Citation Nr: 18146339 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-37 202 DATE: October 31, 2018 ORDER The petition to reopen a previously denied claim of entitlement to service connection for diabetes mellitus, Type II, (DMII) is denied. Entitlement to service connection for erectile dysfunction is denied. FINDINGS OF FACT 1. An unappealed September 2012 rating decision denied service connection for DMII based on the finding that the condition was not shown to be related to the Veteran’s active duty service. 2. Evidence received subsequent to the September 2012 rating decision is either redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for DMII. 3. Erectile dysfunction was not shown in service or for many years thereafter, and has not been found to be etiologically related to service or secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The September 2012 rating decision, which denied entitlement to service connection for DMII, is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has not been received sufficient to reopen the previously denied claim of entitlement to service connection for DMII. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from October 1985 to January 1992. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). New and Material Evidence New evidence means 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. 1. Diabetes Mellitus, Type II In September 2012, the Veteran’s claim of entitlement to service connection for DMII was denied due to a lack of nexus that the condition was related to active duty service. The September 2012 rating decision was not appealed and new and material evidence was not received within a year. The rating decision thereby became final. The Veteran’s claim to reopen was received in September 2014. Since the September 2012 decision, no new evidence has been received to show that DMII is related to service, or that the condition manifested to a compensable degree within the time period specified for service connection on a presumptive basis under 38 C.F.R. § 3.307. While the Board does note additional medical information of record, the Board observes that such treatment records have no bearing or relation to the specific matter under consideration, as they do not establish a medical nexus between the current condition and active service. Therefore, these records are not material as it does not relate to any unestablished fact necessary to substantiate the claim. In sum, the unestablished facts that were missing at the time of the September 2012 denial of service connection have not been presented. All the evidence together does not raise a reasonable possibility of substantiating the claim for service connection. Therefore, the Board finds that new and material evidence has not been presented, and the claim for entitlement to service connection for diabetes mellitus, type II, cannot be reopened. 38 C.F.R. § 3.156(a). 2. Erectile Dysfunction The Veteran seeks entitlement to service connection for erectile dysfunction, which he contends is secondary to his service-connected hypertension, to include medications taken for hypertension. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38C.F.R § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). As explained below, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for erectile dysfunction. In so finding, the Board acknowledges that the Veteran’s medical treatment records confirm a clinical diagnosis of erectile dysfunction. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). But, as the determinative issue involves the etiological connection between the current condition and a service-connected disability, competent medical evidence is required. In this regard, the Board finds the July 2016 VA examination report highly persuasive and constitutes the most probative medical evidence of record. The July 2016 report reflects the Veteran’s reported history of erectile dysfunction. Citing to a thorough review of the medical evidence and upon clinical examination of the Veteran, the physician concluded that the Veteran’s erectile dysfunction is less likely caused or due to the service-connected hypertension. In his rationale, the physician specifically indicated that “erectile dysfunction started in or around 2001 and is 7-8 years before the hypertension was treated with medications.” The physician noted that hypertension was diagnosed in February 2009 and has existed for 20 years. See Male Reproductive Organ Conditions Disability Benefits Questionnaire dated July 2016. In view of the above, the Board finds that there is simply no competent medical evidence of record to support a finding that the Veteran’s erectile dysfunction is due to medication taken for hypertension. The Board further observes that the above medical opinion is based on a comprehensive review of the Veteran’s claims file, consideration of lay evidence of record, and provide a sufficient rationale to support the examiner’s conclusion. The opinion provides substantial reasoning and explanation as to why the Veteran’s current condition is not etiologically related to service-connected hypertension. The opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Accordingly, the Board finds great probative value in the July 2016 medical opinion. Further, consideration has been given to the Veteran’s assertions that his erectile dysfunction is related to his service-connected disability, to include the medications taken to treat his hypertension. While the Veteran is competent to report symptoms observable to a layperson, to the extent that he seeks to establish a nexus between a current disability and service or onset in service or a service-connected disability, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. Davidson v. Shinseki, 581 F.3d 1313 (2009). For this purpose, the Board finds that the Veteran’s statements are not competent medical evidence. Moreover, the Board observes that his assertions are not supported by the objective medical evidence. As noted above, the Veteran’s erectile dysfunction started approximately eight years before his hypertension was treated with medications. Therefore, his assertions, standing alone, have little probative value and the Board assigns more weight to the medical opinion provided by the VA examiner. In sum, there is no medical evidence to support a finding of an etiological relationship between the Veteran’s currently diagnosed erectile dysfunction and his service-connected hypertension, to include any side effects of the medications used for the treatment of a service-connected disability. Thus, after weighing all the evidence of record, the Board observes that the July 2016 VA medical opinion stands uncontradicted by any other evidence found in the record and is significantly probative in determining whether the Veteran has substantiated his claim for service connection. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for erectile dysfunction. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel