Citation Nr: 0716627 Decision Date: 06/05/07 Archive Date: 06/18/07 DOCKET NO. 03-16 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for human immunodeficiency virus (HIV)-related illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from October 1979 to July 1982 and with the Army Reserves from November 1986 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Newark, New Jersey. The veteran's claim was remanded by the Board for further development in June 2004. The development has been completed and the veteran's claim is now ready for Board review. The Board notes that in April 2007, the veteran's representative requested that the veteran's claim be remanded for another VA medical examination. However, as explained below, the Board has found that the evidence currently of record is sufficient to adjudicate the veteran's claim and that a new VA medical examination is not indicated. FINDING OF FACT The competent and probative medical evidence of record does not demonstrate that the veteran's HIV-related illness began during service or for many years after active service, or that it was caused by any incident of service, including drawing of blood or inoculations. CONCLUSION OF LAW HIV-related illness was not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the appellant's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2006). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The record reflects that by letters dated in July 2002 and October 2004, the appellant was provided the required notice. The letters specifically informed him of the type of evidence needed to support the claim, who was responsible for obtaining relevant evidence, where to send the evidence, and what he should do if he had questions or needed assistance. He was, in essence, told to submit all pertinent evidence he had in his possession pertaining to the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The timing notification requirements listed in 38 C.F.R. § 3.159 should include all downstream issues of the claim. (i.e., the initial-disability-rating and effective-date elements of a service-connection claim). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). By an undated letter issued to the veteran prior to the January 2007 supplemental statement of the case, the appellant was provided notice of the type of evidence necessary to establish disability ratings and effective dates, in compliance with Dingess. Regardless, as explained below, the Board has determined that service connection is not warranted for HIV. Consequently, no disability ratings or effective dates will be assigned, so there can be no possibility of any prejudice to the appellant even if he had not received proper notice of the evidence pertinent to disability ratings and effective dates. The Board notes that the veteran's service medical records, private medical records, and VA medical records have been obtained. The veteran has also been provided VA medical examinations. The veteran has provided testimony at a hearing before the undersigned Veterans Law Judge. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. The veteran has not identified any other obtainable medical records or evidence pertinent to his claim. In sum, the Board is satisfied that the originating agency properly processed the appellant's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 C.F.R. § 3.303. An injury incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. § 3.1(m) (2006). "Willful misconduct" is an act involving conscious wrongdoing or known prohibited action. Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (2006). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. See 38 C.F.R. § 3.301 (d) (2006). 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). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). History The veteran maintains that he is entitled to service connection for HIV. He asserts that he developed HIV as a result of his active service from the needles used for inoculations, or for drawing blood during his physicals. Review of the veteran's service medical records show that the veteran was referred to medical personnel in December 1981 after being apprehended with marijuana. The examiner noted that there were no needle tracks or hepatomegaly. The veteran's service medical records from his period of active duty do not indicate that the veteran was found to be HIV positive. The service medical records from the veteran's Reserve duty show that in March 1990, and again in August 1992, testing revealed that the veteran was HIV negative. VA medical records reveal that the veteran was found to be HIV positive in May 1999. A June 1999 VA medical record indicates that the veteran's primary dependence was intravenous heroin and that the veteran was HIV positive as a result. A June 2000 VA discharge examination report contains a history of drug use as provided by the veteran. The veteran reported that he first smoked marijuana at age 15, that he began to use cocaine intravenously at age 23, and that he began to use heroin intravenously at age 33. On VA examination in July 2002, the veteran stated that he believed that he might have acquired HIV three years previously during sexual intercourse with an infected female who has the disease. The veteran denied blood transfusions at any time. He admitted to being an intravenous drug user between 1997 and 1999. At the December 2003 hearing the veteran reported that he had blood drawn for physical examinations while he was in service. He asserted that he developed HIV due to the needles used to draw blood while he was in service. The veteran also pointed out that the medical literature is unclear as to the incubation period of HIV. He pointed out if there is a 10 year incubation period, he was on active duty 10 years from the date that he was discovered to be HIV positive. Private medical records dated from May 2002 to August 2004 do not comment on the etiology of the veteran's HIV. In September 2006, the veteran was again provided a VA medical examination. The examiner noted that she had reviewed the veteran's claims file and medical records. The veteran reported to the VA physician that he began shooting drugs in 1997. He asserted that he had only used "clean" needles. The veteran stated that he did not have a history of accidental needle sticks or experience treating other injured bleeding soldiers. The VA examiner stated that she was unable to determine when the veteran's HIV was contracted. Analysis Based on a review of the entire record, the Board finds that the preponderance of the medical and other evidence does not support a grant of service connection. Although Hickson element (1) is shown, a current disability of HIV-related illness, in-service incurrence is not shown, and the record does not contain any competent medical opinion indicating that it is at least as likely as not that the veteran's HIV- related illness is related to service. The veteran asserted in a December 2004 letter that it is totally impossible to say that his disease was not contracted while he was in the military. While that may be true, that is not sufficient for a grant of service connection. As noted above, there must be competent evidence that it is at least as likely as not that the veteran's HIV-related illness is related to service. Additionally, the veteran's representative asserted in April 2007 that the September 2006 VA examination is inadequate, that the VA examiner did not answer the questions requested by the Board in the June 2004 Remand, and that a new VA examination is necessary. The Board notes that the September 2006 VA examiner specifically stated that she had reviewed the veteran's claims files. Additionally, the Board notes that the VA examiner indicated that it was not possible to answer the questions requested by the Board Remand. Accordingly, the Board finds that the September 2006 VA examination was adequate and that there is no reason to believe that a new VA examination could provide any additional information. Consequently, a new VA examination is not indicated. In this case the evidence clearly shows that the veteran was HIV negative in August 1992, more than 10 years after discharge from service. In fact, the veteran was not found to be HIV positive until May 1999, more than 16 years after discharge from service. While the veteran was still in the Reserves until July 2001, there is no evidence that the veteran contacted HIV as a result of any Reserve duty. The Board additionally notes that a Department of the Navy memorandum dated in September 2005 indicates that the veteran had no periods of active duty for training or inactive duty for training subsequent to September 27, 1997. Not only is there no medical evidence that the veteran contacted HIV as a result of service, but the evidence indicates that the veteran has had sexual contact with an HIV positive female and that he is an intravenous drug user. Furthermore, in June 1999 a VA medical provider attributed the veteran's HIV to intravenous drug use. The Board notes that intravenous drug use was not shown during service or while the veteran was engaged in Reserve training. In particular it was noted in a December 1981 service medical record that the veteran had no needle tracks. However, even if the medical evidence showed that the veteran contacted HIV as a result of intravenous drug use during service, the Board notes that service connection for HIV due to intravenous drug use during service may not be established. Under such circumstances, HIV would not be deemed to have been in the line of duty, but rather, as the result of the veteran's own willful misconduct. See 38 C.F.R. § 3.301 (d). There is no evidence of record, other than the veteran's contentions, that his current HIV-related illness is related to any disease or injury incurred in or aggravated by service. As the appellant is not a medical expert, he is not competent to express an authoritative opinion on this issue. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). The Board also points out that Hickson element (3) is also not met in this case; that is, there is no competent opinion establishing a medical nexus between HIV and the veteran's military service. None of the medical evidence currently of record includes any such opinion. At his hearing it was suggested to the veteran that he obtain a written opinion from his private physician regarding the origins of his HIV- related illness, but no such opinion has been submitted. In the absence of competent evidence demonstrating a link between the current HIV-related illness and service, service connection is not warranted for such a disease on any basis. After consideration of all the evidence, the Board finds that the preponderance of the evidence is against the claim for service connection for HIV-related illness. Hence, the claim is denied. ORDER Entitlement to service connection for human immunodeficiency virus (HIV)-related illness is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs