Citation Nr: 18157098 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 09-06 608 DATE: December 11, 2018 ORDER Entitlement to service connection for Human Immunodeficiency Virus (HIV) is denied. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that HIV was caused by or incurred in service. 2. The preponderance of the evidence is against a finding that peripheral neuropathy of the lower extremities was incurred in service, is related to any event of service, manifested to a compensable degree within one year following separation from service, or is due to or aggravated by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for HIV are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to service-connected disabilities have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1979 to November 1983. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 o establish a service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996) 1. Entitlement to service connection for HIV The Veteran contends he contracted HIV in service. Specifically, at an April 2017 hearing, the Veteran testified that he was diagnosed with a blood disorder in service, which was later diagnosed as HIV in June 1990. The Veteran has also stated that he believes he contracted HIV after undergoing a blood transfusion during service. The Veteran’s service medical records do not show any findings or diagnoses related to HIV. There is no indication of any abnormal blood results. Further, no service records indicate the Veteran underwent a blood transfusion during service. Private and VA medical records indicate that the Veteran was diagnosed with HIV in June 1990, almost seven years after separation from service. In a September 2001 private medical record, the Veteran reported a history of same sex relations and a blood transfusion. A January 2002 private medical record notes a history of HIV for approximately 12 years. A November 2003 medical record noted a history of HIV for 15 years. A February 2004 report of medical examination from the Veteran’s time in prison notes a blood transfusion for anemia was conducted in 1989 or 1990. In a March 2004 prison medical record, the Veteran reported that HIV was diagnosed and treated during service. The Veteran stated that he believed that the contraction of HIV was related to a blood transfusion. At a May 2016 VA examination, the Veteran reported he was diagnosed with abnormal blood in 1986, and was diagnosed with HIV in 1990. The examiner opined that the HIV was less likely than not incurred in service. The examiner explained that there was no support in the service medical records indicating anything related to “abnormal blood.” Further, the examiner noted that “abnormal blood work” could have been anything. In a June 2016 addendum, and in further support of the May 2016 opinion, the examiner stated that the Veteran completed an HIV classification form while in prison on which he reported he was diagnosed with HIV in June 1990 after receiving a whole blood transfusion for anemia. The examiner noted that the blood transfusion was not conducted in service. In an October 2017 VA examination addendum, the examiner opined that it was less likely than not that HIV was incurred in service, including through an in-service blood transfusion. The examiner noted the June 1990 diagnosis of HIV and explained that prison medical records indicated a blood transfusion after service, and that no transfusion had been conducted in service. Further, the examiner noted that the Veteran led a high-risk lifestyle, including being an intravenous drug user and engaging in homosexual sexual encounters. The Board has considered the evidence of record and finds that the preponderance of the evidence is against a finding that HIV was contracted during active service, including through an alleged in-service blood transfusion. The service medical records are silent as to complaints, treatment, or diagnoses of HIV, or any abnormal blood disorder. The service medical records do not indicate that the Veteran underwent a blood transfusion during service. Private medical records show the Veteran was diagnosed with HIV in 1990. Prison medical records indicate the Veteran underwent a blood transfusion for anemia in 1989 or 1990. The VA examiner opined that it was less likely than not that HIV was related to service. The examiners reviewed the entire medical record and considered the lay statements by the Veteran in making that opinion. Those statements do not provide objective evidence that HIV is related to service. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board acknowledges the statements of the Veteran regarding the onset of the HIV. However, the issue in this case is outside the realm of common knowledge of a lay person, as a nexus is not obvious merely through observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the VA examination opinions to be the most probative and persuasive evidence of record. The VA examiner has medical training, and reviewed all the available medical records, including the Veteran’s statements. The Veteran has not submitted any contrary objective evidence suggesting that the HIV was caused by an in-service incident. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for HIV. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to service-connected disabilities The Veteran contends that peripheral neuropathy of the bilateral lower extremities is related to service-connected residuals of burns. At an April 2017 hearing, the Veteran reported that he began experiencing nerve damage in service after an accident in which he was burned. He stated that he has experienced continual tingling from the legs down to the feet. An April 1999 private medical record shows a complaint of burning in the legs for one and a half weeks. The burning was assessed as neuropathy. In a July 1999 private medical record, the Veteran requested to discontinue the use of Zenit, a medication for the treatment of HIV, because he believed it was causing peripheral neuropathy. In a February 2004 prison medical record, the Veteran reported he believed that the medication Sustiva, for the treatment of HIV, was causing peripheral neuropathy. At a March 2008 VA examination for scars, the Veteran reported tingling in the skin at the site of burn scars on the face and hands. The examiner noted underlying neuropathy. October 2008 through December 2008 private medical records show continued complaints of peripheral neuropathy, treated with Cymbalta. VA medical records also indicate complaints of neuropathy. At a May 2016 VA examination, the Veteran reported stabbing pain in the feet for approximately 25 years. An examination of the bilateral legs found symptoms attributable to a peripheral nerve condition, including severe constant pain, mild paresthesias or dysesthesias, and mild numbness in the bilateral lower extremities. The examiner diagnosed HIV neuropathy, and opined that there was no relationship between the burns of the hand and face to the neuropathy of the lower extremities. The examiner opined that the neuropathy was related to HIV. In an October 2017 addendum regarding aggravation, the examiner opined that while neuropathy of the bilateral upper extremities was as likely as not aggravated by service-connected residuals of burns to the hand and face, the bilateral lower extremity neuropathy was mostly due to the HIV neuropathy. The Board has considered the evidence of record and finds that the preponderance of the evidence is against a finding that peripheral neuropathy of the lower extremities is related to service, including service-connected residuals of burns. The service medical records are silent as to complaints, treatment, or diagnosis of peripheral neuropathy of the lower extremities during service, and the Veteran does not assert that the neuropathy was incurred in service. Regarding secondary service connection, the Board notes that the Veteran is service connected for residuals of burns to the hands and face. There is no indication that the burns incurred by the Veteran affected the lower extremities. Private medical records indicate multiple instances of the Veteran relating his lower extremity neuropathy to medication for HIV. The May 2016 VA examiner diagnosed HIV neuropathy, and specifically opined that it was less likely than not that the neuropathy was related to service, including service-connected residuals of burns. The examiner explicitly stated that the neuropathy of the lower extremities was related to HIV and not service-connected burn residuals. The VA examiner reviewed the entire medical record and considered the lay statements by the Veteran in making that opinion. Those statements do not provide objective evidence that peripheral neuropathy of the lower extremities is related to service, including service-connected residuals of burns to the hands and face. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board acknowledges the statements of the Veteran regarding the onset of the peripheral neuropathy. However, the issue in this case is outside the realm of common knowledge of a lay person, as a nexus is not obvious merely through observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the VA examination opinion to be the most probative and persuasive evidence of record. The VA examiner has medical training, and reviewed all the available medical records, including the Veteran’s statements. The Veteran has not submitted any contrary objective evidence suggesting that the peripheral neuropathy was related to service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the bilateral lower extremities. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel