Citation Nr: 21013642 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-65 379 DATE: March 10, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection erectile dysfunction is granted. Service connection for erectile dysfunction is granted. A 60 percent rating for the service-connected coronary artery disease (CAD) is restored effective August 1, 2014, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to a rating in excess of 60 percent for the service-connected CAD is remanded. FINDINGS OF FACT 1. An August 2008 rating decision denied service connection for erectile dysfunction. The Veteran did not formally appeal the decision, nor did he submit new and material evidence which prevented the decision on this issue from becoming final. 2. The evidence associated with the file since the August 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the erectile dysfunction claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection for erectile dysfunction. 3. The Veteran’s erectile dysfunction is etiologically related to his active service. 4. In a May 2014 rating decision, the Regional Office (RO) reduced the rating for the service-connected CAD from 60 percent to 30 percent, effective from August 1, 2014. 5. The May 2014 rating action resulted in a decrease in the Veteran’s combined disability rating from 70 percent to 40 percent and a corresponding reduction in compensation payments. The 60-percent rating for the service-connected CAD had been in effect for more than five years. 6. The reduction of the rating for the service-connected CAD from 60 percent to 30 percent was improper, as it was not based upon a complete review of the record. CONCLUSIONS OF LAW 1. The August 2008 rating decision that denied service connection for erectile dysfunction is final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. The evidence received since the August 2008 rating decision is new and material evidence and serves to reopen the Veteran’s claim for service connection for erectile dysfunction. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for restoration of the 60 percent rating for the service-connected CAD, effective August 1, 2014, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1964 to March 1967 and from December 2002 to December 2003. In November 2020, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). This case was previously before the Board of Veterans’ Appeals (Board) in December 2015. At that time, the Board remanded the Veteran’s application to reopen the previously denied claim for service connection for erectile dysfunction and remanded the claim regarding the propriety of the rating reduction for his service-connected CAD for a statement of the case (SOC) to be issued. The Board also dismissed the Veteran’s appeal for a total disability rating for individual unemployability as it had been withdrawn. New and Material Evidence—Erectile Dysfunction A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the RO decided a reopening question, the Board must consider the matter on appeal. Reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the 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 to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a decision as to whether received evidence meets the definition of new and material evidence, the Board is cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In an August 2008 rating decision, the RO denied service connection for erectile dysfunction because the RO found that there was no evidence that the condition was incurred in, or aggravated by, military service. The Veteran did not perfect an appeal on this adverse determination, nor did he submit any additional evidence within the time frame needed to prevent it from becoming final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the August 2008 rating decision became final as to this issue, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the August 2008 rating decision includes the Veteran’s November 2020 Board testimony that his erectile dysfunction symptoms began during his active service period ending in December 2003. This evidence, presumed as credible for new and material purposes, relates to an element of the Veteran’s claim which was not met when the claim was first denied in August 2008. Thus, this evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for erectile dysfunction. As such, the claim is reopened. Service Connection for Erectile Dysfunction Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran is seeking service connection for erectile dysfunction. He underwent an April 2016 VA male reproductive system examination, at which time the examiner noted a diagnosis of erectile dysfunction. Thus, the current disability prong of this claim for service connection has been met. Further, at the November 2020 hearing, the Veteran testified that he began experiencing erectile dysfunction during the period of active service ending on December 26, 2003. As noted by the RO in the August 2008 rating decision which initially denied service connection for this issue, a treatment note date December 12, 2003, (i.e., during this period of active service) noted that the Veteran was unable to have or complete intercourse. The Board notes that the Veteran reported the onset of his erectile dysfunction symptoms as having been in 2005 to the 2016 VA examiner. However, his November 2020 testimony about an in-service onset of this condition appears to be corroborated by the December 12, 2003, treatment note. The Board affords the Veteran the benefit of the doubt and finds that his erectile dysfunction began in service. The Board acknowledges that the April 2016 VA examiner opined against service connection for the Veteran’s erectile dysfunction. This opinion, however, only addressed secondary service connection in finding that the Veteran’s erectile dysfunction was less likely than not due to his service-connected CAD. While the Board cannot ignore or disregard the VA examiners’ medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). As such, the 2016 VA examiner’s opinion did not address the possibility of an in-service onset or any other theory of direct service connection. Consequently, it is of no relevance here where service connection is warranted on a direct basis. Thus, the weight of the evidence supports a finding that the Veteran’s erectile dysfunction began in service. He is competent to report what he has experienced through his senses, and the Board has no reason to question the credibility of his reports regarding the timeline of the onset of his symptoms, especially in light of the corroborating medical evidence in this case. Affording the benefit of the doubt to the Veteran, the Board finds that he has been experiencing symptoms of erectile dysfunction since service. Thus, service connection for erectile dysfunction is warranted, as it is a current disability that onset during his active service. Propriety of the Rating Reduction from 60 Percent to 30 Percent, Effective August 1, 2014, for the Service-Connected CAD When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The veteran must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. §§ 3.105(e). A veteran will be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. §§ 3.105(h). These are such important safeguards that the U.S. Court of Appeals for Veterans Claims (Court) has held that, where VA has reduced a veteran’s rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). As an initial matter, the reduced rating for the Veteran’s CAD decreased his combined disability rating from 70 percent to 40 percent, which resulted in a reduction in the amount of compensation payable. As such, the procedural requirements of 38 C.F.R. § 3.105(e) apply. Here, in February 2013, a rating decision proposing the reduction was issued setting forth all material facts and reasons for the proposed reduction. The Veteran was informed in a notification letter dated February 15, 2013, of the contemplated action, furnished detailed reasons thereof, given 60 days for presentation of additional evidence, and informed that he may request a predetermination hearing within 30 days of the date of the notice. Thus, the Board finds the procedural requirements under 38 C.F.R. § 3.105(e) have been satisfied. In addition to the procedural requirements, there are also substantive requirements which must be met for a rating reduction. The regulations pertaining to the reduction of a disability rating are contained in 38 C.F.R. § 3.344. Section 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). If any doubt remains, after according due consideration to all evidence developed by section 3.344(a), the rating agency should continue the rating in effect pending reexamination. In such case, the rating agency would determine whether the Veteran would be given 18, 24, or 30 months prior to reexamination. However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344(c). Prior to reducing a veteran’s disability rating, VA is required to “comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.” Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10. These general provisions “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In considering the propriety of a reduction, the Board focuses on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in evaluating whether the conditions had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 277. Historically, the Veteran was initially granted a 60 percent rating for his CAD in a January 2007 rating decision. The 60 percent disability rating remained in effect continuously from October 2, 2006, to July 31, 2014. [An October 2009 rating decision severed service connection for the Veteran’s CAD, effective January 1, 2010. However, the severance was reversed by a January 2011 rating decision which reestablished service connection for CAD and reinstituted the 60 percent rating, effective January 1, 2010. As such, no gap in service connection or assignment of the 60 percent rating resulted from the October 2009 decision.] Thus, at the time of the August 1, 2019, reduction of the schedular rating for the Veteran’s CAD, the disability rating of 60 percent had been in effect for more than five years. See Brown v. Brown, 5 Vet. App. 413 (1993) (which stipulates that the five-year period is calculated from the effective date of the rating to the effective date of the reduction.) Because the 60 percent rating was in effect for a period exceeding five years, the provisions of 38 C.F.R. § 3.344(a) regarding stabilization of disability ratings apply. Accordingly, VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995). Here, the Board finds that VA did not comply with these requirements prior to reducing the Veteran’s 60 percent rating for his CAD. Significantly, the Veteran submitted additional lay and medical evidence within 60 days of the February 15, 2013, notification of the reduction proposal. This additional evidence was submitted February 28, 2013, and consisted of January 2013 VA treatment records detailing the results of a January 4, 2013, echocardiogram and a written statement in a VA Form 9 from the Veteran arguing as to why his heart condition had not decreased in severity. The Board notes that VA Form 9 is for formalizing an appeal after a SOC has been issued in an appeal, which had not occurred at that time for this claim. However, the February 15, 2013, reduction proposal notification letter also enclosed an SOC on the issue of entitlement to a TDIU as well as a blank VA Form 9, which was intended to be used in relation to that claim. Understandably, sending the notice of the reduction proposal in the same mailing as the SOC could have caused confusion for the Veteran, such that he believed the VA Form 9 was to be filled out and returned for the proposed reduction. Thus, it is also possible that his checking the box on this form requesting a Board hearing was done because he thought this was the proper mechanism to request a predetermination hearing on the reduction, which he was not given. Although this fact also raises a procedural issue under 38 C.F.R. § 3.105(e), as discussed below, such a determination is not needed given the fact that another requirement pertaining to reducing a rating under 38 C.F.R. § 3.344(a) was clearly not followed. The May 2014 rating decision reducing the Veteran’s 60 percent rating for his CAD to 30 percent, effective August 1, 2014, was not based on a review of the entire record. Thus, the reduction was improper. Specifically, this rating decision erroneously stated that, as of the date of the decision, VA had not received any additional evidence disputing the reduction. The record, however, is undisputed that the Veteran did, in fact, timely submit new evidence following the February 15, 2013, notification letter proposing the reduction. This evidence was not reviewed prior to VA implementing the reduction. Thus, by not considering the above submitted evidence, the RO failed to base its decision regarding a reduction in rating “upon review of the entire history of the veteran’s disability.” Faust, 13 Vet. App. at 349, citing Schafrath, 1 Vet. App. at 594. Without reviewing the entire record—specifically evidence purported to support a finding that the Veteran’s condition has not materially improved, the reduction is improper. Therefore, under these circumstances, the Board finds that the RO failed to observe the applicable laws and regulations in reducing the disability rating assigned for the Veteran’s service-connected CAD from 60 percent disabling to 30 percent, effective August 1, 2014. Thus, where a rating reduction was made without observance of law, the erroneous reduction must be vacated, and the prior rating must be restored. See Schafrath, 1 Vet. App. at 595. REASONS FOR REMAND Entitlement to a rating in excess of 60 percent for the service-connected CAD As to the Veteran’s claim for an increased rating for his service-connected CAD, the Board notes that the Veteran was last examined for this condition in April 2016, nearly five years ago. He also testified before the Board in November 2020 that the condition continues to worsen with time and that he recently had stints replaced, which could further impact the current severity of his symptoms. Thus, on remand, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of this disability. Further, the Veteran’s VA treatment records have not been uploaded to the claims file since October 2017. Updated VA treatment records must be obtained as they could contain information which could support the Veteran’s claim. In this regard, the Board is particularly interested in copies of records of the Veteran’s stint replacements in his heart in August 2020, whether VA or private records. Accordingly, this matter is REMANDED for the following actions: 1. Obtain VA treatment records from October 2017 through the present. 2. Contact the Veteran and determine whether his August 2020 stint replacements were performed with a private provider. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his CAD, to include specifically the private provider who performed the August 2020 stint replacements, if applicable. Make two requests for all authorized records from each provider for all records which have not yet been obtained and associated with the claims file, unless it is clear after the first request that a second request would be futile. 3. After obtaining any outstanding records related to the Veteran’s claim (pursuant to paragraphs 1 and 2 above), schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected CAD. His claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran’s CAD and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s CAD alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.