Citation Nr: 21069139 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-39 832A DATE: November 17, 2021 REMANDED Entitlement to service connection for human immunodeficiency virus (HIV) is remanded. Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, is remanded. Entitlement to service connection for a liver disability, to include hepatitis B is remanded. Entitlement to service connection for hypertension (high blood pressure) is remanded. Entitlement to service connection for a digestive condition is remanded. Entitlement to service connection for colorectal and/or anal cancer is remanded. Entitlement to service connection for a blood disorder is remanded. Entitlement to nonservice-connected (NSC) pension benefits is remanded. REASONS FOR REMAND The Veteran had active duty service from December 1983 to December 1986, and confirmed Army National Guard service from November 2006 to November 2012. This appeal before the Board of Veterans' Appeals (Board) arose from July 2016 and March 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Service connection for HIV. With respect to his service connection claim for HIV, the Veteran specifically contended during his July 2021 Board hearing that he was on active duty, and that he either had orders or was in the process of receiving orders to serve in Operation Iraqi Freedom (OIF), when he was notified of his HIV diagnosis, and that he was then notified that he would not serve in OIF. His VA clinical treatment records indicate that he was found to have a positive HIV blood test in June 2010. While the record contains the Veteran's NGB Form 22, noting his Army National Guard service from November 2006 to November 2012, there is, thus far, no evidence of record confirming that he had any period of active duty during his period of National Guard service, to include proximate to the time he was diagnosed with HIV. Notably, however, the record thus far does not contain the Veteran's service personnel records (SPRs) or his service treatment records (STRs) pertaining to his National Guard service. Further, while service connection may be granted for disability that results from a disease or injury incurred in or aggravated in the line of duty during a period of active duty for training (ACDUTRA), the record does not contain evidence of the Veteran's periods of ACDUTRA during his National Guard service. Based on these deficiencies in the record, remand is required in order for the agency or original jurisdiction (AOJ) to obtain evidence of any period of active duty between November 2006 and November 2012, and to obtain the Veteran's SPRs and STRs pertaining to his National Guard service, and to identify his periods of ACDUTRA during that service. Additionally, the Veteran's VA clinical treatment records note his assertions that he has had multiple sexual partners over the years, and the STRs pertaining to his confirmed period of active service indicate that he had been tested on multiple occasions for venereal diseases. Thus, the Board finds that on remand, the Veteran should be afforded a VA examination to determine the nature and etiology of his diagnosed HIV. 2. Service connection for an acquired psychiatric disability. 3. Service connection for liver disability. 4. Service connection for hypertension. 5. Service connection for a digestive condition. 6. Service connection for colorectal and anal cancer. 7. Service connection for blood disorder. Issues 2-7: The Veteran contends that each disability was, at least in part, incurred as secondary to his claimed HIV, to include the medications used to treat the HIV. As such, the claims are inextricably intertwined with the service connection claim for HIV. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, the Board must defer consideration of these matters. Further, to date, the Veteran has not been afforded a VA examination for his claimed liver disability. Given evidence of record, including the Veteran's lay statements, including the Veteran's history of having multiple venereal diseases during service, the Board finds that VA's duty to obtain and examination is triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that remand is also warranted for the sake of judicial efficiency to schedule the Veteran for appropriate VA examinations for each of these claimed disabilities. With respect to the Veteran's claimed cancer, specifically, he testified at his July 2021 hearing that he has had surgery for his claimed cancer two times, and that he was scheduled for a follow-up appointment in September 2021. Such treatment is not reflected in his VA clinical treatment records; however, records dated since May 2017 have not been associated with the claims file. Additionally, the Veteran testified that he began receiving treatment from a VA psychiatrist or psychologist sometime after 2013 or 2014; however, his mental health treatment records have not been associated with the claims file. Notably, the Veteran also testified that all treatment rendered for his claimed disabilities was provided by VA facilities, or VA contracted providers. Thus, on remand, the Veteran's outstanding VA clinical treatment records, to include any records from VA-contracted providers, must also be obtained. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1), (2); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). 8. NSC pension benefits. As further development is required to determine the nature of the Veteran's service between November 2006 and November 2012, this evidence will assist in ascertaining whether the Veteran had active wartime service, or whether service connection is warranted for a disability incurred during or as result of disease or injury incurred during a period of ACDUTRA during his National Guard service. Accordingly, his claim for NSC pension benefits must be deferred pending this additional development in order to determine his eligibility for NSC pension benefits. Accordingly, these matters are hereby REMANDED for the following action: 1. Take all necessary measures to verify the Veteran's periods of active duty service and all periods of ACDUTRA completed during his Army National Guard service from November 2006 to November 2012. To this end, contact the Department of the Army, the Veteran's Army National Guard unit, the United States Army Human Resources Command, and/or any other appropriate source(s). Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. Document all requests for information as well as all responses in the claims file. If, after all appropriate measures have been taken, verification of the Veteran's periods of service is not possible, an appropriate explanation must be attached to the claims file. 2. Take all necessary measures to obtain the Veteran's service personnel and service treatment records pertaining to his period of Army National Guard service, and any period of active service completed during that service, to particularly include records dated proximate to his HIV diagnosis. Contact all appropriate repositories to obtain the requested records, and follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Obtain all outstanding VA clinical treatment records, to specifically include any mental health treatment records dated beginning sometime in or shortly after 2013 or 2014, and all records dated since May 2017, including records pertaining to any follow-up treatment for colon cancer rendered in September 2021. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. For any treatment rendered at a VA-contracted provider that requires authorization for the release of records, ask the Veteran to provide such authorization on VA Form 21-4142. All records and/or responses received should be associated with the claims file. 4. After the foregoing directives have been completed, schedule the Veteran for an appropriate VA examination for his claimed HIV. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that the Veteran's HIV had its onset during a period of active service or a period of ACDUTRA, or is otherwise medically-related to such service, including the Veteran's history of having multiple venereal diseases during his first period of active service. In addressing the above, the examiner must consider and discuss all pertinent medical evidence and lay evidence of record, to include assertions as to the nature, onset, and continuity of his HIV associated symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. A clear rationale must be provided for all opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Also, schedule the Veteran for an appropriate VA examination for his claimed liver disability. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) Clearly identify any and all liver disabilities, to include any hepatitis B, currently present, or present at any point pertinent to the current claim (even if now asymptomatic or resolved). (b.) Then, for each such liver disability, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that the disability had its onset during a period of active service or a period of ACDUTRA, or is otherwise medically-related to such service, including the Veteran's history of having multiple venereal diseases during service. (c.) For any such liver disability that is deemed to not be at least as likely as not etiologically related to the Veteran's service on a direct basis, the examiner should also provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that such disability was caused, or aggravated (made worse) beyond its natural progression by the Veteran's HIV, to include as a result of medications used to treat the disease. In addressing the above, the examiner must consider and discuss all pertinent medical evidence and lay evidence of record, to include assertions as to the nature, onset, and continuity of his claimed liver disability. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. A clear rationale must be provided for all opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.