Citation Nr: 21010238 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 10-25 322 DATE: February 24, 2021 ORDER Service connection for unspecified depressive disorder is granted. Service connection for a psychiatric disorder other than unspecified depressive disorder is denied. An effective date prior to January 7, 2003 for the grant of service connection for seborrheic dermatitis is denied. REMANDED The appeal for a compensable rating for seborrheic dermatitis of the face and scalp is remanded. FINDINGS OF FACT 1. Unspecified depressive disorder is at least as likely as not proximately due to service connected left wrist tenosynovitis disability. 2. No psychiatric disorder other than unspecified depressive disorder began in service or is otherwise related to service or a service-connected disability; a psychosis was not manifest to a compensable degree within a year of the Veteran’s May 1976 service separation. 3. The Veteran’s honorable discharge from the service was in April 1976, and a claim for service connection for seborrheic dermatitis of the face and scalp was not received prior to January 1, 2003. CONCLUSIONS OF LAW 1. The criteria for service connection for unspecified depressive disorder are met. 38 C.F.R. § 3.310. 2. The criteria for service connection for a psychiatric disorder other than unspecified depressive disorder are not met. 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. 3. The criteria for an effective date prior to January 7, 2003 for the grant of service connection for seborrheic dermatitis of the face and scalp have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1(p), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from May 1973 to May 20, 1976. He also had a period of service from May 21, 1976 to February 1977, which is considered dishonorable for VA purposes. These matters comes to the Board of Veterans' Appeals (Board) on appeal from rating actions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in January 2015 regarding whether new and material evidence had been presented to reopen a claim for service connection for a psychiatric disorder other than PTSD and service connection for PTSD, and a transcript of the hearing is associated with his claims folder. At the time, the Veteran waived RO consideration of additional evidence submitted. The matter of service connection for a psychiatric disorder was before the Board in March 2015 to obtain updated treatment records, and January 2017. In January 2017, the Board reopened the claim for service connection for a psychiatric disorder, and remanded this issue for a VA examination and medical opinion. In a March 2017 motion for reconsideration, the Veteran requested a recusal of the undersigned Veterans Law Judge from deciding his case, based on the undersigned's findings with respect to a claim decided in January 2017. In August 2017, a Deputy Vice Chairman of the Board denied the motion. In response to further motions from the Veteran, the Chairman of the Board denied the Veteran's later motion for reconsideration. Recusal is appropriate where there are circumstances that might give the impression of bias either for or against the appellant. 38 C.F.R. § 19.12. In light of the action taken by the Board's Chairman and Deputy Vice Chairman, and in light of the fact that no one has identified circumstances that might give the impression of bias, there is no basis for recusal. The Veteran was most recently represented by a private attorney. However, the Veteran revoked that power of attorney in October 2020, and stated his desire to represent himself. The Board denied service connection for a psychiatric disorder in March 2018. However, that decision was vacated after the representative pointed out that the Veteran made an unnoticed request for additional time to submit evidence in January 2018. Additional evidence was subsequently submitted in July 2018 with a waiver of initial RO consideration, and the Board again denied service connection for a psychiatric disorder, to include PTSD, in November 2018, but that decision was vacated and the matter was remanded to the Board by the United States Court of Appeals for Veterans Claims (Court) in December 2019. Thereafter, the Board remanded the appeal to the RO in April 2020 for a VA examination and medical opinion. In 2018, four additional issues were certified for appeal to the Board. However, the Veteran has requested a Board videoconference hearing for those issues and that hearing is now in the process of being scheduled. Board practice dictates that the Veteran will be contacted regarding the hearing that he requested for these issues, and then these issues will be decided at a later time. Service connection for a unspecified depressive disorder is granted Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Board finds that service connection is warranted for unspecified depressive disorder. The June 2020 VA medical opinion diagnosed unspecified depressive disorder which is proximately due to, at least in part, the Veteran's service connected left wrist tenosynovitis. The VA examiner supported his conclusion with reference to valid MMPI-2 (psychological testing) results that revealed psychopathology consistent with chronic pain. Another psychological assessment was done in December 2006, with valid MMPI-2 results similar to that in 2001. The examiner stated that research shows that MMPI-2 results, if valid, are considered to hold true over periods of time. The examiner further indicated that the Veteran was treated thereafter at VA for depression associated with chronic pain for a sustained period, “at least 2012 to 2019”. In November 2019, his condition was considered to be largely stable with depressive features due to medical problems. The examiner felt that given the consistent and valid MMPI-2 testing and consistent treatment at least from 2012 to 2019, it appears that a diagnosis of unspecified depressive disorder in relationship to the Veteran's pain condition is appropriate. The examiner indicated that issues relating to the Veteran's left wrist pain have been