ZN v. Brown

6 Vet. App. 183, 1994 U.S. Vet. App. LEXIS 58, 1994 WL 32184
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 4, 1994
DocketNo. 93-493
StatusPublished
Cited by5 cases

This text of 6 Vet. App. 183 (ZN v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ZN v. Brown, 6 Vet. App. 183, 1994 U.S. Vet. App. LEXIS 58, 1994 WL 32184 (Cal. 1994).

Opinions

STEINBERG, Judge, filed the opinion of the Court in which FARLEY, Judge, joined.

MANKIN, Judge, filed a concurring opinion.

STEINBERG, Judge:

The appellant veteran (ZN) appeals a May 11, 1993, Board of Veterans’ Appeals (BVA or Board) decision denying entitlement to service connection for acquired immune deficiency syndrome (AIDS). R. at 7-16. On May 14, 1993, the appellant timely filed his Notice of Appeal, and on May 21, 1993, he filed correspondence in which he asked the Court for extraordinary relief in the form of expedited consideration of his appeal, the basis for his request being his deteriorating health. The Court construed the appellant’s correspondence as a motion for expedited consideration pursuant to Rule 47 of this Court’s Rules of Practice and Procedure, and on May 28, 1993, the Court ordered expedited consideration in this appeal. Pursuant to Rules 11(c)(2) and 48, the Court, sua sponte, on May 28, 1993, sealed the record of this appeal and assigned the appellant an encoded identifier, “ZN”. See U.S.Vet.App.R. 11(c)(2), 48; 38 U.S.C. § 7268(b)(1). The appellant, through counsel, filed his brief on [185]*185November 8, 1993; the Secretary filed his brief on December 3,1993; and the appellant filed a reply brief on December 10, 1993. For the reasons that follow, the Court will vacate the Board’s decision and remand the matter for readjudication consistent with this opinion.

I. Background

The veteran served on active duty in the United States Navy from November 1980 to November 1983. R. at 19. The reports of his November 1980 enlistment and December 1980 recruit screening examinations revealed no pertinent abnormalities. R. at 21-30. According to service medical records (SMRs), on December 9,1980, he complained of having suffered, over the prior 24 hours, dizziness with nausea and vomiting. R. at 31. A physical examination revealed “slight serous otitis” in both ears, and the examiner diagnosed “viral syndrome [with] serous oti-tis”. Ibid. On December 13, 1980, the veteran complained of having had a sore throat and fever for two days. R. at 32. A physical examination revealed a temperature of 104 degrees; the examiner described the veteran’s lungs as congested and his throat as red and inflamed and noted “frontal tenderness”. A culture test for beta streptococcus was positive (R. at 34), and the examiner assessed strep throat (“inflammatory sore throat caused by hemolytic streptococci”, WEBSTER’S MEDICAL DESK DICTIONARY 648, 680 (1986) [hereinafter WEBSTER’S]) and herpes simplex II (infection marked by eruption of lesions on the genitalia, STED-MAN’S MEDICAL DICTIONARY 709 (25th ed. 1990) [hereinafter STEDMAN’S]). R. at 31. On December 18, 1980, the veteran underwent a medical examination in connection with submarine duty; the only pertinent abnormality found was “eustachian tube dysfunction”. R. at 35-39.

On January 28, 1981, the veteran reported to sick call complaining of a nosebleed. R. at 42. The examiner made an assessment of “URI” (upper respiratory infection). Ibid. On February 19, 1981, the veteran reported to sick call complaining of “cold symptoms”; the examiner’s assessment was of a URI. R. at 43. According to a March 4, 1981, SMR entry, the veteran’s URI and eustachian tube dysfunction prevented him from completing pressure-and-eseape training; the examiner opined that those conditions would be present for 180 days. R. at 46.

According to an April 28,1981, SMR entry, the veteran complained of having experienced two episodes of nausea and vomiting and two episodes of diarrhea that morning. R. at 47. Physical examination revealed “generalized tenderness” but no swelling or masses, and the examiner made an assessment of gastroenteritis. R. at 47. An August 1981 SMR entry noted that the veteran was physically qualified for messman duty. R. at 48. A December 2, 1981, physical examination noted a temperature of 99.8 degrees and “no complaints except groin rash”. R. at 50. An SMR entry dated December 7, 1981, stated a diagnostic impression of URI, noting complaints of, inter alia, runny nose, nausea, headache of three days’ duration, and a groin rash of two weeks’ duration; the examiner noted no lymphadenopathy (any disease process affecting a lymph node, STEDMAN’S, at 900). R. at 51. On December 29, 1981, when the veteran sought treatment for his groin rash, the examiner noted an “ongoing h[istory] of sealing erythematous lesions to groin and nodular lesions to inner aspects [of the upper] thighs” and assessed tinea cruris (“jock itch”, STEDMAN’S, at 1603) and folliculitis (inflammatory reaction in hair follicles, STEDMAN’S, at 603). R. at 56.

In September 1982, the veteran was examined following complaints of headache and blurred vision, but an optometric examination revealed “no apparent cause”. R. at 58. That same month, he was examined after complaining of a two-week history of vomiting and diarrhea. R. at 59-60. The examiner noted a “long h[istory] of same s[ymp-toms] throughout childhood” and made a diagnosis of gastritis. R. at 60.

In April 1983, the veteran complained of a sore jaw. R. at 61-62. On June 2, 1983, he was examined following a complaint of abdominal cramps; the examiner assessed gastritis. R. at 63. An assessment of gastritis was made again on June 3, 1983, after the veteran had complained of diarrhea of four days’ duration, vomiting, and abdominal [186]*186cramps. R. at 64. On July 12, 1983, he was diagnosed with “anxiety r[eactio]n” after having reported lightheadedness and two episodes of hyperventilation. R. at 66-67. A psychological consultation performed at that time described him as “[mjoderately anxious and tearful” and stated that he had complained of “difficulty eating, concentrating, [and] sleeping [and] loss of energy”. R. at 70. The examiner stated that the veteran was seeking a “humanitarian transfer/discharge due to needing to help [his] blind mother” and diagnosed “[adjustment [disorder] with mixed emotional features”. R. at 70-71. The report of the veteran’s 1983 separation examination was negative for any relevant abnormality. R. at 72-73.

In December 1991, the veteran was hospitalized at a Department of Veterans Affairs (VA) (formerly Veterans’ Administration) Medical Center (MC). A nursing entry dated December 11, 1991, stated:

[The veteran] is a ... homosexual admitted ... yesterday [with] depressed mood/adjustment disorder. He reports that he was found to be HIV [positive] 8/91. He also states that [a] biopsy of a lesion on his r[ight] shoulder was found to be Kaposi’s sarcoma.... His male lover of 11 years died of AIDS in 7/91.”

R. at 99. (“HIV” or “human immunodeficiency virus”, also known as “HTLV-III”, is “a retrovirus implicated as the agent causing the underlying immunodeficiency in AIDS”, WEBSTER’S, at 304; Kaposi’s sarcoma is a disease characterized by formation of tumorous plaques, associated with immunodeficient individuals with AIDS, WEBSTER’S, at 361). On a nursing intake form, under the heading “Any High Risk Exposure”, an examiner indicated a positive response for “Homo[sexual]/Bisexual Activity” and negative responses for “Shared needles”, “Recent Blood Transfusion”, “Prostitution”, “Sexual promiscuity”, and “Recent Tattoos”. R. at 95. A mental health clinic entry noted: “He has smoked marijuana in the past. No other substance/alcohol abuse.” R. at 92. A December 11, 1991, entry stated “No AIDS[-]defining infection to date.” R. at 98.

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Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 183, 1994 U.S. Vet. App. LEXIS 58, 1994 WL 32184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zn-v-brown-cavc-1994.