Citation Nr: 21009437 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 12-27 665 DATE: February 22, 2021 ORDER Entitlement to service connection for human immunodeficiency virus (HIV) is denied. REMANDED Entitlement to service connection for a right foot disability is remanded. FINDING OF FACT The Veteran’s HIV did not have its onset in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for HIV are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1984 to November 1986. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in April 2014 and February 2017. In a February 2019 decision, the Board denied the Veteran’s claim for service connection for HIV. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Order, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacated the February 2019 Board decision, and remanded this matter to the Board for compliance with the JMR instructions. The Parties agreed, in pertinent part, that the Board erred “when it appeared to rely on an inadequate VA examination.” JMR, at 1. The Parties agreed that by relying on an inadequate examination, the VA failed to satisfy its statutory duty to assist the Veteran by providing an adequate examination for adjudication purposes. Id. Specifically, the Parties agreed that the Board erred in relying on a January 2018 medical opinion in which the examiner made credibility findings with respect to the Veteran’s statements. JMR, at 2. The JMR noted that “[a]ssessing the credibility of lay statements is the province of a rating specialist, not a medical examiner.” Id. Consequently, the JMR noted that remand was necessary “for a clarification of this opinion and why this evidence was included, given that it appears to touch on the credibility of [the Veteran’s] statements.” Id. at 3. The JMR also remanded the matter of service connection for right foot disabilities. Following the JMR, in April 2020 the Board remanded the issue of service connection for HIV to obtain a supplemental medical opinion. An addendum opinion was obtained in June 2020. The April 2020 Board decision also referred the issue of entitlement to service connection for a left foot condition to the AOJ for adjudication. 1. Entitlement to service connection for HIV is denied. The Veteran asserts that he contracted HIV from having unprotected sex with a commanding officer on active duty who recruited him and other lower-ranked servicemembers to his home. See December 2018 Correspondence; December 2018 VA Form 21-4138, Statement in Support of Claim; August 2010 Correspondence; January 2010 VA Form 21-4138, Statement in Support of Claim; December 2009 Report of General Information. The Veteran states he did not know the commanding officer had HIV and he later learned that the commanding officer died of AIDS after he left service. See August 2010 Correspondence; January 2010 VA Form 21-4138, Statement in Support of Claim; December 2009 Report of General Information. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). Regarding the first element of service connection, a current disability, evidence of record establishes that the Veteran was diagnosed with HIV around 2005-2007. See November 2020 VA treatment note (indicating Veteran has been living with HIV/AIDS since 2007); June 2007 Infectious Diseases Patient Note (indicating HIV diagnosis in 2005); May 2007 private treatment note (indicating Veteran was recently diagnosed). Thus, as the Veteran is diagnosed with HIV, the first element of service connection is met. Regarding the second element of service connection, in-service incurrence of a disease or injury, the Board has previously found the Veteran’s statements regarding having unprotected sex in-service with an individual who later tested positive for HIV or AIDS to be competent and credible. See April 2020 Board decision at 2; February 2019 Board decision at 6-7. Thus, the second element of service connection is met. Having satisfied the first two elements of service connection, the crux of this case involves the final element of service connection, also known as the nexus, which links the first element, current disability, to the second element, in-service incurrence of a disease or injury. The nexus element is typically established by medical evidence. The record contains several nexus opinions; however, the Board will not consider either the November 2015 opinion, as it was found to be inadequate in the February 2017 Board remand, or the January 2018 opinion, as it was found to be inadequate in the November 2019 JMR. The Board will also not consider the April 2017 and July 2017 VA opinions, because both examiners based their negative nexus opinions on the lack of in-service documentation of HIV exposure and failed to acknowledge the Veteran’s credible reports of having unprotected sex with a person who later died of AIDS. Thus, the only remaining nexus opinion is from the June 2020 VA examiner. The June 2020 examiner opined that the Veteran’s HIV was less likely than not incurred during active service. To support this opinion, the examiner cited a medical article addressing the length of time from infection to diagnosis during the time the Veteran served on active duty. The article indicates and the examiner emphasized that the time from infection to diagnosis of HIV over the years has decreased substantially, noting that between 1980 and 1983 the average time from infection to diagnosis was 11.6 years, from 1984-1995 the average time was 6.1 years, and from 1996 to 2011 was 6.1 years for me. The examiner’s rationale is probative, given the earliest evidence of the Veteran’s HIV infection was in 2005. Thus, per the examiner’s rationale, the Veteran’s HIV developed around 1999, over a decade after service. Even if the Board were to employ the most favorable 1980-1983 average infection time, the Veteran’s HIV would have developed around 1993 or 1994, many years after service. The Board finds the June 2020 opinion to be competent, credible, and probative. The opinion was provided by a qualified examiner who is competent to report on the etiology of the Veteran’s condition and to apply medical literature in addressing that question. The Board emphasizes that the examiner did not question the Veteran’s credibility in rendering his opinion. The examiner thoroughly reviewed all relevant aspects of the Veteran’s medical history and appropriately relied on medical literature in reaching his conclusion. The Board notes that it has reviewed the article cited by the June 2020 examiner. That article tested its statistical model on data drawn from the Netherlands. There is no evidence in the article or the record to suggest that the article’s findings are incapable of replication when applied to rates of infection and diagnosis of HIV/AIDS in the United States. The examiner also provided an adequate rationale for the opinion. Critically, there are no positive nexus opinions of record or any evidence to contradict the June 2020 examiner’s rationale. In this regard, the Veteran is not competent to opine as to the onset of an infectious disease process. The Veteran has previously asserted that the January 2018 examiner failed to consider February and March 1984 service treatment records (STRs) indicating the Veteran exhibited early signs of HIV infection, to include rash, nausea, and vomiting. See December 2018 Attorney letter and attached website printout. The Board notes that none of the VA examinations or medical opinions appear to have considered these 1984 records. However, remand is not necessary for consideration of these records because the Veteran’s statements indicate he did not start having unprotected sex with the commanding officer until 1985 or 1986. In an August 2010 Correspondence the Veteran stated he met the commanding officer in 1985 and in a January 2010 Statement in Support of Claim the Veteran stated he had unprotected sex with the commanding officer in 1986. In addition, the Veteran has stated that the sexual relationship with the commanding officer began while he was assigned to the USS Germantown. See July 2017 VA examination; January 2010 VA Form 21-4138, Statement in Support of Claim; August 2010 Correspondence. The Veteran’s service personnel records indicate he was not assigned to the USS Germantown until October 1985. The Veteran’s STRs also indicate he contracted syphilis in February 1986 from his girlfriend. In a December 2018 Statement in Support of Claim, the Veteran stated he fabricated the story about the girlfriend for fear of getting in trouble and that he contracted all his sexually-transmitted infections (STIs), to include syphilis and HIV, from the same commanding officer. A July 1986 STR mental health note indicates the Veteran reported he started living with the commanding officer about two weeks ago. The Board affords this more contemporaneous evidence high probative value as to the initial date of the Veteran’s sexual relationship with his commanding officer. Thus, the February 1986 STRs do not weigh in favor of granting the claim. Critically, with regard to the February 1984, March 1984 and July 1986 STRs, the Board emphasizes that neither the Court nor the Parties to the JMR indicated there was any violation of the duty to assist by not having an examiner comment on these STRs, and the Board will not address the matter further. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (“Court will [not] review BVA decisions in a piecemeal fashion”); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff’d, 972 F.2d 331 (Fed. Cir. 1992) (“[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court). In addition, the Veteran has asserted that he had unprotected sex with at least one other individual who had a disease; however, he does not know the nature of that disease. See December 2009 Report of General Information. The Veteran later clarified that all his STIs were contracted from the commanding officer. See December 2018 VA Form 21-4138, Statement in Support of Claim. Thus, there is no need to remand for an examiner to consider the possibility the Veteran contracted HIV from having sex with other people in service. The Veteran also reported that he would obtain a statement from another man who contracted HIV from the commanding officer; however, no such statement was furnished. Id. In sum, evidence of record establishes the first two elements of service connection, present disability and in-service event. Specifically, the Board notes that the Veteran was diagnosed with HIV in 2005 or 2007 and that he has credibly reported having unprotected sex with an individual in 1985 or 1986 who later died of AIDS. With respect to the final element of service connection, nexus, there are no positive opinions of record and the only probative opinion of record opined that it was less likely than not that the Veteran’s HIV was incurred in service. This opinion based its conclusion on medical literature indicating that the average length of time from infection to diagnosis during the period of the Veteran’s service was 6.1 years and the fact that the Veteran was diagnosed at least 19 years after he separated from service. Thus, unfortunately, as the record does not support all elements of service connection, and the claim cannot be granted. REASONS FOR REMAND The November 2019 JMR vacated the February 2019 Board denial of service connection for a right foot disability. The Board notes that new evidence regarding the right foot has been associated with the file since the June 2017 SSOC, the last AOJ action addressing the right foot. See December 2020 SSOC (only addressing HIV). Specifically, the Board notes a July 2017 VA examination and etiology opinion of the right foot as well as a July 2017 radiology interpretation of the right foot. The AOJ has not considered this evidence in the first instance, and remand is therefore required for the same. Accordingly, this issue ius REMANDED for the following action: Consider the evidence associated with the file since the June 2017 SSOC and issue a SSOC with regard to entitlement to service connection for a right foot disability. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED