Citation Nr: 21062125 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-43 434 DATE: October 6, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for schizoaffective disorder is reopened. Entitlement to service connection for schizoaffective disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. In a final October 2006 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of entitlement to service connection for schizoaffective disorder. 2. Evidence received since the final October 2006 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for schizoaffective disorder. 3. The Veteran's claimed schizoaffective disorder is not etiologically related to an in-service injury or disease. 4. The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The October 2006 rating decision that denied service connection for schizoaffective disorder is final. 38 U.S.C. § 7105(c)(2012); 38 C.F.R. § § 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for schizoaffective disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for schizoaffective disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for tinnitus are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to April 1979. In March 2019, the Board remanded the issues on appeal for further development, and the case has since been returned to the Board. The Board finds that the AOJ has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Petition to Reopen The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110,117 (2010). For the purposes of evaluating a request to reopen a previously denied claim, the credibility of new evidence will be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence having been received, the claim of entitlement to service connection for schizoaffective disorder is reopened. In an October 2006 decision, the AOJ confirmed and continued the denial of Veteran's claim of entitlement to service connection for schizoaffective disorder. Ultimately, review of this decision indicates that the Veteran's claim was denied since the condition neither occurred in nor was caused by service and was not diagnosed within one year if military discharge. The Veteran was notified of this decision in a January 3, 2007 letter. He had one year from the date of the mailing of the notification letter in which to submit a Notice of Disagreement; he failed to do so, and the October 2006 rating decision became final. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.1100. Upon review of the evidence received since the October 2006 rating decision, the Board finds that such raises a reasonability possibility of substantiating the Veteran's claim of entitlement to service connection for schizoaffective disorder. Specifically, the positive private opinion provided by the Veteran dated April 2018. Accordingly, the Board finds that the evidence associated with the record since the final October 2006 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for schizoaffective disorder. Therefore, new and material evidence has been received, and the Veteran's claim for service connection for schizoaffective disorder is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Entitlement to service connection for schizoaffective disorder The Veteran contends that his schizo affective disorder is the result of his active service. Service treatment records (STRs) indicate he was treated in January 1979 for a history of antisocial personality disorder with substance abuse since age 13. A January 1979 psychological examination specifically denied psychotic symptoms. Medical records from Edgecombe Nash Mental Health Center indicate a January 1980 diagnosis of personality disorder with antisocial features. Further, they indicate the Veteran was hospitalized in October 1979 for habitual excessive drinking and personality disorder with antisocial features; hospitalized in September 1980 for personality disorder; hospitalized in January 1981 for alcohol addiction; hospitalized in December 1988 for alcohol dependence, cannabis dependence, cocaine abuse and opiate dependence; hospitalized in July 2003 for depressive disorder and cocaine addiction; hospitalized in October 2003 for generalized anxiety disorder major depression and cocaine dependence; and hospitalized in December for polysubstance dependence December 2003. Medical records from Cherry Hospital indicate the Veteran was hospitalized in March 1987 for adjustment reaction with depressed mood, mixed substance abuse and antisocial personality disorder; hospitalized in April 1995 for cocaine abuse and antisocial personality disorder; hospitalized in May 1996 for adjustment disorder with mixed disturbance of emotions and conduct, cannabis abuse and alcohol abuse; hospitalized for polysubstance dependence, cocaine induced mood disorder and personality disorder in July 2003; and hospitalized for cocaine induced mood disorder, cocaine dependence and alcohol abuse in November 2003. A March 2005 VA treatment record indicates the first diagnosis of schizoaffective disorder vs. paranoid schizophrenia. The Veteran attended a QTC examination in July 2006. The examiner diagnosed schizoaffective disorder and co-existing polysubstance dependence as primary disorders and further noted that his personality disorder was an early manifestation of the schizoaffective disorder. The examiner stated that the Veteran's medical records indicated that he had personality problems prior to the onset of his schizoaffective symptoms and that it was difficult to determine how much his schizoaffective symptoms contributed to his personality disorder. The examiner also noted that it was unclear as to when his psychotic symptoms began and noted that he reported that his psychotic symptoms began during military service. The