Citation Nr: 0004178 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-30 899 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for impotence, claimed as secondary to the service-connected filariasis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Scott Craven INTRODUCTION The veteran had active military service from August 1941 to May 1947. In January 1990, the RO, in part, denied the veteran's claim of service connection for impotence, finding that impotence was not incurred in or aggravated by military service and was not related to the veteran's service-connected filariasis. Although he was notified of that decision, the veteran did not file an appeal. The Board of Veterans' Appeals (Board) initially received this case on appeal from a May 1996 decision of the RO, which, in part, declined to reopen a finally denied claim of service connection for impotence claimed as secondary to service-connected filariasis. The veteran perfected a timely appeal to the Board. The appeal initially included the issue of an increased rating for filariasis. This issue, along with the issue currently on appeal was remanded in October 1997. In February 1999, the Board rendered a decision denying the claim for an increased rating for filariasis; hence, that issue is no longer before the Board. Also in February 1999, the Board again remanded the issue currently on appeal. As the requested development has been accomplished, but the denial of the claim continued, the claim has since been returned to the Board for further appellate consideration. In Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996), the United States Court of Appeals for Veterans Claims (Court) held that the new and material evidence requirement is a material legal issue which the Board has a legal duty to address, regardless of the RO's actions. Thus, the current issue on appeal is as stated on the previous page. FINDINGS OF FACT 1. In a January 1990 rating decision, the RO denied the veteran's claim of service connection for impotence, finding that impotence was not incurred in or aggravated by military service and was not related to the veteran's service- connected filariasis. The veteran was notified of the decision and did not file an appeal. 2. New evidence that has been associated with the claims file since the RO's January 1990 decision, when considered alone or in conjunction with the evidence previously of record, is relevant and probative of the issue under consideration and is so significant that it must be considered to fairly decide the merits of the claim. 3. Inasmuch as the record includes an opinion by a private physician that a medical relationship between the veteran's service-connected filariasis and his erectile dysfunction is possible, the veteran's claim is plausible. 4. The preponderance of the medical evidence establishes that there is no medical relationship between the veteran's impotence and his service-connected filariasis. CONCLUSIONS OF LAW 1. The RO's unappealed January 1990 rating decision denying service connection for impotence is final. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. New and material evidence has been presented, and the claim for service connection for impotence, claimed as secondary to the service-connected filariasis, is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The claim for service connection for impotence, claimed as secondary to the service-connected filariasis, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The veteran's impotence is not proximately due to or the result of service-connected filariasis. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.102, 3.310(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. New and Material Evidence Analysis The RO initially denied the veteran's claim for service connection for impotence in January 1990. At the time of that decision, the RO indicated that impotence was not incurred in or aggravated by service and was not related to the service-connected filariasis. The pertinent evidence available to the RO at the time of the decision consisted of the veteran's service medical records; VA treatment records, reflecting treatment from July 1948 to July 1988; an October 1960 VA examination; private medical records from George H. Davis, M.D., reflecting treatment in December 1960 and February 1961; a May 1961 record from the VA Chief of Outpatient Treatment; a June 1961 record from the VA Director of Outpatient Clinics; a July 1961 VA examination; a May 1988 VA examination; and lay statements by the veteran. The RO subsequently notified the veteran of the January 1990 denial that same month; however, the veteran did not appeal. In May 1996, the RO denied the veteran's claim of service connection for impotence as secondary to the service- connected filariasis. The veteran subsequently timely perfected an appeal. Because this case involves an attempt to reopen a previously denied claim, the laws and regulations pertaining to finality and reopening of claims are pertinent to the appeal. If a notice of disagreement is not filed within one year of the date of mailing of the notification of the RO's denial of the appellant's claim, the denial is final and is not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). If, however, 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). In Elkins v. West, 12 Vet. App. 209 (1999) (en banc), the United States Court of Appeals for Veterans Claims (hereinafter the Court), held that the United States Court of Appeals for the Federal Circuit (Federal Circuit), in Hodge v. West, 155 F.3d 1356 (Fed Cir 1998), articulated a three- step process for consideration of a previously denied claim: first it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening, it must be determined whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well grounded, the adjudicator may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See also Winters v. West 12 Vet. App. 203 (1999) (en banc). "New and material" evidence is evidence not previously submitted, cumulative or redundant, and which by itself, or along with evidence previously submitted, is so significant that it must be considered to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (a) (1999). In determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Consideration must be given to all of the evidence received since the last disallowance of these claims on any basis, or, in this case, since the RO's January 1990 decision. Evans v. Brown, 9 Vet. App 273, 282-83 (1993). The evidence associated with the claims file since the January 1990 RO decision consists of November 1993 VA examinations; March 1996 VA examinations; VA treatment records, reflecting treatment from January 1988 to November 1997; a January 1998 VA genitourinary examination; a private medical record from J. Sam Little, M.D., reflecting treatment in June 1998; and lay statements by the veteran. Specifically, in the June 1998 report, Dr. Little indicated that the veteran had non-insulin dependent diabetes, hypertension and arthritis in addition to filariasis, which had been contracted during World War II. The veteran was reported to have urological problems that included both urinary incontinence and erectile dysfunction. Dr. Little reported that it was possible that the veteran's prior filariasis had something to do with his urological problems, although he was not sure that it was likely. This evidence concerning the treatment and evaluation of the veteran is "new" because it was not physically of record when the RO denied his claim in January 1990 and it was not otherwise duplicative of the evidence that was on file at the time of that decision. In addition, the Board finds that this new evidence is relevant and probative and is so significant that it must be considered to fairly decide the merits of the veteran's claim. That is, it is "material." See 38 C.F.R. § 3.156; Hodge, supra. Thus, since new and material evidence has been submitted, the veteran's claim of service connection for impotence, claimed as secondary to the service-connected filariasis, is reopened and must be considered on a de novo basis. B. Well-Grounded Claim Analysis Having reopened the veteran's claim of service connection for impotence, claimed as secondary to the service-connected filariasis, the next step is to determine whether the claim is well grounded. See Elkins, 12 Vet. App. at 218-19. In order for a claim for service connection to be well- grounded, there must be competent evidence (lay or medical, as appropriate) of: (1) a current disability; (2) an in- service injury or disease ; and (3) a nexus between the current disability and the in-service injury or disease (or, in a secondary service connection claim, a nexus between the current disability and a service-connected disability). See Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Here, the Board finds that the same evidence that constitutes new and material to reopen the claim-namely, Dr. Little's June 1998 report-is sufficient to well ground the claim, as that evidence establishes the currently claimed disability and a possible nexus between that disability and service. Hence, the veteran's claim is plausible, and capable of substantiation. The Board also finds that all relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO, and no further development is necessary in light of the VA's duty to assist the veteran with the development of facts pertinent to his claim, as mandated by 38 U.S.C.A. § 5107(b) (1999). C. Merits Consideration Having determined that the claim is well grounded, the Board must now consider the claim on the merits to evaluate whether the evidence of record presents a new factual basis for allowance of the claim. Initially, the Board finds that the veteran is not prejudiced by the consideration of the merits of the claim, inasmuch as the RO considered the claim on the merits in May 1996, and the veteran has had full opportunity to present evidence and argument in support of his underlying claim for benefits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In the Court held that, before the Board addresses in a decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by being denied those opportunities. In this case the RO considered the veteran's claim of service connection on the merits in a May 1996 rating decision. The veteran has also been given an opportunity to submit evidence and argument. In fact, in June 1999, the veteran indicated that he had no additional evidence to submit. The Board has concluded that there is no prejudice to the veteran in proceeding to consider the issue of service connection on the merits. To establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also be granted on a secondary basis for a disability proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a) (1999); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Section 3.310(a) has been interpreted to permit service connection for the degree of disability resulting from aggravation of nonservice- connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, the veteran does not contend, and the evidence does not establish that the veteran developed impotence in service. Indeed, while the May 1947 discharge examination report reflects that the veteran had filariasis in July 1946, the service medical records reflect no complaint or diagnosis of impotence. Rather, the veteran contends that his impotence is due to his service-connected filariasis; hence, the Board will confine its review to that issue. Post-service, the claims file includes several records of VA and private evaluation and treatment for filariasis and other genitourinary (to include swelling of the scrotum and chronic epididymitis) dated between July 1948 and August 1961. The first indication of impotence is reflected in the report of a May 1988 VA examination. At that time, the veteran reported that he had been impotent since he was 52 years old, or since approximately 1974. However, an August 1990 outpatient treatment record reflects the veteran's reported history of impotence for the previous ten years; he also indicated that he had had testosterone injections and had undergone placement of a penile prosthesis. On a VA systemic conditions examination in March 1996, the veteran indicated that a urologist had told him that his impotency and urinary incontinence were a result of his service-connected filariasis. The veteran was diagnosed, in part, with history of filariasis with associated recurrent scrotal swelling. It was reported that, by the veteran's history, urological problems associated with sexual impotence, placement of a penile implant and urinary incontinence were associated with his filariasis. A January 1998 VA genitourinary examination includes a reported history of filariasis with elephantiasis. The veteran indicated that he had presented for evaluation and treatment for impotence in 1990 and had had an inflatable penile prosthesis inserted at that time. The examiner indicated that the veteran's claims file was available for review. The impression was history of filariasis; impotence treated successfully with inflatable penile prosthesis; incontinence urge type; diabetes mellitus; and hypertension. The examiner reported that incontinence and impotence were not related to filariasis and were probably secondary to diabetes mellitus and hypertension. In a June 1998 statement, Dr. Little reported that the veteran then suffered from urinary incontinence and erectile dysfunction. He indicated that his examination revealed that the veteran's scrotum was very slightly edematous, but not that severe. The prosthesis pump in the right hemiscrotum was reported to be palpable and his testicles were somewhat sensitive to examination. Dr. Little reported that it was difficult to know whether the veteran's prior filariasis was related to his current conditions. Erectile dysfunction was reported to be often linked with the presence of hypertension and diabetes. Dr. Little reported that patients that contracted filariasis and had long term problems typically had this on the basis of lymphatic obstruction. He reported that he was not impressed that there was a great deal of lymphatic obstruction and there was certainly no clinical evidence of elephantiasis. He reported that it was possible that the veteran's prior filariasis had had something to do with his urological problems, although he was not sure that it was likely. Based on a review of the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for impotence secondary to service- connected filariasis. The medical evidence, when considered in its entirety, does not serve to establish that any current impotence is medically related to the veteran's filariasis. Initially, the Board notes that the March 1996 VA examiner's notation of a history of sexual impotence that was associated with his filariasis is based on the veteran's assertions and does not, in and of itself, constitute a nexus opinion. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence that is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence). While Dr. Little indicated that such a relationship was "possible," he also acknowledged that he was not sure that such a relationship was likely. Clearly, then, his opinion is merely speculative. However, service connection may not be predicated on a resort to speculation or remote possibility. See 38 C.F.R. § 3.102 (1999); see also Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Significantly, moreover, the January 1998 VA examiner ruled out a relationship between the veteran's filariasis and impotence in more definitive terms, suggesting instead, that the veteran's impotence was probably secondary to diabetes mellitus and hypertension, which are not service-connected disabilities. The Board does not doubt the sincerity of the veteran's belief that his impotence is medically related to his service-connected. However, as a lay person without medical training and expertise, he is not qualified to proffer an opinion on a medical matter, such as the etiology of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). Hence, his assertions on this point are not probative of ultimate issue in this case. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1992); Similarly, his report to the March 1996 VA examiner that a urologist told him that his impotency was a result of his service-connected filariasis does not constitute a medical nexus opinion. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). For all the foregoing reasons, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for impotence secondary to the service-connected filariasis. Thus, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER The petition to reopen the claim for service connection for impotence, claimed as secondary to the service-connected filariasis, is granted, and the claim is hereby reopened. As evidence of a well-grounded claim for service connection for impotence, claimed as secondary to the service-connected filariasis, has been submitted, the appeal is allowed to this extent. Service connection for impotence, claimed as secondary to the service-connected filariasis, is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals