Citation Nr: 21004741 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-34 835 DATE: January 28, 2021 ORDER New and material evidence having been received, reopening a previously denied claim for service connection for depression is granted. Service connection for depression (to include any symptoms of anxiety caused by a diagnosis of depression) is granted. Service connection for an anxiety disorder is denied. Service connection for a panic disorder is denied. A disability rating in excess of 10 percent for pityriasis versicolor is denied. FINDINGS OF FACT 1. A November 2011 rating decision was issued denying service connection for depressive disorder, and the Veteran did not submit additional evidence within one year after notification of the decision and although originally appealing the decision the Veteran failed to perfect an appeal to the Board; but the evidence received since the November 2011 rating decision is new, material, and give rise to a reasonable possibility of substantiating the Veteran’s claim. 2. A medical nexus exists between a current diagnosis of a depression (which manifests multiple psychiatric symptoms including anxiety) and an in-service incurrence. 3. The Veteran’s now service-connected depression manifests multiple psychiatric symptoms including anxiety. 4. The Veteran does not have a current diagnosis of a panic disorder. 5. The Veteran’s pityriasis versicolor impacted less than five percent of the total body area; impacted none of the effected area; and did not require six weeks or more of systemic therapy during the period on appeal. CONCLUSIONS OF LAW 1. The November 2011 rating decision denying service connection for depressive disorder is final; 38 U.S.C. § 4005 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011); and new and material evidence has been received to reopen service connection for depression. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for depression have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304; 3.307, 3.309. 3. The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304; 3.307, 3.309, 4.14. 4. The criteria for service connection for a panic disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304; 3.307, 3.309. 5. The criteria for a disability rating in excess of 10 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from February 1978 to September 1983. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Appeals (VA) Regional Office (RO). This matter is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in August 2018, and a transcript of the hearing is of record. These matters were previously before the Board, and, in June 2019, the Board remanded these matters for further development. Further development in substantial compliance with Board’s previous remand instructions has been completed. 1. New and material evidence having been received, reopening a previously denied claim for service connection for depression is granted. At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim for to service connection for depression. New and material evidence having been received, service connection for depression is reopened. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). The RO originally denied the Veteran service connection for depressive disorder in November 2011. The Veteran initially appealed the decision, but the decision became final after the Veteran failed to perfect a timely substantive appeal to the Board or submit new and material evidence into the record. The Veteran subsequently filed a claim to reopen the issue, and, in October 2013, the found that new and material evidence had not been received and declined to reopen a previously denied claim for service connection. The Veteran appealed. The Board notes that, during the pendency of the appeal, the RO reopened the Veteran’s previously denied claim in September 2015. Regardless of whether the RO determined new and material evidence had been submitted, 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. In the November 2011 rating decision, the RO denied the Veteran’s claim, because, although the Veteran manifested depressive disorder, the evidence of record indicated that the Veteran’s condition preexisted a period of service but was not aggravated beyond its natural progression by a period of service. Additionally, the RO concluded that the Veteran’s depressive disorder was not proximately due to or aggravated by a previously service-connected disability. Evidence submitted since the November 2011 rating decision included a December 2019 VA examination which indicated that the Veteran was psychiatrically normal upon entering his period of service. The evidence is new, because it was not part of the record prior to the November 2011 rating decision; and is not otherwise cumulative of other medical evidence of record which suggested the Veteran’s depression pre-existed a period of service. The evidence is material, because it is suggestive of a previously unestablished fact; that the Veteran’s depression was caused by a period of service rather than preexisted service. Finally, the evidence gives rise to a reasonable likelihood of substantiating the Veteran’s claim, because the evidence of record already established that the Veteran had a current psychiatric condition and sought treatment for psychiatric symptoms during his period of service. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like psychoses, when manifested to a compensable degree within a year of separation from service; or there is continuity of symptomology thereafter. 38 C.F.R. §§ 3.307, 3.309. 