HUMAN IMMUNODEFICIENCY VIRUS (HIV) INFECTION

MICHAEL MARTIN · 2026 · Case ID: 26005101

MIXED

Summary

The veteran served in the Army from November 1981 to November 1984 and again from April 1985 to April 1988. The veteran sought service connection for HIV, hearing loss, hemorrhoids, and an eye condition. The Board reopened the claims for HIV, hearing loss, and the eye condition based on new and material evidence, specifically the veteran's testimony. Service connection for HIV was denied because there was no in-service diagnosis, no diagnosis close in time to service, and no competent medical evidence linking the condition to service, despite the veteran's testimony about contracting it during service and being treated for other STDs. The claim for hearing loss was also denied, as the evidence did not establish a current hearing loss disability as defined by VA regulations, and the provided VA medical opinions found no service connection. Service connection for hemorrhoids was granted, as the condition was diagnosed shortly after service, the veteran's testimony regarding in-service onset was accepted, and continuity of symptoms was confirmed by a later diagnosis. Service connection for left dry eye was granted, as the evidence persuasively linked the condition to a period of active-duty service, manifesting with residuals after in-service surgery and requiring ongoing treatment.

Rationale

No in-service diagnosis of HIV; No diagnosis within 10 years of service; Lack of competent medical evidence linking condition to service; Speculative nature of claim

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

20-14 585

Full Decision Text

Citation Nr: 26005101
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 20-14 585
DATE: April 30, 2026

ORDER

New and material evidence having been received, the previously denied claim of entitlement to service connection for HIV is reopened.

Entitlement to service connection for HIV is denied.

New and material evidence having been received, the previously denied claim of entitlement to service connection for hearing loss is reopened.

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for hemorrhoids is granted.

New and material evidence having been received, the previously denied claim of entitlement to service connection for an eye condition is reopened.

Entitlement to service connection for left dry eye is granted.

FINDINGS OF FACT

1. New and material evidence was presented to reopen the previously denied claim of entitlement to service connection for HIV.

2. HIV did not manifest during service and is not otherwise related to an in-service incurrence.

3. New and material evidence was presented to reopen the previously denied claim of entitlement to service connection for hearing loss.

4. The Veteran does not have a current diagnosis of hearing loss as defined under 38 C.F.R. § 3.385; hearing loss did not manifest during service and is not otherwise related to an in-service incurrence.

5. Hemorrhoids are related to active-duty service.

6. New and material evidence was presented to reopen the previously denied claim of entitlement to service connection for an eye condition.

7. Left dry eye is related to active-duty service.

CONCLUSIONS OF LAW

1. New and material evidence having been received, the criteria to reopen the previously denied claim of entitlement to service connection for HIV have been met. 38 C.F.R. § 3.156.

2. The criteria for entitlement to service connection for HIV have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. New and material evidence having been received, the criteria to reopen the previously denied claim of entitlement to service connection for hearing loss have been met. 38 C.F.R. § 3.156.

4. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385

5. The criteria for entitlement to service connection for hemorrhoids have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. New and material evidence having been received, the criteria to reopen the previously denied claim of entitlement to service connection for an eye condition have been met. 38 C.F.R. § 3.156.

7. The criteria for entitlement to service connection for left dry eye have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from November 1981 to November 1984, and from April 1985 to April 1988.

This Legacy appeal comes to the Board of Veterans' Appeals (Board) from a January 2019 rating decision of the Agency of Original Jurisdiction (AOJ). In the March 2020 VA Form 9 Substantive Appeal, the Veteran requested a hearing; a Board hearing was conducted before the undersigned Veterans Law Judge (VLJ) with the Veteran and his representative on May 21, 2024, a transcript of which is of record. At the hearing, the Veteran's representative waived initial AOJ review of evidence associated with the file subsequent to the Statement of the Case (SOC). Accordingly, the matters may proceed to adjudication.

At the Board hearing the Veteran's representative first raised the issue of clear and unmistakable error (CUE) in the AOJ decision. As the representative has not filed a CUE motion with the AOD and the AOJ has not adjudicated any CUE motion, it cannot be considered by the Board on appeal. As such, the Board will not entertain a CUE motion as being part of this appeal. See, Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (explaining that 38 U.S.C. § 5109A requires that a request for revision of a final RO decision on the basis of CUE be submitted to the RO for initial
proceed to adjudication.

