Citation Nr: 21027158 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-37 071 DATE: May 4, 2021 THE ISSUES 1. Whether new material evidence has been received to reopen the claim for erectile dysfunction; and if so, whether the claim should be granted. 2. Entitlement to service connection for an acquired psychiatric disability. ORDER New and material evidence has been received, and to that extent only, the petition to reopen the previously denied claim for entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. Service connection for erectile dysfunction was denied in an October 2011 rating decision that was not appealed. 2. Evidence received since the October 2011 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for erectile dysfunction. CONCLUSION OF LAW As new and material evidence has been received since the issuance of the aforementioned October 2011 final decision, the criteria for reopening the claim for service connection for erectile dysfunction are met. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a Board hearing in his December 2019 VA Form 9. However, the record shows that he did not attend his scheduled hearing. The Veteran was then informed in a February 24, 2021 correspondence that he had 30 days to request another hearing date if he so desired, but that after the completion that period, the Board would proceed to review all issues on appeal. The Veteran did not request to be rescheduled for a hearing. Therefore, the Board will proceed to adjudicate the claims. New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ's actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, the RO first denied service connection for the Veteran's claimed erectile dysfunction in an October 2011 rating decision, based on a determination that the Veteran's erectile dysfunction predated his service-connected diabetes and therefore was not secondary to that disability. The Veteran did not appeal that decision, and accordingly, the October 2011 determination was final. 38 C.F.R. §§ 3.156 (b), 20.1103 (2020). The evidence submitted in pertinent part since this decision includes a new VA examination and opinion. Because such was not present prior to October 2011, this evidence is sufficient to reopen the previously-denied claims. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims. Therefore, this evidence is new and material, and reopening of the claim for erectile dysfunction is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for erectile dysfunction, because no VA examiner has opined on whether the disability was aggravated by his service-connected diabetes. The Board acknowledges that the Veteran's private physician, Dr. E.A. opined in a February 2001 and December 2017 letters that the erectile dysfunction was at least as likely as not due to diabetes. However, the Board finds that these opinions are not probative, as there was no supporting rationale. Additionally, the Board has considered that the Veteran has had two VA examinations with opinions. The first VA examination in October 2010 found that the Veteran's erectile dysfunction predated his diabetes, which was diagnosed in 2007. Additionally, a March 2018 VA examination came to the same conclusion and provided similar rationale. However, the Veteran contends that he was actually diagnosed with diabetes in 2001 at the Huntington VAMC. See March 2018 Notice of Disagreement. The Board notes that the earliest records from the Huntington VAMC associated with the claims file are from 2005. Therefore, upon remand, a search for outstanding VA treatment records is in order, and a new VA examination should be ordered which takes into account the Veteran's accurate medical history. 2. Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran is claiming that his psychiatric disability is related to his active duty service. To begin, the Veteran has current diagnoses of "generalized anxiety disorder" and "other specified depressive disorder." To wit, the Veteran's claims file contains a private January 2018 examination recording those diagnoses. The Veteran contends that these diagnoses are a result of his service in Vietnam. The DD 2-14 confirms that the Veteran had active duty service in the Republic of Vietnam. Despite the confirmed diagnosis and contentions of in-service experiences, the Veteran has not had a VA examination for this disability, whereby an etiological opinion could be rendered. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2) (2012), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. As such, the remand is required so that the Veteran may be scheduled for a VA examination regarding his claimed psychiatric disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. Specifically, the RO should conduct a search for the Huntington VAMC treatment records from 2001 identified by the Veteran in the March 2018 Notice of Disagreement. 2. After that search for medical records, and regardless of the results of that search, schedule the Veteran for VA examinations with appropriate clinicians, to determine the nature and etiology of the Veteran's claimed acquired psychiatric disorder. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the suitable professional should answer the following questions (a.) Please identify if the Veteran currently has any acquired psychiatric disorder present at any time during the appeal period. For each/every identified psychiatric disorder, the reviewing clinician should respond to the following: (b.) It is at least as likely as not that the Veteran's acquired psychiatric disorder was incurred in, or otherwise related, to his time on active service? 3. After completion of the first directive, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of erectile dysfunction. The examiner must opine on the following: (a.) Whether erectile dysfunction is at least as likely as not related to service (b.) Whether erectile dysfunction is at least as likely as not proximately due to a service-connected disability, to include diabetes and medication taken for diabetes. (c.) Whether erectile dysfunction has been aggravated beyond its natural progression by a service-connected disability, to include diabetes or medicine taken for diabetes. (d.) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. (Continued on next page.) 4. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.