Citation Nr: 21010754 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-09 154 DATE: February 25, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD), to include depression, is granted. FINDING OF FACT The Veteran’s depression was aggravated beyond its natural course by her service-connected hypopigmentation condition. CONCLUSION OF LAW The criteria for service connection for depression have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1976 to March 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In June 2015, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing, a transcript of which has been associated with the claims file. The Board remanded this claim in July 2015, July 2016, and December 2016 for additional development. In the December 2016 remand, the Board separately denied entitlement to service connection for PTSD. In January 2018, the Board denied the Veteran’s claim. The Veteran then appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 decision, the Court set aside the Board’s January 2018 decision and remanded it for further development and adjudication consistent with the Court’s directives. Upon return to the Board, the Veteran’s claim was again remanded for action consistent with the Court’s directives in April and October 2020. This development was completed. Service Connection Entitlement to service connection for depression The Veteran contends that she should be service-connected for depression because of military sexual trauma (MST) and/or because her service-connected skin condition caused or aggravated her depression. As the Board is granting service connection for depression on the basis of aggravation, the Board will not address the merits of service connection for depression based on MST. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Thus, in order to establish that a Veteran has a disability that was caused or aggravated by a service-connected condition, two elements must be established. First, probative evidence must link the two conditions together. Second, the evidence must establish that the condition actually worsened. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Board finds the most probative evidence of record to be the November 2020 VA examination and medical opinions. The examiner reviewed the medical record and has the medical expertise to render such opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The first issue the examiner addressed was the Veteran’s diagnosis or diagnoses. The examiner found that the Veteran had a diagnosis of depression with anxious distress based on a January 2013 medical record. The examiner did not find that the totality of the evidence supported a diagnosis of borderline personality disorder and the November 2020 examination supported that finding. Thus, the Board finds that the Veteran has a current diagnosis of depression. Further, the Veteran is service-connected for a hypopigmentation condition. Thus, the first two elements of secondary service connection are met. Turning to whether the Veteran’s depression is related to her hypopigmentation condition, the examiner considered the medical record, as well as statements by the Veteran. While the Veteran reported her skin condition was stable, it flared up and caused her anxiety and her anxiety caused the flare up to worsen. In addition, when it flared up, she felt that other people judge her which heightens her anxiety. To avoid this, she has to wear long sleeve shirts and it makes her uncomfortable. The examiner could not find a baseline level of symptomology because no reporting of the Veteran’s psychological symptoms was obtained at the November 1999 VA examination that addressed service connection for hypopigmentation except that it found “psychological distress secondary to not [having the] area exposed to the public.” While the examiner could not find a baseline of symptomology for the Veteran’s psychological symptomology, the examiner nevertheless found that the depression was aggravated beyond its natural progression by the service-connected hypopigmentation condition. Turning to whether the Veteran’s hypopigmentation condition actually worsened the depression, the Board notes that 38 C.F.R. § 3.310 (b) states in pertinent part: The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Therefore, there must be a discernable difference in the level of severity that in turn must be compared using the rating schedule. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when the symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. Notably, the Board is not setting an appropriate rating for the Veteran’s disability in the first instance. Rather, the discussion that follows is solely for the purpose of comparing her state of health previously to her current state of health to determine whether aggravation is present. While the term psychological distress in the November 1999 is poorly defined, the Board finds that there was actual worsening. The Veteran reported then that she had “psychological distress secondary to not [having the] area exposed to the public.” This description fits in the description of the criteria for a 10 percent rating of mild or transient symptoms. The November 2020 examiner found symptoms that equate to occupational and social impairment with deficiencies in most areas – which is certainly higher than the previously mild symptoms. Thus, the weight of the evidence is for the claim for service connection for depression. Accordingly, the claim is granted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I.M. Hitchcock 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.