Citation Nr: 22019577 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 18-44 517 DATE: April 1, 2022 ORDER Entitlement to service connection for human immunodeficiency virus (HIV) is denied. FINDING OF FACT The Veteran's HIV is not related to a disease or injury incurred or aggravated during active duty for training (ACDUTRA) in line of duty or an injury incurred or aggravated during inactive duty for training (INACDUTRA) in line of duty while in the United States Naval Reserves. CONCLUSION OF LAW The criteria for entitlement to service connection for HIV have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from 1985 to 1989 and service in the Navy Reserves from 1989 to 2001. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in August 2021; the hearing transcript has been associated with the file and has been reviewed. 1. Entitlement to service connection for HIV The Veteran contends he is entitled to service connection for HIV, which was first diagnosed while he was in the Reserves. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service records reflect that the Veteran had active duty service from 1985 to 1989. He has not contended, and the evidence does not reflect, that he had HIV during or as a result of his active duty service. The Veteran subsequently served in the Reserves with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from 1989 to 2001. It is during this period that he contends that he was diagnosed with HIV. ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INDACDUTRA is duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). It also includes any period of INACDUTRA in which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebral vascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Thus, while service connection may be granted for any injury or disease that had its onset during active duty or during ACDUTRA if such was incurred or aggravated in the line of duty, current disabilities must be shown to be related only to injuries, and not diseases, sustained in INACDUTRA for service connected to be granted. Service personnel records reflect that the Veteran was on ACDUTRA from May 2 to 14, 1999. He subsequently was on INACDUTRA on November 6 and 7, 1999. No other subsequent periods of ACUDTRA or INACDUTRA are recorded. Records indicate that he was transferred to the Individual Ready Reserve effective May 22, 2000 at his request. He was discharged in April 2001. At his August 2021 Board hearing, the Veteran testified that his chief called him in and during his Reserve weekend and informed him that labwork had shown him to be HIV positive. The Veteran stated that he then sought private testing to confirm the diagnosis and has been treated for the condition since. He explained that he separated from service early due to the diagnosis. Service treatment records include a November 6, 1999 annual medical examination that indicates a negative HIV test and states that the Veteran is qualified to perform the duties of his rank at sea and on foreign shores. Private treatment records reflect lab testing for HIV in December 1999 and ongoing monitoring and treatment since. The Board notes that the Veteran has not contended, and the evidence does not reflect, that the Veteran's HIV was incurred as a result of a disease or injury incurred during ACDUTA or as a result of an injury incurred during INACDUTRA in the line of duty. The Veteran's only testimony is that he was first diagnosed with HIV while in the Reserves, not that the condition is otherwise causally related to his service. The Board notes that the Veteran's service medical records do not reflect that HIV was diagnosed at his November 1999 annual service examination. However, even if he was provided with a laboratory finding that he was positive for HIV based on testing conducted during a period of INACDUTRA, such notification is not an injury on which service connection can be based. The Board understands the Veteran's contentions and finds him competent and credible to report his diagnosis of HIV in 1999, as supported by private medical records. However, the regulations prescribing the grant of service connection benefits do not permit a grant of service connection under these circumstances. The Board is appreciative of the Veteran's honorable service to our country; however, the Board is bound by the law, and has no authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104. Therefore, the Veteran's appeal is denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.