Citation Nr: 1329294 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-04 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for sterility as a residual of exposure to Agent Orange. 2. Entitlement to service connection for impotence and erectile disorder as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and M.S. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. FINDINGS OF FACT 1. A December 1998 Board decision denied reopening a claim for entitlement to service connection for sterility as a residual of exposure to Agent Orange; the Veteran was properly notified of the decision but did not appeal. 2. Evidence added to the record since the December 1998 Board decision does raise a reasonable possibility of substantiating the claim. 3. The evidence demonstrates the Veteran has impotence and erectile dysfunction that are complications of his service- connected type II diabetes mellitus. CONCLUSIONS OF LAW 1. New and material evidence was received and the claim for entitlement to service connection for sterility as a residual of exposure to Agent Orange is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Impotence and erectile dysfunction are shown to have been incurred as a result of a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (hereinafter "the Court") held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing notice of the duties to notify and assist claimants in substantiating a claim it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. The Veteran was provided notice as to these matters by correspondence dated in July 2009. He was notified of the duties to assist and of the information and evidence necessary to substantiate a service connection claim in May 2009. The Board finds that the available medical evidence is sufficient for adequate determinations. New and Material Evidence Claim Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, a December 1998 Board decision denied reopening a claim for entitlement to service connection for sterility as a residual of exposure to Agent Orange. It was noted that sterility was not a disease for which service connection could be presumed as a result of Agent Orange exposure and that the evidence did not demonstrate the disorder was incurred as a result of service. The Veteran was notified of the decision, but did not appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). The evidence added to the record since the December 1998 Board decision includes VA treatment and examination reports and the Veteran's statements and testimony in support of his claim. At his hearing in May 2013 the Veteran asserted, in essence, that he was impotent as a result of his exposure to herbicides in Vietnam. VA records also show service connection was established for type II diabetes mellitus effective from February 11, 1993, in an April 2002 rating decision. An April 2011 VA examination report noted the Veteran had impotence and erectile dysfunction that was a complication of his diabetes mellitus. Based upon the evidence of record, the Board finds that the evidence received since the December 1998 Board decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim. The April 2011 VA examiner's finding that the Veteran had impotence and erectile dysfunction that was a complication of his diabetes mellitus is new and material. Therefore, the claim must be reopened. Service Connection Claim Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). Based upon the evidence of record, the Board finds that the Veteran has impotence and erectile dysfunction that are complications of his service-connected type II diabetes mellitus. VA records show service connection was established for type II diabetes mellitus in an April 2002 rating decision. An April 2011 VA examination report also noted the Veteran had impotence and erectile dysfunction that was a complication of his diabetes mellitus. Therefore, the service connection claim is granted. ORDER New and material evidence was received to reopen a claim for entitlement to service connection for sterility as a residual of exposure to Agent Orange; the claim is reopened. Entitlement to service connection for impotence and erectile disorder as secondary to service-connected type II diabetes mellitus is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs