Citation Nr: 21064334 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-03 241 DATE: October 19, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. In an unappealed September 2016 decision, the Board denied the Veteran's claim of entitlement to service connection for erectile dysfunction. 2. The evidence added to the record since the September 2016 decision is new and raises a reasonable possibility of substantiating the Veteran's claim for service connection for erectile dysfunction. CONCLUSIONS OF LAW 1. The September 2016 Board decision denying the Veteran's claim of entitlement to service connection for erectile dysfunction is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to May 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2011 and May 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran and another witness testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In May 2019 and July 2020, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. An August 2021 rating decision granted entitlement to service connection for PTSD. This represents a full grant of the benefit sought, therefore that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). 1. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the AOJ, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Unless the Chairman orders reconsideration, or one of the other exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. Therefore, the September 2016 Board decision is final based on the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108. New evidence is defined as 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Board notes that the Veteran has consistently claimed that his erectile dysfunction is secondary to his PTSD. The September 2016 Board decision, in pertinent part, denied the Veteran's claim of entitlement to service connection for erectile dysfunction as neither the Veteran's PTSD nor his erectile dysfunction had been found to be connected to his active duty service. As stated above, the Veteran is now service-connected for PTSD. This evidence is both new and material to the extent that the Veteran may now show that his erectile dysfunction is secondary to his PTSD. The additional evidence is therefore so significant that it must be considered in order to fairly decide the merits of the claim. As such, the Board finds that the evidence submitted since the last final denial of the claim meets the new and material evidence standard, and thus the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The July 2020 Board remand directed the RO to obtain a medical opinion regarding the etiology of the Veteran's hypertension. The examiner was directed to consider and address the findings by the National Academy of Science (NAS) that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and exposure to an herbicide agent. See NAS, Veterans and Agent Orange: Update 11 (2018). The September 2020 medical opinion provided a negative nexus opinion, stating that hypertension is not a condition under the presumptive guidelines. As the September 2020 examiner did not address the NAS study, a remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Veteran has asserted that his hypertension is secondary to his PTSD. See February 2016 Hearing Transcript. As the Veteran is now service-connected for PTSD, the Board finds a remand is required to obtain an opinion addressing whether his hypertension is secondary to his PTSD. See 38 C.F.R. §§ 3.303, 3.310; McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for erectile dysfunction is remanded. As stated above, the Veteran is now service-connected for PTSD. Accordingly, the Board finds a remand is required to obtain an opinion addressing the nature and etiology of the claimed disorder. 38 C.F.R. § 3.310; McLendon, 20 Vet. App. 79. Finally, as this matter is being remanded, the Veteran's updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran's updated VA treatment records, dated from September 2020, forward. 2. Thereafter, refer the claims file to an appropriate medical professional to provide an opinion. The Veteran should not be scheduled for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) unless deemed necessary by the VA medical opinion provider. Following a review of the claims file, the VA examiner is asked to provide the following opinions: (a) Hypertension (i) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is etiologically related to his conceded in-service exposure to herbicide agents. The clinician is advised that the sole basis of a negative opinion cannot be that hypertension is not on the list of diseases subject to presumptive service connection based on exposure to herbicide agents. The examiner must specifically address the recent 2018 NAS report update showing hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. (ii) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is due to or the result of his service-connected PTD, to include any medication prescribed? (iii) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension has been aggravated (increased in severity beyond the natural progression of the disorder) by his service-connected PTSD, to include any medication prescribed? (b) Erectile Dysfunction (i) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's erectile dysfunction is due to or the result of his service-connected PTD, to include any medication prescribed? (ii) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's erectile dysfunction has been aggravated (increased in severity beyond the natural progression of the disorder) by his service-connected PTSD, to include any medication prescribed? A complete rationale should be provided for all opinions stated. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.