Citation Nr: 0007285 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-09 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for impotence. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from September 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. That rating decision denied the veteran's attempt to reopen his claim for service connection for impotence. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The RO denied service connection for impotence in September 1995. The veteran was notified of this decision in September 1995 but did not file an appeal 3. No competent medical evidence establishing a relationship between the veteran's current impotence and the veteran's active military service, or a service connected disability, has been received since the September 1995 RO decision. 4. The evidence received since the September 1995 RO decision is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The September 1995 decision of the RO denying service connection for impotence is final. 38 U.S.C.A. § 7105(c) (West 1991 & Supp. 1999). 2. Evidence received since the September 1995 RO decision denying service connection for impotence is not new and material, and the veteran's claim for service connection for impotence has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may also be granted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of that claim. 38 U.S.C.A. § 5108 (West 1991); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see Graves v. Brown, 8 Vet. App. 522, 524 (1996). When considering whether new and material evidence has been presented or secured to reopen a claim, the law provides, 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. 38 U.S.C.A. § 5108 (West 1991). When presented with a claim to reopen a previously finally denied claim, VA must perform a three-step analysis. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence submitted by the claimant is new and material. Second, if new and material evidence has been presented, it must be determined, immediately upon reopening the claim, whether the reopened claim is well grounded pursuant to 38 U.S.C. § 5107(a) based upon all the evidence and presuming its credibility. There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters v. West, 12 Vet. App. 203 (1999). Third, if the reopened claim is well grounded, VA may evaluate the merits of the claim after ensuring that the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. VA regulations specifically provide that: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (1999). The first question in determining whether the evidence is new and material is whether the newly presented evidence is actually "new" in the sense that it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of other evidence of record. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Struck v. Brown, 9 Vet. App. 145, 151 (1996). The second question is whether the evidence is "material" in the sense that it is relevant in that it bears directly and substantially on the matter under consideration. If such evidence is "so significant that it must be considered in order to fairly decide the merits of the claim," then the claim must be reopened. Hodge v. West, 155 F.3d 1356 (1998); 38 C.F.R. § 3.156(a) (1999). When determining whether the veteran has submitted new and material evidence to reopen the claim, consideration must be given to all of the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996), Glynn v. Brown, 6 Vet. App. 523 (1994). If the newly presented evidence is not "new," the claim to reopen fails on that basis and no further analysis of the evidence is required. Similarly, if "new" evidence is not "material" in the sense that it is does not bear directly and substantially on the matter under consideration, nor is it so significant that it must be considered in order to fairly decide the merits of the claim the claim to reopen fails on that basis and the inquiry ends. When presented with a claim to reopen a previously finally denied claim, VA must perform a three-step analysis. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence submitted by the claimant is new and material. Second, if new and material evidence has been presented, it must be determined, immediately upon reopening the claim, whether the reopened claim is well grounded pursuant to 38 U.S.C. § 5107(a) based upon all the evidence and presuming its credibility. There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters v. West, 12 Vet. App. 203 (1999). Third, if the reopened claim is well grounded, VA may evaluate the merits of the claim after ensuring that the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. In the rating decision on appeal, the RO cited the definition of material evidence enunciated in Colvin v. Derwinski, 1 Vet. App. 171 (1991) ("a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" of the final decision). Subsequent to this rating action, the Federal Circuit in Hodge declared this definition of material evidence invalid. The veteran's accredited representative requested that the Board remand the case to the RO for consideration under the Hodge provisions, or to determine whether the appellant has submitted new and material evidence to reopen this claim pursuant to the definition of new and material evidence contained in 38 C.F.R. § 3.156(a), as discussed above. It is not necessary to remand this claim because no prejudice to the appellant results from the Board's consideration of this claim. The rating decision also cited the provisions of 38 C.F.R. § 3.156(a) and determined that the "evidence submitted in connection with the current claim does not constitute new and material evidence because it is not directly relevant to the issue considered." The veteran was also provided notice of the applicable laws and regulations regarding new and material evidence, including 38 C.F.R. § 3.156, in the statement of the case and it is clear from the reasons and bases provided in the statement of the case that this regulation was considered. Thus, the Board finds that the veteran will not be prejudiced by the Board's now considering the issue in accordance with the provisions of Hodge. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO denied service connection for impotence in a September 1995 rating decision and notified the veteran of the decision that same month. The veteran did not appeal the RO decision and it became final. 38 U.S.C.A. § 7105(c) (West 1991). The matter under consideration in this case is whether impotence was incurred during the veteran's active military service, or is related to a service connected disability. In order for the veteran's claim to be reopened, evidence must have been presented, or secured, since the September 1999 RO decision on the merits which bears directly and substantially on the matter under consideration and is so significant that it must be considered in order to fairly decide the merits of the claim. The evidence of record at the time of the September 1995 RO rating decision relevant to the veteran's claim for service connection for impotence consisted of the veteran's service medical records and a large volume of VA medical records. The veteran's service medical records appear to be complete. There is no indication in any of the service medical records of any complaints of, or treatment for, impotence. The veteran is service connected for a psychiatric disorder which is variously diagnosed as an anxiety disorder and/or post traumatic stress disorder. The RO has obtained a considerable volume of VA medical records showing medical examinations, treatment for the service connected psychiatric disorder, and treatment for nonservice connected medical conditions. A February 1980 VA psychiatry treatment record shows an assessment of "impotence, possibly psychogenic." A March 1980 VA psychiatric examination report notes that the veteran complains of impotence, but seems to relate the problem to marital difficulties. A January 1983 VA examination report also notes impotence but does not determine if the disorder is due the veteran's service connected anxiety or general marital difficulties. The veteran was hospitalized at a VA medical center (VAMC) in April and May 1989 for alcoholism. The diagnosis also indicated "impotence, secondary to alcohol abuse." A June 1990 VA hospital summary also noted that the veteran complained of inability to maintain an erection. In this case the evidence submitted since the September 1995 RO decision that refers to the veteran's impotence includes: numerous letters and written statements and a photocopy of a newspaper article. The news paper article deals with a study of anti-hypertensive medication. The article does not refer to impotence. The veteran has submitted numerous written statements. These statements are somewhat rambling and incoherent. However, the statements do not provide any competent medical evidence to relate the veteran's alleged impotence to his military service, or to a service connected disability. The veteran's statements are not competent to establish that he incurred impotence as a result of military service or as a result of his service connected psychiatric disorder. While lay testimony is competent to establish the occurrence of an injury, it is not competent to provide a medical diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108); Chavarria v. Brown, 5 Vet. App. 468 (1993) (an appellant's own recitations of his medical history does not constitute new and material evidence sufficient to reopen his claim when this account has already been rejected by the VA). The Board concludes that this evidence is not new because it is merely duplicative of the veteran's previous claims which were already of record at the time of the September 1995 rating decision. Since the evidence is not new it is not so significant that it must be considered in order to fairly decide the merits of the claim. Based on the applicable law, regulations and court decisions, the additional evidence received since the September 1995 RO decision is not new and material and does not provide the required evidentiary basis to reopen the veteran's claim. The RO's prior denial of service connection for impotence remains final. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156 (1999); Hodge v. West, 155 F. 3d 1356 (1998). Where new and material evidence has not been submitted to reopen a finally denied claim, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Graves v. Brown, 8 Vet. App. 522, 524-25 (1996); Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Graves, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence which is not only relevant to his claim for a psychiatric disorder to include a stomach disorder but which would, if submitted, be so significant that it must be considered in order to fairly decide the merits of the claim. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). ORDER New and material evidence not having been submitted to reopen a claim for entitlement to service connection impotence, that benefit remains denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals