Citation Nr: 21074111 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-39 591 DATE: December 14, 2021 ORDER New and material evidence having been received, entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is reopened. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Entitlement to service connection for erectile dysfunction was denied in a February 2012 rating decision; the Veteran did not appeal that decision and new and material evidence was not received within a year of the decision. 2. The evidence received since the February 2012 rating decision is new, and is material as it relates to an unestablished fact necessary to substantiate the claim for service connection for erectile dysfunction. CONCLUSIONS OF LAW 1. The February 2012 rating decision that denied service connection for erectile dysfunction is final. 38 U.S.C. § 7104 (b); 38 C.F.R. §§ 20.302, 20.1103. 2. The evidence added to the record since the February 2012 rating decision is new and material; the claim for entitlement to service connection for erectile dysfunction is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to March 1970. These matters come to the Board on appeal from an October 2015 VA Regional Office decision. The Veteran initially requested a video-conference hearing before the Board, but withdrew his request in a November 2021 correspondence. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. New and material evidence having been received, entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is reopened. An October 2007 VA rating decision initially denied entitlement to service connection for erectile dysfunction. The matter remained open until a denial in July 2008. The Veteran did not appeal that decision nor was new and material evidence received within one year of the 2008 decision. That decision became final. Then, the Veteran filed a claim to reopen in June 2011. A February 2012 VA decision reopened the matter, but did not grant service-connection. The Veteran did not appeal that decision nor was new and material evidence received within one year of the 2012 decision. Thus, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran again claimed entitlement to service connection for erectile dysfunction in April 2014, and the matter was again denied in February 2015 and October 2015. The Veteran's appeal of this decision forms the basis of the present appeal. The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issue going to the merits. 38 C.F.R. § 20.1105. The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is received or submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Since the last final rating decision in February 2012, the Board has received an October 2015 VA medical opinion that attributes the Veteran's erectile dysfunction, at least in part, to service-connected disabilities. This new evidence relates to an unestablished fact, a proximate link between a current disability and a service-connected disability, necessary to substantiate the claim. See 38 C.F.R. § 3.156. Therefore, the evidence is new and material. Accordingly, the claim of entitlement to service connection for erectile dysfunction is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded. The Veteran initially claimed entitlement to service connection for erectile dysfunction as secondary to his service-connected Hodgkin's disease. The Veteran also stated that he was unable to treat his disability due to the medications he took for a heart disability. That heart disability has since been service-connected. The Veteran also contended that his disability is due to his service-connected diabetes mellitus. An April 2008 VA examination found that his erectile dysfunction was most likely not due to his diabetes, and indicated that it was most likely due to age, hyperlipidemia, hypertension, and medications therefor. The Veteran then alleged that his disability was due to his heart disability. An August 2011 VA examination found that his disability was most likely due to high cholesterol, hypertension, and medications therefor. A December 2013 VA examination that focused on the Veteran's service-connected prostate cancer attributed the Veteran's erectile dysfunction to hypertension, hyperlipidemia, service-connected diabetes type II, and unspecified medications. A May 2012 private urological treatment note discusses the risk of erectile dysfunction due to radiation treatment for his service-connected prostate cancer. An October 2014 VA examiner found that the Veteran's erectile dysfunction was less likely than not related to his prostate cancer, and noted that the Veteran had erectile dysfunction since 2006, well before his diagnosis of prostate cancer in 2012. A note from the Veteran's private medical provider in January 2015 stated that the Veteran's erectile dysfunction is due to his prostate cancer, but did not provide rationale for the conclusion. A July 2015 VA diabetes examination did not indicate that the Veteran's erectile dysfunction was a result of diabetes mellitus. A VA prostate examination from the same time concluded that the Veteran's erectile dysfunction was a result of his prostate cancer treatments, although the onset in 2006 was not discussed. VA sought to clarify the medical opinions of record, and obtained a medical opinion in October 2015. The VA examiner reviewed the record and found that the Veteran's erectile dysfunction was less likely than not secondary to his prostate cancer. The examiner found that it was more likely that the Veteran's disability was more likely secondary to numerous risk factors for erectile dysfunction. The examiner noted the onset in 2006, prior to prostate cancer, and the absence of new complaints after his prostate cancer treatment. However, the examiner then stated that his medical opinion was that the Veteran's erectile dysfunction was most likely caused by or the result of "hypertension, hyperlipidemia, diabetes mellitus type II, prostate cancer, and the use of numerous medications with adverse effects." The examiner reasoned that because the Veteran's disability was most likely due to a multitude of issues in the aggregate, it was less likely due singularly to prostate cancer itself. The Board finds the October 2015 VA examiner's opinion inadequate for decision-making purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner attributed the Veteran's erectile dysfunction, in part, to two different service-connected disabilities. The examiner's opinion does not address conflicting evidence with regard to whether the Veteran's erectile dysfunction is proximately due to or aggravated by diabetes mellitus. The examiner also does not address the Veteran's contention that he cannot treat his erectile dysfunction due to heart medication. The evidence is not sufficient to determine whether it is at least as likely as not that the Veteran's erectile dysfunction is proximately due to or aggravated by all of his service-connected disabilities. Thus, on remand, an addendum opinion must be obtained to determine whether it is at least as likely as not that the Veteran's erectile dysfunction is proximately due to or aggravated by his service-connected disabilities, to include specifically diabetes mellitus, a heart disability, and prostate cancer. With respect to the contention that service connection is warranted based on the notion that medication for a service-connected disorder prevents treatment for the erectile dysfunction, the Board is aware of the Court's decision in Spicer v. McDonough, 34 Vet.App. 310 (2020). The Board nevertheless finds that an opinion on the matter would be helpful, and will make a determination at a later point as to whether Spicer applies. This remand should not be read as a determination by the Board at this stage as to whether or not Spicer applies. By this remand. The Board makes no determination, express or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Forward the record and a copy of this remand to the VA examiner who provided the October 2015 VA opinion, or to a suitably qualified VA examiner if unavailable for completion of an addendum opinion. The examiner must review the entire record on appeal. The examiner must offer an opinion as to whether: a) It is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is proximately due to a service-connected disability, to include diabetes mellitus, a heart disability, and prostate cancer, either individually or in combination. b) It is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is aggravated by a service-connected disability, to include diabetes mellitus, a heart disability, and prostate cancer, either individually or in combination. (Continued on the next page) The examiner must address the medical evidence of record attributing the Veteran's erectile dysfunction to his diabetes and prostate cancer. The examiner should also address the Veteran's contention that his heart medication prevents him from treating his erectile dysfunction with regard to aggravation. A complete rationale must accompany any conclusion reached. 2. After completion of the above, readjudicate the issue on appeal and if any benefit sought remains denied issue the Veteran and his representative a Supplemental Statement of the Case. Allow an appropriate time for response and return the matter to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.