Citation Nr: 18142216 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-03 943 DATE: October 15, 2018 ORDER Service connection for depressive disorder is granted. The appeal seeking to reopen a claim for service connection for a chronic disability to account for bilateral arm disability is granted. REMANDED Service connection for mental health conditions other than depressive disorder (to include alcohol and cannabis abuse disorders secondary to service-connected disabilities) is remanded. Service connection for bilateral hand conditions is remanded. Service connection for a left eye condition is remanded. An initial rating greater than 10 percent for service-connected tinea versicolor is remanded. An earlier effective date for service connection of tinea versicolor is remanded. FINDINGS OF FACT 1. The Veteran has been diagnosed with depressive disorder and has provided competent and probative lay and medical evidence reflecting that his depressive disorder was incurred in service and has persisted since that time. 2. A September 2010 rating decision denied service connection for a chronic disability to account for bilateral arm disability. The Veteran did not appeal the decision and new and material evidence was not submitted within a year after the decision. Therefore, the decision is final. 3. Evidence received since the September 2010 rating decision is relevant and probative as to the issue of service connection for a chronic disability to account for a bilateral arm disability. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The September 2010 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. The evidence received since the September 2010 rating decision, which denied service connection for a chronic disability to account for a bilateral arm disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from July 1977 to April 1983, with subsequent service in the Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from August 2014 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Although the RO did not adjudicate the question of whether new and material evidence has been received to reopen the claim for a chronic disability to account for bilateral arm disability, this issue must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The Board notes that the Veteran submitted his claim for “mental conditions,” see September 2013 Veteran’s Informal Claim, but has been diagnosed with depressive disorder, alcohol abuse disorder, and cannabis abuse disorder. See February 2017 Disability Benefits Questionnaire by H.H., Ph.D. Therefore, the Board will broadly construe the claim for service connection for a mental health condition, as a claim for service connection for mental health conditions, to include a depressive disorder, alcohol abuse disorder, and cannabis abuse disorder. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that VA must consider any disability that “may reasonably be encompassed by” the description of the claim and symptoms or other submitted information). Because service connection for depressive disorder may be granted at this time, but service connection for alcohol and cannabis abuse disorders require further development, these issues have been separated and have been characterized accordingly. 1. Service connection for depressive disorder. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran has a current diagnosis of depressive disorder. See February 2017 Disability Benefits Questionnaire by H.H., Ph.D. The Veteran’s cousin submitted a lay statement supporting that the Veteran did not have signs of mental health problems before he went into the military, but began to show signs while on leave from the service and continuing after he left service. See November 2016 Lay Statement by B.L., submitted March 2017. Based on the evidence available to her and an interview with the Veteran, a psychologist opined that the Veteran’s depressive disorder more likely began in military service and continues uninterrupted to the present. See February 2017 Psychological Assessment and Opinion by H.H., Ph.D. The Board finds this opinion highly probative and accords it great weight. Accordingly, the Board finds that the preponderance of the evidence supports the claim and entitlement to service connection for depressive disorder is granted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. The appeal seeking to reopen a claim for service connection for a chronic disability to account for bilateral arm disability. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means 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). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). A threshold issue is whether the Veteran’s claim for conditions in his right and left hands is a new claim or a claim that has been previously adjudicated. The Board finds that the scope of the Veteran’s current claim encompasses in part the Veteran’s prior claim for a bilateral arm condition. This is primarily because the symptoms that the Veteran described in his VA examination for the prior adjudication are the same symptoms he described in his most recent VA examination and for which he was diagnosed with carpal tunnel syndrome and right hand arthritis. Compare July 2010 VA Examination by T.H., D.O. (noting hand symptoms of tingling, numbness, abnormal sensations, pain, anesthesia, and weakness) with December 2015 Peripheral Nerves Disability Benefits Questionnaire by G.V. M.D. (noting hand symptoms of weakness, pain, and numbness). Although the 2010 VA examiner indicated there was no diagnosis to account for these symptoms, the Veteran’s diagnosis of carpal tunnel syndrome, but no objective supporting testing, was