BVA9507175 DOCKET NO. 91-40 296 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to compensation benefits for acquired immune deficiency syndrome (AIDS) pursuant to 38 U.S.C.A. § 1151. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from June 1964 to September 1967. He has service connection for undifferentiated schizophrenia, evaluated as 100 percent disabling; residuals, shell fragment wounds, left leg, with injury to Muscle Group XIV, evaluated as 10 percent disabling; and hemorrhoids and prostatitis, both of which are evaluated as zero percent disabling. He has been considered incompetent for VA purposes from November 6, l989. The appeal in this case was originally taken from a rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The case was forwarded to the Board of Veterans' Appeals (the Board) on the issues of service connection for AIDS, the issue shown on the front page of this decision, entitlement to specially adapted housing, and other issues to be clarified. For a time thereafter, the veteran's claim was handled by the VA RO in San Francisco, now the VA RO located in Oakland, California. In January 1995, the veteran informed the VA that he had returned to Phoenix, and asked that his case be returned to the jurisdiction of that RO. The Board remanded the case in September l991 for due process considerations which were delineated in detail, as well as extensive development of the case. The veteran has specifically withdrawn recognition for any service organization representation. In correspondence received in February 1994, the veteran indicated an unequivocal intent to now represent himself. In a rating action in January 1994, in pertinent part, the RO denied service connection for shingles, hepatitis, arthritis, chronic pain syndrome, episodic dyscontrol syndrome, pneumonia and depression. These disabilities encompass those issues which remained to be clarified at the time of the Board's 1991 remand. Though the veteran filed a Notice of Disagreement in March 1994, it was not clear what part of the January 1994 rating decision he disagreed with; there has been no Statement of the Case issued regarding these matters, and they are not fully developed for appellate review. In a decision in July 1994, the Board dismissed the veteran's claim for service connection for AIDS. The veteran was issued a copy of that decision. As noted in that decision, the Board also found that the issue relating to entitlement to specially adapted housing was not part of his current appeal. At the time of the Board's 1994 decision, the veteran's claim for benefits pursuant to 38 U.S.C.A. 1151 was being held in abeyance pending further directives following Gardner v. Derwinski, ,1 Vet.App. 584 (1991), aff'd sub nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd sub nom., Brown v. Gardner, 115 S. Ct. 552 (1994). Following Supreme Court affirmance, VA issued Department Interim Final Rule, effective November 25, 1991, "Compensation for Disability Resulting From Hospitalization, Treatment, Examination or Vocational Rehabilitation", 60 Fed. Reg. 14222-14223 (March 16, 1995) (to be codified at 38 C.F.R. § 3.358(c)). The case is now again before the Board solely on the issue shown on the front page of this decision. The veteran's claim regarding compensation benefits payable due to exposure to Agent Orange was initially held in abeyance at the RO pending further guidelines consistent with Nahmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). Entitlement to service connection for (otherwise unidentified) disability as a result of exposure to Agent Orange was denied by the RO in January 1994. The veteran was informed that Agent Orange, in and of itself, was not a disability; that he had not provided evidence that he was experiencing any of the disabilities currently recognized to be associated with exposure to Agent Orange; and that if he felt he had a particular disability which was due to such alleged exposure, he should so specify. It is not shown that the veteran has since provided such information or otherwise identified disability claimed to be the result of Agent Orange. Accordingly, the issue is not part of the current appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran argues, in effect, that he developed AIDS as a result of hospitalization and treatment at VA facilities over an indefinite period of time. 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 files. 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 entitlement to compensation benefits for AIDS pursuant to 38 U.S.C.A. § 1151 is not well grounded. FINDINGS OF FACT 1. Adequate evidence for an equitable disposition of the appellate issue is in the file. 2. Extensive evidence and medical opinion of record, including but not limited to records of treatment of the veteran at the VA facility in Phoenix, does not show that the veteran has AIDS. CONCLUSION OF LAW The veteran's claim for entitlement to compensation benefits for AIDS pursuant to 38 U.S.C.A. § 1151 is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the facts relevant to the issue on appeal have been properly and adequately developed. The remand by the Board in 1991, and development of the case since that time, have resulted in extensive clinical evidence in the file. To the extent that pertinent evidence is feasibly available, the Board is satisfied that the VA's obligation to assist the veteran in the development of his claim has been satisfied. The Board is also satisfied that disposition of the issue currently on appeal can be accomplished in full compliance with the veteran's rights to due process. Generally, where any veteran shall have suffered an injury...as a result of hospitalization, medical or surgical treatment or examination, and such injury or aggravation results in additional disability to the veteran, disability compensation shall be awarded in the same manner as if such disability were service- connected. 38 U.S.C.A. § 1151 (West 1991). In this case, the veteran claims that he developed AIDS as a result of treatment by the VA over a number of years. Now associated with the claims folder are 4 volumes of records including treatment records from Phoenix. However, while clinical records in the file document that the veteran has expressed personal concern on several occasions that he may have acquired human immunovirus (HIV) seropositivity or AIDS, this has not been substantiated by objective medical fact or opinion. Most recently, on VA examination in December 1993, there were no findings of HIV infection or AIDS. In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A(n appellant) 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 (l992). 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 is seeking entitlement to compensation benefits for acquired immune deficiency syndrome (AIDS) pursuant to 38 U.S.C.A. § 1151. Obviously this claim must be predicated on the additional contention that he has AIDS, a fact which is also not otherwise documented. In either case, the veteran is not medically trained and is not qualified to render such a medical opinion either that he has AIDS or that he has AIDSwhich is the result of VA care or hospitalization. Neither premise is otherwise borne out by the evidence of record including credible medical opinion. See Espiritu v. Derwinski, 2 Vet.App. 492 (1993). If the veteran were to submit documentation such as clinical evidence or persuasive medical opinion tending to show that he has AIDS and that it resulted from VA medical treatment, his claim would be considered well grounded. Robinette v. Brown, No. 93-985 (U.S. Vet.App. Oct. 21, 1994). Absent evidence or credible medical opinion that the veteran has AIDS, or that AIDS is the result of care and hospitalization by the VA, the Board finds that the veteran's claim is not well grounded. 38 U.S.C.A. § 5107. ORDER The veteran's claim for entitlement to compensation benefits for AIDS pursuant to 38 U.S.C.A. § 1151 is not well grounded; the case is dismissed. 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.