Citation Nr: 21009206 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 19-32 400A DATE: February 19, 2021 ORDER New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to a compensable rating for erectile dysfunction (ED) is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include PTSD and depression, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for PTSD was denied in a March 2016 rating decision because there was no evidence that the Veteran had a diagnosis of PTSD. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 2. The evidence which has been secured since the last final denial regarding entitlement to service connection for PTSD is both new and material. 3. For the entire period on appeal, there is no evidence of penile deformity associated with ED. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran’s claim of entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1145(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for a compensable rating for ED have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.31, 4.115b, Diagnostic Code (DC) 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1966 to April 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office. In December 2020, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See December 2020 Board Hearing Transcript. New and Material Evidence Generally, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. 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, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which, 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 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). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. 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 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In deciding whether new and material evidence has been submitted, 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 Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim have been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). 1. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for PTSD. The record reflects that the Veteran was originally denied service connection for PTSD in a March 2016 rating decision, with the Agency of Original Jurisdiction (AOJ) finding that the condition had not been diagnosed. The Veteran did not appeal the decision and accordingly that decision became final. 38 C.F.R. § 20.1103. Since the last final denial, VA treatment records noting diagnoses of PTSD and depression have been associated with the claims file. See Atlanta VA Medical Center (VAMC) records, received February 2020 in CAPRI. Additionally, the Veteran has submitted a statement from his spouse, reporting that he experiences nightmares, is jumpy, and is easily startled. See August 2018 Spousal Statement. Further, the Veteran testified before the undersigned VLJ in December 2020. The Board finds this evidence to be “new” as it was not previously of record. Further, the Board finds this evidence to be material as it concerns an unestablished fact as it pertains to a current disability. Given that there is new and material evidence, the claim is reopened. Notably, the claim requires further development, which is addressed in the remand section below. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the assignment of staged ratings may be warranted where the evidence contains factual findings that demonstrate a change in the severity of symptoms during the course of the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. When a claimant’s disability is not specifically listed in the DC, it is rated analogous to a disability in which the functions affected, as well as the anatomical localization and symptoms, are closely related. 38 C.F.R. § 4.20. When regulations do not provide diagnostic codes for specific disorders, the VA must evaluate those conditions under codes for similar or analogous disorders. Lendenmann v. Principi, 3 Vet. App. 345, 349-50 (1992). VA considers three factors when deciding whether one condition is related closely enough to another to permit rating by analogy: (1) The functions the condition affects; (2) the condition’s location on the body; and (3) the similarity of symptoms. Id. at 350-51. Once VA rates a claimant’s disability analogously, it must treat the disability as if it is the analogous condition. See Green v. West, 11 Vet. App. 472, 476 (1998). Here, the Veteran’s ED is rated under 38 C.F.R. § 4.115b, DC 7522. Under that DC, a 20 percent rating is warranted when the evidence shows both loss of erectile power and a physical deformity of the penis. 2. Entitlement to a compensable rating for ED is denied. The Veteran is seeking a compensable rating for his service-connected ED. The Veteran’s ED is rated as noncompensable under 38 C.F.R. § 4.115b, DC 7522, and the Veteran receives special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350(a). The temporal focus of the claim is one year prior to the submission of the claim, in May 2018, which would be in May 2017. Under DC 7522, a rating of 20 percent is warranted when the evidence shows both loss of erectile power and a physical deformity of the penis. No other rating is available under DC 7522. Therefore, a noncompensable rating is warranted when a veteran does not have both ED and a penile deformity. See 38 C.F.R. § 4.31. Here, a review of the record indicates that there is no evidence or report of symptoms beyond the inability to maintain an erection. In May 2018, the Veteran underwent a VA examination regarding his service-connected ED. While the Veteran declined a physical examination, he reported normal anatomy with no penile deformity or abnormality. See May 2018 VA Male Reproductive Organ Conditions Disability Benefits Questionnaire (DBQ). Additionally, while the Veteran’s VA treatment records indicate that he has ED, there is no notation of a penile deformity. See Atlanta VAMC records. Moreover, the Veteran has testified that his condition manifests solely with loss of power, or ED, and specifically denied having a penile deformity. See December 2020 Board Hearing Transcript. The Board acknowledges that the Veteran has reported that his ED prevents him from having a satisfactory sex life, and that he has reported that ED medications do not have any positive affect on the condition. See id.; October 2019 VA Form 9. However, regardless of the severity of ED, a compensable rating is not warranted under DC 7522 unless both ED and a physical deformity of the penis are present. In sum, as the record indicates that the Veteran does not have a penile deformity, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for his service-connected ED. Accordingly, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND As an initial matter, the Board notes that the Veteran filed a claim of entitlement to service connection for PTSD. See October 2015 VA Form 21-526EZ. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran has been diagnosed with depression and PTSD. See Atlanta VAMC records. Accordingly, the Board finds it appropriate to recharacterize the Veteran’s claim as one of entitlement to service connection for an acquired psychiatric condition, to include PTSD and depression. Entitlement to service connection for an acquired psychiatric condition, to include PTSD and depression, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to afford the Veteran with an examination to determine the nature and etiology of his claimed acquired psychiatric condition, to include PTSD and depression. A medical examination is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the claims file indicates that the Veteran has diagnoses of PTSD and depression. See Atlanta VAMC records. Additionally, in the March 2016 rating decision, the Veteran’s in-service stressor due to fear of hostile military was conceded based on his service in the Republic of Vietnam (RVN). Further, the Veteran has submitted a statement from his spouse, reporting that he has exhibited an exaggerated startle response since his return from the RVN. See August 2018 Spousal Statement. However, there is no medical opinion of record regarding the etiology of the Veteran’s claimed acquired psychiatric condition. Accordingly, the Board finds that the McLendon requirements are met and the Veteran should be provided a VA examination to determine the etiology of his claimed acquired psychiatric condition. Accordingly, the matter is REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding VA treatment records, including records relating to treatment at the Atlanta VAMC from February 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. AFTER COMPLETING THE DEVELOPMENT ABOVE, AND ANY ADDITIONAL DEVELOPMENT WARRANTED BY THE RECORD, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of the Veteran’s claimed acquired psychiatric condition. The entire claims file must be provided to and reviewed by the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including onset and progression of symptomatology and employment. (b.) If the Veteran is diagnosed with PTSD, the examiner is asked to opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such is related to an in-service stressor. 1. The examiner must specify which stressor was sufficient to produce PTSD, 2. Whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied, and 3. Whether there is a link between the current symptomatology and one or more of the in-service stressors. (c.) For each diagnosed psychiatric condition other than PTSD, the examiner is asked to opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition was incurred in or is otherwise related to the Veteran’s active duty service. (d.) In formulating the requested opinions, the examiner is instructed to consider and address: i. The Veteran’s lay statements; ii. The October 2018 spousal statement; and iii. Atlanta VAMC treatment records indicating diagnoses of PTSD and depression. (e.) If any previously diagnosed psychiatric condition is not found on examination, the examiner should address whether such condition has resolved or was misdiagnosed. • The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • Any opinion expressed by the examiner must contain not only clear conclusions with supporting data but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). • If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. • THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.