Citation Nr: 21026674 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-14 540 DATE: May 3, 2021 ORDER The application to reopen a previously denied claim of entitlement to service connection for upper front teeth (dental condition) is denied. Service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for upper front teeth was previously denied by a January 2012 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the January 2012 rating decision is cumulative or redundant of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim for service connection for upper front teeth. 3. The weight of the evidence of record is against finding that the Veteran has had erectile dysfunction at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The January 2012 rating decision denying service connection for upper front teeth is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. Evidence received since the January 2012 rating decision is not new and material, and the criteria for reopening of the claim for entitlement to service connection for upper front teeth have therefore not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1954 to August 1957. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in February 2020. A transcript of the hearing is of record. Thereafter, in June 2020, the Board remanded the claims currently before the Board for further development. New and Material Evidence Upper Front Teeth A claim for service connection for upper front teeth was originally denied in a January 2012 rating decision on the basis that the condition neither occurred in nor was caused by service. The decision indicates that the Veteran had reported that his front teeth were broken while in Korea and states that a letter from F.T. also reflects his memory that the Veteran had dental work done in service. The Agency of Original Jurisdiction (AOJ) notified the Veteran of its decision and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The Veteran's petition currently before the Board to reopen his claim for service connection for upper front teeth was received by the AOJ in March 2016. The AOJ denied the petition to reopen the claim in a June 2016 rating decision. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Regardless of the AOJ's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. In the Veteran's case, new evidence received since the January 2012 rating decision includes a March 2016 written statement from the Veteran's brother, F.T., where the Veteran's brother stated that the Veteran chipped his teeth when he was in Korea and that he remembers his parents receiving a letter about it at the time. New evidence also includes an April 2018 written statement from the Veteran and his testimony at the February 2020 Board hearing where he stated he broke his two front teeth while in Korea and had caps put on his teeth. In addition, new evidence includes private dental records from August 2013 to April 2016. The brother's March 2016 written statement and the Veteran's April 2018 written statement and his Board hearing testimony show that the Veteran suffered an in-service injury to his upper front teeth. However, the evidence of the in-service injury does not relate to an unestablished fact necessary to substantiate the merits of the claim as the claims file prior to the January 2012 decision illustrated that the Veteran experienced an in-service injury to his upper front teeth. Notably, the Veteran indicated in a February 2011 written statement that he broke his two front teeth while in Korea, and the Veteran's brother, F.T., also indicated in a February 2011 written statement that the Veteran broke his two front teeth while in Korea. Therefore, the additional written and oral statements added to the file since the January 2012 rating decision are not new and material as the evidence previously indicated the Veteran had suffered broken teeth during his service. This evidence is essentially cumulative of the evidence of record at the time of the January 2012 rating decision. The private dental records from August 2013 to April 2016 do not specifically address the Veteran's upper front teeth. Therefore, the records are not material to the issue before the Board. As such, the additional evidence received since the January 2012 rating decision would not reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to assist or by raising an alternative theory of entitlement. Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record is not new and material. Therefore, reopening of the claim for service connection for upper front teeth is not warranted. The Board notes that the record does not contain the Veteran's service treatment records and attempts to obtain them have been unsuccessful as the records were destroyed in a fire. Where service records are destroyed or missing, VA has a heightened duty to assist a Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit of the doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). Here, as is explained above, the evidence added to the file since the January 2012 rating decision is either cumulative or not pertinent to the Veteran's petition to reopen his claim for service connection for upper front teeth. In addition, the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Erectile Dysfunction The Veteran and his attorney generally contend the Veteran has erectile dysfunction that is related to service. See VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, dated March 2016. Neither the Veteran nor his attorney has provided any specific contentions regarding erectile dysfunction. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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). The questions for the Board are whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of erectile dysfunction and has not had one at any time during the pendency of the claims or recent to the filing of the claims. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). A review of the record illustrates there is no diagnosis of or treatment for erectile dysfunction. As noted above, the Veteran's service treatment records are unavailable, and VA has a heightened duty to assist a Veteran in developing his claim. O'Hare, 1 Vet. App. 365. This duty includes a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit of the doubt rule. See Cromer, 19 Vet. App. 215. A December 2011 VA memorandum illustrates that the Veteran's service treatment records were destroyed in a fire. VA notified the Veteran of the unavailability of the records in January 2012. However, irrespective of the lack of service treatment records, the Veteran has not made any specific allegations as to in-service incidents that have caused his alleged erectile dysfunction. Furthermore, a review of the available records in the file shows no treatment for erectile dysfunction. There is no record of treatment for or reports of erectile dysfunction after service. The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the evidence does not reflect that the Veteran has had an erectile dysfunction disability at any point during the appeal period. Additionally, there is no indication the Veteran has had symptoms of the condition that has caused him any functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); see also Wait v. Wilkie, 33 Vet. App. 8 (2020). Therefore, the Board cannot grant his claim under any theory of entitlement. While the Veteran's application for service connection for erectile dysfunction illustrates the Veteran believes he has a current erectile dysfunction disability, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board notes that the Veteran's attorney stated at the February 2020 Board hearing that they were not presenting any argument for the Veteran's erectile dysfunction claim because the issue was addressed in the January 2019 written brief. See Board Hearing Transcript, dated February 2020, page 19. However, a review of the January 2019 brief does not contain any arguments pertaining to the Veteran's erectile dysfunction. Furthermore, the claims file contains no allegations of any symptoms of erectile dysfunction. The Veteran has not been afforded an examination in connection with his erectile dysfunction claim, but VA does not have a duty to provide one here. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA's duty to provide an examination only triggered if the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event or with a service-connected disability). Here, there is no evidence of a current erectile dysfunction disability or symptoms causing functional impairment. Additionally, the evidence does not establish an event or injury in service or that there is erectile dysfunction associated with a service-connected disability. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of any erectile dysfunction. The Board does not question the Veteran's sincerity in his belief that service connection is warranted for erectile dysfunction. However, without evidence of a current erectile dysfunction disability, a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App., 49, 53-56 (1990). As such, service connection for erectile dysfunction is denied. REASONS FOR REMAND Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. Following the June 2020 Board remand to obtain a VA opinion regarding the etiology of the Veteran's sleep apnea, a VA clinician provided an opinion in January 2021 that the Veteran's current sleep apnea disability is less likely than not related to his service. In addition, the VA clinician opined that it is less likely than not that the Veteran's service-connected PTSD has caused or aggravated his sleep apnea. The rationales for these opinions were similar, providing the definition of sleep apnea from the Mayo Clinic, but not clearly explaining how it related to the particular facts of the Veteran's case. Regarding the causation and aggravation opinions, the examiner also listed a number of medical literature websites saying there was no indication PTSD has a relationship to sleep apnea, but then contradictorily referenced a medical study submitted on the Veteran's behalf that indicates a relationship between PTSD and sleep apnea. Regarding the direct service connection theory of entitlement, the examiner indicated that the Veteran's in-service symptoms of insomnia and hypervigilance were less likely than not due to obstructive sleep apnea. However, in conjunction with March 2021 written argument, the Veteran's attorney submitted medical literature indicating that insomnia is comorbid with sleep apnea. For these reasons, an additional VA opinion is needed to address the direct and secondary service connection theories of entitlement as the previously obtained opinion is inadequate. The matter is REMANDED for the following action: Obtain an addendum opinion from the VA clinician who provided the January 2021 opinion, if available, or another appropriate VA clinician if the January 2021 VA clinician is not available. If the VA clinician determines that an in-person examination (or telehealth interview, if an in-person examination is not feasible) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the VA clinician should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is related or attributable to his military service? In addressing this question, the medical professional is asked to specifically address the Veteran's April 2018 statement that he developed trouble sleeping while stationed in Korea. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is caused by his service-connected PTSD? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected PTSD? In addressing questions (b.) and (c.), the VA clinician is asked to consider the medical literature the Veteran's attorney submitted in January 2019 and March 2021 regarding the relationship between PTSD and sleep apnea. In rendering this opinion, the VA clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. If the Veteran's sleep apnea has been aggravated by his service-connected PTSD, the VA clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The VA clinician must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the VA clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.