chronic and a consistent source of chronic pain, and so it is at least as likely as not that the Veteran's unspecified depressive disorder secondary to chronic pain is secondary to his service connected left wrist condition. Further, as the symptoms attributed to PTSD in the 2017 VA examination report, discussed below, could not be separated from the now service-connected depressive disorder symptoms, the PTSD symptoms shall be considered service connected as well. Service connection for a psychiatric disability other than unspecified depressive disorder is denied Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), i.e., a diagnosis conforming to specified diagnostic criteria (currently the DSM-5, previously the DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is unrelated to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the reported stressor. Instead, the record must contain evidence that corroborates the veteran's testimony as to the occurrence of the claimed stressor. The evidence in this case does not include any evidence corroborating the Veteran's account of his claimed stressor such as in-service treatment records or lay statements from other servicemembers. The Veteran has not contended, and the evidence does not suggest, that there are any outstanding records that would corroborate this incident. While the Veteran has claimed that he engaged in combat in Vietnam, the Veteran's service personnel records are clear that the Veteran did not serve in Vietnam and did not engage in combat. As the Veteran's claimed stressor is unrelated to combat and has not been corroborated, the second element required under section 3.304(f) is not met. The question of whether the Veteran was exposed to a stressor in-service is a factual determination and in the circumstances of this case VA adjudicators are not bound to accept the Veteran's statements simply because treating medical providers have done so. Wood v. Derwinski, 1 Vet. App. 190 at 193. The statements from the Veteran upon which the diagnosis of PTSD was made are either unsupported or are based on stressors unrelated to service. A March 2017 VA examiner diagnosed PTSD due to a pre-service incident when he was held at gunpoint and his sister was sexually assaulted and found the symptoms of the Veteran’s PTSD and major depressive disorder were interrelated. The aspect of the examiner’s opinion attributed the Veteran’s major depressive disorder to his grieving the death of his wife and medical problems was found inadequate by the Court and cannot be considered probative evidence as a result. However, the Joint Motion for Remand did not identify any problem related to the PTSD opinion and so it has been considered probative evidence. The 2020 VA opinion provider indicated that the 1975 injury as described in the records does not meet the DSM-5 criteria A (to be a stressor significant enough to cause PTSD), and so a diagnosis of PTSD is not applicable as it relates to this injury. For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for a PTSD; however, as noted above, PTSD symptomatology will be included in the assessment of the Veteran’s service-connected psychiatric symptomatology as PTSD symptoms cannot be distinguished from his service-connected depressive disorder. The benefit-of-the-doubt doctrine is, therefore, not for application and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran’s most recent argument and evidence is in support of his contention that he has a psychosis that should be service-connected on a presumptive basis. Certain chronic disabilities (such as psychosis), may be presumed to have been incurred in service if manifested to a compensable degree within a specified period of time postservice (one year for psychosis). 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). As an initial matter, the evidence does not suggest, and the Veteran has not contended, that a psychosis was first manifested during the Veteran’s period of honorable service which ended in May 1976. Instead, the Veteran has provided private medical opinions to support the contention that service connection for a psychosis is warranted on a presumptive basis. However, the Board finds that the preponderance of the evidence is against the claim. While the private medical providers have diagnosed the Veteran with schizophrenia during the course of the appeal, the preponderance of the evidence is against a finding that schizophrenia manifested to a compensable degree within a year of May 1976. The private psychologist in a July 2018 report used the Veteran’s present day recollection of what his symptoms were during his other than honorable period of service to conclude that he had schizophrenia in service, but the Veteran’s current reports of psychotic symptoms in service (auditory hallucinations and bizarre behavior) and the March 2020 psychologist’s report that schizophrenia symptoms emerged in service are outweighed by the Veteran’s denial of auditory and visual hallucinations during his other than honorable period of service, the notation at the time that his behavior was normal, and another notation at the time that there had been no previous psychiatric illness. While the March 2020 private medical examiner concluded that psychosis symptom onset occurred within one year of his original period of service, the rationale for this conclusion is inadequate and results in the Board finding this opinion has little to no probative value. First, the private medical opinion is inherently contradictory with respect to the conclusion that schizophrenia manifested to a compensable degree within a year of May 1976. Elsewhere, the opinion seems to suggest the opposite—that schizophrenia was not manifested to a compensable degree within the first year. The opinion provider supported the statement (of psychosis symptom onset within a year of May 1976) with the statement that the Veteran’s “in-service diagnosis [depressive neurosis] was at least as likely as not a prodromal expression of his developing psychosis.” This statement does not support a finding that a psychosis was manifest to a compensable degree within that period. The highly probative contemporaneous evidence of record itself contradicts a finding that the Veteran had manifestations of a psychosis to a compensable degree in service as he was diagnosed with depressive neurosis. Also, the opinion provider refers to “the onset of bizarre behavior in service” without explicitly identifying the bizarre behavior or identifying how the bizarre behavior reflects psychotic manifestation to a compensable degree. Elsewhere in the report it was noted that the Veteran had periods of AWOL because he was bored with the work, his wife left him, and he had lost his wallet containing $600 which led to his suicide attempt by overdose and his diagnosis of depressive neurosis. Standing alone, this behavior is not found to be obviously “bizarre” by the Board. Third, the opinion provider also bases his opinion on the Veteran’s “self-report that his schizophrenia emerged in service.” However, the record contains numerous medical opinions that the Veteran malingers about his medical, and in particular, his psychiatric health. As noted above, the Veteran reported that he was in combat in Vietnam when the service records definitively show no Vietnam or combat service. As a result, the Board finds the Veteran’s statements as to the onset of his psychotic symptomatology are not credible, and, to the extent an opinion provider relied on such statements, the opinion is less probative. The June 2020 VA medical opinion is against a finding that the Veteran has another psychiatric disorder that is related to medical problems during service. The 2020 VA opinion provider reviewed the evidence of record and noted that there are prison records suggesting antisocial personality, schizophrenia, and malingering, and a private medical opinion giving a diagnosis of schizophrenia, and a VA examiner giving diagnoses of PTSD and major depression. The 2020 opinion provider took the approach of what is consistently shown in the record and in objective psychological testing, to draw the best conclusion possible as to a current psychiatric disorder. An effective date prior to January 7, 2003 for the grant of service connection for seborrheic dermatitis of the face and scalp The Veteran requests an effective date prior to January 7, 2003 for the grant of service connection for dermatitis of the face and scalp. No specific arguments have been made in support of an earlier effective date, although he explained generally in his substantive appeal that his “dermatological service recorded issues [have been] ongoing since service.” After carefully reviewing all of the evidence, including the arguments and evidence submitted, the Board notes that the Veteran’s honorable period of active duty ended in April 1976 and finds that a claim for service connection for seborrheic dermatitis was not filed prior to January 7, 2003. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be 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. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). The Board acknowledges that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply. Under the applicable regulations, the term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Here, as noted above, the Board finds that a claim for service connection for seborrheic dermatitis of the face and scalp was not received prior to January 7, 2003. As no claim date earlier than that date is shown for these benefits, and the claim was filed more than 1 year post-service, no effective date prior to January 7, 2003 is permitted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS FOR REMAND A compensable rating for seborrheic dermatitis face and scalp The rating period for this claim dates back to January 7, 2003. The regulatory criteria for rating this disability under Diagnostic Code 7806 changed slightly effective from August 13, 2018. Under either set of the rating criteria, a compensable rating can be assigned when there are characteristic lesions affecting 20 or more percent of the entire body or exposed areas. The most recent examination of the Veteran for this skin disability was in March 2017, and it showed dermatitis affecting less than 5 percent of the Veteran's body. However, in August 2020, the Veteran stated that more than 40 percent of his entire body has been affected; and that it is treated currently. Based on his statement, it appears that there may have been a worsening of his condition since the last VA examination. This warrants a VA examination. Also, the most recent records we have are dated in November 2019, and VA has a duty to assist by obtaining all relevant VA records. In light of the above, we are going to remand this appeal to the RO to obtain updated treatment records and a VA dermatology examination as indicated below. The matters are REMANDED for the following action: 1. Make arrangements to obtain updated records (not already of record) of all VA and non-VA treatment the Veteran has received for seborrheic dermatitis. This should include all VA medical records of treatment which the Veteran has received since November 2019. 2. After the record is determined to be complete, make arrangements for the Veteran to be afforded an examination to determine the nature and severity of his service-connected seborrheic dermatitis disability. The claims folder must be available to and reviewed by the examiner in conjunction with this examination. In examining the Veteran, the examiner should elicit the Veteran's subjective complaints, report all clinical findings in detail, and reconcile, as necessary, the subjective complaints with the objective findings. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner should provide responses to the following: a. Does the Veteran's seborrheic dermatitis have characteristic lesions affecting 20 to 40 percent of his entire body or exposed areas? b. Does the Veteran's seborrheic dermatitis have characteristic lesions affecting more than 40 percent of his entire body or exposed areas? M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.