Citation Nr: 21029678 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-03 786 DATE: May 14, 2021 ORDER New and material evidence having been received, reopening of service connection for the reproductive disorder of Peyronie's disease is granted. Service connection for the reproductive disorders of Peyronie's disease and erectile dysfunction is granted. REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A June 2015 rating decision denied service connection for the reproductive disorder of Peyronie's disease, finding that the evidence did not support that the currently diagnosed Peyronie's disease was related to service. The Veteran did not file a timely notice of disagreement (NOD) following the June 2015 rating decision, and new and material evidence was not received during the one year appeal period. 2. New evidence received since the June 2015 rating decision supports that one or more currently diagnosed reproductive disorders may be related to presumed in service herbicide exposure. 3. The Veteran is currently diagnosed with the reproductive disorder of Peyronie's disease, and erectile dysfunction as a symptom of Peyronie's disease. 4. During service the Veteran served in the Republic of Vietnam and is presumed to have been exposed to the herbicide Agent Orange 5. The Veteran's diagnosed reproductive disorders were due to the presumed Agent Orange exposure. CONCLUSIONS OF LAW 1. The June 2015 rating decision denying service connection for the reproductive disorder of Peyronie's disease became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the June 2015 rating decision is new and material to reopen service connection for the reproductive disorder of Peyronie's disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for the reproductive disorders of Peyronie's disease and erectile dysfunction have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1966 to September 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, reopened and denied the issue of service connection for Peyronie's disease/a reproductive disorder. A notice of disagreement (NOD) disagreeing with the service connection denial was received in May 2017. The Board notes that multiple other issues were appealed following the October 2016 rating decision; however, only the reproductive service connection issue was perfected in a January 2018 VA Form 9 following the issuance of a December 2017 statement of the case (SOC). The Veteran testified at a March 2021 virtual Board hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for the reproductive disorders of Peyronie's disease and erectile dysfunction, and remands the issue of entitlement to a TDIU, no further discussion of VA's duties to notify and assist is necessary. 1. Reopening Service Connection for Peyronie's Disease is Granted. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 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. 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 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. 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. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had 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 claims and to adjudicate the claims 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. A June 2015 rating decision denied service connection for the reproductive disorder of Peyronie's disease, finding that the evidence of record did not support that the currently diagnosed Peyronie's disease was related to service. The Veteran did not file a timely NOD following the June 2015 rating decision, and new and material evidence was not received during the one year appeal period. As such, the June 2015 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. New evidence received since the June 2015 rating decision supports that one or more currently diagnosed reproductive disorders may be related to presumed in service herbicide exposure. Such evidence includes an October 2016 letter from the Veteran's VA physician, and the Veterans testimony at the March 2021 virtual Board hearing. The Board finds such evidence to be new and material to warrant reopening of the issue of service connection for the reproductive disorder of Peyronie's disease. 2. Service Connection for a Reproductive Disorder is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran and representative assert that one or more currently diagnosed reproductive disorders were caused by exposure to the herbicide Agent Orange during service. At the outset, the Board notes that the Veteran is currently diagnosed with both Peyronie's disease and erectile dysfunction. Such diagnoses can be found throughout the record, to include in a December 2014 VA reproductive system examination. Significantly, per the report from the December 2014 VA reproductive system examination, the VA examiner found that the erectile dysfunction was as likely as not a symptom of the Peyronie's disease. As such, the only question remaining before the Board is whether service connection is warranted for Peyronie's disease, as the granting of service connection for Peyronie's disease would entitle the Veteran to service connection for erectile dysfunction on a secondary basis. See 38 C.F.R. § 3.310. Next, the Board finds that during service the Veteran served in the Republic of Vietnam, and so is presumed to have been exposed to the herbicide Agent Orange. Per the Veteran's service personnel records, in September 1967, the Veteran was injured in the vicinity of Quang Tri in the Republic of Vietnam when the amphibious tractor in which he was riding detonated a hostile mine while participating in an operation against hostile forces. Such injury led to the award of the Purple Heart Medal. After a review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the currently diagnosed Peyronie's disease was due to the presumed herbicide/Agent Orange exposure. While a negative direct service connection opinion was rendered by a VA examiner in June 2015, the basis for such opinion appears to be the lack of any in service treatment records diagnosing Peyronie's disease. No mention was made of the Veteran's in-service herbicide exposure. As such, it is unclear whether the VA examiner adequately considered whether the presumed in service herbicide/Agent Orange exposure was the cause of the later diagnosed Peyronie's disease; therefore, the Board finds the June 2015 VA opinion to be of little probative value. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that an opinion without any rationale against which to evaluate the probative value of his determination is inadequate). During the course of this appeal, VA also received an October 2016 opinion letter from the Veteran's VA physician. Per the letter, the VA physician opined that it was more likely than not that the Veteran's penile deformity (Peronei's disease) was due to in-service herbicide/Agent Orange exposure. Per the opinion letter, the VA physician explained that there is "overwhelming" medical liturate supporting that exposure to the herbicide Agent Orange may result in a penile deformity. In sum, the evidence reflects that the Veteran has been diagnosed with the reproductive disorders of Peyronie's disease and erectile dysfunction. In October 2016, the Veteran's VA physician, citing to the medical literature, opined that the Peyronie's disease was likely due to the Veteran's presumed in-service herbicide exposure. The Board does not find this opinion to be outweighed by the evidence of record to the contrary. Further, per a December 2014 VA reproductive system examination, a VA examiner found that the Veteran's erectile dysfunction is a symptom of the Peyronie's disease. For the above reasons, and resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for the reproductive disorders of Peyronie's disease (on a direct basis) and erectile dysfunction (on a secondary basis/as a symptom of Peyronie's disease) to be warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. TDIU As discussed in the introduction, following the issuance of the August 2016 rating decision, the Veteran appealed a number of issues, to include a higher initial disability rating for posttraumatic stress disorder (PTSD). At the March 2021 virtual Board hearing, the Veteran and representative argued that, while the appeal as to the issue of a higher initial disability rating for PTSD was not perfected to the Board, the issue of entitlement to a TDIU was raised during the course of this appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Per a July 2017 VA PTSD examination report, the Veteran reported quitting the construction field 37 years prior due to PTSD symptoms. Since that time the Veteran indicated only working odd jobs on occasion. Such evidence is sufficient to raise the question of entitlement to a TDIU pursuant to Rice. As the Agency of Original Jurisdiction (AOJ) has not yet adjudicated the question of entitlement to a TDIU, and as a review of the record indicates that the AOJ is currently undertaking development concerning entitlement to a TDIU, the Board finds remand of this issue to the AOJ for initial adjudication to be warranted. The issue of entitlement to a TDIU is REMANDED for the following action: After any additional development deemed warranted, adjudicate the issue of entitlement to a TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.