Citation Nr: 1336780	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  10-24 002	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for erectile dysfunction secondary to the Veteran's service connected diabetes mellitus. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel



INTRODUCTION

The Veteran served on active duty from September 1968 to October 1988, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In February 2013 and again in August 2013, the Veteran failed to show for personal hearings that had been scheduled in connection with his appeal.  Therefore, the Board considers his personal hearing request withdrawn.

In June 2010 the Veteran filed a notice of disagreement as to the April 2010 rating decision that granted service connection for right and left lower extremity neuropathy and left eye retinopathy and assigned them non compensable ratings and denied service connection for hypertension.  However, the record does not show that he thereafter perfected his appeal by filing a substantive appeal after the issuance of the February 2011 statement of the case.  Moreover, these issues were not certified to the Board.  See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that, after filing a timely notice of disagreement, the filing of a timely Substance Appeal may not be needed to perfect an appeal).  Therefore, the Board finds that these issues are not in appellate status.


FINDINGS OF FACT

1.  A July 2005 rating decision earlier denied the Veteran's claim of service connection for erectile dysfunction including secondary to his service connected diabetes mellitus; he did not appeal that decision or submit new and material evidence within the one year appeal period.

2.  Evidence received since the July 2005 rating decision is cumulative of that at the time of the prior final denial of the claim of secondary service connection for erectile dysfunction.


CONCLUSIONS OF LAW

1.  The July 2005 rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2013).

2.  New and material evidence has not been submitted sufficient to reopen a claim of entitlement to secondary service connection for erectile dysfunction.  38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.156, 3.159 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 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) (2013).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The Veteran must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a).  

As to applications to reopen, the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), held that 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 the notice required by the VCAA 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.  Specifically, VA must notify a claimant of the evidence and information that is necessary to reopen the claim as well as notified of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit in light of the specific bases for the prior denial of the claim.

In this regard, the Board finds that a letter dated in June 2009, before the July 2009 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess and notice of the reason for the prior denial of the claim as required by the Court in Kent, supra.  If the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above VCAA letter as well as the rating decisions, statements of the case, and supplemental statement of the case.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

VA has also secured all available pertinent evidence and conducted all appropriate development.  Specifically, the record shows that VA obtained and associated with the claims file all identified and available in-service and post-service records including his service treatment records and his post-service records from the Cleveland VA Medical Center.

Moreover, VA's statutory duty to assist a claimant in the development of this previously finally denied claim by providing him with a VA examination does not attach until the claim has been reopened based on the submission of new and material evidence.  38 C.F.R. § 3.159(c)(4)(iii).  As explained below, the appellant has not submitted new and material evidence here and therefore a VA examination with medical opinion was not required with respect to this claim.  

In summary, the facts relevant to this appeal have been properly developed, and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's record including those found in Virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim 

The Veteran and his representative contend that the claimant's current erectile dysfunction was caused by his service-connected diabetes mellitus.  It is also requested that the Veteran be afforded the benefit of the doubt. 

As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed.  38 U.S.C.A. § 5108.  New evidence means existing evidence not previously submitted to agency decision makers.  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 C.F.R. § 3.156(a).

The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  

In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  

With the above criteria in mind, the record shows that a July 2005 rating decision denied the Veteran's claim of service connection for erectile dysfunction including secondary to his service connected diabetes mellitus and he did not appeal that denial.  Moreover, while the record shows that in the first post-service year the Veteran filed with VA statements and medical evidence, the record does not show that any of the evidence he filed related to his erectile dysfunction and therefore it cannot constitute new and material evidence.  38 C.F.R. § 3.156(b).  Accordingly, the Board finds that the July 2005 rating decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.  

The July 2005 rating decision initially denied the Veteran's claim of service connection for erectile dysfunction because there was no evidence that it was related to his service-connected diabetes mellitus or his military service because the May 2005 VA examiner opined that his erectile dysfunction pre-existed his diabetes mellitus and was therefore not related to his diabetes mellitus and thereafter opined that it was probably related to his hypogonadism.  

Since this final decision, VA has received another copy of the May 2005 VA examination report, medical records, and written statements in support of the claim from the claimant and his representative.  

As to the May 2005 VA examination report, it is duplicative of evidence that was found in the claims file at the time of the prior final decision.  Therefore, the Board finds that they are not new evidence.  38 C.F.R. § 3.156(a).

As to the medical evidence, it shows the Veteran's continued post-service complaints and/or treatment for erectile dysfunction.  However, the records do not show his erectile dysfunction was caused or aggravated by his service connected diabetes mellitus.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (holding that compensation is payable when service-connected disability has aggravated a non-service-connected disorder).  Therefore, the Board finds that this additional evidence does not relate to an unestablished fact necessary to substantiate the claim.  For this reason, this evidence is not new and material as it is cumulative of evidence previously considered.  38 C.F.R. § 3.156(a).

As to the written statements from the Veteran and his representative, these statements amount to nothing more than their continued claims that the claimant's erectile dysfunction is due to his service connected diabetes mellitus.  These claims were, in substance, before VA when it last denied the claim.  Then, as now, lay persons not trained in the field of medicine, to include the Veteran and his representative are not competent to offer an opinion regarding such medical questions as to whether his service connected diabetes mellitus caused or aggravated his erectile dysfunction in light of his also having a problem with hypogonadism because such an opinion requires medical training which they do not have.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310; Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 

Therefore, the newly received evidence tends to prove nothing that was not already previously shown.  That the Veteran and his representative continue to claim that the appellant erectile dysfunction was caused or aggravated by his service connected diabetes mellitus is not new evidence within the context of 38 C.F.R. § 3.156(a).  Thus, because no new and material evidence has been received, the appeal must be denied.


ORDER

The application to reopen a claim of entitlement to service connection for erectile dysfunction secondary to the Veteran's service connected diabetes mellitus is denied.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs