Citation Nr: 21066099 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 10-22 677 DATE: October 28, 2021 ORDER Service connection for human immunodeficiency virus (HIV) infection and autoimmune deficiency syndrome (AIDS), to include secondary to service-connected focal segmental glomerulosclerosis, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's HIV and AIDS are related to active service or are otherwise due to or aggravated by a service-connected focal segmental glomerulosclerosis. CONCLUSION OF LAW The criteria for service connection for HIV and AIDS, to include on a secondary basis, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1989 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision. The Board remanded the claim for further development in March 2021 in accordance with a July 2020 Court of Appeals for Veterans Claims decision. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disability. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Veteran contends that his HIV and AIDS are due to his service-connected focal segmental glomerulosclerosis. VA medical records show the Veteran has had HIV since 1996 as noted in an August 2004 note. In October 2011, the Veteran underwent a VA examination which confirmed his HIV. The Veteran then underwent a second VA examination in December 2020 in order to determine the etiology of this disability. The examiner found that the diagnosed HIV is less likely than not proximately due to the Veteran's service-connected focal segmental glomerulosclerosis. Specifically, the examiner noted that a review of medical literature reveals that HIV can only be caused by contact with infected blood, semen, or vaginal fluids, not focal segmental glomerulosclerosis. The Veteran underwent a third VA examination in April 2021 to determine whether the Veteran's HIV was aggravated by the service-connected focal segmental glomerulosclerosis. The examiner concluded that the Veteran's HIV was less likely than not proximately due to the Veteran's focal segmental glomerulosclerosis noting that HIV is not caused, due to, or a result of focal segmental glomerulosclerosis. Additionally, the examiner found that the Veteran's HIV is less likely than not aggravated beyond its natural progression by the Veteran's focal segmental glomerulosclerosis. The examiner based this finding on the fact that there is no evidence that focal segmental glomerulosclerosis worsened the HIV/AIDS. Specifically, the examiner cited medical records that show the Veteran's HIV was well controlled on medication for many years. Therefore, service connection on a secondary basis is not warranted. This denial on the basis of secondary service connection does not preclude the Veteran from service connection on a direct basis. As stated previously, VA medical records and the October 2011 VA examination establish a current diagnosis of HIV. Therefore, the first element of a direct service connection claim has been met. In January 2014, the Veteran underwent a VA examination in order to determine the etiology of this disability. The examiner found that the Veteran's HIV disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's HIV/AIDS did not present until March 1996. Further, the examiner noted that the Veteran underwent an HIV test in August 1989 and this test came back negative. Further, it was noted that the Veteran had a feeling his March 1996 HIV test would be positive as he had sex which was followed shortly by a viral type of illness in the summer of 1995. This fact, combined with the Veteran's negative HIV test while in-service, led the examiner to conclude that it was less likely than not that the Veteran's HIV was due to his military service. The Board notes that an April 1992 service treatment record (STR) note states "Pencil Entry, PPD HIV." However, this note alone is not sufficient to establish an in-service diagnosis of HIV. A subsequent November 1992 note in the Veteran's STRs specifically show a negative HIV test. Therefore, the Board finds this singular note in April 1992 does not establish a diagnosis of HIV in light of the subsequent negative HIV test noted in the Veteran's STRs. Lastly, the Veteran has claimed a deficiency in this November 1992 test. Specifically, the Veteran claims that the November 1992 HIV test was purportedly conducted on PCU Asheville is not credible because he was not aboard the Asheville at the time the test. However, the Veteran's STRs confirm this November 1992 negative HIV test in-several locations, including the Veteran's separation exam as well as his immunization record. Therefore, the Board affords great probative weight to the medical records associated with the Veteran's file. The Board acknowledges the Veteran's own assertions in support of his claim. However, as a layperson without the appropriate medical training and expertise, the Veteran has not demonstrated the competency to opine as to the etiologies in this matter. Furthermore, the Veteran has not presented or identified any additional medical opinion or other competent evidence that supports the Veteran's claim. Therefore, the Board finds that the preponderance of the evidence is against the claim on both a direct and secondary basis. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.