Citation Nr: 21030723 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-21 177 DATE: May 19, 2021 ORDER The application to reopen the claim of entitlement to service connection for a depressive reaction is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, is granted. REMANDED Entitlement to service connection to a skin disability to include eczema, lichen simplex chronicus, and scars of the back, head and legs, to include as secondary to service-connected depressive disorder. Entitlement to service connection for hypertension, to include as secondary to service-connected depressive disorder is remanded. FINDINGS OF FACT 1. In a September 1966 rating decision, the RO denied service connection for depressive reaction. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the final September 1966 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for depressive reaction and raises a reasonable possibility of substantiating the claim. 3. The Veteran is presumed to have been in sound psychiatric condition at service entry, this presumption has not been rebutted, and the evidence indicates that the Veteran's diagnosed depressive disorder had its onset in service. CONCLUSIONS OF LAW 1. The September 1966 rating decision denying service connection for depressive reaction is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening the claim of service connection for depressive reaction. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for an acquired psychiatric disorder diagnosed as depressive disorder have been met. 38 U.S.C. §§ 1101, 1110, 1111; 38 U.S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to September 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued the denials for an acquired psychiatric disorder, hypertension, and scars on back, head and legs. The Veteran disagreed with the RO's determination, and a statement of the case (SOC) was issued in April 2016 addressing the matter. The Veteran timely appealed. The Veteran's claim of service connection for depressive disorder (also claimed as depressive reaction), hypertension, and scars on back, head and legs were previously denied in an April 2013 rating decision, from which the current appeal originates. In the April 2013 rating decision, the RO denied entitlement to service connection for hypertension and scars on back, head and legs. The RO reopened the previously denied claim for depressive reaction and denied the claim on the merits. However, the Veteran submitted a Statement in Support of Claim (VA Form 21-438) and clinical records for service connection for an acquired psychiatric disorder, hypertension, and scars on back, head and legs in May 2013. These submissions provided details regarding in-service psychiatric symptoms, in-service stressors, and post-service PTSD diagnosis by a VA physician. Details of in-service treatment for hypertension while hospitalized, and the aggravation of hypertension by depression and anxiety were noted. The Veteran reported that a VA physician indicated that his skin condition had been misdiagnosed all of these years, and the proper diagnosis was lichen simplex chronicus and scarring. As new and material evidence was received within a year of the April 2013 rating decision denying the claim of service connection for an acquired psychiatric disorder, hypertension, and scars on the back, head and legs, the rating decision did not become final, and the claims of service connection for an acquired psychiatric disorder, hypertension, and scars on the back, head and legs remained pending. 38 C.F.R. § 3.156 (b). With regard to the applications to reopen, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In April 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. Lastly, in light of the Veteran's reported symptoms and contentions, and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for scars on back, head and legs as a claim of service connection for a skin disability, manifested by eczema, lichen simplex chronicus, and scars on back, head and legs, to include as secondary to an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). New and Material Evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means 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. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Acquired Psychiatric Disorder As set forth above, in a September 1966 rating decision, the RO denied service connection for depressive reaction, finding that a psychiatric condition existed prior to military. The Veteran was notified of his appellate rights in and he did not appeal the RO's determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO's September 1966 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for depressive reaction. As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in September 1966. That evidence includes an October 2012 statement, in which the Veteran reported that when an airman who slept in the bunk next to him in the barracks died, he became depressed and had chronic severe anxiety and tension. At his April 2021 Board hearing, the Veteran testified that he was in good mental health prior to service, in-service events caused his mental health to decline, and he has experienced psychiatric problems since service. Given the basis for the prior denial of the claim, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claim of service connection for depressive reaction and raises a reasonable possibility of substantiating the claim; therefore, the claim is reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Turning to the merits of the case, for the following reasons, the Board finds that service connection for a psychiatric disorder is warranted. In this case, the evidence of record indicates a current psychiatric disability. Specifically, a November 2012 VA examination report and September 2015 VA clinical record shows a diagnosis of depressive disorder. An October 2012 private treatment record shows diagnoses of delusional disorder and paranoid personality disorder. Thus, the first element of service connection has been met. The evidence of record also indicates that the in-service disease requirement has been met. At the October 1965 enlistment examination, the Veteran's psychiatric evaluation was noted as normal. Service treatment records (STRs) show complaints, treatment and diagnosis of depressive reaction, chronic, severe, manifested by suicidal ideations, agitation, anxiety, tension, feelings of loss control, and fear. At his August 1966 separation examination depressive reaction was noted. On the accompanying report of medical history, the Veteran reported having depression or excessive worry, and nervous trouble. In his September 2014 notice of disagreement, the Veteran asserted that his psychiatric disorder was not due to an existing problem prior to entering service. He indicated that his psychiatric disorder began when he entered service and was under a lot of stress worrying about his duties and if he was going to be sent to the war zones. At his April 2021 Board hearing, the Veteran testified that he was in good mental health prior to service, he experienced mental health symptoms in service, and has had psychiatric problems since service. The Veteran's competent and credible statements, and STRs are sufficient to meet the second element of the service connection claim. The next issue is whether the third element of a nexus has been met. A March 2012 VA individual psychotherapy note shows the Veteran reported that during service he experienced several racial