Citation Nr: 21004566 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-03 496 DATE: January 27, 2021 ORDER Entitlement to a separate compensable rating for psychiatric disability, to include service connection for an acquired psychiatric condition, to include as secondary to the Veteran’s service-connected bilateral hearing loss is denied. FINDING OF FACT There is no currently diagnosed disability manifested by an acquired psychiatric condition that was incurred in or caused by service, or secondary to or a manifestation of his service-connected bilateral hearing loss, and any reported psychiatric symptoms do not amount to functional impairment of earning capacity. CONCLUSION OF LAW The criteria for establishing entitlement to a separate compensable rating for psychiatric disability or to service connection for an acquired psychiatric condition, to include as secondary to the Veteran’s service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1972 to June 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing held before the undersigned Veterans Law Judge in November 2016. This appeal was remanded by the Board in May 2018. When this case was last before the Board in July 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain medical opinions regarding the etiology of the Veteran’s claimed psychiatric disability and whether it was a manifestation of the Veteran’s bilateral hearing loss or whether it was caused or aggravated by his service-connected bilateral hearing loss. The Veteran was afforded an appropriate examination in October 2020. As such, the Board finds that the AOJ substantially complied with the directives in the July 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection—Legal Criteria In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, “VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code.” Morgan, 31 Vet. App. at 167; see also Long v. Wilkie, No. 16-1537 (en banc) (U.S. Vet. App. Dec. 30, 2020). Pursuant to Morgan and Long, the Board finds that it is essential to the rate, on a schedular basis, all of the manifestations of the Veteran’s service-connected bilateral hearing loss. A separate evaluation is warranted where a symptom or manifestation is not duplicative of or overlapping with the symptoms of the other conditions, here psychiatric impairment related to the Veteran’s bilateral hearing loss. Esteban v. Brown, 6 Vet. App. 259 (1994) (addressing a veteran’s entitlement to separate ratings). Establishing service connection generally requires 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 Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or is the result of a service-connected disease or injury, or that a service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Court has held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Recently, the Court expanded this ruling and held that Saunders is not limited to pain, such that a disability for VA purposes includes any condition that results in functional impairment of earning capacity. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). However, with respect to mental conditions, compensation is limited to disabilities that conform to a DSM-5 diagnosis. Id. The Board finds that the probative evidence of record does not document that the Veteran has a current diagnosis of any acquired psychiatric disability that conforms to a DSM-5 diagnosis. As such, service connection is not warranted on direct or presumptive bases for the Veteran’s claimed psychiatric disabilities. Martinez-Bodon, supra. The Board has thoroughly reviewed the Veteran’s medical records. The Veteran’s service treatment records (STRs) were silent for any treatment, diagnoses, or complaints of any psychiatric conditions. The Board does note that the Veteran indicated that he experienced depression or excessive worry in a June 1974 Report of Medical history, however, there is no evidence that the Veteran was ever diagnosed with a psychiatric condition. Further, the Veteran’s VA treatment records do not indicate that he is diagnosed with any psychiatric condition. Furthermore, the Veteran was afforded an October 2020 Mental Disorders Examination. Pertinently, the examiner, after reviewing the Veteran’s records and conducting a thorough physical examination, specifically concluded that the Veteran does not have a mental disorder diagnosis that meets the DSM criteria. Based on the above, the Board does not find evidence of any acquired psychiatric disability at any time during the pendency of the appeal. Additionally, the Board does not find that the Veteran experiences any compensable symptoms thereof. The Board notes that a diagnosis under DSM-V is required for compensation for psychiatric disabilities. Without a diagnosis for a psychiatric disability, under the DSM-V criteria, the Veteran fails to meet the requirements of service connection. See Martinez-Bodon v. Wilkie. The Board has considered the Veteran’s lay contentions, and the lay statements of his wife and family members, and finds the lay statements are competent insofar as they report observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran asserts that his claimed conditions are related to his active service or his service-connected disabilities, such statements are of no probative value, as the Veteran lacks the medical expertise to diagnose complex conditions or to render medical nexus opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, to the extent the Veteran asserts that he has a current condition, such statements are inconsistent with the medical evidence of record that does not document any relevant diagnoses at any time during the pendency of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Martinez-Bodon, supra (noting that a diagnosis under the DSM-V is required for service connection of a psychiatric disorder). Based on the foregoing, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to a separate compensable evaluation for psychiatric impairment stemming from the Veteran’s bilateral hearing loss, to include for service connection for an insomnia disability. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.