Citation Nr: 1801261 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-34 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to herbicides. 3. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a heart disability. 4. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a psychiatric disability, to include a neurocognitive disorder, an anxiety disorder, a depressive disorder, and posttraumatic stress disorder (PTSD). 5. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a vision disability. 6. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a respiratory disability, to include emphysema and chronic obstructive pulmonary disease (COPD). 7. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for erectile dysfunction. 8. Entitlement to service connection for a heart disability, to include as due to exposure to herbicides. 9. Entitlement to service connection for a psychiatric disability, to include a neurocognitive disorder, an anxiety disorder, a depressive disorder, and posttraumatic stress disorder (PTSD). 10. Entitlement to service connection for sleep apnea, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from April 1966 to April 1968, including service in the Vietnam War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2014 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, but was certified to the Board by the RO in New Orleans, Louisiana. In the July 2014 rating decision, in pertinent part, the Muskogee RO denied the Veteran's requests to reopen his previously denied claims for service connection for erectile dysfunction, a heart disability, and PTSD. In the October 2014 rating decision, in pertinent part, the RO denied service connection for GERD, sleep apnea, and diabetes mellitus, and denied the Veteran's requests to reopen his previously denied claims for service connection for a heart disability, erectile dysfunction, an eyesight disability, emphysema, and PTSD. The Veteran's claim for service connection for PTSD has been recharacterized as a psychiatric disability to include a neurocognitive disorder, an anxiety disorder, a depressive disorder, and PTSD; the Veteran's claim for service connection for emphysema has been recharacterized as a respiratory disability to include emphysema and COPD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In a March 2007 statement, the Veteran attempted to raise the issue of service connection for hypertension. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a heart disability, a psychiatric disability, and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a diagnosis of diabetes mellitus, type II, currently or at any time during the pendency of the claim. 2. The Veteran's GERD initially manifested many years after separation from service and is not shown to be etiologically related to service. 3. The Veteran's claim for service connection for a heart disability was denied in a February 2008 rating decision on the basis that the evidence failed to establish a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year, and it became final. 4. Evidence received since the February 2008 rating decision raises a reasonable possibility of substantiating the claim of service connection for a heart disability. 5. The Veteran's claim for service connection for PTSD was denied in a May 2004 rating decision on the basis that the evidence failed to establish a diagnosis of PTSD or an in-service stressor. He was notified of this decision and timely disagreed with it, but did not perfect a substantive appeal within one year of the rating decision or 60 days of the Statement of the Case (SOC), and it became final. 6. Evidence received since the May 2004 rating decision raises a reasonable possibility of substantiating the claim of service connection for a psychiatric disability. 7. The Veteran's claim for service connection for an eyesight disability was denied in a February 2008 rating decision on the basis that the evidence failed to establish a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year, and it became final. 8. The evidence received since the February 2008 denial, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a vision disability, and therefore does not raise a reasonable possibility of substantiating the claim for an eyesight disability. 9. The Veteran's claim for service connection for emphysema was denied in a February 2002 rating decision on the basis that the evidence failed to establish a nexus between any respiratory condition, including emphysema, COPD, or bronchitis, and the Veteran's active duty service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year, and it became final. 10. The Veteran's request to reopen his claim for service connection for emphysema was denied in an August 2003 rating decision on the basis that the Veteran had not provided new and material evidence of a nexus to service. He was notified of this decision and timely disagreed with it, but did not perfect a substantive appeal within one year of the rating decision or 60 days of the Statement of the Case (SOC), and it became final. 11. The Veteran's request to reopen his claim for service connection for emphysema was denied in a February 2008 rating decision on the basis that the Veteran had not provided new and material evidence of a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year, and it became final. 12. The evidence received since the February 2008 denial, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a respiratory disability, and therefore does not raise a reasonable possibility of substantiating the claim for service connection for emphysema. 13. The Veteran's claim for service connection for erectile dysfunction was denied in a February 2008 rating decision on the basis that the evidence failed to establish a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year, and it became final. 14. The evidence received since the February 2008 denial, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for erectile dysfunction, and therefore does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. GERD was not incurred in or aggravated by service and may not be presumed to have been incurred in or as a result of service. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The February 2008 rating decision is final with regard to the issue of entitlement to service connection for a heart disability. New and material evidence sufficient to reopen the claim of entitlement to service connection for a heart disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 4. The May 2004 rating decision is final with regard to the issue of entitlement to service connection for PTSD. New and material evidence sufficient to reopen the claim of entitlement to service connection for a psychiatric disability has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 5. The February 2008 rating decision is final with regard to the issue of entitlement to service connection for an eyesight disability. New and material evidence has not been received to reopen a claim of entitlement to service connection for a vision disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 6. The February 2008 rating decision is final with regard to the issue of entitlement to service connection for emphysema. New and material evidence has not been received to reopen a claim of entitlement to service connection for a respiratory disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 7. The February 2008 rating decision is final with regard to the issue of entitlement to service connection for erectile dysfunction. New and material evidence has not been received to reopen a claim of entitlement to service connection for erectile dysfunction. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was not afforded a VA examination for GERD, but the Board finds that an examination is not warranted. As discussed in further detail below, the probative evidence does not show that there is any indication that the Veteran's current GERD may be associated in any way with the Veteran's service. Additionally, as discussed below, the Veteran's lay etiology opinion is not competent evidence. Therefore, the duty to obtain a medical opinion has not been triggered in connection with this issue. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board accordingly concludes that no examination is required to support the Board's adjudication of the claim of entitlement to service connection for GERD. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Diabetes Mellitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of diabetes mellitus to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As discussed below, the preponderance of the evidence does not establish that the Veteran has had diabetes mellitus during the period on appeal. Therefore presumptive service connection is not warranted. VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current law. The list of those diseases includes diabetes mellitus, type II. 38 C.F.R. § 3.309(e). However, as discussed below, the preponderance of the evidence does not establish that the Veteran has had diabetes mellitus during the period on appeal. Therefore presumptive service connection is not warranted. The Veteran seeks service connection for diabetes mellitus, type II. Because the Veteran's service records indicate service in the Republic of Vietnam from September 1966 to September 1967, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110. Thus, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually had the disability for which service connection is sought at any time during the period on appeal. In the absence of proof of a disability during that period, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The period on appeal began in August 2014, when VA received the Veteran's claim for service connection. The Veteran was afforded a VA examination in September 2014. The examiner reviewed the relevant laboratory results from the Veteran's VA treatment records and found that the criteria for a diagnosis of diabetes were not met. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to diagnose himself with diabetes, including an ability to accurately interpret laboratory testing results. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Veteran's opinion that he has diabetes mellitus, type II, is not a competent medical opinion and it cannot be assigned any probative weight. Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the Veteran's lay contentions. The VA examiner has found that the Veteran does not have diabetes mellitus, type II and there is no evidence in the Veteran's treatment records that he has ever been diagnosed with diabetes mellitus, type II. Upon review of the lay and medical evidence of record, the Board concludes that the Veteran is not entitled to service connection for diabetes mellitus, type II. As the evidence does not establish that the Veteran had a diagnosis of diabetes during the period on appeal, the Board finds that service connection is not warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,"); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). GERD The Veteran has a current diagnosis of GERD. He contends that this disability is related to his active duty service, but does not raise any specific theory of nexus. Because the Veteran, in a statement attached to his June 2016 substantive appeal (VA Form 9), generally contended that "[a]ll elements are service connected to Agent Orange," to give the Veteran the benefit of the doubt, the Board will assume that he is contending that his GERD is due to exposure to herbicides during his active duty service. As stated above, the Veteran is presumed to have been exposed to herbicides. The record does not reflect, and the Veteran does not contend, that GERD had its onset in service. The Veteran's service treatment records do not reflect any symptoms or complaint of, or diagnosis of GERD. The earliest mention of GERD is in a November 2001 VA treatment record, more than 30 years after the Veteran's separation from active duty service. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, the Veteran is not competent to provide an etiology opinion for his GERD. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to render an opinion on the etiology of GERD. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the lay statements express an opinion that the Veteran's GERD is etiologically related to active duty service including as due to herbicide exposure, they are not competent medical opinions and they cannot be assigned any probative weight. Certain diseases are deemed associated with herbicide exposure under current law. The list of those diseases does not include GERD. 38 C.F.R. § 3.309(e). However, a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran does not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis. However, the record contains no evidence, other than the Veteran's implied assertion, that his GERD was caused or exacerbated by his active duty service, including as a result of exposure to herbicides. As stated above, that assertion cannot be assigned any probative weight. Moreover, the record contains no competent evidence that it is possible for exposure to herbicides to cause or aggravate GERD. Because the preponderance of the evidence is thus against finding that the Veteran's GERD is etiologically related to his active duty service, entitlement to service connection for GERD is denied. In reaching the conclusions above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Heart - New and Material Evidence The Veteran contends that he has a heart disability that is etiologically related to his active duty service, including as due to exposure to herbicides. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. 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 is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, 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, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The RO denied the Veteran service connection for a heart disability in a February 2008 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the rating decision. Therefore, the February 2008 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the February 2008 denial was a lack of evidence that any current heart disability was etiologically related to active duty service. At that time, there was also no evidence of a current heart disability, other than the Veteran's March 2007 statement that "I am not sure that I have a heart problem, but I have been prescribed a heart medication." The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the RO in February 2008, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a heart disability as a result of active duty service, including exposure to herbicides. The evidence that was of record at the time of the February 2008 rating decision included the Veteran's service treatment records, VA treatment records, and the Veteran's March 2007 statement. Since the February 2008 rating decision, the Veteran was afforded a VA examination in September 2014 in which the examiner diagnosed him with hypertensive heart disease. As the record now contains more evidence pertinent to the issue of a current disability than it did in February 2008, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. Psychiatric Disorder - New and Material Evidence The RO denied the Veteran service connection for PTSD in a May 2004 rating decision. He submitted a Notice of Disagreement in November 2004 but did not perfect an appeal within one year of the rating decision or within 60 days of the July 2006 SOC. Therefore, the May 2004 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the May 2004 denial was a lack of evidence of a current diagnosis of PTSD or that the Veteran's alleged stressors occurred. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the RO in May 2004, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a psychiatric disability as a result of his active duty service, including an in-service stressor. The evidence that was of record at the time of the May 2004 rating decision included the Veteran's service treatment records and VA treatment records. Since the May 2004 rating decision, the Veteran's VA treatment records show diagnoses of an anxiety disorder, a depressive disorder, and PTSD. He was afforded VA examinations in May 2014 and September 2014 and the examiner diagnosed a neurocognitive disorder. As the record now contains more evidence pertinent to the issue of a current disability than it did in May 2004, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. Vision Disability - New and Material Evidence The Veteran contends that he has a vision disability that is etiologically related to his active duty service, including as due to exposure to herbicides. The RO denied the Veteran service connection for an eyesight disability in a February 2008 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the rating decision. Therefore, the February 2008 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the February 2008 denial was a lack of evidence that any current eyesight disability was etiologically related to active duty service, including as a result of exposure to herbicides. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the RO in February 2008, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a vision disability as a result of an in-service injury or illness or in-service herbicide exposure. The evidence that was of record at the time of the February 2008 rating decision included the Veteran's service treatment records and VA treatment records. At the time, he had been diagnosed with cataracts in each eye. Since the February 2008 rating decision, the Veteran has reported cataract surgery in both eyes. His VA treatment records also note cataract surgery. This is not evidence of a nexus to service and there is no new evidence in the record on the issue of nexus to service. The Veteran has not presented any non-cumulative evidence which indicates that there is a nexus between any current vision disability and any injury or illness in service or in-service herbicide exposure. Because the evidence received since the last final decision is cumulative of the evidence already of record and does not provide a reasonable possibility of substantiating the claim, the Veteran has not submitted and VA has not otherwise received new and material evidence and the claim of entitlement to service connection for a vision disability is not reopened. Respiratory Disability - New and Material Evidence The Veteran contends that he has a respiratory disability that is etiologically related to his active duty service, including as due to exposure to herbicides. The RO denied the Veteran service connection for emphysema in a February 2002 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the rating decision. Therefore, the February 2002 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the February 2002 denial was a lack of evidence that any current respiratory disability was etiologically related to active duty service, including as a result of exposure to herbicides. Although the rating decision listed the issue under consideration as service connection for emphysema, in reaching its decision, the RO also considered service connection for the Veteran's COPD and bronchitis. The RO denied the Veteran's request to reopen his claim of service connection for emphysema in an August 2003 rating decision. He submitted a Notice of Disagreement in February 2004 but did not perfect an appeal within one year of the rating decision or within 60 days of the July 2004 SOC or the April 2005 Supplemental Statement of the Case (SSOC). Therefore, the August 2003 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the August 2003 denial was a lack of new and material evidence of nexus to service. The RO denied the Veteran's request to reopen his claim of service connection for emphysema again in a February 2008 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the rating decision. Therefore, the February 2008 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the February 2008 denial was a lack of new and material evidence of nexus to service. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the RO in February 2008, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a respiratory disability as a result of an in-service injury or illness or in-service herbicide exposure. The evidence that was of record at the time of the February 2008 rating decision included the Veteran's service treatment records and VA treatment records, as well as his lay contentions of a nexus to service due to exposure to herbicides and burning human waste. Since the February 2008 rating decision, the Veteran contended in a June 2016 statement that his emphysema was secondary to his sleep apnea. There is no evidence in the record to support this new theory of service connection. Although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C. § 7104 (b) (2012)]," any evidence supporting the Veteran's new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Veteran has not presented any non-cumulative evidence which indicates that there is a nexus between any current respiratory disability and any injury or illness in service, exposure to herbicides in service, or service-connected disability. Because the evidence received since the last final decision is cumulative of the evidence already of record and does not provide a reasonable possibility of substantiating the claim, the Veteran has not submitted and VA has not otherwise received new and material evidence and the claim of entitlement to service connection for a respiratory disability is not reopened. Erectile Dysfunction - New and Material Evidence The Veteran contends that he has erectile dysfunction that is etiologically related to his active duty service, including as due to exposure to herbicides. The RO denied the Veteran service connection for erectile dysfunction in a February 2008 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the rating decision. Therefore, the February 2008 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the February 2008 denial was a lack of evidence that any current erectile dysfunction was etiologically related to active duty service, including as a result of exposure to herbicides. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the RO in February 2008, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has erectile dysfunction as a result of an in-service injury or illness or in-service herbicide exposure. The evidence that was of record at the time of the February 2008 rating decision included the Veteran's service treatment records and VA treatment records. Since the February 2008 rating decision, the Veteran contended in a June 2016 statement that his erectile dysfunction was secondary to medication for his heart disability. There is no evidence in the record to support this new theory of service connection. Although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C. § 7104 (b) (2012)]," any evidence supporting the Veteran's new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs, 520 F.3d at 1336-37. The Veteran has not presented any non-cumulative evidence which indicates that there is a nexus between any current erectile dysfunction and any injury or illness in service, exposure to herbicides in service, or service-connected disability. Because the evidence received since the last final decision is cumulative of the evidence already of record and does not provide a reasonable possibility of substantiating the claim, the Veteran has not submitted and VA has not otherwise received new and material evidence and the claim of entitlement to service connection for erectile dysfunction is not reopened. ORDER Service connection for diabetes mellitus, type II is denied. Service connection for GERD is denied. New and material evidence having been received, the claim of entitlement to service connection for a heart disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disability is reopened. New and material evidence has not been received; as such, the application to reopen a claim of entitlement to service connection for a vision disability is denied. New and material evidence has not been received; as such, the application to reopen a claim of entitlement to service connection for a respiratory disability is denied. New and material evidence has not been received; as such, the application to reopen a claim of entitlement to service connection for erectile dysfunction is denied. REMAND The Veteran was most recently afforded a VA examination of his heart in September 2014. The September 2014 examiner diagnosed hypertensive heart disease, but did not provide an opinion as to its etiology and did not clarify whether this is a condition distinct from hypertension. A remand for an addendum opinion is therefore warranted. The Veteran was most recently afforded a VA psychiatric examination in May 2014 and September 2014, by the same VA examiner. The examiner diagnosed a neurocognitive disorder, but did not provide an opinion as to its etiology. A remand for an addendum opinion is therefore warranted. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's VA treatment records note a diagnosis of obstructive sleep apnea and the Veteran ascribes this to herbicide exposure and to disruption of his sleep patterns during his wartime service. For these reasons, a VA examination is necessary. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Return the Veteran's claims file to the examiner who conducted the September 2014 examination so a supplemental opinion may be provided regarding the Veteran's claim of service connection for a heart disability. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide opinions as to the following: a. Is hypertensive heart disease a condition distinct from hypertension? b. If the Veteran has a heart disability distinct from hypertension, including hypertensive heart disease, is it at least as likely as not (50 percent or greater probability) that the Veteran's heart disability began during active service or is related to an incident of service, including exposure to herbicides? The examiner is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran's heart disability is not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Schedule the Veteran for an examination with an appropriate clinician for his psychiatric disability who has not previously examined him. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide opinions as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a psychiatric disability, including anxiety, depression, PTSD, and a neurocognitive disorder, that began during active service or is related to an incident of service. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: a. The January 2006 VA treatment record diagnosing anxiety and depression, b. The June 2006 VA treatment record stating that the Veteran had been receiving individual treatment for PTSD on a monthly basis since February 2004, c. The May 2014 and September 2014 VA examiner's diagnosis of a neurocognitive disorder. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Schedule the Veteran for an examination with an appropriate clinician for his sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinions as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has sleep apnea that began during active service or is related to an incident of service, including exposure to herbicides. Although an independent review of the claims file is required, the Board calls the examiner's attention to the Veteran's June 2014 contention that his wartime service disrupted his sleep patterns due to constant interruption and they never fully recovered. The examiner is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran's sleep apnea is not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs