Citation Nr: 18153498 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-11 457A DATE: November 28, 2018 ORDER The appeal as to the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension is dismissed. The appeal as to the issue of entitlement to service connection for hepatitis C is dismissed. The application to reopen a claim of service connection for an acquired psychiatric disorder is granted. The application to reopen a claim of service connection for erectile dysfunction is granted. Entitlement to service connection for an acquired psychiatric disability, diagnosed as a dysthymic disorder not otherwise specified (NOS), is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. In a December 2016 statement, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim of whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension. 2. In a December 2016 statement, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim of entitlement to service connection for hepatitis C. 3. In a March 2007 rating decision, the RO denied entitlement to service connection for posttraumatic stress disorder (PTSD). The Veteran did not appeal this decision, and new and material evidence was not received within one year after it was issued. 4. Evidence received since the March 2007 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for PTSD. 5. In a March 2007 rating decision, the RO denied entitlement to service connection for erectile dysfunction. The Veteran did not appeal this decision, and new and material evidence was not received within one year after it was issued. 6. Evidence received since the March 2007 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for erectile dysfunction. 7. The evidence is at least evenly balanced as to whether the Veteran’s acquired psychiatric disability, diagnosed as dysthymic disorder, is due to his combat service. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of an appeal of the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension are met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for a withdrawal of an appeal of the issue of entitlement to service connection for hepatitis C are met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The March 2007 rating decision that denied the Veteran’s claim for entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 4. Since the March 2007 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The March 2007 rating decision that denied the Veteran’s claim for entitlement to service connection for erectile dysfunction is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 6. Since the March 2007 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for erectile dysfunction. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability, diagnosed as dysthymic disorder, are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to May 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO continued and confirmed the previous denials for service connection for an acquired psychiatric disorder (characterized by the RO as PTSD, to include depression), erectile dysfunction and hypertension. The RO also denied entitlement to service connection for hypertension. In April 2016, the Veteran requested a Board hearing. In an October 2018 statement, the Veteran withdrew his hearing request. Accordingly, the hearing request is deemed withdrawn. The acquired psychiatric disorder claim has been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a December 2016 statement, prior to the promulgation of a decision in the appeal, the Veteran, through his attorney, withdrew his appeal as to the issues of whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension and entitlement to service connection for erectile dysfunction. The attorney referenced an attachment to the March 2016 substantive appeal (VA Form 9) in which he indicated that the Veteran continued to disagree with all aspects of the RO decisions except the hypertension and hepatitis C, which he “wishes to drop pursuit of.” Given the repeated and definitive nature of the withdrawal by the attorney and his reference to the other claims not being withdrawn, the Board finds that the withdrawal is “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Hence, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Cf. Acree v. O’Rourke, 891 F.3d 1009, 1013, n. 2 (Fed. Cir. 2018) (“Resolution of Acree’s appeal turns on the requirements necessary for an effective oral withdrawal of a claim at a board hearing. We express no view on the criteria that must be satisfied when a veteran submits a written request to withdraw a claim”). Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, 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 generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (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. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, 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 “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Whether new and material evidence has been received to reopen the claims for entitlement to service connection for an acquired psychiatric disorder and erectile dysfunction. In a March 2007 rating decision, the RO denied the Veteran’s claims for service connection for PTSD and erectile dysfunction. The Veteran’s service connection claim for PTSD was denied on the basis that there was no current diagnosis of PTSD. The Veteran’s service connection claim for erectile dysfunction was denied on the basis that the disability did not incur in or was caused by service. The Veteran did not appeal that decision, nor was new and material evidence associated with the record within one year of its issuance. Accordingly, the March 2007 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the March 2007 rating decision consisted of the Veteran’s service treatment records (STRs) and VA treatment records. The Veteran’s VA treatment records included diagnoses of major depression. See VA treatment records dated November 2005 and February 2007. In June 2012 the Veteran submitted applications to reopen his previously denied claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, and erectile dysfunction. Relevant evidence received after the March 2007 rating decision includes the Veteran’s statements and a May 2013 VA examination report. Specifically, the VA examination report shows a current diagnosis of dysthymic disorder. Moreover, the Veteran’s statements include his reports that he has experienced psychiatric symptoms, such as behavioral problems, since service. The Veteran is presumed credible in his reports for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 513. As to the erectile dysfunction, the Veteran asserts that his erectile dysfunction is due to his acquired psychiatric disorder, to include his medication used to treat his acquired psychiatric disorder. This is a theory of entitlement to service connection that not previously considered. While a new theory of entitlement is not itself a basis for reopening a claim, Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (“A new theory of causation for the same disease or injury that was subject of a previously denied claim cannot be the basis of a new claim”), here there is also new evidence, for example, the types of medication that the Veteran has been taking. Moreover, in determining whether the low threshold for reopening 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. Id. at 118. Accordingly, the evidence received since the March 2007 rating decision is new and material evidence, and reopening of the claims of service connection for an acquired psychiatric disorder and erectile dysfunction is therefore warranted. 38 C.F.R. § 3.156. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran engaged in combat and the claimed stressor is related to combat, the veteran’s lay testimony alone generally is sufficient to establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances of the Veteran’s service. 