Citation Nr: 21007752 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-40 738A DATE: February 10, 2021 ORDER 1. New and material evidence having been received, the claim for entitlement to service connection for erectile dysfunction (ED), as secondary to service-connected Diabetes Mellitus (DM), is reopened. 2. Service connection for ED, as secondary to service-connected DM, is granted. FINDINGS OF FACT 1. A July 2003 rating decision denied service connection for ED as secondary to service-connected DM. The Veteran did not appeal this decision, and no further evidence relevant to this service connection claim was submitted for a period of one year following the decision. 2. Evidence relevant to the Veteran’s claim for service connection for ED was submitted since the July 2003 decision and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim. 3. The Veteran is currently diagnosed with ED; the current ED is the result of the service-connected DM type II. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for ED, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for erectile dysfunction, as secondary to diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty in the United States Army from July 1964 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2003 rating decision. In his substantive appeal forms, the Veteran requested a hearing before a Veterans Law Judge. The Veteran was notified of the location, date, and time of his scheduled hearing, but he did not appear. He has not provided good cause for his failure to appear or sought to reschedule the hearing. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (d). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. 1. New and material evidence having been received, the claim for entitlement to service connection for erectile dysfunction, as secondary to service-connected Diabetes Mellitus (DM), is reopened. 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 with respect to that claim. The Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. This claim was initially denied in a July 2003 rating decision which found, in pertinent part, that the evidence does not show that ED is related to the service-connected condition of DM, nor is there any evidence of this disability during military service. The Veteran was provided notice of this decision, but no notice of disagreement or new and material evidence was submitted within one year and the decision became final. In connection with this claim to reopen, the Veteran submitted treatment records and a private opinion indicating that his ED was secondary to his service-connected DM. This is new and material, and a nexus to service-connected disability or service. The application to reopen the claim is granted. 2. Service connection for erectile dysfunction as secondary to service-connected DM is granted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110, 1131. In general, to establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran generally seeks service connection for erectile dysfunction as secondary to his service-connected diabetes mellitus. See June 2003 Statement in Support of Claim. The Veteran is currently diagnosed with erectile dysfunction. The question in this case is whether a causal relationship or nexus exists between the Veteran’s erectile dysfunction and diabetes mellitus and/or active service. After a review of all the lay and medical evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence demonstrates that the current erectile dysfunction is the result of his service-connected diabetes mellitus. An October 2003 VA Psychiatry-Attending note states the Veteran has multiple chronic medical problems including “diabetes with secondary peripheral neuropathy and erectile dysfunction.” In August 2015, a private physician opined that the Veteran’s ED is caused by his diabetes mellitus, type II, which he has been diagnosed with since 1981. The evidence of record does not contain a competent medical opinion to the contrary. The Board acknowledges the July 2003 VA opinion finding the Veteran’s ED was not caused or aggravated by his DM, but rather the result of hypogonadism caused by low testosterone levels. However, the Board finds this opinion to be of little probative value. Although the VA examiner determined that the Veteran’s ED was not caused or aggravated by his diabetes, no rationale was provided for the aggravation opinion. Moreover, the VA examiner failed to address the August 2001 urology report which indicated the Veteran’s improved testosterone levels since using a testosterone patch. This same entry notes the Veteran’s report of slight improvement in ED, as a result of the testosterone patch, but feeling it has not helped his ED enough. This treatment note is critical. In essence it casts doubt on the VA examiner’s conclusion that the Veteran’s ED is caused by low testosterone levels, because it shows that even after testosterone levels improved, the Veteran still had erectile complications. For these reasons, the Board finds the October 2003 VA Psychiatry-Attending note, and the August 2015 private physician opinion outweigh the July 2003 VA opinion. (Continued on the next page)   Based on the foregoing evidence, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the current erectile dysfunction is caused by the service-connected diabetes mellitus type II, and that service connection for erectile dysfunction as secondary to the service-connected diabetes mellitus type II is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. Because the Board is granting service connection on a secondary basis, all other theories of entitlement to service connection are rendered moot. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.