slurs, an instigated physical assault, and being passed over for assignments to prevent him from engaging in the training and work activities he was interested in achieving. He noted the death of a fellow soldier whose bunk was close to his bunk in the barracks. The Veteran further noted that some of the stress that he experiences has to do with his anger and resentment over his treatment while in the military. The psychologist noted a diagnosis of depressive disorder. In January November 2012, the Veteran was afforded a VA examination. The examiner opined that the Veteran's psychiatric disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner's rationale was the Veteran's diagnoses appear to be a combination of personality issues that were present prior to his service in the military, as noted in a separation review conducted in 1967. The examiner noted that the Veteran's presentation and treatment history are not consistent with PTSD. The Board finds that the November 2012 VA opinion that the depressive disorder is not related to service is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the November 2012 VA examiner incorrectly stated that the Veteran's depressive disorder was pre-existing. Every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. As noted above, the October 1965 enlistment examination shows that the Veteran's psychiatric evaluation was determined to be normal and the presumption of soundness has not been rebutted, the Veteran is therefore presumed to have been in sound condition with regard to his psychiatric condition when he entered service. Moreover, the VA examiner failed to consider the Veteran's competent and credible statements of the onset of depression in service, and the continuation of symptoms in the years since service. VA laws and regulations require review of the entire record, including lay statements, and give due consideration to VA policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). After so doing, and with reasonable doubt resolved in the Veteran's favor, the Board finds that the STRs showing depressive reaction diagnosis along with the Veteran's report of having depression at his separation examination, the Veteran's competent and credible lay statements regarding the onset of his depression symptoms and continuation of symptoms, and the March 2012 VA psychotherapy note, along with clinical evidence showing a current diagnosis of depressive disorder, provide a sufficient basis to grant service connection for depressive disorder. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). The Veteran does not appear to have a diagnosis of PTSD consistent with 38 C.F.R. § 4.125 as required by 38 C.F.R. § 3.304(f), which would preclude service connection for PTSD. In any event, although the issue on appeal has previously been characterized as including PTSD, given that there is no indication that there are psychiatric symptoms clearly attributable to a psychiatric disorder other than depressive disorder, for which service connection is being granted, further discussion of PTSD or any other psychiatric disorder is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). REMAND 1. Skin Disability The Veteran contends that a skin disability had its onset in service. In an alternative theory, he contends that a skin disability is secondary to the now service-connected depressive disorder. A March 2012 VA psychology therapy note shows the Veteran has difficulty managing skin lesions and the condition is exacerbated by his stress levels. In a November 2012 statement, the Veteran reported that his lichen simplex chronicus is directly related to stress. In a May 2013 statement, the Veteran reported that a VA physician indicated that his skin condition had been misdiagnosed all of these years, and the proper diagnosis was lichen simplex chronicus and scarring. He indicated that the severity of the condition is aggravated by stress. The Veteran underwent a VA examination in November 2012, at which the examiner opined that the Veteran's skin condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In light of the decision above, the evidence indicates that the Veteran has a current disability that may be associated with a service-connected disability. In these circumstances, a VA opinion is required. 38 C.F.R. § 3.159(c)(4)(i)(C) (VA examination warranted where the evidence indicates that a current disability may be associated with another service-connected disability). 2. Hypertension The Veteran contends that his hypertension had its onset in service. In an alternative theory, he contends that his hypertension is secondary to the now service-connected depressive disorder. A March 2012 VA psychology therapy note shows the Veteran has difficulty managing blood pressure and the condition is exacerbated by his stress levels. In a May 2013 statement, the veteran reported that he was treated for high blood pressure at Elgin AFB, Florida in 1966. He was hospitalized for depression and anxiety, and during this time his blood pressure was being monitored. The Veteran asserts that his hypertension is caused by and aggravated by the depression and anxiety. The Veteran's STRs treatment and diagnosis of depressive reaction, chronic, severe, manifested by suicidal ideations, agitation, anxiety, tension, feelings of loss control, and fear. At his August 1966 separation examination, the Veteran reported excessive worry and nervous trouble. Post-service treatment records reflect a diagnosis of hypertension. At his April 2021 Board hearing, the Veteran testified that he had elevated blood pressure when he was hospitalized in service and has been receiving treatment since service. He indicated that anxiety caused his blood pressure to increase due to stress. The record indicates that the Veteran has a current disability that may be associated with service or a service-connected disability. As the Veteran has not been afforded a VA examination in connection with this claim a remand for such an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician as to whether it is at least as likely as not that the Veteran's skin disability was either (a) caused or (b) aggravated by his now service-connected depressive disorder. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The claims file should be reviewed by the clinician. If aggravation is found, the clinician should identify the baseline level of severity prior to the onset of aggravation. The clinician must provide a complete rationale for any opinion set forth. In addressing this matter, the clinician should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran. 2. Request an opinion from an appropriate physician to determine the nature of the Veteran's hypertension. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The physician should review the claims file prior to rendering the opinion. The physician should answer the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is related to service or is either (a) caused or (b) aggravated by his now service-connected depressive disorder. If aggravation is found, the physician should identify the baseline level of severity prior to the onset of aggravation. The physician should also opine as to whether the Veteran's hypertension had its onset in service, within the one year presumptive period, or is otherwise related to service. The physician must provide a complete rationale for any opinion set forth. In addressing this matter, the specialist physician should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.