Citation Nr: 21005035 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-17 584 DATE: January 28, 2021 ORDER Service connection for depressive disorder, NOS is granted. An initial compensable rating for submandible residual scar is denied. An earlier effective date of August 20, 2012 for the grant of service connection for submandible residual scar is granted. The appeal concerning whether new and material evidence has been received to reopen entitlement to presumptive service connection for an acquired psychiatric disorder for treatment purposes only under 38 U.S.C. § 1702 is dismissed. REMANDED Entitlement to service connection for left lung cancer is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his depressive disorder is at least as likely as not aggravated by his service-connected disabilities. 2. The Veteran’s submandible residual scar is not manifest by at least one characteristic of disfigurement and is not painful or unstable. 3. The Veteran’s May 2014 claim for service connection for submandible residual scar was received within the one-year appeal period following the September 2013 rating decision’s grant of an increased rating for right lower jaw fracture residual/mandible articulation limitation of motion/ residual, fracture, right mandible (right lower jaw fracture residuals); the claim for an increased evaluation for right lower jaw fracture residuals was received August 20, 2012. 4. Whether an appeal concerning the issue of entitlement to presumptive service connection for an acquired psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 may be reopened is rendered moot by reason of an equal or greater benefit having been established by the grant of service connection depressive disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder as secondary to other service-connected disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a compensable disability rating for submandible residual scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7800, 7804. 3. The criteria for an earlier effective date of August 20, 2012 for the grant of service connection for submandible residual scar have been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5108, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400; 38 C.F.R. §§ 3.156, 3.160. 4. The appeal as to the issue of whether new and material evidence has been received to reopen a claim of entitlement to presumptive service connection for an acquired psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 is dismissed as moot. 38 U.S.C. § 1702; 38 C.F.R. §§ 3.384, 17.109, 20.202 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to June 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board found that new and material evidence had been received sufficient to reopen the issues of entitlement to service connection for a psychiatric disorder and lung cancer, and remanded the underlying claims on the merits, as well as the issues of entitlement to an initial compensable rating and earlier effective date for the grant of service connection for submandible residual scar and whether new and material evidence had been received to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder for the purpose of establishing eligibility for treatment, for further development. They have since been returned to the Board for further appellate review. 1. Entitlement to service connection for depressive disorder, NOS is granted. The Veteran asserts that he suffers from a psychiatric disorder related to traumatic experiences while serving in Iraq during the Persian Gulf War. Alternatively, he contends that pain from his service-connected disorders caused or aggravated his psychiatric disorder. Pursuant to the Board’s June 2019 remand directives, the Veteran was provided with an additional VA psychiatric examination and medical opinion. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD, but had major depressive disorder. He opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness and was less likely than not related to or aggravated by service-connected conditions. He reasoned that the depression was not related to military service because the Veteran denied and his service records are silent for any mental complaint, diagnosis, or treatment, and also that first mental complaint/diagnosis and treatment was in 2004, 12 years after service. The Board notes, however, that VA mental health treatment records indicate that the Veteran reported flashbacks and nightmares from his experiences in Iraq, a June 2013 VA examination report includes the Veteran’s report of breaking a door and trying to assault a Lieutenant during service, and an April 1991 in-service report of medical history notes the Veteran’s responses of “don’t know” with regard to whether he then or previously experienced depression or excessive work and loss of memory or amnesia. It is unclear from the August 2019 medical opinion whether the examiner considered this evidence. Additionally, the examiner concluded that the Veteran’s major depression is not related to nor aggravated by service-connected conditions. He noted that the Veteran had significant past psychologic history prior to service, described as “catastrophic stressor in early undeveloped brain,” and reasoned that the report of the private doctor finding that the Veteran’s depression is secondary to his “chronic pain” was limited in that it did not consider the neurobiological/psychologic past history. While the August 2019 examiner’s opinion explains the basis for his conclusion that the Veteran’s depression is not etiologically related to his chronic pain, he provided no rationale for the conclusion that it was not aggravated by service-connected conditions. For the aforementioned reasons, the August 2019 medical opinion report is found to be inadequate for adjudicatory purposes. While the Board could remand for an addendum opinion, upon review and further consideration of the evidence of record, the evidence is found to have at least reached the point of equipoise to allow for resolution of doubt in the Veteran’s favor and a grant of the claim. While true that the November 2018 private opinion did not discuss the Veteran’s early psychiatric history, the opinion addressed the May 2011 VA examination report’s notation that the Veteran reported daily pain at his service-connected right wrist and elbow rated as a 5 out of 10 severity, and later received a prescription for Meloxicam assumedly due to worsening pain. She also noted that the Veteran submitted an affidavit reporting that his pain lowers his quality of life, leaves him “frustrated and irritable,” and interferes with his sleep. Finally, she discussed and attached medical literature explaining the interaction between chronic pain and depression, including that chronic pain is a stress state, and the coexistence of depression and chronic pain tends to aggravate the severity of both disorders. The Board further notes that VA psychiatric progress notes between April 2017 and February 2018 indicate that the Veteran’s psychosocial stressors relating to his depression include traumatic experiences, medical problems, and chronic pain. Thus, the evidence is found to be at least evenly balanced as to whether the Veteran’s depressive disorder has been aggravated by chronic pain from his service-connected disabilities, to include residuals of fractures of his right elbow and distal right radius and ulna. Resolving all reasonable doubt in the Veteran’s favor, an award of service connection for depressive disorder, NOS is warranted. 