Citation Nr: 21040533 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 18-19 161 DATE: July 5, 2021 ORDER Entitlement to service connection for human T-lymphotrophic virus (HTLV) is denied. FINDING OF FACT The Veteran's HTLV is not causally or etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for HTLV have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1966 to October 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In May 2019, the Board remanded this claim for additional development. Thereafter, a September 2020 supplemental statement of the case denied the claim. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for HTLV. VA treatment records from 2017 show the Veteran was diagnosed with HTLV around 1998/1999, and the January 2020 VA examination noted that he was currently receiving treatment with antiviral medication. The Veteran believes he contracted HTLV during his service in Cuba. The Veteran was afforded VA examinations in December 2017, January 2020, and September 2020. The examiners said it was less likely than not that the Veteran's HTLV is related to his service. In regard to the January 2020 VA opinion, the examiner was specifically asked to address the Veteran's statements, his MOS as a hospital corpsman, the private physician's opinion from October 2017, and the website information provided by the Veteran in March 2018. The opinion did not fully address these. However, the Veteran was afforded a new opinion in September 2020 which addressed all of the above. The September 2020 examiner opined that the Veteran's HTLV was less likely than not contracted during his service in Cuba, because although "it is not totally outside the realm of possibility for the veteran to have been first infected while in Cuba, it is exceptionally unlikely that this in fact occurred and the veteran's HTLV is highly likely related to other risk factors as described above, principally his high risk lifestyle." The examiner explained that although Cuba has reported cases and is "within the endemic area for HTLV in the Caribbean basin" as stated by Dr. W. in October 2017 correspondence, Dr. W. further clarified this in December 2019 correspondence by listing the most affected areas in the Caribbean, which did not include Cuba. The examiner noted that despite the Veteran's claim that Cuba is one of the countries that HTLV is "known to be clustered," there is no evidence to support this. Additionally, the examiner discussed whether the Veteran's HTLV is a result of his MOS as a hospital corpsman. The Veteran contends that although personal protection equipment (PPE) may have been provided, it was not required, and most people did not use it. The examiner noted that over 99 percent of cases were transmitted by blood products (e.g., transfusions, etc.), to a fetus or at birth, through breast milk, or sperm. He explained further by stating that "general references note that health care-associated transmission has been reported but a literature review shows only one published incident...that of a Belgium mid-wife who was exposed to infected blood in West Africa. In Australia, Hewagama et al followed 53 health care individuals who had known exposure to HTLV infected blood by hollow bore needlestick, solid sharp object, mucous membrane, bite wound, or other exposure between 2002-2012 and none of the individuals developed serological evidence of HTLV infection." The examiner additionally discussed the Veteran's other risk factors. He noted that HTLV is also found in the United States. He also noted the Veteran reported he was homosexual as early as 1998, and that HTLV-1 is "nearly seven times more common in the homosexual population than the general population" according to a Trinidad study. Dr. W. also contended in his October 2017 correspondence that it is well accepted that HTLV is transmitted via sperm. The examiner also noted that although the Veteran reported he had no sexual activity while in Cuba and that it is his "life practice to wear protection when engaging in sexual practices," condoms are not fool proof, as many of the homosexual men with HTLV also reported using protection while engaging in sexual activity. The Board finds that the September 2020 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. The Board recognizes the Veteran's sincere belief in the merits of his claim; however, the most probative evidence is against his claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the benefit sought on appeal is accordingly denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.