BVA9501529 DOCKET NO. 91-54 488 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for acquired immune deficiency syndrome (AIDS). ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from November 1982 to April 1985. This appeal is from a rating action by the Department of Veterans Affairs (VA) Regional Office in San Diego, California in August 1990. The veteran has since moved, and the Regional Office (RO) now having jurisdiction is Roanoke, Virginia. The veteran represented himself during his appeal. The case was remanded by the Board of Veterans' Appeals (the Board) in January 1991 on the then issue of entitlement to service connection for human immunodeficiency virus (HIV). After the case was returned to the Board by the RO, pursuant to 38 C.F.R. § 20.901(a), the case was referred through the office of the VA's Under Secretary for Health (Chief Medical Director) for a written opinion from a VA environmental and infectious diseases physician. That opinion, dated November 23, 1994, issued by the Assistant Chief Medical Director of VA for Environmental Medicine and Public Health, was received by the Board in December 1994. In January 1995, the opinion was forwarded by the Board via express courier to the veteran at his last known residence address for his review pursuant to 38 C.F.R. § 20.903 (1993). On January 23, 1995, the courier reported an inability to find the veteran or someone acting on his behalf; thereafter, the Acting Director of the Board's Administrative Services endeavored to contact the veteran and/or to obtain information as to his whereabouts. After numerous attempts to verify this information, a telephone call from the Board to the veteran's father on January 24, 1995 confirmed the veteran's death on August 7, 1993. The Board, in accordance with its rules, is completing action on the issue properly before it without application from the survivors. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302 (1993). CONTENTIONS OF APPELLANT ON APPEAL It is not primarily argued that the veteran manifested signs of HIV infection in service. Rather, the argument is raised that had he been tested in service (which he was not), he might have been HIV seropositive; and that his military occupational specialty (medical corpsman) and/or his personal behavior in service placed him at increased risk for contracting HIV. It is further argued that when he was first tested soon after separation from service, he was seropositive; and that the nature of his post-service symptoms are such as to show active immune- system suppression shortly after separation from service, all of which tends to support the conclusion that HIV was contracted while he was on active duty. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that there is equipoise of the evidence in this case, and with resolution of reasonable doubt in the veteran's favor, service connection is in order for acquired immune deficiency syndrome (AIDS). FINDINGS OF FACT 1. Service medical records confirm that the veteran's behavior probably placed him at high risk for becoming HIV infected while in service. 2. HIV testing was first performed, and seropositivity was determined, within 3 months to a year after separation from service. 3. The veteran had developed symptoms of active immunological compromise by 1988; he manifested opportunistic infections defining AIDS in September 1990. 4. The veteran's HIV and subsequent AIDS may be reasonably considered to have been contracted while he was in service. CONCLUSION OF LAW AIDS was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is satisfied that to the extent possible, the facts relevant to the issue on appeal have been properly developed, and that the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). Service connection may be granted for disability as a result of disease or injury incurred in or aggravated in service. 38 U.S.C.A. §1131. Service connection connotes many factors but basically it means that the facts, as shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Pertinent History The veteran had active service from November 1982 to April 1985, during which time he was never tested for HIV seropositivity. The veteran had indicated that either or both his personal sexual behavior and/or his occupation as a medical corpsman in service placed him at high risk. There is no inservice reference to a pinprick or other occupational-related exposure to the virus. The service medical records reflect that on numerous occasions, he was treated for recurrent penile and anal condylomata (rectal condyloma acuminatum). There were also inservice manifestations of bloody stools, foul smelling, yellowish mucoid rectal discharge and biopsies showing non ulcerated colonic mucosa with mild acute inflammation. The veteran filed his initial claim for HIV in May 1990 at which time he reported that he had had AIDS-Related Complex (ARC) since July 1985, and that he had been diagnosed "3 months after service". On that VA Form 21-526, the veteran named several physicians who had reportedly treated him for AIDS since July 1985. One of the physicians whom he said had treated him since July 1985, F. Westmeyer, M.D., reported that he had treated the veteran for acid-peptic disease. The physician later amended his comments to state, in August 1990, that the veteran was known to both have peptic ulcer disease and to be HIV positive while working for and under the care of his group of physicians. The physician reported that it was never clear just when these two significant medical problems started. Dr. Westmeyer further reported, in a letter in May 1991, that the veteran had been treated for HIV positivity from November 1982 to June 1986, having seroconverted during that time but without opportunistic infections. Another statement was received from the physician in August 1991 to the effect that he had treated the veteran in the middle 1980's, and when the veteran moved to California he had taken much of his record with him, in part due to the stigma of being HIV positive, and to protect himself from exposure of those records. A medical report was received dated in January 1988 showing that the veteran was HIV seropositive, accompanied by extensive laboratory reports. J. Ballou, M.D., a specialist in infectious diseases, reported in February 1988 that he had seen the veteran for evaluation of his HIV infection and recommendations for therapy with AZT. Dr. Ballou reported that the veteran was a 26 year old homosexual male who had known that he was HIV-antibody positive for approximately 1 1/2 years. The veteran had been working as a laboratory technician and although familiar with symptoms such as thrush, said he had not experienced them. The physician noted that the veteran's medical history was unremarkable except that he had had perianal and rectal warts fulgurated while in service. His T-4 helper cells were 259 (January 1988), and had been 520 in September 1987. Sheldon S. Hendler, M.D., reported in July 1990 that he was caring for the veteran for AIDS; that diagnosis had been made based on the presence of opportunistic infections, namely candidiasis esophagitis and herpes zoster. On a VA examination in August 1990, the veteran stated that he had first tested positive for HIV in June 1986 but had not been treated at that time, and had normal T-4 cells in 1987. In January 1988, he said his T-4 count fell to below 200 and for the first time he was given AZT. He had discontinued the AZT in July 1988 because of nausea and anorexia. He had developed herpes zoster which was diagnosed in August 1988. In January 1989, ARC wad diagnosed when he was seen for fatigue and decreased T-4 count. AZT was restarted and discontinued again in March 1989 because it was not working. An endoscopy by a physician in June 1990 had confirmed Candida esophagitis. He reported various other complaints. The examiner diagnosed HIV infection, CDC group IV, Category C-1 with an AIDS-defining infection (esophageal candidiasis). In March 1991, Dr. Hendler provided an additional statement to the effect that the veteran had been under his care since March 1989, and that he had carried the diagnosis of AIDS since September 1990 based on positive biopsy for Kaposi's sarcoma. The veteran was noted to be HIV seropositive and since Dr. Hendler had followed him, the veteran's T-4 helper count had consistently run below 100. Richard O. Poe, M.D., in a November 1991 report, referred to treatment of the veteran from September to November 1991; the veteran was HIV positive and severely immunosuppressed with no T- 4 cells counted. The veteran told him that he had been informed that he was HIV positive in 1982. Conclusions Because of the complex questions involved in this case, and the uncertainty of conclusions to be reached from the factual data available, the case was forwarded for a review of all factors by a VA physician specializing in infectious diseases and epidemiology, and specifically AIDS. As recorded in the November 1994 opinion provided by the VA physician specializing in environmental medicine, a copy of which is in the file, in pertinent part: It would have been highly unlikely that the veteran's HIV infection would have been diagnosed while he was in the military because the antibody test for HIV was not licensed for commercial use until March 1985, one month prior to his leaving the military. Although it had been available on an experimental basis prior to March, most researchers did not record investigational HIV tests in the subject's regular medical record at that time. The major experimental work in the military with antibody testing was carried out by Army researchers at WRAIR [Walter Reed Army Institute of Research] and this veteran was in the Navy so it is unlikely he would have been included in any of the early trials. It should be noted that there was some lag time between the commercial availability of the test and its general clinical use. The test was originally used to test the blood supply not people. The VA did not issue guidelines on its use in testing patients until December 1985. The physician's assessment acknowledged that given the veteran's circumstances in service, he was certainly at high risk of infection, having been treated for other sexually transmitted diseases in service. The physician cited treatise materials relating to statistical findings on median times between seroconversion and the development of AIDS of 122 months or just over 10 years in a cohort of 362 well-documented seroconverters, and went on to say that: What we can assume with some certainty is that when he did have an HIV antibody test in 1986, he probably had been infected for some time given the relatively benign course of his disease to date...Slower progression in the cohort was associated with the younger age at diagnosis and initial diagnosis of Kaposi's sarcoma, as was the case in this veteran, who was 28 when AIDS was diagnosed. The physician further opined that: If the veteran had been infected (seroconverted) while in the service (11/82 to 4/85) then the period of time between seroconversion and the date he developed AIDS (8/90) would have been between 64 and 94 months. Citing the guidelines set forth in the cited treatise document, with the cumulative proportion of the cohort of AIDS graphed against the months since seroconversion, she concluded that: about 18 to 30% of the cohort would have developed AIDS during this timeframe. Therefore, I would conclude that it is as likely as not that this veteran was infected with HIV during the period he was in the military, but the tools to diagnose it at that time were not clinically available and therefore it was unlikely to have been recognized. On review of the entire evidence now of record, including the extensive service and post-service documentation in the file, as well as the expert appraisal of the circumstances of this case, the Board concludes that there is a reasonable probability that the veteran contracted the HIV while on active duty, and accordingly, service connection is in order for AIDS. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303. ORDER Service connection for AIDS is granted. THOMAS J. DANNAHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.