2. Entitlement to an initial compensable rating for submandible residual scar is denied. The Veteran contends that he is entitled to an initial compensable disability rating for his submandible residual scar. The Veteran’s submandible residual scar is currently rated under Diagnostic Code 7800, for burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7800 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 lists the eight characteristics of disfigurement: a scar 5 or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (.6 centimeters) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 7800 because the Veteran’s submandible residual scar does not result in at least one characteristic of disfigurement. The Veteran was provided with a VA examination concerning this scar in August 2014. The Veteran’s chin scar was noted to be at the submandible border at the right side crossing midline, and to be 6 centimeters in length by .5 centimeters in width. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue and no abnormal pigmentation or texture. There was also no gross distortion of facial features of visible or palpable tissue loss. The scar was noted to not be painful or unstable, and did not result in limitation of function. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s submandible residual scar is not deep and non-linear and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does do not cover an area or areas of 144 square inches or greater. Moreover, the Veteran’s scar has not been shown to be unstable or painful. Therefore, Diagnostic Codes 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he has not asserted, and the records do not show, that the Veteran’s submandible residual scar is painful or is manifest by one characteristic of disfigurement. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for submandible residual scar. As the weight of the evidence is against the claim, there is no reasonable doubt to be resolved in the Veteran’s favor; the benefit of the doubt doctrine is therefore not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an earlier effective date of August 20, 2012 for the grant of service connection for submandible residual scar is granted. Generally, the effective date of an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of the claimant’s application. 38 U.S.C. § 5100(a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). VA amended its adjudication regulations, effective March 24, 2015, to require that all claims governed by VA’s adjudication regulation be filed on standard forms prescribed by the Secretary; but as the effective date assigned for the grant of service connection for submandible residual scar is before the effective date of the regulatory change, the more-restrictive amended regulation is not for application in the present case. In cases prior to the regulatory change, VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Any documented communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identified the benefit sought, may be considered an informal claim. 38 C.F.R. §§ 3.155(a). Thus, the essential elements for any claim, whether formal or informal are “(1) an intent to apply for benefits, (2) an indication of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Under 38 C.F.R. § 3.155(d)(2), the Board is required to refer to the AOJ for adjudication in the first instance claims for entitlement to secondary service connection that are reasonably raised during the adjudication of a formally initiated increased rating claim, regardless of whether a veteran files a separate, formal claim for entitlement to secondary service connection. See Bailey v. Wilkie, No. 19-2661, 2021 WL 45679 (Jan. 6, 2021). In the present case, the Veteran filed an application for service connection for “scar on face” that was received by VA in May 2014. In the September 2014 rating decision here on appeal, the RO granted service connection for submandible residual scar with an effective date of May 14, 2014. The Veteran submitted an appeal, in part disagreeing with the assigned effective date. A VA examination conducted in August 2014 indicated that the submandible scar is a result of the Veteran’s in-service mandible fracture and corrective surgery. The Veteran’s May 2014 claim for service connection for submandible residual scar was raised within the one-year period following the RO’s September 2013 rating decision’s grant of an increased rating for right lower jaw fracture residual/mandible articulation limitation of motion/ residual, fracture, right mandible (right lower jaw fracture residuals). The claim for an increased evaluation for right lower jaw fracture residuals was received August 20, 2012. As the claim for an increased rating for right lower jaw fracture residuals could be understood to include a claim for entitlement to service connection for submandible residual scar secondary to the jaw fracture and surgical correction, the Board finds that an earlier effective date of August 20, 2012 may be assigned for the award of service connection for submandible residual scar. The record contains no communications from the Veteran prior to August 20, 2012 that would qualify as a formal or informal claim for service connection for submandible residual scar. 4. The appeal concerning whether new and material evidence has been received to reopen entitlement to presumptive service connection for an acquired psychiatric disorder for treatment purposes only under 38 U.S.C. § 1702 is dismissed. As entitlement to service connection for depressive disorder has been established, the issue of entitlement to service connection for a mental illness for purposes of establishing eligibility for VA treatment under 38 U.S.C. § 1702 is moot. See 38 C.F.R. § 17.37(b). The Veteran will be afforded equal or greater access to VA treatment by virtue of his now-established award of service connection for depressive disorder. See 38 U.S.C. § 1710; 38 C.F.R. § 17.36. As such, the appeal as to this specific issue is dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). REASONS FOR REMAND Entitlement to service connection for left lung cancer is remanded. Pursuant to the Board’s June 2019 remand directives, the Veteran was provided with an additional VA examination and medical opinion pertaining to his lung cancer in August 2019. The examiner opined that the Veteran’s lung cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The entirety of the rationale provided was that the “[c]laim folder [is] silent for a diagnosis and therapy of lung cancer during active service. Diagnosis was done in 2010.” This opinion did not address the October 2018 positive private etiological opinion submitted by the Veteran’s representative, or address the Veteran’s in-service exposure to smoke and other toxins during his Persian Gulf service. The opinion provided is found inadequate for adjudicatory purposes, and remand is needed to obtain a supplemental medical opinion with a complete rationale. The matter is REMANDED for the following action: Obtain a supplemental opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s left lung cancer residuals. If the clinician determines that additional examination of the Veteran is needed in order to provide an opinion, an examination should be scheduled, and the Veteran provided with sufficient notice. (Continued on the next page)   After reviewing the claims file, to include the October 2018 medical opinion from Dr. S.M., the clinician should state whether it is at least as likely as not (i.e. 50 percent probability or more) that the Veteran’s left lung cancer, and any residuals thereof, are etiologically related to service, to specifically include smoke and other toxic exposures during his Persian Gulf service from November 5, 1990 to April 23, 1991. All opinions and conclusions stated must be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the clinician cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the clinician shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.