Citation Nr: 20004183 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-28 261 DATE: January 16, 2020 ORDER Service connection for bilateral hearing loss is granted. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, bipolar disorder, anxiety, substance abuse, and insomnia, is denied. Service connection for residuals of a burn to the face is denied. Service connection for bilateral impaired vision is denied. FINDINGS OF FACT 1. The Veteran experienced an in-service burner explosion; bilateral hearing loss has been continuous since that time. 2. The Veteran does not demonstrate a psychiatric disability for VA compensation purposes, or a substance abuse disability secondary to his service-connected tinnitus. 3. The Veteran does not demonstrate current residuals of an in-service facial burn. 4. Bilateral impaired vision was not incurred in service, to include an in-service burner explosion. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1116, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, depression, bipolar disorder, anxiety, substance abuse, and insomnia, are not met. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for service connection for residuals of burn to face are not met. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. Bilateral impaired vision was not incurred in service. 38 U.S.C. §§ 1131, 1116, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1979 to June 1982, to include foreign service in Germany. The Veteran testified as to the above appeals before the undersigned Veterans Law Judge at a November 2018 travel board hearing. A transcript of this proceeding has been associated with the record These appeals were then remanded by the Board in May 2019 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection The Veteran is currently pursuing service connection for multiple disorders on direct bases only. The Board will limit its analyses accordingly. Thus, service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Bilateral Hearing Loss As to the above appeal, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. Here, the Veteran underwent one audiological evaluation during the period on appeal. Specifically, a September 2019 Disability Benefits Questionnaire (DBQ) records the following puretone threshold results: Hertz 500 1000 2000 3000 4000 Right Ear 5 20 15 25 15 Left Ear 15 20 30 25 25 These results do not establish a current hearing loss disability for VA purposes. However, the September 2019 DBQ also reports speech recognition scores of 92 percent bilaterally. Thus, in affording the Veteran the benefit of the doubt, it is found that he demonstrated a bilateral hearing loss disability per VA regulations during the period on appeal. Accordingly, the first element of service connection has been met. As to the second element, the Veteran contends that his bilateral hearing loss was caused by an in-service burner explosion. The Board conceded this event in its May 2019 decision, and finds no reason to disturb this finding at this time. Accordingly, the second element of service connection has also been met. Notably, bilateral hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a), such that the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Here, the Veteran has repeatedly testified that his hearing loss onset following the in-service explosion and has continued since that time. See, e.g., September 2019 DBQ; November 2018 hearing transcript. Thus, although there is an absence of complaints or treatment for hearing loss for many years after service separation, the Board resolves reasonable doubt in the Veteran’s favor and finds that he had continuous symptoms of hearing loss since service separation. Accordingly, the requirements of presumptive service connection under 38 C.F.R. § 3.303(b) have been met. In this respect, the Board acknowledges that the September 2019 DBQ provides a negative nexus opinion. However, the physician’s rationale is flawed, as it is based upon her conclusion that the Veteran’s hearing is within normal limits, a finding which is in direct contradiction of VA regulations defining hearing loss disabilities. Moreover, the Board does not need to reach the weight assignable to this opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the chronic disease of hearing loss (38 C.F.R. § 3.309(a)) based on a finding of continuous symptoms since service. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of hearing loss since that time; therefore, hearing loss is presumed to have been incurred in service and the appeal is granted on this basis. Psychiatric Disorder Turning to the psychiatric appeal, the evidence does not demonstrate that the Veteran has a current disability for which service connection may be awarded. Here, the evidence clearly denotes the Veteran’s history of chronic psychiatric symptoms including depression and anxiety. See generally VA treatment records. During the period on appeal, these symptoms have been attributed to a number of psychiatric diagnoses, including schizoaffective disorder, varying substance abuse disorders, anxiety disorder, depression, and bipolar I disorder. Id. Clarity as to the nature of the Veteran’s psychiatric disorder was offered during a July 2016 VA examination, wherein the Veteran was diagnosed with substance-related mood disorder. In the accompanying comments, the examiner concluded that the Veteran’s “history of depression and manic symptoms [are] related to multiple substances including alcohol, cannabis, and cocaine.” A comorbid condition was explicitly denied at that time, including a diagnosis of PTSD. Rather, the Veteran’s symptoms were clearly and singularly attributed to his history of chronic substance abuse. Such a finding is dispositive in this case, as compensation shall not be paid if the disability in question was the result of the veteran’s own willful misconduct, including the abuse of alcohol or drugs. See 38 U.S.C. §§ 105, 1110, 1131; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97 (January 16, 1997). Upon the July 2016 examiner’s competent opinion, the Veteran’s psychiatric disorder is the result of his history of substance abuse. In offering this conclusion, the Board does not disregard the Veteran’s history of varied psychiatric diagnoses. However, greatest probative value is afforded to the July 2016 diagnosis, which considers the nature and onset of the Veteran’s symptoms, the observable impact of a reported in-service injury, the examiner’s own evaluation of the Veteran, and the use of screening instruments to assess the reliability of the Veteran’s testimony. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Upon such a finding, the Board also acknowledges that its May 2019 remand requested that an additional VA opinion as to this matter be obtained. Although an examination was ordered that same month, it was canceled in August 2019 due to the Veteran’s purported unavailability. He contacted VA that same month and requested that his examination be rescheduled, but failed to appear for the September 2019 appointment. To date, he has neither provided good cause for his failure to appear nor requested that a new examination be scheduled. Thus, VA has undertaken reasonable efforts to satisfy its duty to assist in this case, and a determination is instead offered upon the evidence currently of record. See 38 C.F.R. § 3.655(b). Accordingly, it is found that the Veteran’s psychiatric symptoms are caused by a substance abuse disorder, for which service connection may not be awarded. Briefly, service connection may be awarded for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Currently, the Veteran is service-connected for tinnitus. However, at no time has he intimated an association between his service-connected disability and his psychiatric symptoms, nor is there any such evidence of record. Accordingly, service connection cannot be awarded on this basis. Rather, the weight of the evidence establishes that the Veteran demonstrates a substance-related mood disorder. Service connection on a direct basis is prohibited by VA regulations, and the Veteran has not presented a secondary theory of entitlement upon which this appeal may be granted. Therefore, the preponderance of the evidence is against the appeal, the benefit-of-the-doubt rule is not for application, and entitlement to service connection for an acquired psychiatric disorder is hereby denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Face Burn Residuals Next, the Veteran contends that service connection is warranted for residuals of a facial burn acquired during service. However, the evidence does not demonstrate that the Veteran was diagnosed with pertinent residuals at any time during the pendency of this appeal. Instead, a July 2016 VA examiner reported normal results upon evaluation of the Veteran, to include the total absence of scars or other disfiguring characteristics from his body. Such a finding corresponds with service treatment records (STRs), which noted no burns, scars, or discoloration of the face following the conceded burner explosion. Independent review of the Veteran’s VA and private treatment records supports the VA examiner’s conclusion, as this evidence reveals no diagnosed or reported residuals of a facial burn during the pendency of this appeal. In the absence of a current disability, further inquiry into the in-service event or nexus elements is rendered moot, and the appeal must be denied. In offering this conclusion, the Board has considered the Veteran’s implicit contention that he presents with ongoing residuals of a facial burn; however, he lacks the requisite medical training and expertise to competently offer such an opinion. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the record speaks to the Veteran’s habit of embellishing his symptoms, such that his testimony alone is not credible evidence of a current disability. See, e.g., August 2019 VA treatment record (noting the Veteran’s inability to provide a “coherent story” as to his psychiatric symptoms); July 2016 VA psychiatric examination (reporting “some indication of feigned or exaggerated symptoms”). Instead, greater probative value is afforded to the medical evidence which does not establish the existence of the claimed disorder in this case. As the first element of service connection has not been met, there is no basis upon which the grant the appeal. The preponderance of the evidence is against the appeal, the benefit-of-the-doubt rule is not for application, and entitlement to service connection for residuals of a facial burn is hereby denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Impaired Vision Finally, the Veteran seeks service connection for bilateral impaired vision. Here, the record contains competent evidence of the claimed disorder. Specifically, an August 2019 DBQ diagnoses the Veteran with open angle glaucoma of both eyes, with associated symptoms of bilateral peripheral vision loss. The Veteran’s vision loss is also noted throughout VA treatment records, to include his use of glasses. As such, the first element of service connection has been met. The Veteran again contends that the claimed disorder is related to an in-service burner explosion. As noted above, this event was previously conceded by the Board in May 2019; this determination remains intact herein. Thus, the second element of service connection has also been met. However, the competent evidence does not establish a nexus between the Veteran’s current vision impairment and the in-service explosion. In this respect, the August 2019 physician concluded that the Veteran’s vision impairment was less likely than not incurred in or caused by the in-service injury. In doing so, the physician noted that the Veteran’s current glaucoma was previously undiagnosed. His medical records contained no documentation of high eye pressure, damage to the optic nerve, or decreased peripheral vision. Moreover, the Veteran’s service records indicate that the burner explosion occurred in June 1979. However, a July 1980 record discusses an incident which occurred while the Veteran was driving. This record is significant, as it occurred one year after the burner explosion and demonstrates that his vision was good enough to drive. Additionally, there was no facial or corneal scarring observed during examination. Therefore, although the Veteran presents with glaucoma, it is less likely related to the in-service injury. Instead, his glaucoma is best classified as primary open angle glaucoma, which has a genetic component and is more common as someone ages. That the burner explosion occurred nearly four decades prior “would correlate with the time factor for the [V]eteran to start to manifest glaucoma at this point in his life.” This opinion, which is based upon consideration of the Veteran’s in-service medical history, the nature and onset of his current disorder, and concurrent examination of the Veteran, is probative evidence against the claim. See Prejean, 13 Vet. App. at 448-49; Nieves-Rodriguez, 22 Vet. App. at 302-04 (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). There is no indication that the examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact in providing the above nexus opinion. Moreover, the examiner possesses the requisite expertise to render medical opinions regarding the etiology of the claimed disorder and had sufficient facts and data on which to base his conclusions. In contrast, the Veteran asserts that a nexus exists between his vision impairment and military service. However, he lacks the requisite training and expertise to offer a competent opinion regarding the etiology of the claimed condition. See Jandreau, 492 F.3d at 1376-77; Woehlaert v. Nicholson, 21 Vet. App. 456, 462. As such, greater probative value is afforded to the medical evidence in concluding that a nexus is not present with respect to this appeal. As the third and final element of service connection has not been met, the appeal cannot succeed. Accordingly, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable, and the claim seeking service connection for bilateral impaired vision is denied. [CONTINUED ON NEXT PAGE] Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.