Citation Nr: 21026398 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-44 921 DATE: May 3, 2021 REMANDED Entitlement to service connection for human immunodeficiency virus (HIV) is remanded. Entitlement to service connection for depression, to include as secondary to HIV, is remanded. Entitlement to service connection for pneumonia as secondary to HIV is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1988 to November 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Paul, Minnesota. Jurisdiction of this appeal is currently with the RO in Houston, Texas. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board in October 2020. A transcript of the hearing has been associated with the claims file. 1. Service Connection - HIV The Veteran seeks entitlement to service connection for HIV. Specifically, the Veteran testified at his October 2020 Board hearing that he was exposed to another soldier's blood during an accident. See Board hearing transcript, October 29, 2020. Additionally, he asserts that he contracted HIV during the in-service incident and that his diagnosis for HIV was rendered shortly after his separation from active service. Id. The Veteran was afforded a VA examination for his claimed HIV in July 2015. At that time, the examiner opined that the HIV was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In that regard, the examiner noted the submitted medical records do not contain documentation of an HIV diagnosis from 1988 to 1992. However, this opinion did not address the Veteran's contentions. Of record is a January 2019 letter from the Veteran's VA treatment provider, Dr. J.C-Z. In his letter, Dr. J.C-Z. stated that the Veteran had a diagnosis of HIV within a year of his separation from active service and had exposure to blood during his service including exposure from an accident involving another soldier in February 1990. Additionally, Dr. J.C-Z. noted the Veteran had broken skin on his hands, face, and skin, due to the nature of his job during active service and there was "no way to know if this exposure resulted on his HIV infection at this time, but if the other soldier had HIV it is likely that he could have acquired HIV from this exposure." Dr. J.C-Z. also noted that the timeline of the Veteran's HIV diagnosis supported the possibility that it could have been acquired during active service and that there was no evidence that existed to the contrary. However, this opinion is speculative and insufficient to support a grant of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). In December 2020, Dr. J.C-Z. submitted an addendum opinion indicating that in 1992, the diagnosis of HIV and potential of window of incubation before tests became positive could have been between a few weeks (two to four weeks), and up to several months (three to six months) after exposure before a positive HIV test result. This opinion regarding the incubation period for HIV is significant in this case but it not sufficient to establish service connection. Notwithstanding any previous inadequate examinations, the Veteran also offered credible testimony about an in-service event when he was exposed to the blood of another soldier during an accident. See e.g. VA Form 9, April 5, 2016; see Board hearing testimony, October 29, 2020. Additionally, of record is a statement submitted by the Veteran's fellow servicemember corroborating the in-service accident and exposure to blood. See statement, December 8, 2015. Accordingly, the Board concludes that an additional VA examination should be afforded to determine the nature and etiology of his HIV. 2. Service Connection Depression and Pneumonia The Veteran seeks entitlement to service connection for depression and pneumonia. Specifically, the Veteran testified at his October 2020 Board hearing that his HIV diagnosis resulted caused or resulted in his depression and pneumonia. See Board hearing transcript, October 29, 2020. Additionally, the record reflects that the Veteran may have developed mental health symptoms, to include depression, as a result of the in-service accident and exposure to blood of another soldier during active service. See e.g. Buddy/Lay statement, December 8, 2015. Post-service VA and private treatment records show the Veteran has a diagnosis of depression. See generally, VA treatment record, July 30, 1999; see also VA treatment record, February 26, 2007 (indicating a diagnosis of major depressive disorder for 15 years due to his diagnosis of HIV). The Board finds the record incomplete to decide the claim. In the instant case, the Board finds evidence has been received showing that a nexus may potentially exist between the claimed depression and active service. In light of the foregoing, the Board concludes that the Veteran should be afforded VA examinations to determine the nature and etiology of the claimed major depression, to include as secondary to HIV. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, regarding the issues of entitlement to service connection for pneumonia, the Board notes that the issue is inextricably intertwined with the claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Specifically, the Veteran has asserted that he developed pneumonia as secondary to his diagnosis and treatment for HIV. Hence, a determination on the claim for entitlement to service connection for pneumonia should be deferred pending final disposition of the claim of entitlement to service connection for HIV. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records and treatment records from the Biloxi and San Antonio VA Medical Center dated prior to 2006. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. I f any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an infectious disease specialist or other appropriate examiner to determine the nature and etiology of his diagnosed HIV. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner must opine whether the Veteran's HIV is at least as likely as not related to an in-service injury, event, or disease, to include his reported blood exposure. The examiner must address the Veteran's reports of exposure to another soldier's blood during active service and the December 2015 lay statement submitted in support of the Veteran's claimed in-service incident regarding exposure to blood of another soldier during active service. See Buddy/Lay statement, December 8, 2015. The examiner must also address the onset and continuity of his HIV diagnosis, to include the incubation period and testing methods and results in 1992. Specifically, the examiner must address the opinion submitted by Dr. J.C-Z. indicating that HIV testing windows and incubation periods could vary between a few weeks to a few months for positive HIV results. In addition, in providing the opinion, the examiner must take into account the Veteran's personal circumstances and how the recognized risk factor(s) apply in his particular case. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of the Veteran's claimed depression. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Identify any and all present diagnosis or diagnoses pertaining to the Veteran's claimed acquired psychiatric disorder, to include depression, since March 2014. (B) Is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder, to include depression, had its onset during any period of service, or is otherwise related to such period of service? (C) Is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder, to include depression, was caused or aggravated by his HIV? In offering such opinions, the examiner should consider the lay statements of record. Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. After the above development and any additionally indicated development (to include consideration of whether additional examination is warranted) has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.