38 C.F.R. § 3.304(f)(2). Entitlement to service connection for an acquired psychiatric disability. The Veteran reports that he has experienced acquired psychiatric symptoms in and since combat service in the Republic of Vietnam. See, e.g., Veteran’s statement dated August 2017. He asserts that during service, his military duties included working in security at an air force base in Da Nang, which was consistently attacked by rockets and mortars. Id. He indicates that in July 1967, the air force base was hit by a mortar and his unit provided security along the perimeters of the base. He indicates that was the first time that he became under fire. Thereafter, he reports that he was injured during one of the mortar attacks. Id. For the following reasons, entitlement to service connection for an acquired psychiatric disability, specifically a dysthymic disorder, is warranted. The evidence shows that the Veteran has a current diagnosis of an acquired psychiatric disability, specifically dysthymic disorder. See VA examination report dated May 2013. Therefore, a current diagnosis element is met. As to the in-service disease or injury element, the evidence of record, including the Veteran’s service records are indicative of combat although the Veteran has not received a medal that is one of those listed in the VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated September 11, 2015) (listing Decorations that are evidence of combat participation). While the Adjudication Manual is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), in this situation it provides useful guidance as to decorations that would allow for a combat determination. In the absence of such a decoration, however, the combat determination must be made on a case by case basis. See VAOPGCPREC 12-99 (October 18, 1999). In this case, the Veteran’s service records show that his military duties included counter insurgency operations in the Republic of Vietnam. Notably, the RO has conceded that the Veteran served in the Republic of Vietnam. Importantly, a July 1967 STR reflects that the Veteran was under enemy rocket and mortar attack while in Da Nag Air Base and he sustained a flesh wound to the right shoulder. Therefore, the evidence supports that the Veteran engaged in combat. See Gaines v. West, 11 Vet. App. 353, 359 (1998) (holding that evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements and an “almost unlimited” variety of other types of evidence.). The finding that the Veteran engaged in combat is significant because VA laws and regulations allow a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)). See also 38 C.F.R. § 3.304 (d). In this case, the Veteran’s dysthymic disorder due to combat has been accepted as satisfying the in-service disease or injury element. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record); Reeves, 682 F.3d 988, 999 (Fed. Cir. 2012). Based on the service records, the evidence submitted by the Veteran, and by applying 38 U.S.C.§ 1154 (b), the Board concludes that the Veteran had psychiatric symptoms during his military service as due to his combat operations. Therefore, the in-service disease or injury element has been met. The remaining question is whether there is a relationship between the Veteran’s dysthymic disorder and his combat military service. There is one opinion that addresses the etiology of the Veteran’s dysthymic disorder. In May 2013, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran’s dysthymic disorder is less likely than not related to the Veteran’s military service. The examiner reasoned that the Veteran was not treated for depression during service. The May 2013 opinion is afforded no probative value as the examiner did not provide a rationale for his negative opinion, other than indicating that the Veteran was not treated for depression during service. The reliance on the absence of records of treatment during service for a negative medical opinion is precisely what the combat rules were designed to prevent. Congress enacted the combat law, now codified at 38 U.S.C. § 1154(b) because of its concern that combat veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Moreover, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. In addition, the examiner did not consider the Veteran’s reports of psychiatric symptoms since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (“the medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant’s current disability and his military service”). In sum, the evidence shows that the Veteran was injured in combat while stationed in Da Nang, Vietnam. Furthermore, the Veteran reports that he has had psychiatric symptoms since service, due to his combat service. Importantly, the veteran is competent to testify regarding continuous symptoms since service. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). Notably, the Veteran’s private treatment records indicate a “history of depression.” See, e.g., private treatment record dated December 2012. The Veteran’s statements have been consistent with the evidence of record and there has been no evidence to contrary. Therefore, the Veteran’s lay statements that he suffered psychiatric symptoms since service are competent and credible. The evidence is thus at least evenly balanced as to whether the Veteran’s dysthymic disorder is related to his combat service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for dysthymic disorder is warranted. 38 U.S.C. §5107 (b); 38 C.F.R. §3.102. To the extent that other psychiatric disorders have been diagnosed, there is no indication that there are distinct psychiatric symptoms attributable to such disorders, and all psychiatric symptoms will therefore be attributed to the now service-connected dysthymic disorder. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Consequently, consideration of whether other psychiatric disorders are related to service is unnecessary. REASONS FOR REMAND Entitlement to service connection for erectile dysfunction is remanded. The Veteran claims that his erectile dysfunction is secondary to his now service-connected acquired psychiatric disorder, diagnosed as dysthymic disorder, specifically the medication used to treat his dysthymic disorder. See VA Form 9 dated March 2016. This is a valid theory of entitlement. See, e.g., Wanner v. Principi, 17 Vet. App. 4, 8 (2003) (noting that “the Board awarded service connection for tinnitus as ‘the result of treatment for a service-connected disability’”), rev’d on other grounds, 370 F.3d 1124 (Fed. Cir. 2004); Velez v. West, 11 Vet. App. 148, 157 (1998) (discussing “an implicit secondary-service-connection claim that his gastrointestinal disorder was the result of, inter alia, pain medication taken for his service-connected right-shoulder condition”); Jones v. Brown, 7 Vet. App. 134, 137 (1994) (reviewing Board’s denial of service connection for glaucoma as secondary to treatment for blepharoconjunctivitis). Private treatment records show a diagnosis of erectile dysfunction. See, e.g., private treatment record dated April 2016. The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the etiology of erectile dysfunction. As the evidence indicated that the Veteran has a current disability, erectile dysfunction, that may be associated with his now service-connected acquired psychiatric disorder, a remand is warranted to obtain a medical opinion. The matter is REMANDED for the following action: 1. Refer the claims file to an appropriate physician with expertise to address the etiology of the Veteran’s erectile dysfunction. The physician is requested to review the claims file in its entirety. The physician must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the service-connected dysthymic disorder, to include medication used to treat this disorder, either (a) caused or (b) aggravated his erectile dysfunction. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The physician must provide a rationale for any opinion rendered. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel