Citation Nr: A21016840 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 190307-11156 DATE: October 18, 2021 ORDER Entitlement to service connection for a recurrent depressive disability and a "specific phobia" is granted. REMANDED Entitlement to service connection for a skin disability to include basal cell carcinoma, claimed as the result of sun and chemical exposure, is remanded. FINDINGS OF FACT 1. An October 2013 rating decision denied service connection for posttraumatic stress disorder (PTSD) and depression. The Veteran did not submit a timely notice of disagreement with the rating decision. 2. Additional VA documentation received within one year of notice of the October 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD and depression. 3. The October 2013 rating decision denying service connection for PTSD and depression is not final. 4. A December 2014 rating decision reopened the claim for service connection for PTSD and depression and denied the claim on the merits. The Veteran did not submit a notice of disagreement with the rating decision. 5. Additional VA documentation received within one year of notice of the December 2014 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD and depression. 6. The December 2014 rating decision denying service connection for PTSD and depression is not final. 7. A recurrent depressive disability and a "specific phobia" originated during active service. CONCLUSIONS OF LAW 1. The October 2013 and December 2014 rating decisions that denied service connection for PTSD and depression are not final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for service connection for a recurrent depressive disability and a "specific phobia" have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1977 to October 1977 and from November 1977 to June 1995. He served in Southwest Asia. In March 2021, the Veteran was afforded a virtual hearing before a Veterans Law Judge. The hearing transcript is of record. In June 2018, the Agency of Original Jurisdiction determined that new and material evidence had not been received to reopen the claim of service connection for PTSD and depression. In August 2018, the Veteran submitted a notice of disagreement. In October 2018, the Veteran opted into the Rapid Appeals Modernization Program (RAMP) and selected the Supplemental Claim lane. In January 2019, the Agency of Original Jurisdiction again determined that new and material evidence had not been received to reopen the claim of service connection for PTSD and depression. In March 2019, the Veteran elected the Hearing docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the RAMP supplemental claim decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Application to Reopen Claim of Service Connection for PTSD and Depression If new and relevant evidence is presented or secured with respect to a supplemental claim, the Department of Veterans Affairs (VA) shall readjudicate the claim taking into consideration all of the evidence of record. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. Relevant evidence means evidence that tends to prove or disprove a matter in issue. 38 U.S.C. § 101(35). In regards to pending legacy claims not under the modernized review system, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). In October 2013, the Agency of Original Jurisdiction denied service connection for PTSD and depression as "we did not find a link between PTSD/depression (claimed as combat in Iraq) and military service." The Veteran was informed in writing of the adverse decision and his appellate rights in October 2013. The Veteran did not submit a notice of disagreement with the decision. The evidence of record at the time of the October 2013 rating decision included service treatment records, service personnel records, VA examination and clinical documentation, and written statements from the Veteran. The report of a January 1992 Army examination states that the Veteran presented a history of "depression or excessive worry." On examination, the examiner found no psychiatric abnormalities. The report of the April 1995 physical examination for service separation states that the Veteran presented a history of "depression or excessive worry." Th examiner noted "depression end of military career resolved." On examination, no psychiatric abnormalities were identified. In a November 2012 Statement in Support of Claim for Service Connection of PTSD, VA Form 21 0781, the Veteran indicated that, while he was in Saudi Arabia and Iraq, chemical alarms would sound every day and every night and Scud missiles were constantly flying over his location. He reported that he was "always in a state of fear, depression, anxiety, and full of mixed emotions" due to the stressful events. The report of a September 2013 psychiatric examination conducted for VA states that the Veteran was diagnosed with recurrent major depressive disorder, a "specific phobia," and alcohol abuse. The examiner concluded that "it is at least as likely as not that the Veteran's specific phobia is due to his fear of hostile military fire." VA clinical documentation dated in January 2014 and May 2014 notes that the Veteran was treated for chronic depression and alcohol abuse. It is of such significance that it raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD and depression when considered with the evidence previously of record. The basis for the denial was that PTSD and depression were not shown to be related to military service and the additional evidence showed that a recurrent depressive disability had been diagnosed by VA psychiatric personnel. As new and material evidence was received within one year of notice of the October 2013 rating decision, the Board finds that the rating decision did not become final. 38 C.F.R. § 3.156(b). In December 2014, the Agency of Original Jurisdiction determined that new and material evidence had been received to reopen the claim for service connection for PTSD and depression and denied the claim on the merits "because there is no evidence of a clinical diagnosis of PTSD and there is no verified evidence of stressful incident" and "there is no evidence that shows this condition occurred in or was caused by service." The Veteran was informed of the adverse decision and his appellate rights in December 2014. Following the December 2014 rating decision, the Veteran did not submit a timely notice of disagreement. The evidence considered by the Agency of Original Jurisdiction considered in formulating the December 2014 rating decision included the service treatment records, photocopies of the service treatment records, the service personnel records, VA examination and clinical documentation, and written statements from the Veteran. The additional VA clinical documentation reflected ongoing treatment for recurrent depression. A February 2015 VA mental health clinic treatment record states that the Veteran "currently carries a diagnosis of depressive disorder unspecified, alcohol use disorder, rule out major depressive disorder." The VA psychiatrist commented that "the patient is in need of continued mental health services to maintain stabilization, prevent further deterioration and/or relapses." The February 2015 VA mental health clinic treatment record is of such significance that it raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD and depression when considered with the evidence previously of record. The basis for the denial of service connection was that PTSD and depression were not shown to be related to military service and the additional evidence showed that a recurrent depressive disability including major depressive disorder had been diagnosed by VA psychiatric personnel. As new and material evidence was received within one year of notice of the December 2014 rating decision, the Board finds that the rating decision did not become final. 38 C.F.R. § 3.156(b). As neither the October 2013 nor the December 2014 rating decisions became final, the Board will now address the claim of entitlement to service connection for a psychiatric disability on the merits. Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The report of the January 1992 Army examination states that the Veteran presented a history of "depression or excessive worry." On examination, the examiner found no psychiatric abnormalities. The report of the April 1995 physical examination for service separation states that the Veteran presented a history of "depression or excessive worry." Th examiner noted "depression end of military career resolved." On examination, no psychiatric abnormalities were identified. In his June 2012 Veteran's Supplemental Claim for Compensation, VA Form 21 526b, the Veteran sought service connection for depression due to combat in Iraq. The report of the September 2013 psychiatric examination conducted for VA states that the Veteran was diagnosed with recurrent major depressive disorder, a "specific phobia," and alcohol abuse. The examiner concluded that "it is at least as likely as not that the Veteran's specific phobia is due to his fear of hostile military fire." VA clinical documentation dated in and after 2013 reflects ongoing treatment record for a recurrent depressive disability. A February 2015 VA mental health clinic treatment record states that the Veteran "currently carries a diagnosis of depressive disorder unspecified, alcohol use disorder, rule out major depressive disorder." At the March 2021 Board hearing, the Veteran testified that he received ongoing treatment for anxiety and depression. A recurrent depressive disability was initially manifested during active service and persists to the present time. A VA examiner has diagnosed the Veteran with recurrent major depressive disorder and a "specific phobia" due to the Veteran's "fear of hostile military fire." Upon resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for a recurrent depressive disability with a "specific phobia" is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a skin disability to include basal cell carcinoma, claimed as the result of sun and chemical exposure, is remanded. The Veteran contends that service connection for basal cell carcinoma is warranted as the claimed disability is due to his in service sun and chemical exposure. The service personnel records reflect that the Veteran served in Southwest Asia including Saudi Arabia. A January 2016 dermatopathology report from M. Arida, M.D., states that a basal cell carcinoma was found on the left mid back. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran has not been afforded a VA examination to address the relationship, if any, between the diagnosed basal cell carcinoma and active service. That is a pre-decisional error. In a June 2014 written statement, the Veteran reported that he had been awarded Social Security Administration (SSA) disability benefits. VA's duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187 188 (1992). Documentation of the Veteran's SSA award of disability benefits, if any, and the evidence considered by the SSA in granting or denying the Veteran's claim has not been requested for incorporation into the record. That is a pre decisional error. Accordingly, these matters are REMANDED for the following action: 1. Contact the SSA and request that documentation of the Veteran's award of disability benefits or the denial of that claim and copies of all records developed in association with the decision. 2. Schedule the Veteran for a VA skin examination conducted by a physician to determine the current nature of any identified recurrent skin disability and its relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (Continued on the next page) (a) Diagnose all recurrent skin disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent skin disability including basal cell carcinoma had its onset during active service or is related to any incident of service, including the Veteran's sun exposure while serving in Southwest Asia and Saudi Arabia and his subjective history of in service chemical exposure. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.