Citation Nr: 20030193 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 12-27 665 DATE: April 29, 2020 REMANDED Entitlement to service connection for human immunodeficiency virus (HIV) is remanded. REFERRED The issue of entitlement to service connection for a left foot condition was reasonably raised in a December 2009 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran served on active duty from February 1984 to November 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied, in pertinent part, service connection for HIV. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). By way of a November 2019 Order, the Court granted a Joint Motion for Remand (JMR) and vacated the Board’s decision with remand for adjudication consistent with the JMR. 1. Entitlement to service connection for HIV is remanded. In the November 2019 JMR, the Court indicated that the January 2018 medical opinion appears to be inadequate because the clinician appeared to address the credibility of the Veteran’s lay statements. The Court specifically identified the statements made on page 5, paragraphs #2 and #6, which appear to question Veteran’s reports of homosexual experiences in service. The Court noted that assessing the credibility of lay statements is the province of a rating specialist, not a medical examiner. In response, the Board observes that in question #2, the VA examiner appears to merely be noting that a military mental health clinician found the Veteran to be malingering in July 1986 when he reported having a homosexual experience. In the Board’s February 2019 decision, it made a finding of fact that the Veteran engaged in unprotected sex with an individual during service who was later diagnosed with HIV. Within the decision, the Board also stated, “The Veteran has competently and credibly reported that he engaged in unprotected sex with an individual during service who was diagnosed with HIV and/or AIDS.” Considering the Board’s prior factual finding, to the extent that the January 2018 clinician appeared to question the veracity of the Veteran’s report of a homosexual experience in service, this renders the opinion less probative. On remand, a supplemental medical opinion must be obtained regarding the likelihood that the Veteran’s HIV was incurred in service or is due to service. The matters are REMANDED for the following action: Obtain a supplemental opinion from an appropriate clinician as to whether it is at least as likely as not that Veteran’s HIV diagnosed in 2005 or 2007 was incurred during his active military service or, is otherwise related to his period of service from 1984 to 1986, to include his report of having engaged in unprotected sex with an individual during service who was diagnosed with HIV and/or AIDS. In doing so, the examiner must review the claims file and a complete copy of the Remand discussion above. The need for an in-person examination is left to the examiner’s discretion. In providing the opinion, consideration should be given to the Veteran's report of unprotected sex with an individual with HIV infection in service. He has provided information in statements dated in December 2009 (Report of General Information, VA Form 21-0820), January 2010 (Statement in Support of Claim, VA Form21-4138), and in a lay statement dated August 3, 2010 (and received in September 2012). The examiner is advised that the Board has previously found the Veteran’s report of having engaged in unprotected sex with an individual during service to be credible. A complete history of any other risk factors and unprotected sex before and after service, and the significance thereof, if any, should be discussed in the opinion. A fully explained rationale must be provided for the opinion. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.