Citation Nr: 21015677 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-14 414 DATE: March 18, 2021 ORDER The request to reopen the claim of entitlement to service connection for erectile dysfunction (ED) is granted. Service connection for ED as secondary to service-connected diabetes mellitus is granted. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ is granted. REMANDED The claim for an increased rating, in excess of 70 percent, for post-traumatic stress disorder (PTSD) is remanded. The claim for an increased rating in excess of 10 percent for diabetic neuropathy of the right lower extremity is remanded. The claim for an increased rating in excess of 10 percent for diabetic neuropathy of the left lower extremity is remanded. The claim for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A July 2012 rating decision denied entitlement to service connection for erectile dysfunction, in pertinent part, on the basis that it was not secondary to his service-connected diabetes mellitus; the Veteran did not appeal the decision and no relevant evidence was received after the decision was issued nor did VA become aware of the existence of new VA treatment within the remainder of the one year of the decision; this is the last final denial for this claim. 2. The evidence submitted since the July 2012 rating decision is not cumulative or redundant of the evidence previously of record and does relate to an unestablished fact, notably nexus opinion evidence, necessary to substantiate the claim of entitlement to service connection for ED. 3. Affording the Veteran all reasonable doubt, the Veteran’s ED is proximately due to his service-connected diabetes mellitus. 4. The Veteran’s ED results in loss of use of a creative organ. CONCLUSIONS OF LAW 1. The July 2012 rating decision, which denied entitlement to service connection for ED, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2020). 2. The evidence received since the July 2012 rating decision, which denied entitlement to service connection for ED is new and material and the claim is reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2020). 3. The criteria for entitlement to SMC for loss of use of a creative organ have been met. 38 U.S.C. §§ 1114(k), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO). In May 2019, the Veteran opted to submit a statement in lieu of a personal appearance at hearing before the Board. When evidence of unemployability is submitted during an appeal from an assigned disability rating, a claim for a TDIU rating will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran filed a claim for TDIU in June 2013. He claimed in pertinent part, that his PTSD and diabetic neuropathy prevented him from securing or following any substantially gainful occupation. While the Board is aware the TDIU claim was denied in the April 2014 rating decision for failure to provide employment information, a request for a TDIU rating is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability or disabilities. As such, the Board has jurisdiction over the issue. New and Material Evidence The Veteran seeks to reopen a previously denied claim of entitlement to service connection for ED. To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). By a July 2012 rating decision, the RO denied entitlement to service connection for ED, in pertinent part, on the basis that there was no evidence that the claimed condition was secondary to his service-connected diabetes mellitus. The Veteran did not appeal the decision. 38 C.F.R. § 20.302(a). No relevant evidence was submitted after the decision was issued or within the remainder of the one year of the date on which notice of the decision was issued. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). VA also did not become aware of the existence of new VA treatment within one year of the decision. Turner v. Shulkin, 29 Vet. App. 207 (2018). Accordingly, the July 2012 rating decision is final. 38 U.S.C. § 7105. Evidence received since the July 2012 rating decision, includes a February 2014 VA opinion and a March 2014 accompanying addendum opinion, which indicate that the Veteran’s ED was at least as likely not secondary to his service-connected diabetes. The evidence is new because it was not previously submitted or considered by VA. Additionally, this new evidence is material because it raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been added to the record and the claim of entitlement to service connection for ED may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection The Veteran contends that his diabetes is the result of his service-connected ED. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. While the March 2012 VA examiner opined it was less likely than not that his ED is due to his service-connected diabetes, the examiner reasoned the Veteran was a poor historian and could not determine the approximate date of onset. The examiner further reasoned, in pertinent part, that there was no evidence of diabetic peripheral neuropathy indicative neurovascular damage and this condition was most often a precursor to ED secondary to diabetes. The examiner did not address aggravation. Subsequently, the Veteran was afforded a VA peripheral nerves examination in February 2014, wherein the Veteran was diagnosed with bilateral lower extremity peripheral neuropathy secondary to diabetes. In an addendum opinion, the examiner further indicated this was likely a pre-cursor to ED. In a separate diabetes mellitus examination, the VA examiner opined ED was at least as likely as not secondary to his diabetes. The Board notes that service connection is currently in effect for diabetes mellitus and bilateral lower extremity diabetic neuropathy associated with diabetes mellitus. The March 2015 VA examiner opined ED was less likely due to diabetes because the Veteran had multifactorial reasons for his ED, to include low testosterone and advancing age, and that medical records and clinical findings did not support the contention that his ED had been aggravated or permanently worsened. The examiner did not address the 2014 VA opinion that ED was proximately due to his diabetes. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s ED is proximately due to his service-connected ED. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for ED is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. SMC VA provides SMC if a Veteran, as a result of a service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k). SMC based on loss of use of a creative organ can also be granted on the basis of erectile dysfunction. 38 C.F.R. § 3.350 (a)(1)(ii). Therefore, in light of the grant of service connection for erectile dysfunction, the Board also grants SMC for loss of use of a creative organ. REASONS FOR REMAND Additional development is necessary before a decision may be rendered on the claims for TDIU and increased rating for his service-connected PTSD and diabetic neuropathy of the bilateral lower extremities. Evidence indicates that there may be outstanding relevant VA treatment records. The last VA outpatient treatment records associated with the file are dated in February 2016 and in a May 2019 statement the Veteran indicated that he continues to receive treatment at VA. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The Veteran contends that his service-connected PTSD and diabetic neuropathy of the bilateral lower extremities are worse than currently rated, as nearly 7 years have passed since the last VA examinations in 2014, the Board finds they are too old to offer adequate probative value. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As such, the Board finds that remand for VA examinations is necessary to adequately adjudicate the aforementioned issues on appeal. As a decision on the increased rating claims could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined, and a remand is required. However, a remand is also required to obtain an updated VA Form 21-8940 and employment information. In addition, the RO should obtain an opinion to assess the functional impairments, if any, of the Veteran’s disabilities. As such, it would also be premature for the Board to decide this issue until this development has been concluded. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2016 to the present. 2. The RO must request the Veteran to complete an updated VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) in an attempt to ascertain specific information and circumstances of the Veteran’s last full-time employment, to include his level of education, occupation, type of activities performed, his last day of full-time employment, and the date he became too disabled to work. 3. The RO must request from the Veteran that his last employer, if any, complete VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits).  If the Veteran’s last job was self-employment, ask that he provide information as to the types of work performed, the numbers of hours worked per week, and the amount of time lost in a 12 month period due to service-connected disabilities. 4. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. 5. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diabetic peripheral neuropathy of the bilateral lower extremities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 6. Once the development above has been completed, obtain an opinion from an appropriate clinician regarding the functional limitations on employability caused by the Veteran’s service-connected disabilities. The need for any additional clinical evaluations is left to the discretion of the medical professional rendering the opinion. A complete copy of the claims file must be made available to the examiner and the examination report should specifically state that a review of the record was conducted. After a thorough review of the medical and lay evidence of record, the examiner should discuss the functional effects of the Veteran’s service-connected disabilities on his ability to perform the physical and mental acts, as appropriate, required to sustain substantially gainful employment consistent with his education and occupational experience. This discussion should include both sedentary and non-sedentary labor. The examiner should provide a complete rationale for all opinions provided. (CONTINUED ON NEXT PAGE)   7. If upon complete of the above action, the issues remain denied, the claims must be returned to the Board after compliance with appellate procedures. K. L. WALLIN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt, 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.