of record at the time of the prior adjudication. See May 2009 Primary Care Note by J.B., M.D. Because the some of the diagnoses and symptoms underpinning these claims are the same, the Board finds that the present claim was, at least in part, previously adjudicated in the September 2010 rating decision. See Boggs v. Peake, 520 F.3d 1330, 1334-37 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 203-05 (2009); Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009). In a September 2010 rating decision, the RO denied the Veteran’s claim because it concluded there was no current disability. See September 2010 Rating Decision. The Veteran did not appeal that decision and the record does not reflect that there was new evidence submitted within one year of the rating decision. Therefore, the September 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. However, after this denial, the VA examiner found additional evidence that substantiates a finding that the Veteran has bilateral hand disabilities in the form of carpal tunnel syndrome and arthritis, now also supported by objective signs, such as abnormal muscle strength and decreased sensation. See December 2010 VA examination. This is “new” evidence because it is non-duplicative of the prior evidence, which did not include the objective signs found on the more recent examinations. This evidence is also “material” because it supports a finding that the Veteran has a current disability. Considering this new and material evidence, reopening is warranted. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). REASONS FOR REMAND 1. Service connection for mental health conditions (to include alcohol and cannabis abuse disorders secondary to service-connected disabilities), other than depressive disorder. In this case, the Veteran has been diagnosed with alcohol and cannabis abuse. See February 2017 Disability Benefits Questionnaire by H.H., Ph.D. There are also other potential diagnoses, including posttraumatic stress disorder, that were noted by licensed clinical social workers (LCSW). See, e.g., February 2015 Mental Health Outpatient Note by S.L., LCSW. Notably, the private examiner’s report detailed incidents of being assaulted by seven or eight men while in service and indicates that the Veteran “self-medicates” with alcohol and cannabis. See February 2017 Psychological Assessment and Opinion by H.H., Ph.D. VA is required to provide examination when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a current disability or recurrent symptoms, evidence of an in-service event or related service-connected disability, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i). In light of the foregoing, and because the Veteran is now service-connected for a depressive disorder, an examination is required to determine whether the Veteran has additional mental health diagnoses and whether these are either directly or secondarily related to his active service. 2. Service connection for bilateral hand conditions. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because the record does not include an opinion that adequately addresses the facts and circumstances presented by the Veteran’s case. VA must provide a Veteran with a medical examination and opinion when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the examiner concluded that the Veteran’s bilateral hand conditions are less likely than not incurred in or caused by service because he has arthritis in his right wrist and index fingers, right handed carpal tunnel syndrome, and no arthritis in the fifth digit. See December 2015 Service Connection Medical Opinion by G.V., M.D. It is not clear how the cited evidence led the examiner to the conclusion that there was no relationship to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that contains only data and conclusions is not entitled to any weight). Further, this opinion does not address the Veteran’s left hand, which the examiner diagnosed with carpal tunnel syndrome. See December 2015 Peripheral Nerve Disability Benefits Questionnaire by G.V., M.D. Accordingly, a remand is required to obtain an addendum opinion with respect to the Veteran’s right- and left-hand conditions. 3. Service connection for a left eye condition. In this case, the Veteran reported that he has nerve problems in his left eye, which provides competent evidence of recurrent symptoms. See April 2014 Veteran’s Statement in Support of Claim (VA Form 21-4138). Further, the Veteran had in-service accounts of eye burning and glass in his eyes, which is evidence of both an in-service event and an indication of a nexus. See Undated Service Emergency Health Record (“20 [year old] male with glass in both eyes [for] 6 hours.”); August 1978 Service Treatment Note. VA is required to provide examination when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a current disability or recurrent symptoms, evidence of an in-service event, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i). 4. An initial rating greater than 10 percent for service-connected tinea versicolor. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the the claim at this time because the record does not include an opinion that adequately addresses the facts and circumstances presented by the Veteran’s case. VA must provide a Veteran with a medical examination and opinion when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded an examination in December 2015. The examination report is internally inconsistent because the examiner first indicated that the veteran did not treat with oral or topical medicals and then later noted that the Veteran’s debilitating episodes “occurred despite ongoing immunosuppressive therapy.” See December 2015 Skin Disease Disability Benefits Questionnaire by G.V., M.D. The examiner further did not indicate the approximate total body area or approximate total exposed body area affected because the Veteran did not have any of the listed conditions, which includes dermatitis. Id. This information is important because the extent and types of treatment, as well as the percentages of body and exposed areas affected, is fundamental information in determining the appropriate evaluation under both of the applicable skin rating schedules. See 38 C.F.R. § 4.118 (2017), Diagnostic Codes (DC) 7813 (referring evaluation under dermatitis) and 7806 (rating under types and extent of treatment and percentages of the body and exposed areas affected); see also 83 Fed. Reg. 32,592 (July 13, 2018) (creating a general rating formula, which rates under the types and extent of treatment and percentages of the body and exposed areas showing characteristic lesions). Accordingly, a remand is required to obtain an examination that provides this information. 5. An earlier effective date for service connection of tinea versicolor. This effective date was assigned in a December 2015 rating decision and appealed in a March 2016 notice of disagreement. A statement of the case (SOC) has not yet been issued. Thus, remand pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2013 to the present. 2. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s mental health condition(s), excluding Veteran’s now service-connected depressive disorder. Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s mental health condition(s) by diagnosis(es). (b.) Is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current mental health condition(s)* was incurred in military service, to include as a result of being assaulted by seven or eight men? *In answering this question, please DO NOT provide an opinion on depressive disorder (this is already service-connected) or alcohol, cannabis, or other substance abuse disorders (these conditions may not be directly service connected). (c.) Is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current mental health condition(s)* was proximately caused by OR aggravated by the Veteran’s depressive disorder? The examiner is advised that AGGRAVATION is defined as a permanent increase in severity of the disability beyond its natural progression. *In answering this question, please DO provide an opinion on alcohol, cannabis, or other substance abuse disorders (these conditions may be secondarily service connected). The examiner MUST assume that the Veteran has a service-connected depressive disorder. The examiner is advised that, BY LAW, the particular facts and circumstances of the Veteran’s case (i.e., his particular medical condition and circumstances) must be addressed. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. 3. If the Veteran is diagnosed with posttraumatic stress disorder, complete all development indicated, to include obtaining any required corroboration. 4. After completion of directive one, provide the complete record to an appropriate clinician and obtain an addendum opinion to determine the nature and cause of the Veteran’s right- and left-hand condition(s). The examiner MUST indicate that he has reviewed the entire record. Based on the factual evidence of record, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s right- AND left- hand condition(s) diagnosis(es). (b.) Is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current right- OR left-hand condition(s) were incurred in military service, to include as a result of 1978 or 1982 injuries to the right hand and right fifth finger or a 1982 possible right wrist ganglion cyst rupture? In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms are and when they began. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. 5. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s left eye condition(s). Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s left eye condition(s) by diagnosis(es). (b.) Is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current left eye condition(s) was incurred in military service? In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms are and when they began. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the Veteran’s claims folder): *An undated service emergency note indicating that the Veteran had glass in his eye for six hours. *An August 1978 Service Treatment Note for eye burning. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. 6. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tinea versicolor. Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) What is the approximate percentage of the entire body affected by tinea versicolor? What is the approximate percentage of the exposed areas affected by tinea versicolor? (b.) What is the approximate percentage of the entire body showing characteristic lesions of tinea versicolor? What is the approximate percentage of the exposed areas showing characteristic lesions of tinea versicolor? (c.) Does the Veteran require topical therapy or systemic therapy?* How frequently does the Veteran require such treatment? *The examiner is advised that BY LAW the examiner MUST provide a detailed explanation (rationale) for why and how the examiner concluded that the therapy was topical or systemic. (d.) To the extent possible, please identify any symptoms and functional impairments due to tinea versicolor alone (including treatment) and discuss the effect of the Veteran’s tinea versicolor (including treatment) on any occupational functioning and activities of daily living. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Lambert, Associate Counsel