Citation Nr: 1805761	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-08 366	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss, and if so, whether service connection is warranted.

2.  Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), to include as secondary to the service-connected hypertension and hypertensive cardiovascular disease with chronic renal dysfunction.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Costello, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1977 to June 1980.

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas (RO).  

In March 2014 the Veteran indicated that he wanted a Board hearing.  He failed to appear for the Travel Board hearing scheduled in September 2016.  Accordingly, his hearing request is deemed withdrawn.

The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009).  Therefore, the issue of service connection for has been recharacterized on the front page of this decision as service connection for an acquired psychiatric disorder.


FINDINGS OF FACT

1.  A September 2007 rating decision declined to reopen the Veteran's previously denied claim for service connection for bilateral hearing loss; the Veteran perfected an appeal of this decision, but later withdrew his appeal.

2.  Evidence submitted since the September 2007 rating decision, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim.

3.  The Veteran does not have right ear hearing loss.  

4.  Left ear hearing loss is not attributable to or related to service.

5.  The Veteran does not have an acquired psychiatric disorder.  


CONCLUSIONS OF LAW

1.  The September 2007 rating decision which denied service connection for bilateral hearing loss is final.  38 U.S.C. § 7105 (2012).

2.  New and material evidence has been received since the September 2007 rating decision and the claim of entitlement to service connection for bilateral hearing loss is reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

3.  The criteria to establish entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017).

4.  An acquired psychiatric disorder was not incurred in or aggravated by service, may not be presumed to have been incurred or aggravated therein, and is not secondary to a service-connected disability.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material

Service connection for bilateral hearing loss was initially denied in an April 1997 rating decision on the basis that hearing loss was not incurred in or caused by the Veteran's military service.  The Veteran did not appeal that decision.  Subsequently, the Veteran filed new claims, petitioning to reopen the previously denied claim.  However, the RO declined to reopen the prior denied claim in rating decisions dated in December 2005, November 2006 and in September 2007.  The Veteran only initiated and perfected an appeal of the September 2007 rating decision.  However, in March 2010, the Veteran indicated in a written statement that he was withdrawing his appeal of the September 2007 rating decision denying service connection for bilateral hearing loss.  In May 2010, the Veteran filed a new claim for service connection for hearing loss.  However, as explained in greater detail below, this was outside the timeframe for reinstating a notice of disagreement and thus, the Board has construed this communication as a new claim.  See 38 C.F.R. § 20.204 (c) (2017).

More specifically, in the September 2007 rating decision, the RO declined to reopen the Veteran's claim for service connection for hearing loss finding that new and material evidence had not been received to reopen the previously denied claim.  The RO previously denied service connection for bilateral hearing loss on the basis that the evidence did not show audiometric findings which met the criteria for a grant of service connection for defective hearing.  The RO noted that the Veteran's hearing during service was normal and the evidence did not show that the Veteran had hearing loss within one year of discharge from service.  A notice of disagreement was received in September 2008, within the subsequent one-year period.  In June 2009, the RO issued a statement of the case (SOC) which denied service connection for bilateral hearing loss for lack of a current diagnosis for the right ear and for no evidence linking any current hearing loss the Veteran may have had to the Veteran's military service.  His August 2009 substantive appeal (VA Form 9) was timely filed, yet in March 2010 the Veteran withdrew his case for bilateral hearing loss.  In May 2010, the Veteran tried to reinstate his service connection claim for bilateral hearing loss, but he was no longer able to do so.  See 38 C.F.R. § 20.204(c).  Therefore, the RO's September 2007 rating decision is final. 38 U.S.C. § 7105.

Prior unappealed decisions are final.  However, 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(a).  The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence means existing evidence not previously submitted to agency decisionmakers.  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).  According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  

Since the last prior final decision, evidence has been added to the record.  The additional evidence of record consists of medical evidence and a September 2010 statement that indicated the Veteran was told that his military service caused hearing loss in both ears.  The reason for the prior final denial was that there was no evidence establishing the Veteran's left ear hearing loss arose on active duty or is otherwise causally related to his military service.  Also, the evidence did not establish that the Veteran had right ear hearing loss.   In other words, the current disability, in-service incurrence, and the nexus element were missing.  This recent evidence suggests that the Veteran's hearing loss occurred during his service and that he purportedly had a hearing loss since service.  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them.  Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993); Duran v. Brown, 7 Vet. App. 216 (1994).  Evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to grant the claim.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010)

Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  There is a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim if the new evidence causes VA to obtain a medical opinion.  38 C.F.R. § 3.156(a).  Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  That reopening then triggers VA's duty to assist in providing the claimant with a VA examination

In this case, the additional lay and medical evidence suggests a basis for service connection.  That evidence raises a reasonable possibility of substantiating the claim.  The Board finds that new and material evidence has been received since the September 2007 rating decision.  Therefore, the claim of entitlement to service connection for bilateral hearing loss is reopened.

Service Connection

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  

In addition, certain chronic diseases such as sensorineural hearing loss and psychoses will be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of a Veteran's separation from service.  38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim.  38 C.F.R. § 3.303(b).  This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases).  Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, supra.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Personality disorders are by definition preexisting disorders.  A personality disorder is considered a congenital or developmental defect and is not subject to service connection under 38 C.F.R. § 3.303 (c) (2017) (see also 38 C.F.R. §§ 4.9, 4.127 (2017) in the absence of superimposed disease or injury.  Personality disorders are not diseases or injuries for compensation; however, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected.  38 C.F.R. § 4.127.

Service connection may also 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).  

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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Additionally, service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310 (a).  Any increase in severity of a nonservice-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 of the nonservice-connected disease, will be service-connected.  38 C.F.R. § 3.310(b).  Secondary service connection under § 3.310 entails "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition."  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Accordingly, in order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Id. 

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Hearing Loss

Hearing loss disability is defined by regulation.  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability.  The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that 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 Veteran contends that he was exposed to acoustic trauma during service.  The American Medical Association defines "acoustic trauma" as "[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire."  American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003).  An acoustic trauma can cause permanent hearing loss, but does not necessarily do so.  See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  

On the March 1977 entrance examination, audiological evaluation revealed that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
Not recorded
15
LEFT
15
15
15
Not recorded
15

In June 1980, the Veteran elected not to have a separation examination.

Post-service, in December 1980, during a law enforcement agency's entrance examination, audiological evaluation revealed that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5
-5
0
-5
-10
LEFT
5
5
0
-5
-5

In May 1989, during a law enforcement agency's entrance examination, audiological evaluation revealed that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
15
5
5
0
0

In March 1994, during a law enforcement agency's entrance examination, audiological evaluation revealed that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
25
35
20
0
10

In October 2008, the Veteran stated that he had a military separation examination that revealed hearing loss, but was not included in his military records.  Also, he stated that he did not pass the hearing examinations for multiple law enforcement agencies.

A December 1980 medical record revealed that the Veteran's acceptance as a police officer was deferred due to elevated blood pressure and a heart murmur.  

In May 2009, the Veteran underwent a VA audiology examination.  The examiner reviewed the Veteran's claims file.  The Veteran reported ringing in his ears for the last 15 to 20 years, but denied any functional effect of tinnitus or hearing loss.  He denied noise expose prior to or after service, yet reported loud noise exposure in-service as an infantryman with hearing protection.  On examination, the examiner found that the Veteran's right ear was within normal limits between 250 and 8000 Hertz.  His left ear had mild to moderate mixed hearing loss between 250 and 8000 Hertz, but the examiner noted that it was a transient condition that could be treated.  The VA examiner stated that she was unable to provide an etiology opinion, other than one based on speculation, as the Veteran did not have a separation examination.  She noted that the Veteran's March 1977 entrance examination indicated hearing within normal limits.  

In an August 2009 statement, the Veteran claimed that he had a military separation examination and was told by the doctor that he had diminished hearing in both ears.  Four years later, a law enforcement agency's audiology examiner told him that he did not pass the hearing examination.

A June 2010 VA treatment record indicated that the Veteran received a hearing aid for his left ear.

In July 2010, the Veteran underwent another VA audiology examination.  The examiner reviewed the Veteran's claims file.  The Veteran reported difficulty hearing soft spoken people.  He denied noise expose prior to or after service, yet reported loud noise exposure in-service as an infantryman with hearing protection.  On examination, the examiner found that the Veteran's right ear was within normal limits between 250 and 8000 Hertz.  His left ear had moderately severe rising to mild conductive hearing loss.  The VA examiner opined that the Veteran's hearing loss was not caused by or a result of acoustic trauma the Veteran experienced in military service.  She noted that the Veteran's December 1980 and May 1989 examinations indicated hearing within normal limits.  The first evidence of hearing loss in the left ear was not seen until the March 1994 examination and that examination found normal hearing in the left ear between 250 and 8000 Hertz, except for mild hearing loss at 1000 Hertz.  

In a September 2010 statement, the Veteran indicated that he was unable to pass a police department hearing test in 1984.  He stated that he was told during his June 1980 military separation examination that his left ear hearing would deteriorate over time and believed that his military service was the cause of his hearing loss.  

Also, in September 2010, the Veteran had a private hearing evaluation.  Results indicated normal hearing in the Veteran's right ear and mixed hearing loss in the left ear.  The Veteran reported that he had normal hearing when he entered the military and that he used hearing protection when training, but he was hit in the head while boxing for the military.  He believed that the head trauma from boxing caused his hearing loss.  

In October 2010, the Veteran underwent a VA examination for ear disease.  The examiner reviewed the Veteran's claims file.  The VA examiner opined that it is less likely than not that the left mixed hearing loss was caused by or the result of the acoustic trauma experienced in military service.  Audiometric examinations found conductive or mixed hearing loss with the preponderance to the lower frequencies, which is suggestive of an otosclerosis or similar other ossicular disorder.  The findings of a generally healthy middle ear although noting the ipsilateral acoustic reflex absent at 1000 Hertz in the left ear would indicate no gross evidence of infection.  The Veteran's medical history did not reveal a history of ear disease, head trauma, or ear trauma.  The lack of a hearing loss curve of a pure sensorineural type cascading into a high frequency loss that is expected with most acoustic or high frequency damage experienced in the military service is not present in the Veteran's audiogram with the low frequency loss slopping upward.  The examiner opined that the Veteran's left ear hearing loss is etiologically related otosclerosis; however, with a lack of history of head trauma or ear infections, the etiological opinion is somewhat speculative.  

The VA examiner's opinions, rendered by medical professionals, are afforded significant probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached); see also Nieves- Rodriguez (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.)  

Moreover, with regard to the right ear, the Veteran has never had, during service, or at the current time, right ear hearing loss disability as contemplated by 38 C.F.R. § 3.385.  The Court has stated that the 38 C.F.R. § 3.385 "prescribes the level at which a hearing loss becomes a disability for purposes of entitlement to VA compensation.... [N]ot every change in hearing should be service connected."  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).

The Board has considered the Veteran's own opinion that his hearing loss resulted from in-service acoustic trauma.  However, as a lay person in the field of medicine, his opinion is outweighed by the VA medical opinions of record.  The audiologists are qualified professionals able to determine the Veteran's exact Hertz levels, to determine the presence of hearing loss, and the etiology of any identified hearing impairment.  In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data.  See Black v. Brown, 10 Vet. App. 279, 284 (1997). Further, to the extent that the Veteran asserts that he had some type of hearing impairment on separation or was told he would develop some left hearing loss, the several audiograms conducted after service and prior to 1994 diminish the credibility of such statements to include any assertion of continuous symptomatology since then. There is no evidence of record that is both competent and credible attributing any current left ear hearing loss to service and in fact, overall the evidence is against such a causal relationship.  

Thus, the Board finds that the preponderance of the evidence is against the Veteran's claim in this case. The Veteran's hearing loss is not attributable to service.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.

The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  

Acquired Psychiatric Disorder

The Veteran contends that he has depression and anxiety secondary to his service-connected hypertension and hypertensive cardiovascular disease with chronic renal dysfunction because he was unable to work to support his family.

The Veteran's service treatment records (STRs) do not reveal complaints, findings, treatment, or a diagnosis of a psychiatric disorder.  His March 1977 entrance examination indicated that the Veteran had a normal psychiatric evaluation.  Also, the Veterans March 1977 medical history report was negative for depression or excessive worry, nervous trouble, or suicide attempts.  However, these records do show that the Veteran was referred for neuropsychological consultation in March 1977 in connection with his entrance into service; a history of arrests and incorrigibility was noted when the Veteran was 15-16 years of age and a charge for possession of marijuana in 1974 was dismissed after six months of informal probation. No neuropsychiatric care was reported and the Veteran was found fit for enlistment. In May 1978, the Veteran was described as anxious and disoriented; an assessment of hyperventilation syndrome with questionable drug reaction was reported. An impression of possible cocaine overdose was a later added impression. In June 1980, the Veteran elected not to have a separation examination.  

