Citation Nr: 1800851 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-10 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from March 1981 to March 1985. He died in May 1993, and the appellant in this case is his surviving spouse. This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In July 2016, the appellant testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the record. In October 2016, the Board solicited a medical expert opinion from a VA infectious disease specialist in connection with the appeal. See VHA Directive 2010-044, dated September 29, 2010; 38 U.S.C. §§ 5103A, 7109 (2012); 38 C.F.R. § 20.901 (2017). That opinion was received in February 2017. In March 2017, a copy of the medical opinion was provided to the appellant, and she was offered the opportunity to present additional evidence or argument in accordance with 38 C.F.R. § 20.903. In April 2017, the appellant submitted a statement in support of her claim. FINDINGS OF FACT 1. The Veteran died in May 1993, and the immediate cause of death was listed as acquired immune deficiency syndrome (AIDS) 2. AIDS did not manifest in service and is not otherwise related to the Veteran's military service. 3. At the time of his death, the Veteran did not have any service-connected disabilities. 4. A service-connected disability did not cause or contribute materially or substantially to the Veteran's death; combine with another disorder to cause his death; or aid or lend assistance to his death. CONCLUSION OF LAW The requirements for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.312, 3.1600 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Dependency and indemnity compensation (DIC) is awarded to a veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). In determining whether the disorder that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Human immunodeficiency virus (HIV) and AIDS are not enumerated "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply here. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The Veteran's death certificate indicates he died in May 1993. The immediate cause of death was listed as AIDS with an approximate five-year interval between the onset of the disease and the Veteran's death. The appellant has contended that the Veteran contracted HIV from a blood transfusion during surgery on his genitals while he was stationed in Honduras. See June 2010 claim, April 2012 substantive appeal, February 2013 note from initial Decision Review Officer (DRO) hearing, March 2013 DRO hearing transcript, and February 2015 statement. Alternatively, the appellant has contended that the Veteran contracted HIV from vaccinations administered prior to his departure for Germany. The Veteran's service personnel records show that he was stationed in Germany from July 1981 to June 1983 and that he was stationed in Honduras from August 1983 to February 1984. The Veteran's service treatment records indicate that he was evaluated for a lesion on his penile shaft in March 1981. The lesion was excised and examined for evidence of syphilis. The lesion was negative for syphilis, and he was treated with an oral antibiotic. In March 1983, the Veteran was treated for scabiei sarcoptes. He was later evaluated in June 1983 for venereal disease after a sexual contact informed him that she had an infection in her genital area and that he should be evaluated. The Veteran was also treated for gonorrhea in June 1984 and July 1984. In addition, laboratory work showed decreased white blood cells during service. See January 1984, August 1984, February 1987 laboratory reports. During an August 1992 VA social service summary, the Veteran reported that he was diagnosed with AIDS in September 1991. He indicated that he suspected that he contracted the disease via heterosexual conduct during his military service. He denied having any homosexual activity or intravenous drug abuse. In January 2011, a VA examiner reported that, other than the above referenced treatment for sexually transmitted diseases, there was nothing in the service treatment records to indicate any harbingers of HIV. He opined that there was no nexus between the Veteran's death from AIDS and his military service. He also opined that it was less likely than not that the Veteran's AIDS began during his military service. During a July 2016 hearing, the appellant contended that the Veteran was treated for HIV since 1981. Specifically, she believed that the Veteran's penile lesions and decreased white blood cell counts were indicative of HIV and that he was prescribed an HIV medication during service. In a February 2017 VHA opinion, the examiner noted that, during the Veteran's period of service from March 1981 to March 1985, there was nothing in his service treatment records to indicate that he was either diagnosed with HIV or had evidence of HIV disease. He stated that neither penile lesions nor decreased white blood cell counts indicate HIV disease. He also noted that there was no record that the Veteran was prescribed HIV medication during service. He opined that it was unlikely that the Veteran contracted HIV from vaccines prior to departing for Germany. In addition, he stated that there was no evidence that the Veteran ever received a blood transfusion. The examiner noted that the Veteran did have a lesion excised and examined for evidence of syphilis; however, he opined that it would be unlikely that a person would need a blood transfusion as a result of a biopsy of a lesion on the penis. Therefore, the examiner opined that it was less likely than not that the Veteran developed HIV or AIDS during service and that it was less likely that HIV and/or AIDS was causally or etiologically related to his military service. The Veteran's service treatment records are negative for pertinent complaints or abnormalities, including HIV or AIDS. The post-service record on appeal shows that the Veteran was diagnosed as having pancreatic cancer in 1991, which was more than six years after his separation from service. There is also no evidence of record suggesting that the Veteran had HIV or AIDS in service, within the first post-service year, or for many years thereafter. In addition, the record does not establish that the Veteran's AIDS was causally related to or aggravated by any service-connected disability, as the Veteran is not service-connected for any disability. For the reasons discussed below, the Board finds that the VA examiners' opinions are the most probative of record. Because they weigh against the appellant's claim for service connection for the cause of the Veteran's death, the claim must be denied. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the provider's knowledge and skill in analyzing the data, and the medical conclusion the provider reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds that the January 2011 and February 2017 VA examiners' opinions are adequate and the most probative evidence of record on this matter. The examiners reviewed and detailed the relevant evidence in the claims file. They concluded that it was less likely than not that the Veteran developed HIV or AIDS during service and that it was less likely that HIV and/or AIDS was causally or etiologically related to his service. The Board does acknowledge that laypersons are sometimes competent to provide opinions regarding such medical matters as diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the VA medical opinions outweigh the general assertions of the appellant. In this regard, the Board notes that the VA examiners have training, knowledge, and expertise. They reviewed the evidence of record, including the appellant's lay statements, and relied on their expertise in rendering their opinions supported by rationale. Therefore, the Board finds that the VA opinions are more probative than the appellant's lay statements. Thus, the most persuasive opinion on the question of whether there was a nexus between the Veteran's AIDS and his military service is that provided by the VA examiners in January 2011 and February 2017, which weigh against the claim. In summary, the Board finds that the available record does not show that that a service-connected disability caused, contributed, or hastened the Veteran's death. Although the Board recognizes the Veteran's years of honorable service on behalf of his country and is sympathetic with the appellant's loss of her husband, in light of the evidence discussed above, there is no basis upon which to award service connection for the cause of the Veteran's death. The Board is not permitted to engage in speculation as to medical causation issues but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs