examination to determine if it is more or less likely than his HIV is related to a sexual encounter the Veteran underwent while in service.

***The examiner is specifically asked to discuss the period of dormancy which HIV may undergo before manifesting as a diagnosable condition.

2. Obtain Dr. Guzman's address from the Veteran and request the Veteran's treatment records. If no such records are available, a notation must be made in the file.

The appellant has the right to submit additional evidence and argument on the 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 2014).


______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs