Citation Nr: 18148972 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-22 424 DATE: November 8, 2018 ORDER Entitlement to service connection for human immunodeficiency virus (HIV) is denied. Entitlement to service connection for major depressive disorder is denied. REMANDED Entitlement to service connection for right side neck pain is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s HIV began during active service, or is otherwise related to an in-service injury, event or disease. 2. The preponderance of the evidence is against finding that the Veteran’s depression began during active service, or is otherwise related to an in-service injury, event or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for HIV are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for major depressive disorder are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1998 through June 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). When this matter was certified to the Board it included the issue of entitlement to an increased rating for the Veteran’s service-connected right shoulder disability. See May 2016 Form 8. However, in his form 9, the Veteran indicated that he was only appealing claims for right sided neck pain, which he stated developed along with his right shoulder due to cold weather injury; service connection for HIV; and major depression. See May 2016 Form 9. Accordingly, the issue of an increased rating for the Veteran’s right shoulder disability is not on appeal and will not be discussed in this decision. The Veteran was previously represented. See June 2013 Third Party Correspondence. However, in a March 2015 correspondence mailed to the Veteran and the RO, the Veteran’s representative withdrew. See March 2015 Third Party Correspondence. This withdrawal occurred before this case was certified to the Board in May 2016. See May 2016 Form 8. Withdrawal was completed properly and in compliance with 38 C.F.R. § 14.631(c). Accordingly, the Veteran is an unrepresented party. Since the April 2016 SOC additional records have been received that has not been considered by the RO. This evidence is not pertinent to the claims being decided herein. Legal Criteria A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for HIV. The Veteran contends that he is entitled to service connection for HIV. He alleges that although he learned of his HIV status in 2008 after a physical exam, he believes he contracted HIV while in active duty service. Specifically, he contends that during his active duty service he was scheduled to be deployed overseas, however, following a 2003 exam he was informed that he was no longer being sent overseas, without explanation. The Veteran reports that upon reviewing his records his 2003 HIV exam was removed from his file. See May 2016 Form 9. Treatment records confirm that the Veteran has a current diagnosis of HIV, which was diagnosed in April 2008. See October 2010 Medical Treatment Record- Government Facility at 1. However, the record does not establish an in-service injury or event. The Veteran does not allege a specific injury or in-service event which led to him contracting HIV and the preponderance of the evidence weighs against a finding that the Veteran’s HIV was contracted in service. The Veteran’s November 1997 enlistment report of medical examination was normal. See November 2014 STR Medical at 32. The Veteran’s March 2003 separation report of medical history noted the Veteran’s right thumb injury with emergency room repair during military service but was otherwise normal. There was no indication of HIV on his March 2003 separation report of medical examination. See July 2003 STR- Medical at 5,11. During service there are no records to substantiate exposure to or contraction of HIV. In fact, the record contains no diagnosis of HIV until April 2008, five years post active duty service. See October 2010 Medical Treatment Record- Government Facility at 1. This is consistent with the Veteran’s own statement that he learned of his diagnosis in 2008. See June 2012 NOD. Post military service, the Veteran was afforded a VA examination in February 2014. Following the examination, the examiner opined that the Veteran’s HIV was not incurred in or caused by an in-service injury, event or illness. The examiner’s opinion was based on the record which shows no evidence of a positive HIV test in 2003 and formal documentation showing diagnosis of HIV in April 2008. See February 2014 C&P Exam. Weight is afforded to this opinion, as it is based on an in-person examination of the Veteran and a review of the evidence of record. Moreover, the opinion is consistent with the evidence of record which shows no diagnosis before April 2008 and no indication of an in-service injury or event. While the Veteran is credible to provide lay statements regarding his symptoms and in-service events, the Veteran is not competent to provide medical diagnosis. Further, he is not competent to provide an opinion regarding the etiology of his HIV. Accordingly, as there is no evidence of an in-service injury or event, the Veteran is not entitled to service connection for HIV. Entitlement to service connection for major depressive disorder is denied. The Veteran has a currently diagnosed disability of major depressive disorder. See October 2013 Medical Treatment Record. However, for the reasons discussed below, the record does not substantiate an in-service injury or event. The Veteran has asserted two separate contentions regarding his depression. In his initial application for compensation the Veteran alleged that his depression began in April 2008. See September 2010 Application for Compensation or Pension at 7. In November 2010 correspondence the Veteran alleged that when his 2008 HIV test came back positive it caused him to become depressed. Similarly, in his June 2012 NOD the Veteran alleged that his depression is related to HIV and the fact that he cannot get a suitable job. See June 2012 NOD. However, in his May 2016 form 9 the Veteran alleges that while his depression is a result of his right thumb disfigurement it worsened after he was diagnosed with HIV. See May 2016 Form 9 at 2. The preponderance of the evidence establishes that the Veteran’s depression is the result of his HIV diagnosis rather than an in-service injury or event. As discussed above, the Veteran’s entrance exam was normal, and except for the Veteran’s in-service right thumb injury, the Veteran’s exit exam was unremarkable. Notably the Veteran denied symptoms of depression. See July 2003 STR Medical at 4. Post service, a June 2009 depression screening was negative. See October 2010 Medical Treatment Record at 3. The Veteran had an initial mental health assessment in July 2013. He reported that he first received counseling when he was diagnosed with HIV. The Veteran did not report any symptoms of depression related to his in-service thumb injury. See June 2015 CAPRI at 101. In a January 2014 assessment the Veteran reported ongoing feelings of depression and stated that he believed he was depressed due to his HIV status. See June 2015 CAPRI at 77. During the Veteran’s February 2014 VA examination for HIV, the examiner noted that the Veteran has mental health conditions attributable to his HIV related illness. See February 2014 C&P Exam at 3. He further noted that the Veteran’s HIV is symptomatic with evidence of depression with employment limitation. See February 2014 C&P Exam at 4. Weight is afforded to this opinion as it is consistent with the other evidence of record which suggests that the onset of the Veteran’s depression began with his HIV diagnosis in 2008. Moreover, it is based on an in-person examination of the Veteran. In a July 2014 treatment record the Veteran again reported being depressed due to his HIV status and current finances. See June 2015 CAPRI at 55. In October 2014, the Veteran endorsed symptoms of depression, but said he did not know why he was depressed. See June 2015 CAPRI at 38. As to the Veteran’s lay statements, weight is afforded to the Veteran’s statement that his depression is a result of his HIV diagnosis. The Veteran alleged this on several different occasions to treatment providers. Similarly, in his initial application, subsequent supporting correspondence, and his NOD the Veteran continued to allege that his depression began because of his HIV diagnosis. These consistent statements are entitled to probative weight. Conversely, less weight is afforded to the Veteran’s 2016 statement alleging that his depression is a result of his service-connected right thumb disability. The Veteran has alleged this on only one occasion, compared to the multiple times he reported depression as a result of his HIV diagnosis. Overall, the record does not establish that the Veteran’s depression is a result of an in-service injury. The Veteran denied symptoms of depression during his separation exam, he was not initially treated or diagnosed with depression until July 2013, and the Veteran has frequently reported that his depression developed as a result of his HIV status. Accordingly, as the preponderance of the evidence does not establish an in-service injury or event, the Veteran is not entitled to service connection for depression. REASONS FOR REMAND Entitlement to service connection for right side neck pain is remanded. The Veteran contends that his right sided neck pain occurred in service at the same time that he injured his right shoulder as a result of a cold weather injury in-service. See June 2012 NOD, March 2016 Form 9. The Veteran’s right shoulder is service connected based on the Veteran’s in-service cold weather injury. Treatment records show that the Veteran complained of neck pain and stiffness along with his right shoulder in June 2009. See December 2011 CAPRI at 1. The Veteran continued to allege sharp pain in the nape of his neck in June 2013. See July 2013 CAPRI at 1. In April 2014 the Veteran reported worsening of the pain in his neck and shoulders. See July 2016 CAPRI at 1. Despite the Veteran’s contentions, the record contains no etiology regarding the Veteran’s neck pain and stiffness. While the Veteran was afforded a VA examination for both his right shoulder and neck in May 2011, the examiner diagnosed the Veteran with a right shoulder injury but did not indicate whether the Veteran had a neck disability or provide an etiology for the Veteran’s neck pain. See May 2011 VA Examination. Accordingly, based on evidence of a current disability and an in-service event with no etiology or nexus opinion, a new VA examination is warranted. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination for his right sided neck pain. After a complete review of the claims file, the examiner should opine: Whether the Veteran’s right sided neck pain was at least as likely as not incurred in service, including but not limited to, as a result of the Veteran’s cold weather injury in-service? Whether any right sided neck pain was at least as likely as not caused by his service-connected right shoulder disability? Whether any right sided neck pain was at least as likely as not aggravated by his service-connected right shoulder disability? The examiner should provide a rationale for all conclusions reached. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Wimbish, Associate Counsel