A January 2006 VA treatment note indicated that the Veteran felt depressed since approximately 1999 when he began to have difficulty working.  He was unable to play sports he once enjoyed.  On examination, there were no symptoms of PTSD or psychoses.  The Veteran reported psychiatric contact at age 11 as he had thoughts of committing suicide.  He reported being hospitalized on multiple occasions.  He did not recall being diagnosed and he had not had any psychiatric contact since.  He was diagnosed with major depressive disorder, first episode.  His Global Assessment of Functioning (GAF) score was 45.

In an April 2009 statement, the Veteran detailed that he suffered from depression prior to and during service, but kept it hidden because he wanted to serve his country.

A July 2009 VA diagnostic assessment noted that the Veteran attempted suicide multiple times by taking pills and running into traffic, but he did not give a specific number of attempts.  He was previously diagnosed with major depressive disorder and given medication, but he stopped taking the medication.   On examination, there were no symptoms of psychoses.  He reported a history of child abuse and discrimination in the military.  There was a family history of psychiatric illness.  He did not endorse significant suicidal indicators and did not have a plan for suicide.  Negative prognostic indicators included a probable personality disorder, a history of non-compliance, and minimal insight into the role the Veteran played in his own symptoms.  The VA physician diagnosed the Veteran with a personality disorder because of the Veteran's vague report of symptoms and his past history.  He did not meet the criteria for depressive disorder.  

An April 2010 VA formal finding determined a lack of information required to corroborate stressors associated with a claim for service connection for PTSD.  The Veteran failed to provide information to corroborate his claim and his record did not indicate any combat action or other stressors.

In August 2010, the Veteran underwent a VA examination for mental disorders, except PTSD and eating disorders.  The examiner reviewed the Veteran's claims file.  The Veteran's military records revealed that he denied having any psychiatric illness or suicide attempts, yet during the examination he reported a suicide attempt at age 13 or 14.  Also, he reported a nervous breakdown in the service, yet he never sought treatment.  The Veteran reported that he was stressed over the harassment he endured in the military related to his health issues, but also stated that he was confused if things really happened.  After the Veteran's military service, his life was stressful because potential employers saw that he was court-martialed.  The Veteran was diagnosed with a personality disorder, not otherwise specified (NOS), cluster B traits.  Though the Veteran complained of depressive symptoms, his presentation was not of someone who was depressed.  The Veteran presented very mild symptoms that did not meet the criteria for a mental disorder.  The VA examiner opined that the Veteran's personality disorder with cluster B characteristics was not caused or a result of service-connected conditions.  The minimal symptoms associated with a personality disorder appear to be related to the Veteran's perception of harassment and entitlement that are part of the cluster B personality disorder and is not caused or the result of his service-connected conditions.  His GAF score of 71 was associated with a personality disorder.  

In this case, the VA examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis.  The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).

The Board has considered the Veteran's own opinion that an acquired psychiatric disorder began in-service.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition.  Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship.  See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

The most probative evidence establishes that an acquired psychiatric disorder is not related to service.  Further, to the extent that a personality disorder has been diagnosed, service connection cannot be granted for this condition as personality disorders are not diseases or injuries within the meaning of the law.  As noted above, personality disorders are considered developmental defects and not diseases or injuries within the meaning of applicable legislation and, therefore do not constitute disabilities for VA compensation purposes.  Service connection can only be granted for additional disability resulting from a mental disorder that is superimposed upon the personality disorder.  38 C.F.R. §§ 3.303 (c), 4.9, 4.127.  In the current case, the Veteran has not submitted competent or probative medical evidence specifically indicating that he currently has an acquired psychiatric disorder superimposed on his personality disorder.  In contrast, VA has obtained an adequate and probative VA examination opinion in conjunction with the Veteran's claim.  Here, the VA examiner opined that the personality disorder was not incurred in, caused by, or aggravated by his military service.  The Board finds this to be probative evidence regarding the question of whether additional disability was superimposed upon the Veteran's personality disorder by service, and to be persuasive and conclusive evidence against this question.  The opinion was rendered after a thorough examination of the record, and the examiner provided detailed rationale as to the opinions that were rendered.  There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that they misstated any relevant fact.  Thus, the Board finds the VA opinion to be the most probative evidence of record.  Accordingly, service connection is not warranted. 

The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.








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ORDER

Service connection for bilateral hearing loss is denied.

Service connection for an acquired psychiatric disorder, claimed as PTSD, to include as secondary to the service-connected hypertension and hypertensive cardiovascular disease with chronic renal dysfunction is denied.





S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs