Citation Nr: 21010627 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-30 588 DATE: February 25, 2021 ORDER Entitlement to service connection for disability due to Human Immunodeficiency Virus (HIV) is denied. Entitlement to service connection for infectious gonococcal urethritis is denied. The petition to reopen the claim for entitlement to service connection for a bladder disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that any disability due to HIV began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had infectious gonococcal urethritis at any time during or approximate to the pendency of the claim. 3. In an unappealed February 2006 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim to reopen a claim for service connection for bladder condition; the Veteran did not appeal the decision and no new and material evidence was received within one year of the notification of that decision. 4. New and material evidence has not been received since the February 2006 denial with respect to the Veteran’s claim of entitlement to service connection for a bladder disability. CONCLUSIONS OF LAW 1. The criteria for service connection for disability due to HIV are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for infectious gonococcal urethritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The February 2006 rating decision that denied entitlement to service connection for bladder condition is final. 38 U.S.C. §§ 7104 (b), 7252. 4. The criteria to reopen a claim for service connection for a bladder disability have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to May 1979. He served honorably in the United States Marine Corps, including at Camp Lejeune, North Carolina. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This matter was previously before the Board in June 2017, when it was remanded for a videoconference Board hearing. In December 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In May 2018, the Board remanded for additional development. The RO has substantially complied and the appeal has been returned to the Board. As to the petition to reopen the previously denied claim, the Board is required to consider the question of whether new and material evidence has been received to reopen the claims, without regard to the RO’s determination, in order to establish the Board’s jurisdiction to address the underlying claims and to adjudicate them on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310. Service connection for certain chronic diseases, including malignant tumors like bladder cancer, will be presumed if they manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A nexus to service (for diseases listed in 38 C.F.R. § 3.309 (a)) may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). VA has established presumptive service connection for eight identified diseases (adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease) when a service member has served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) between 1957 and 1987. The Veteran testified that he believed his disabilities were due to exposure to contaminated water at Camp LeJeune. However, disability due to HIV and infectious gonococcal urethritis are not among the listed diseases. Further, as discussed in more detail below, bladder cancer has not been diagnosed during the appeal. Notwithstanding, entitlement to service connection can still be pursued on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for disability due to Human Immunodeficiency Virus (HIV) In November 2010, the Veteran testified that he found out in 1977 that he was HIV positive. March 2009 treatment notes show the Veteran reported onset of HIV in 1997 via unprotected sex. The Veteran stated that he was a professional boxer for the Marines and was very healthy, which is why the disease did not take over his immune system. See October 2012 Form 9. Based on the evidence, the Board concludes that service connection is not warranted for disability due to HIV infection. The preponderance of the evidence is against a finding that any disability due to HIV infection was manifest in service or is otherwise related to service. In a November 2010 opinion, Dr. D stated the Veteran “had a diagnosis of infectious gonococcal urethritis at least 3 times from 1978 to 1979. At that time, he had not been tested for HIV, and it is very possible that he could have contracted it during that period.” As this opinion does not include clear conclusions with supporting data, or a reasoned medical explanation connecting the two, it is too speculative to establish a medical nexus. See generally Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board’s decision that a disability was not incurred in service where even the medical evidence favorable to the appellant’s claim did little more than suggest the possibility that the veteran’s illness might have been caused by an in-service event or injury). Accordingly, this opinion is of no probative value. The September 2011 VA clinician opined it is less likely as not that the Veteran contracted HIV while in the military. According to the literature, it is highly unlikely that the Veteran would have actually lived 20 plus years with HIV and never converting to AIDS. Testing for HIV started in the mid-1980s. Additionally, in 1997 his means of transmission was documented as unprotected sex with an infected partner. The VA clinician considered the opinion of Dr. D, the Veteran’s private treatment provider and cited to medical literature that stated almost everyone who is HIV-positive will eventually develop AIDS and will die within five to ten years, but with timely treatment most people will not get seriously ill and should expect to live a long and healthy life. Accordingly, this opinion is of high probative value. In January 2020 a physician for infectious diseases opined that the Veteran’s HIV is not due to the sexually transmitted disease (N. gonorrhea) between 1976 and 1979. Dr. E stated the Veteran was diagnosed with HIV in 1997 during screening which was prompted by his girlfriend who had become ill. HIV usually progresses to AIDS in 10 years if left untreated and it is most unlikely that the Veteran contracted several STDs while in the military an also underwent a below the knee amputation in 1994, but never progressed to AIDS in the 18 years between 1979 and 1997. Dr. E provided a clear opinion with adequate rationale. Accordingly, this opinion is of high probative value. While the Veteran believes disability due to HIV is related to an in-service injury, event, or disease, including infectious gonococcal urethritis, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. After reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection is warranted for disability related to HIV. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claims are, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. at 55; 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for infectious gonococcal urethritis The Veteran testified that he is still having problems with urethritis and is getting treatment. The Board concludes that the Veteran does not have a current diagnosis of infectious gonococcal urethritis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). It is not in dispute the Veteran had infectious gonococcal urethritis in service. In October 1978, the Veteran presented with a bladder infection and was diagnosed with neisseria gonorrheae, which was treated with penicillin. In May 1979, the Veteran was again diagnosed with neisseria gonorrheae and treated with penicillin. However, there is no record that he currently has infectious gonococcal urethritis or has received treatment since service. Accordingly, the Board finds the preponderance of the evidence is against a finding that the Veteran has had infectious gonococcal urethritis at any time during or proximate to this appeal. In the absence of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for infectious gonococcal urethritis; therefore, the benefit of the doubt rule does not apply and the appeal as to this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 3. The petition to reopen the claim for entitlement to service connection for a bladder disability A July 2002 rating decision denied the claim for entitlement to service connection for a bladder disorder finding there was no relationship between a bladder disability and service. The rating decision noted service treatment records reflected a bladder infection in service and that post-service records showed an assessment of dysuria and straining to urinate. In a February 2006 rating decision, the AOJ denied a claim to reopen a claim for service connection for bladder condition as the evidence submitted was not new and material. No appeal was filed and no additional evidence was received within one year of the February 2006 notice. Accordingly, the February 2006 Rating Decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Following the February 2006 rating decision, new medical evidence and Social Security Administration records have been associated with the record. The July 1998 Social Security Administration examiner’s impression was that the Veteran is in excellent health except for below knee amputation of the left lower extremity. A March 2009 treatment note shows the Veteran denied any current bowel or bladder problems. The Veteran did not explicitly indicate when questioned during his hearing that he had ever carried a diagnosis of bladder cancer. He just testified to his belief that the water from Camp LeJeune caused his disabilities and that he went to the clinic for his bladder in service. The in-service treatment was not new, as this evidence was of record at the time of the first decision in 2002. With respect to the issue of bladder cancer, the Board finds the new evidence does not relate to an unestablished fact necessary to substantiate the claim. The record does not show a diagnosis of or treatment for bladder cancer or a bladder disability. Additionally, there is no new evidence linking a bladder disability to service. As new and material evidence has not been presented for the issue of bladder cancer, the petition to reopen the claim is denied. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sowden, 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.