2. Service connection for depression (to include any symptoms of anxiety caused by a diagnosis of depression) is granted. At issue is whether the Veteran is entitled to service connection for depression. The weight of the evidence indicates that the Veteran is entitled to service connection for depression. The Veteran’s service treatment records indicate that the Veteran was psychiatrically normal. During a contemporaneous survey of medical history however, the Veteran gave an ambivalent response to whether or not he had a history of depression or excessive worry. This is highly suggestive of a prior history of depression especially in light of the fact that the Veteran was quite clear that he did not have and had not have a history of other psychiatric symptoms such as nervousness trouble of any sort. Additionally, the Veteran sought psychiatric treatment during a period of service. The Veteran also underwent a VA examination in October 2011 which indicated that the Veteran was depressed – although not overtly so – prior to entering a period of service due to bereavement resulting from his father’s death and estrangement between him and his mother, and that this depression continued through service after the death of his mother. Taken together the weight of the evidence indicates that it is more likely than not the Veteran’s depression preexisted a period of service and continued thereafter. Nevertheless, the Veteran was evaluated as psychiatrically normal upon entering a period of service. The Board is cognizant that a December 2019 VA examination did not preexist a period of service. Nevertheless, the Board is satisfied that the evidence is evenly balance enough to place a reasonable factfinder at the very least in a state of equipoise and the benefit of the doubt must go to the Veteran. Consequently, the Veteran is entitled to a presumption of soundness including that he was psychiatrically sound. 38 C.F.R. § 3.304(b). The presumption of soundness may be rebutted however where clear and unmistakable (obvious or manifest) evidence indicates that the Veteran’s condition preexisted a period of service and was NOT aggravated by a period of service. Id. Nevertheless, even if he were not sound upon service entry, the weight of the evidence does not establish clear and unmistakable evidence that the Veteran’s depression was not aggravated by a period of service. The Board is cognizant that an October 2011 VA examination indicates that the Veteran’s depression was probably not aggravated during a period of service. The very same October 2011 VA examination, however, indicated that the Veteran continued to manifest depression during service due to events that occurred while the Veteran was in-service. Therefore, the Board must conclude that the weight of the evidence is not so heavy that it is obvious or manifest that the Veteran’s depression was not aggravated by a period of service. Additionally, the Board notes that a December 2019 VA examination which indicated that the Veteran was psychiatrically normal upon entering his period of service which would suggest that – although as discussed above the Board finds that the Veteran’s depression probably preexisted a period of service – the weight of the evidence is not so heavy that it is obvious or manifest that the Veteran’s depression preexisted a period of service. The weight of the evidence indicates that the Veteran is entitled to service connection for depression. The Veteran’s current treatment records as well as several VA examinations indicate that the Veteran has a current diagnosis of depression. The Veteran’s service treatment records indicate that the Veteran sought treatment for psychiatric symptoms during a period of service. The October 2011 VA examination indicates that the Veteran’s current depression is linked to the depression that the Veteran manifested during service. True, that same examination indicates that the Veteran’s depression preexisted service, but the presumption of soundness prevents the Board from making such a conclusion. The Board is also cognizant that a December 2019 VA examination opined that it was less likely than not that the Veteran’s current diagnosis was due to a period of service, but, as previously noted, the Board the evidence is sufficiently balanced in order to put a reasonable fact finder in a state of equipoise. Additionally, the Board notes that the December 2019 VA examination indicated that the Veteran’s depression manifested multiple psychiatric symptoms including depression, and the Veteran’s disability rating for depression must take these symptoms into consideration as well. Here, the weight of the probative evidence of record demonstrates that a medical nexus exists between a current diagnosis of depression and an in-service incurrence. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for depression is granted. 3. Service connection for an anxiety disorder is denied. At issue is whether the Veteran is entitled to service connection. As discussed above, the Veteran is being granted service connection for depression. A December 2019 VA examination indicates that the Veteran’s depression manifests anxiety. Therefore, any disability rating for the Veteran’s now service-connected depression must also compensate the Veteran for both his anxiety and depression symptoms. The practice of assigning multiple disability ratings for the same symptomology under different diagnoses, also known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Therefore, service connection for anxiety is denied as a matter of law. 4. Service connection for a panic disorder is denied. At issue is whether the Veteran is entitled to service connection for a panic disorder. The weight of the evidence indicates that the Veteran is not entitled to service connection. The Veteran’s treatment records are silent for a current diagnosis of a panic disorder. The Veteran underwent a VA examination in October 2011 which did not diagnose the Veteran with a panic disorder. The Veteran testified at a personal hearing before the Board in August 2018 that he experienced psychological symptoms including panic, and he attributed these symptoms to a period of service. See Transcript. The Veteran underwent another VA examination in December 2019 which not only did not diagnose the Veteran with panic disorder but explicitly opined that the Veteran did not have a current diagnosis of a panic disorder. The weight of the evidence indicates that the Veteran is not entitled to service connection. The existence of a current disability or a disability during the pendency of the appeal is the cornerstone of a claim for service connection, and, without one, service connection is precluded. Degmetich v. Brown, 104 F.3d 1328 (1997). A December 2019 VA examination indicated that the Veteran did not have a diagnosis of a panic disorder. Additionally, an October 2011 VA examiner declined to diagnose the Veteran with a panic disorder. Moreover, the record is silent for a competent medical opinion suggesting that the Veteran has a panic disorder. The Board notes that the Veteran is competent to report psychological symptoms including panic. Nevertheless, whether or not these symptoms represent a separate psychiatric disorder is a matter of medical complexity, and the Veteran has not demonstrated medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Therefore, the criteria for service connection have not been met. Here, the weight of the probative evidence of record demonstrates that a medical nexus exists between a current diagnosis of depression and an in-service incurrence. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for depression is granted. 5. A disability rating in excess of 10 percent for pityriasis versicolor is denied. At issue is whether the Veteran is entitled to a disability rating in excess of 10 percent for pityriasis versicolor. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection in August 2011, and the RO granted service connection in November 2011 and assigned a disability rating of 10 percent effective date the claim was received. The Veteran filed an increased rating claim in February 2013, and, in October 2013, the RO denied the Veteran’s claim. The Veteran appealed. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that during the pendency of the appeal VA updated section of the rating schedule that applied to skin disabilities. Schedule for Rating Disabilities of the Skin, 83 Fed. Reg. 32597 (July 13, 2018). Nevertheless, none of these changes are relevant to the Veteran’s increased rating claim. For simplicity, the Board shall refer to the recently adopted regulations. Disability ratings for the Veteran’s skin disability is assigned pursuant to the General Rating Formula for the Skin. A disability rating of 10 percent is assigned when the Veteran manifests at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, or psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A disability rating of 30 percent is assigned when the Veteran manifests at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or of 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A disability rating of 60 percent is assigned when the Veteran manifests characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, General Rating Formula for the Skin. The Veteran’s treatment records indicate that the Veteran manifested skin symptoms (such as itching, lesions, and discoloration) throughout the period on appeal. The Veteran underwent a VA examination in May 2017. The Veteran reported skin symptomology including an itchy rash that got worse during the summer. The examiner indicated that the Veteran’s skin disorder did not require and oral or topical medications or any form of systemic therapy. The examiner observed multiple patches of skin discoloration impacting less than five percent of the total body area and none of the exposed area. The Veteran testified at a personal hearing before the Board in August 2018 that he had a rash on his back that got worse during the summer, and that he treats his back with gold bond. The examiner also testified that his back had gotten worse since his last VA examination. See Transcript. The Veteran underwent another VA examination in December 2019. The Veteran reported skin symptomology including a rash on his back that got worse in the summer. The examiner noted that the Veteran used topical medication to treat his rash for less than six weeks in the previous twelve months (since December 2018), but the examiner did not indicate that the Veteran underwent systemic therapy. The examiner noted that the Veteran’s manifested hyperpigmentation effecting less than five percent of total body area but none of the effected area. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 10 percent. In order to meet the criteria for a disability rating in excess of 30 percent, the Veteran needed to manifest characteristic lesions involving at least 20 to 40 percent of the entire body or of at least 20 to 40 percent of exposed areas affected; or systemic therapy for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The Veteran’s rash was measured multiple times throughout the period on appeal, and the Veteran’s rash was consistently measured as effecting less than five percent of the total body area and none of the effected area. Additionally, the Veteran did not undergo systemic therapy, and even the medication that the Veteran did use was used for less than six weeks in a twelve-month period. Therefore, the weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 10 percent throughout the period on appeal. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to a disability rating in excess of 10 percent for a skin disorder. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a disability rating in excess of 10 percent for pityriasis versicolor is denied. The Board has also considered whether or not the issue of a total disability rating due to individual unemployability (TDIU) had been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that it has not, because the Veteran’s examinations of record did not indicate that the Veteran’s skin disability limited the Veteran’s employment. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.