BVA9502363 DOCKET NO. 93-11 767 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for human immunodeficiency virus (HIV) infection. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from September 1967 to April 1969. He was in the U.S. Army Reserves (USAR) from September 13, 1984, until discharged in July 1992. The veteran filed his claim for human immunodeficiency virus (HIV) infection in 1992. This appeal is from a rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, in February 1993. That rating action also denied entitlement to an increased (compensable) evaluation for service-connected malaria, with which the veteran did not file a notice of disagreement. CONTENTIONS OF APPELLANT ON APPEAL In substance, it is argued that the veteran contracted human immunodeficiency virus (HIV) infection while in service. In a statement in May 1993, the veteran's representative reported that while the veteran was in a coma at a non-VA facility following his automobile accident, he may have received a tainted blood product, and that must be responsible for his HIV infection since he had not engaged in other risky behavior. 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 the veteran's claim for service connection for HIV human immunodeficiency virus (HIV) infection is not well- grounded. FINDINGS OF FACT The veteran has not submitted competent medical evidence or made competent evidentiary assertions, pertaining to whether he exhibited symptoms of HIV infection during service or active duty training or whether he became infected with HIV during service or active duty training , to justify a belief by a fair and impartial individual that the claim of service connection for HIV infection is plausible. CONCLUSION OF LAW The veteran's claim for service connection for human immunodeficiency virus (HIV) infection is not well-grounded. 38 U.S.C.A. §§ 5107(a), 7105(d)(5) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran was not HIV seropositive during his active duty which concluded in 1969, nor is that claimed. The veteran was in the USAR from 1984 to 1992. In the file are records from that period of time, during which there is no evidence that he was HIV seropositive (prior to April or May 1992). Available service records indicate that during that time, the veteran had periods of active duty for training in 1985, 1987, and 1988. Other periods of active duty training have not been verified. Associated with the claims folder are records from the Long Island Medical College which indicate that on September 22, 1986, the veteran was involved in a motor vehicle accident, sustaining fractures of the left tibia and fibula, and neurologic head trauma, resulting in unconsciousness for approximately 8 days. The records do not indicate that transfusions of blood were required. The veteran filed his initial claim for HIV seropositivity in 1992. A statement is of record from a social worker associated with a VA facility, dated April 17, 1992, to the effect that the veteran was being treated in the infectious diseases clinic of a VA Medical Center, and had been diagnosed as HIV seropositive. On a VA examination in September 1992, the veteran reported that he had been found to be HIV seropositive in May 1992. On examination, his T-4 helper cell count was 542. The examiner did not note any infections attributable to HIV. After a review of all the evidence of record, this claim presents a threshold question of well-groundedness. A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a). The United States of Veterans Appeals (Court) has defined a well- grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In determining whether a claim is well-grounded, the supporting evidence is presumed true. Also an evidentiary assertion is presumed true insofar as the assertion is within the competence of the person making it. King v. Brown, 5 Vet.App. 19, 21 (1993). Against this background, the Board must decide whether the evidence, including the evidentiary assertions, satisfy the requirement for a well-grounded claim. The veteran does not assert that there was in-service symptomatology manifesting the onset of HIV infection. The veteran asserts that he developed HIV infection as a result of receiving a tainted blood transfusion following his September 1986 motor vehicle accident. As for the issue of whether the veteran became infected with HIV during service, the veteran asserts that he could have contracted the condition while on active duty, training. The Board rejects this evidentiary assertion on the grounds that such a statement is beyond the competence of the veteran as a lay person as the issue involves medical causation or a medical diagnosis, requiring competent medical evidence to make the claim "plausible" or "possible" under Grottveit. Also, as the Court announced in Espiritu v. Derwinski, 2 Vet.App. 492, lay persons are not competent to offer medical opinions. Finally, the veteran has submitted no competent medical evidence to support his claim that the HIV infection had onset during service or active duty training. For these reasons, the claim is not well-grounded. As the claim is not well-grounded, the Board is not required to develop it further or to carry it to full adjudication. Since the Board's decision does not reach the merits of the claim, it is not deemed a final decision of the Board. The Board's action here allows the veteran to begin, if he can, on a "clean slate". Grottveit 5 Vet.App. at 93. ORDER The appellant's claim for service connection for HIV infection is dismissed. RENÉE M. PELLETIER 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.