Citation Nr: 1623434 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 13-00 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for gout. 2. Entitlement to service connection for erectile dysfunction secondary to medications taken for service connected hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen LoGerfo, Associate Counsel INTRODUCTION The Veteran served in the United States Army from June 1979 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 and August 2013 rating decisions of the VA Regional Office (RO) in St. Petersburg, Florida. The Veteran had a hearing before the undersigned Veterans Law Judge in April 2016. The issue of service connection for erectile dysfunction secondary to medications taken for service connected hypertension is addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In an October 1998 rating decision, the RO denied service connection for gout on the basis there was no evidence showing this disorder was related to service. The Veteran did not perfect his appeal by submitting a VA Form 9 so this decision became final. 2. In June 2002 and March 2009 decisions, the RO found no new and material evidence to reopen the claim for gout. The decisions were not appealed. 3. There is no new and material evidence since the March 2009 final decision. CONCLUSION OF LAW The criteria to reopen service connection for gout have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. New and Material Service connection for gout was denied in October 1998 because the evidence did not show that this disorder was related to the Veteran's military service. After receiving notice of the decision that same month, the Veteran disagreed with this decision. A Statement Of the Case (SOC) was issued in July 2000, but the Veteran did not file a VA-9, Substantive Appeal, to perfect the appeal. In June 2002, the Veteran's claim to reopen was denied in a rating decision. In March 2009, the Veteran's claim to reopen was denied in a rating decision. The Veteran is currently appealing the April 2010 rating decision denying his claim to reopen. A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC). 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.129, 19.192, 20.302, 20.1103 (2013). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Veteran did not appeal the RO's decision in March 2009 and that denial became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2013). Thus, the Board must turn to the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The March 2009 rating decision considered additional service records between April 1982 and October 1989 that were never considered. It also included private medical records from April 2005 to December 2008. The April 2010 subsequent decision considered all the same evidence with the addition of a March 2010 VA examination. At the hearing, the Veteran testified that he was hospitalized for three days in Germany due to his gout condition. Numerous attempts have been made by VA to obtain any additional service records with no positive results. The record appears complete. There is no new evidence documenting this hospitalization and the October 1989 and November 1989 entries of possible gout were considered by the previous rating decisions. Thus, they are not new. The Veteran also testified that he saw a private physician in 1990 that diagnosed his gout. The Board notes that the private physician's treatment records from 1992-1997 have been in the claims file since the October 1998 decision. VA has requested more medical records from this physician on numerous occasions since the March 2009 final decision without any positive results. Based on the above, there is no new and material evidence to warrant a re-opening of the March 2009 final decision. B. Duties to Notify and Assist When VA received a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Here, the Veteran was provided with the relevant notice and information in a November 2008 letter. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. Additionally the VA attempted to procure any additional private treatment records from Gulf Coast Regional Medical Center in a June 2014 request. ORDER The application to reopen service connection for gout is denied. REMAND The Veteran alleges that he has erectile dysfunction due to medication for his service-connected hypertension. The July 2013 VA examination reported that hypertension is a risk factor for erectile dysfunction but could not say with certainty that it was a cause in this case. The examination did not address the medications the Veteran takes for hypertension. The Veteran reported to this examiner that multiple medications are required to control his blood pressure and that he developed erectile dysfunction three years ago. He reported that Viagra was ineffective as was the addition of testosterone and Cialis. A June 2014 letter from the Veteran's treating physician indicated that the Veteran needs to take Coreg, Lisinopril, Losartan, Clonidine, and Spironolactone for his hypertension. The VA examiner did not consider any of these medications nor the Veteran's statements in evaluating whether his hypertension medications caused his erectile dysfunction. Therefore, this examination was inadequate. Accordingly, the case is REMANDED for the following action: 1. Return the claims file, to include a copy of this remand, to the July 2013 VA examiner for an addendum opinion on the Veteran's erectile dysfunction. If the examiner who drafted the July 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. (The need for another physical examination is left to the discretion of the medical professional offering the addendum opinion.) The examiner is asked to furnish an opinion with respect to the following questions: For the diagnosed erectile dysfunction, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder was caused or aggravated by taking medication for the Veteran's service-connected hypertension. The examiner should specifically discuss the medications noted and listed in the claims file. 2. After completing the above, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs