Citation Nr: 1825720 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 14-34 571A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for human immunodeficiency virus (HIV). 2. Entitlement to service connection for rectal warts. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kerry Hubers, Counsel INTRODUCTION The Veteran had active military service from March 1984 to November 1986. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran testified before the undersigned at a September 2016 Board hearing held at the RO. The claims file contains a transcript of the hearing. To the extent the claims file contains pertinent evidence added since the most recent supplemental statement of the case, the Veteran, through his representatives, waived consideration of that evidence by the agency of original jurisdiction (AOJ). Therefore, the Board may proceed to the merits. 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The Veteran's HIV did not begin during his active service and is not otherwise etiologically related to any event, injury, or disease during his active military service; the Veteran's HIV was not caused by or aggravated by any service-connected disability. 2. The Veteran's rectal warts did not begin during his active service and are not otherwise etiologically related to any event, injury, or disease during his active military service; the Veteran's condition manifested by rectal warts was not caused by or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for HIV have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.309 (2017). 2. The criteria for service connection for rectal warts have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. I. Service Connection: General Principles Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). HIV and genital warts are not encompassed by the list of chronic diseases. See 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply to the Veteran's claims. In the context of claims for secondary service connection under 38 C.F.R. § 3.310, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to (caused by) the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998); Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). While the Veteran is competent to report (1) symptoms observable to a layperson (e.g., external lesions); (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay Veteran competent to render opinions regarding the clinical significance of observable symptoms. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). This Veteran, who lacks medical training, is not competent to opine on the etiology of his diagnosed conditions. See, e.g., Jandreau, 492 F.3d at 1377. Therefore, in evaluating the Veteran's claims, the Board will rely on the medical evidence of record. The Board, however, has considered the Veteran's subjective reports of symptoms and past treatment, particularly as they illuminate or underscore the medical opinions of record. II. Service Connection: HIV The Veteran claims entitlement to service connection for human immunodeficiency virus (HIV). See December 2013 VA Form 21-526EZ (claiming service connection for PTSD, HIV, and rectal warts, among other conditions). The record establishes that he was first diagnosed with HIV many years after his active service and he has otherwise denied that he contracted HIV during his active service. See May 2015 VA Examination (noting initial diagnosis in 2009); June 2015 Addendum Opinion of VA Examiner (documenting the Veteran's report of diagnosis in 2009); September 2016 Board Hearing Tr. at 4 ("The HIV, I did not contract HIV when I was in the military."; testifying to an initial diagnosis in 2009). Moreover, the medical evidence of record is against finding that the Veteran contracted HIV during his active service. See May 2015 VA Examination (discussing medical principles and evidence that weigh against concluding that HIV was contracted during service in the 1980s and went untreated until diagnosed in 2009). The evidence is against finding that the Veteran's HIV was contracted during his active service or is etiologically related to an injury or event in service. The Veteran's theory, however, is essentially that his HIV is secondary to his PTSD. The Veteran is service-connected for PTSD, including significant depression that resulted in suicidal ideation, due to traumatic events that occurred during his active service. Thereafter, he argues, he "purposely set out to get infected, because [he] couldn't figure an easier way to die." See September 2016 Board Hearing Tr. at 4. His argument is that the in-service events and his PTSD caused a behavior pattern after service that resulted in his infection and, therefore, he argues that the illness he contracted as a result of that behavior should be service-connected. The record contains two opinions addressing the connection, if any, between the Veteran's PTSD and his HIV. The June 2015 VA Addendum Opinion states that it is not possible for an individual to develop HIV due to PTSD as HIV is acquired through the transmission of bodily fluids. The examiner, a clinical psychologist, stated: "It is not possible for a psychological condition to cause or induce HIV." An October 2016 opinion submitted by the Veteran's VA treating licensed clinical social worker (LCSW) indicates that there may be some relationship between the Veteran's PTSD and his HIV infection. The LCSW opined: Empirical research suggests a strong relationship between PTSD, and reported impairments in judgment, decision-making, problems with anger, anxiety and depression. It is this worker[']s professional opinion that [the Veteran's] HIV status was made possible because of his PTSD and how it has affected his judgment and his decision making ability, as well as from his tendency to engage in reckless and self-destructive behavior. The opinion supports the Veteran's main argument of the behavioral processes that ultimately resulted in his contracting HIV through unprotected post-service sexual intercourse. The Veteran argues he was negatively impacted by the in-service events and that resulted in behavior that "made it possible" for him to contract HIV. The Board understands the Veteran's position and acknowledges his contentions regarding his psychological state and that, in a lay sense, the in-service assault set in motion a series of events and actions that ultimately resulted in his contracting HIV. The question, however, is whether for purposes of veterans' benefit law there is a causal nexus between the PTSD and the HIV. The Board finds that the evidence and the law is against finding a causal nexus in this case. First, the only medical opinion of record supporting the Veteran's theory is not stated in sufficiently definite language to warrant much probative value. See October 2016 Opinion of LCSW (noting general research "suggests" a strong relationship between PTSD and behavior that "made possible" the contraction of HIV); Bloom v. West, 12 Vet. App. 185, 187 (1999) ("By using the term 'could,' without supporting clinical data or other rationale, [the expert's] opinion simply is too speculative to provide the degree of certainty for medical nexus evidence."). The remaining competent medical evidence weighs against the Veteran's claim. See June 2015 VA Addendum Opinion (opining that the Veteran's PTSD did not cause HIV); Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). For this independent reason, (the greater weight of the medical evidence is against the claim), the Veteran's claim fails. Second, the Veteran's theory of causation is not legally viable in the factual circumstances of this case. His theory requires that an in-service event or his PTSD be, at least as likely as not, a proximate cause of his HIV. 38 C.F.R. §§ 3.303 (direct service connection), 3.304 (direct service connection), and 3.310(a) (secondary service connection); Solomon v. Brown, 6 Vet.App. 396, 402 (1994) (discussing requirement of proximate causation analysis in secondary service connection claims). "Proximate cause" is "that which, in a natural continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." Forshey v. West, 12 Vet.App. 71, 74 (1998) (quoting Black's Law Dictionary 1225 (6th ed.1990). Here, the Veteran testified that he intentionally engaged in a course of conduct after his active service because of his PTSD. He argues his PTSD made him more impulsive and more likely to engage in risky conduct. Interestingly, however, rather than lend support to the argument that his judgment was impaired, his statements show that he realized the potential consequences of his actions and that he made a conscious, volitional decision to engage in such conduct. The conduct was not a single, impulsive act, but an intentional course of conduct engaged in over a period of years. The Board finds this conduct was not, however, the proximate cause of his infection with the HIV virus. His behavior of engaging in unprotected sex over the course of several years did not create a sequence of events that would necessarily lead to someone contracting the HIV virus. In other words, the conduct itself does not proximately cause HIV; HIV was caused by an efficient intervening cause, that is, exposure to someone with the virus. Proximate causation, as noted above, is a necessary element of secondary service connection based on causation. The Veteran's PTSD did not proximately cause his HIV; simply having unprotected sex does not cause HIV; rather, there is an intervening cause - actual exposure to the virus - that lead to his HIV infection. An efficient intervening cause is "an intervening cause which produces results which would not have come to pass except for its interposition, and for which, therefore, the person who set in motion the original chain of causes is not responsible". Thomas v. Nicholson, 21 Vet. App. 418 (2006) (citing BLACK'S LAW DICTIONARY 462 (5th ed. 1979)). Here the intervening cause was the exposure to a sexual partner infected with HIV, and the Veteran's resulting HIV infection would not have happened but for that event. The Board acknowledges that secondary service connection may also be warranted absent proximate cause by the service-connected disability where the condition (here HIV) nevertheless was aggravated by the service-connected condition (in this case, PTSD). However, there is no evidence to support the aggravation theory in this case. The evidence establishes that the Veteran's HIV is medically unrelated to his PTSD. See, e.g., June 2015 VA Addendum Opinion. Further, and more importantly, the evidence indicates that the Veteran has been compliant with his treatment and has no current, observable symptoms, see May 2015 VA Examination, so his argument based on the behavioral impact of his PTSD does not suggest or support any aggravation of the HIV. In other words, the evidence of record is affirmatively against finding that his HIV infection has worsened during the appeal period whether as a result of his PTSD or otherwise. See May 2015 VA Examination. The evidence is not in equipoise, but is against the Veteran's claim. His claim of entitlement to service connection for HIV, on either a direct or secondary basis, is denied. III. Service Connection: Rectal Warts The Veteran claims entitlement to service connection for rectal warts. See December 2013 VA Form 21-526EZ (claiming service connection for PTSD, HIV, and rectal warts, among other conditions). An in-service event and a current disability have been established. See April 2014 VA Examination (discussing in-service history of rectal warts and current diagnosis of rectal warts). The determinative issue with respect to this claim is whether there is a nexus between his current rectal warts and the in-service rectal warts he had. Here, the only competent evidence is against the Veteran's claim. The April 2014 VA examiner opined that the current condition was less likely than not incurred in or caused by the in-service infection. The examiner explained that, after successful treatment during service, the Veteran had no outbreaks or symptoms until roughly 2011 and that the medical literature indicates that such infections "are transient and cleared within two years." The examiner concluded that, because of the 20 year gap between episodes of lesions, it is most likely that he became reinfected with a new viral strain (that causes warts) rather than that the current condition was a re-manifestation of the previous lesions. The VA examiner's opinion is thorough and convincing, so the Board gives it significant probative weight. Nieves- Rodriguez, 22 Vet. App. at 304. To the extent the Veteran relies on his theory that his service-connected PTSD resulted in behavior that exposed him to a virus which caused his current disability, the Board's discussion of that theory in the context of HIV is incorporated herein and establishes that service connection on that basis is not warranted for exactly the same reason. The Veteran's exposure to the virus that manifested in rectal warts was the intervening and independent proximate cause of his infection. The greater weight of the most probative, competent evidence of record is against finding that the Veteran's current disability manifested by rectal warts is related to an in-service disease, event, or injury, or that it was caused by or aggravated by a service-connected condition. The Veteran's claim of entitlement to service connection for rectal warts is denied. IV. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist relating to the claims decided above. 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). Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. ORDER Entitlement to service connection for human immunodeficiency virus (HIV) is denied. Entitlement to service connection for rectal warts is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs