BVA9501127 DOCKET NO. 93-27 187 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for human immunodeficiency virus (HIV) infection. 2. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from October 1979 to January 1981. This appeal is before the Board of Veterans' Appeals (the Board) from a March 1993 rating decision of the Regional Office (RO) which denied service connection for HIV and depression. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for his HIV and depression because the service environment caused him to engage in drinking and homosexual activity and to become chronically depressed. Furthermore, he believes he contacted the HIV virus from an individual while in service; this individual has since died from AIDS. 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 claim for service connection for HIV infection is not well grounded, and the preponderance of the evidence is against the claim for service connection for depression. FINDINGS OF FACT 1. 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 whether he became infected with HIV during service, to justify a belief by a fair and impartial individual that the claim of service connection for HIV infection is plausible. 2. Chronic depression was not present during service and if, and to the extent, it is related to alcoholism is a result of abuse of alcohol. 3. Chronic depression was not demonstrated medically for approximately 10 years after discharge from service. CONCLUSIONS OF LAW 1. The claim of service connection for HIV infection is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.385 (1993). 2. Chronic depression was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for 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. After reviewing the evidence on file the Board concludes that the veteran's claim for service connection for depression is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. We note that the VA medical records from 1987 as well as any available records from the Social Security Administration have not been obtained. As the information in these records would relate to the veteran's current post-service condition, it is the Board's determination that the evidentiary record is sufficient both in scope and in depth for a fair, impartial and fully informed appellate decision. The Board also notes that Social Security records focus on the severity of disability and not on the question of onset of disability, and the veteran has not alleged that these records contain any relevant information. Thus, the Board concludes that all facts pertinent to the claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). In evaluating plausible claims, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A review of the veteran's service medical records reveals that the service entrance examination report, dated in August 1979, was normal with no evidence of psychological disorder or disability noted although the veteran did give a history of treatment for severe depression. The veteran's service treatment records show that he was treated for a sprained ankle, gastritis, and flu syndrome. The treatment records contain no evidence of any complaint or finding of any psychiatric disorder or disability. A mental status evaluation report, dated in December 1980, indicated that the veteran's mood or affect appeared unremarkable, not depressed. The examiner also noted that the evaluation revealed no psychiatric illness. The separation examination report, dated in January 1981, also noted no psychiatric disorder or disability; the only physical defect noted was a history of sprained ankle. Medical records, dated from July to August 1985, from a private medical facility, indicate that the veteran was admitted to a substance abuse rehabilitation program. The admitting diagnostic impression was alcoholism and chemical dependency. The admitting mental status examination disclosed no evidence of a thought disorder and no history of a psychiatric disorder or disability was recorded. The veteran complained of a rash behind his knee and small pustules were noted behind the right knee, on the right thigh and left forearm. The veteran expressed some concern regarding AIDS and Kaposi's sarcoma because of his gay lifestyle. A review of the progress notes revealed no evidence of any psychiatric disorder or disability. The final diagnosis recorded on the discharge summary was: alcoholism, recovering, and chemical dependency, recovering. The veteran was afforded a VA medical examination in February 1993. The examination report noted the veteran gave a history of having been HIV positive since 1987 and taking AZT daily. He had no symptoms of active AIDS infection and had been markedly depressed and taking Prozac. The diagnostic impression was HIV positive. The veteran was also afforded a VA psychiatric examination in February 1993. The examination report noted the veteran gave a history of becoming severely depressed while in service which led to his use of alcohol and drugs. He requested and was granted service discharge because of admitted homosexuality. The severe harassment in service caused his severe depression. After service he continued his drinking and drug use. He discovered he was HIV positive approximately five years earlier while being examined in a VA hospital. He had been taking Prozac for his depression for approximately two months. The diagnostic impression was: (1) major depression; (2) generalized anxiety disorder; (3) alcohol dependence by history; and (4) polysubstance abuse by history. In a written statement, dated in April 1993, the veteran stated that he claimed depression on his medical history form when he entered service because he was very worried about whether he had made the right decision. He believed that this should be considered a normal reaction. His drug and alcohol abuse did not commence until he was at his home station. He was subsequently discharged from the service because of homosexuality. The humiliation and degradation he experienced while going through the process of his discharge began a pattern of self destruction. This was the onset of his alcohol/drug abuse and extreme depression. He discovered his homosexuality after entering the service. He believed that alcohol abuse was encouraged by his peers and superiors. He did not seek treatment for his depression while in service because he did not believe anyone would understand. He continued to dull the pain and shame he was made to feel because of his homosexuality with alcohol and drug abuse during service and thereafter. He believed that his substance abuse only aggravated his depression. In a written statement, dated in May 1993, the veteran indicated that he was currently taking AZT of 100 mg. five times a day. Also, contrary to the VA examination report, he did have a cough, stiff neck, sore throat and several rashes. He believed that alcoholism was a disease and could not be categorized as willful conduct. It was the coercion of his peers and superiors that led to his alcoholism. He was introduced to homosexuality in service. He believed that was when he contacted the HIV infection because that is when he started being sexually active. The humiliation he suffered during the service discharge process followed him and is the reason for his current depression. The veteran testified at a personal hearing held in November 1993 before a member of the Board. He stated that he never received medical treatment for HIV, alcohol/drug abuse, or depression while in the service. What he referred to as "severe depression" when he entered service was really just worry about his decision to join the military. After he submitted his discharge paperwork he endured a lot of harassment until he was actually discharged. The veteran further testified that he was first diagnosed HIV- positive in November 1987 at a VA medical facility. He did not have any symptoms at that time and still had not had any symptoms to date. The reason he went was because he felt it was his responsibility as a sexually active person to be tested. He was started on AZT and has continued to take the drug ever since. He believes that he contacted the disease in service. The guy he was sexually involved with was a world traveler and very promiscuous and has since died from AIDS. During service he had some emergency room visits for respiratory problems and the flu but no indication of HIV. He had maintained a homosexual lifestyle since his discharge from service. He had not had any other sexual partners, to his knowledge, that had died of AIDS. The veteran stated that he had talked to a doctor about his HIV and whether it could have gone back to his period of active duty. It was possible because everyone had a different opinion about how long it could lay dormant. He was not really sure that he wanted to know how long he had been walking around with it because it could shorten his life expectancy. He believed he was infected in service, especially since four years earlier his in- service partner had died of AIDS. However, he had had multiple sexual partners since his discharge and he had no knowledge whether or not any of them were HIV infected. The veteran also testified that he was under psychiatric treatment for depression. He received inpatient treatment at a VA facility for depression in October and November 1992. That was when he was officially diagnosed with clinical depression. He had been receiving SSA disability benefits since September 1992 and had not worked since then. His depression while in service was primarily related to the harassment he was undergoing. Service connection for HIV infection After a review of all the evidence of record, the Board finds the claim is not well-grounded. The Court 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..." 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 of the veteran, 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 Board notes that the service medical records contain no evidence of any complaint, treatment, finding or diagnosis of any HIV-related illness. The veteran asserts, which is presumed to be true, that he admitted to being a homosexual and to homosexual behavior during service and that this was the basis for his discharge from service. This evidence does not pertain to in-service symptomatology as a manifestation of the onset of HIV infection. As for the issue of whether the veteran became infected with HIV during service, the veteran asserts that he contracted the condition while on active duty but it lay dormant for a number of years because a sexual partner during service died in approximately 1989 of AIDS. The Board rejects this evidentiary assertion on the grounds that such 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. As the Court announced in Espiritu v. Derwinski, 2 Vet.App. 492, lay persons are not competent to offer evidence of any causal relationship between a current disorder and any incident of service. Layno v. Brown, No. 92-353 (U.S. Vet.App. May 27, 1994); Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Moreover, it would be speculative to assume that infection derived from the one sexual contact in service since the veteran has indicated that he has had multiple sexual contacts with partners whose HIV status is unknown. Finally, the veteran has submitted no competent medical evidence to support his claim that the HIV infection had its onset during service. The Board notes that the veteran indicated during his testimony that he had discussed the possibility of being infected during service with his treating physician, and that it was possible because no one really knew the length of time the infection could lay dormant. However, the veteran has not submitted any medical opinion on this issue. 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. As for the application of the benefit-of-the-doubt rule, the rule does not ease the veteran's initial burden of submitting evidence of a well-grounded claim. Gilbert v. Derwinski, 1 Vet.App. 49,55 (1990). Since the veteran has not met his initial burden of submitting a well-grounded claim, the rule does not apply. Thus, the claim must be dismissed. 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. Service connection for depression Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service unless such disability is the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105(a), 1110, 1131. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Board finds, based on the evidence of record, that service connection is not warranted, on either a direct or secondary basis, for depression. The service medical records contain no evidence of any complaint or finding of any psychiatric disorder or disability; the only reference to depression therein being a reference to preservice depression on the entrance examination. Nor is there any finding, treatment or diagnosis of a psychiatric disorder noted in the inpatient rehabilitation treatment records from 1985. Although there were some complaints of depression, these were apparently associated with his substance abuse, and there were no findings or diagnosis of chronic depressive psychopathology. A review of the VA psychiatric examination report, dated in February 1992, and the veteran's testimony in November 1993 shows that the veteran admits he was not diagnosed with clinical depression until after he was diagnosed to be HIV- positive, more than six years after his discharge from service. Thus, the Board finds no basis for a grant of direct service connection. In addition, since the veteran has not been granted service connection for HIV infection, there is no basis for a grant of secondary service connection. Consequently, the claim for service connection for depression must be denied. To the extent that the veteran associates his depression with alcoholism which he claims began in service and which he asserts is a disease and not due to willful misconduct, the Board notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service unless such disability is the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105(a), 1131. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Thus, in the instant case, service connection may only be granted when the alcohol abuse is shown to be proximately related to a service-connected disability. 38 C.F.R. § 3.310(a). The law establishes that service connection may not be established, on a primary basis, for alcohol abuse. In addition, the veteran has alleged that his alcohol abuse was caused by or related to his HIV infection and/or depression. Neither of these two disorders are service-connected disabilities, and there is no competent evidence that the veteran's alcohol abuse was proximately due to or the result of a service-connected disability. ORDER Entitlement to service connection for depression is denied. Evidence of a well-grounded claim not having been submitted, the claim for service connection for HIV infection is dismissed. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN 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.