Service Connection

In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, 21 F.4th 776 (2021).

1. New and material evidence having been received, the previously denied claim of entitlement to service connection for HIV is reopened.

2. Entitlement to service connection for HIV is denied.

The Veteran seeks service connection for HIV.

The claim for service connection for HIV was denied in a May 2003 rating decision, and became final. At the hearing before the Board, the Veteran provided testimony regarding the claim. His testimony constitutes new and material evidence under 38 C.F.R. § 3.156, and thus reopening of the claim is warranted.

The claim for service connection is based on the Veteran's assertion that he contracted HIV while on active-duty service.

VA treatment records confirm a current diagnosis of HIV. See October 2022 VA treatment record (noting a diagnosis of HIV, on HAART through special immunology, prescribed Biktarvy).

The service medical records do not contain any diagnosis of HIV or any related entries. Further, the evidentiary record does not contain a diagnosis of HIV for over 10 years after service.

The Veteran testified that he did not have sexual contact prior to his active-duty service, did not use any intravenous needles at any point in his life, and was diagnosed with HIV four months after his last period of active duty service when attempting to join the Army, which he attributed to sexual activity while on active duty. He testified to being treated for sexually transmitted diseases (gonorrhea and syphilis) while on active duty.

The Board has carefully considered the claim, but ultimately the Veteran has not proven entitlement to service connection in this case. The evidence does not show a diagnosis of HIV or related symptoms during active-duty service. Further, the Veteran is not competent to provide a diagnosis, and has not provided any corroboration of a diagnosis by a medical professional of the condition until many years after service. HIV is not entitled to presumptive service connection even if it manifests within one year from separation. Finally, the Board does not find the Veteran medically qualified to link the condition to any particular exposure.

Ultimately, given the lack of an in-service diagnosis, lack of a medical diagnosis close in time to service, and the inherently speculative nature of the claim of a nexus to a specific in-service incurrence, the evidentiary record is inadequate to establish the current HIV diagnosis is related to service. Service connection for HIV accordingly remains denied on appeal.

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the weight of the evidence is persuasively against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. §5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. New and material evidence having been received, the previously denied claim of entitlement to service connection for hearing loss is reopened.

4. Entitlement to service connection for hearing loss is denied.

The Veteran seeks service connection for hearing loss.

The claim for service connection for hearing loss was denied in a January 2015 rating decision, and became final. At the hearing before the Board, the Veteran provided testimony regarding the claim.
of the benefit of the doubt doctrine; the weight of the evidence is persuasively against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. §5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. New and material evidence having been received, the previously denied claim of entitlement to service connection for hearing loss is reopened.

4. Entitlement to service connection for hearing loss is denied.

The Veteran seeks service connection for hearing loss.

The claim for service connection for hearing loss was denied in a January 2015 rating decision, and became final. At the hearing before the Board, the Veteran provided testimony regarding the claim. His testimony constitutes new and material evidence under 38 C.F.R. § 3.156, and thus reopening of the claim is warranted.

Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

The Veteran was provided a VA examination in January 2014 which showed the no auditory thresholds were over 25 decibels; the Maryland CNC Test results were 100 percent, bilaterally. A January 2015 VA medical opinion opined that the Veteran's hearing loss was less likely than not related to military service, noting his hearing was normal at enlistment and separation examinations, with no threshold shifts.

In February 2020, the Veteran was reexamined for hearing loss, but the results were noted to be inconsistent and not valid by the clinician. The clinician provided a negative nexus opinion, noting there was no significant permanent shift in threshold beyond test variability from entrance audiogram in September 1981 to separation audiogram in March 1988, which is objective evidence of no permanent auditory damage on active duty from ear infections. The clinician noted the April 1982 complaint of ear blockage, with the diagnosis of impacted wax, which was removed with possible blood behind ear drum with an ear infection. The clinician noted the condition was treated, and retests of hearing on May 1983 showed indicated temporary elevations in thresholds but still considered to be within normal limits. Hearing was noted to have been tested again in October 1984, February 1985, January 1986, and on separation where it was noted the slightly elevated thresholds resolved and his hearing remained normal with no permanent threshold shifts when compared to entrance audiogram.

The Board notes that there was no diagnosis of a hearing loss disability during service, and there is not competent evidence of a current hearing loss disability as defined under 38 C.F.R. § 3.385. The January 2014 VA examination findings are the only current audiometric findings that are not noted to be invalid, and these are not shown to be inaccurate with any competent medical evidence.

Further, even if the Veteran did have a hearing loss that qualified as a VA disability, the VA medical opinions of record opined such was not related to service. These medical opinions are competent and based on a review of the record and are afforded weight. They are uncontradicted by any other medical opinions, and the Veteran is not considered competent to opine on the etiology of any hearing loss.

As the evidence of record does not establish a hearing loss disability as defined under 38 C.F.R. § 3.385 and establishes the Veteran's hearing loss is unrelated to service (and service connection warrants denial on either basis), service connection for hearing loss remains denied on appeal. The persuasive weight of the evidence is against the claim.

5. Entitlement to service connection for hemorrhoids is granted.

The Veteran seeks service connection for hemorrhoids.

No diagnosis of hemorrhoids was noted prior to or during the first period of active-duty service that ended November 1984. However, the condition was noted on the January 1985 reenlistment examination.

The January 2019 VA examination confirmed a current diagnosis of hemorrhoids. The Veteran reported noting the condition during active-duty service in Korea, with continuity and worsening in 2005. A negative nexus was provided in an associated medical opinion.

At the Board hearing, Veteran testified that he was introduced to kimchi in Korea, and due to the MREs or the kimchi recalled having serious bouts of hemorrhoids, with itching and burning and bleeding. He reported having had two surgeries, to date, with improvement
oids.

After careful consideration, the Board finds the evidence of record adequate to link the Veteran's hemorrhoids to his active-duty service. The Veteran is presumed to have been sound in this regard preceding his first period of service as the condition was not noted on his enlistment examination. His testimony as to an in-service onset is accepted, as the condition is one capable of lay observation, and the diagnosis of record shortly after the initial period of active duty service confirms this claim. With continuity of the condition after service a confirmed current diagnosis, the evidence adequately establishes a relationship of the current condition to the in-service onset. Service connection for hemorrhoids is accordingly granted.

6. New and material evidence having been received, the previously denied claim of entitlement to service connection for an eye condition is reopened.

7. Entitlement to service connection for left dry eye is granted.

The claim for service connection for postoperative status, strabismus was denied in a January 2015 rating decision and became final. At the hearing before the Board, the Veteran provided testimony regarding the claim. His testimony constitutes new and material evidence under 38 C.F.R. § 3.156 and thus reopening of the claim is warranted.

The Veteran seeks service connection for eye redness/dryness, which he contends are residuals of a surgery that he had to correct strabismus (lazy eye). The Veteran's eye condition was noted on the entrance examination. During service, he elected to undergo surgery for the condition in September 1982. Post surgery, while in active duty, the service medical records note that he had residuals of eye redness/dryness. The claim has been re-characterized to reflect these contentions. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)/

A September 1999 VA social work note indicated the Veteran reported having to use eye drops several times per day since his eye surgery.

The Veteran testified before the Board that his eye has been itchy and red, requiring drops, since his in-service surgery. As noted above, service medical records confirm this, and VA treatment notes indicate the Veteran has been prescribed drops for left eye dry eye since 2003. See September 2023 VAMC Other Output/Reports.

Although service connection cannot be granted for a condition that preexisted service and was not aggravated by service, the evidence of record suggests that the Veteran has a different eye disability for which he seeks service connection than his strabismus. The Board finds the evidence adequate to grant service connection for the symptoms sought on appeal of left eye dry eyes, as the evidence persuasively links this symptom to a period of active-duty service. The Board need not address whether this symptom was related to the surgery or stemmed from his preexisting eye condition, as in either case, it manifested first during service and would be presumed a worsening or new condition that is related to such period of service. Service connection for left eye dry eye is accordingly granted.

Martin T. Mitchell

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board King, Timothy (BVA)

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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