examiner provided a medical opinion that it is as likely as not that the Veteran's personality disorder was an early manifestation of his schizoaffective disorder. The examiner, however, was unable to determine how much his paranoia and command hallucinations may have contributed to his antisocial behaviors, or to state when his psychotic symptoms began. Medical records from Holly Hill Hospital indicate the Veteran was hospitalized in July 2014 for schizoaffective disorder, cannabis use disorder and alcohol use disorder, hospitalized in January 2015 for schizoaffective disorder and cannabis use disorder; hospitalized in April 2015 for schizoaffective disorder, posttraumatic stress disorder, cannabis use disorder and alcohol use disorder, and hospitalized in May 2015 for schizophrenia, cognitive disorder, and cannabis use disorder. In May 2018, the Veteran's representative at the time provided a private Mental Disorders examination. The examiner diagnosed schizophrenia and opined that it more likely than not began during the Veteran's military service. Social Security Administration (SSA) records received April 2019 indicate the Veteran has been found disabled by their standards with a primary diagnosis of schizophrenic disorder. In December 2020, the Veteran attended a VA Mental Conditions examination. The examiner diagnosed with other specified personality disorder (mixed personality features), cannabis use disorder, alcohol use disorder, cocaine use disorder and nicotine use disorder. Following examination, and a review of the entire evidence of record, it was the opinion of the examiner that the Veteran's claimed condition is less likely than not (less than 50percent probability) to have been incurred in, or caused by, the claimed in-service injury, event or illness. The following supporting rationale was provided: Mr. [REDACTED] does not meet criteria for schizoaffective disorder (or any schizophrenia-spectrum condition), and he was never diagnosed with schizoaffective disorder until May 2005 approximately 25 years after he served in the military. In her mental health compensation and pension evaluation of Mr. [REDACTED], Dr. Berg opined the Veteran's antisocial personality disorder was at least as likely as not an early manifestation of the Veteran's diagnosed schizoaffective disorder. She apparently reached this conclusion because "Both the medical records and the claimant's report indicate that he has had personality problems prior to the onset of his schizoaffective symptoms." She added, "However it is difficult to determine how much his paranoia and command hallucinations may have contributed to his antisocial behaviors such as getting into frequent fights and arrests. He may have been responding to command hallucinations to hurt other people or defending himself due to his paranoid." A review of records by this examiner found absolutely no evidence to support a link between his antisocial behavior and psychotic symptoms (e.g. no reference to him engaging in fights due to paranoia or voices telling him to do it). In fact, he presently denied such and attributed most of this type of behavior to his substance use, even highlighting how he has not engaged in any physical altercations since he stopped using cocaine and heavily drinking alcohol. Moreover, the only psychotic-like symptoms this examiner found reference to were ill-defined (and intermittently reported) voices which were described as fully attributable to substance use until 2005 when he put forth claims for SSDI and VA C&P. Dr. Berg also observed that from the records, it was unclear as to when your psychotic symptoms began, however the claimant indicates he recalls these symptoms beginning while he was in the military." During the present evaluation, Mr. [REDACTED] indicated his psychotic-like symptoms began shortly after his military service, but there is no evidence of any such symptoms for at least 7-8 years following discharge from military service (3/13/87), at which time those "voices" were conceptualized as related to his drug use and described by the Veteran as particularly ill-formed (i.e. "just hear people talking, it just might be somebody talking for all I know). While it is common for prodromal symptoms of a schizophrenia-spectrum disorder (e.g. schizophrenia or schizoaffective disorder) to be mischaracterized as behavioral problems secondary to an underlying personality disorder (e.g. impulsive use of drugs/alcohol, irritability/anger, lack of remorse, acting out, affective instability, and suicidal gestures), and it is possible for psychotic-like symptoms to first present as problematic behavior patterns but further progress to meet criteria for a psychotic disorder, this examiner is of the clinical opinion that Mr. [REDACTED] does not meet criteria for a schizoaffective disorder, and there is no support upon which to claim the Veteran's personality disorder represents prodromal symptoms of a condition first diagnosed 25 years later and which does not appear to have fully considered either the impact of alcohol and illicit drug use or the presence of external incentives for his reporting of such symptoms. Directly addressing his substance use history, this examiner highlights that the Veteran's longstanding abuse of illicit drugs significant complicates establishing a link between the Veteran's diagnosed personality disorder and a later-diagnosed schizoaffective disorder (if the reader is compelled to concede the presence of a schizoaffective disorder due to numerous treatment records establishing this diagnosis since 2005). Specifically, numerous research studies have linked onset of schizophrenia spectrum disorders in people with genetic predispositions to such, as in the present case where Mr. [REDACTED]'s father was diagnosed with the condition, and to substance use including cannabis and cocaine. Moreover, numerous records directly attribute most of Mr. [REDACTED]'s psychotic-like symptoms to cocaine use. In short, it is LESS LIKELY THAN NOT (less than 50% probability) that the Veteran's schizoaffective disorder was incurred in or caused by (the) antisocial character disorder during service. Another medical opinion was provided, as it relates to aggravation. The examiner reports that the Veteran did not clearly and unmistakably have schizoaffective disorder prior to military service, nor do he meet the criteria for schizoaffective disorder at this time. Instead, he clearly and unmistakably had an antisocial character disorder, presently diagnosed as an Other Specified Personality Disorder (Mixed Personality Features) by the examiner. Regardless, a review of records highlighted the presence of such symptoms prior to his military service, throughout his military service, and since his discharge from service, and there is no evidence that his antisocial personality disorder was permanently aggravated beyond its natural progression by his military service (or any condition he may have had in service). Indeed, it is quite common for problematic characterological features to wax and wane dependent on the presence/absence of substance use and discrete situational stressors, but the characterological traits themselves are not permanently exacerbated. In the Veteran's case, it is known that he engaged in extensive use of illicit drugs and alcohol prior to military service (leading to his enlistment in the military), continued this substance use throughout his military service, and the use of such substances led to numerous stressors (e.g. accused of rape while stationed in Korea, numerous disciplinary infractions, and forced discharge from military service). The Veteran was also noted to have received extensive substance abuse and mental health treatment since discharge, but records show his "symptoms" are well-controlled during periods of extended abstinence from substances. In short, the examiner opines the Veteran's schizoaffective disorder was clearly and unmistakably NOT aggravated beyond it's natural progression by (the) antisocial character disorder during service. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. Initially, there is no diagnosis of a schizoaffective disorder in the records between the end of the Veteran's active service in 1979 and the May 2005 treatment record, more than 25 years later. This delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, the Board finds the December 2020 VA opinion of record the most probative evidence of record as to the etiology of the Veteran's claimed schizoaffective disorder because it is based on an accurate medical history and provides an explanation that contain clear conclusions and supporting data. In addition, while the Board notes the positive opinion provided by the Veteran's representative, it has been afforded less probative weight. Specifically, it is noted that the examiner did not provide a rationale in support of the opinion, Indeed, it appears that the opinion was accompanied by a recitation of facts alone. The Board considered the Veteran's lay assertions as to the etiology of his claimed disability. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the etiology of his claimed schizoaffective disorder. The Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection. The Board finds the VA opinion of record to be more probative in this regard. The examiner considered the Veteran's history, and ultimately concluded that from a medical perspective, it is less likely that his claimed disability is related to service. In conclusion, the weight of the evidence is against the claim for service connection for schizoaffective disorder. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is the result of his active service. STRs are silent for any treatment, diagnosis, or complaints of bilateral hearing loss. In August 2016, the Veteran attended a VA Hearing Loss and Tinnitus examination. The examiner diagnosed normal bilateral hearing and noted that test results were not valid for rating purposes because behavioral responses were too inconsistent to be reported. He further noted: Although not overtly uncooperative, Veteran appeared anxious and distracted throughout testing. SRT-PTA in poor agreement, w/ Veteran repeating spondaic words at a level c/w nl to near-nl hearing (14dB, R & L) but not responding to pure tone presentations (a less neurologically demanding task) at any levels softer than 40dB. Clearly, a pt should not be able to correctly repeat words spoken some 30dB softer than the level at which he is able to hear any sound that makes up the word. Word recognition scores of 98% R and 96% L were unexpectedly good when presented at slightly (5-10dB) above mid to high freq thresholds. Usually, such excellent results are only achieved when stimuli are presented at approx. 40dB SL. When reinstruction did not yield more consistent responses, behavioral testing was testing discontinued in favor of objective measures. DPOAEs were conducted as an objective measure of cochlear/OHC function. DPOAEs were present through 2kHz Left and 3kHz Right (usually indicative of normal cochlear reserve); these findings are not consistent w vet's volunteered responses. Tympanometry was WNL, B and ipsilateral reflexes were present (contralateral reflexes were not performed). Vet was easily able to understand and respond to clinician when speaking at a normal, conversational level and when clinician was not directly facing the Veteran. The remaining evidence of record indicates continued complaints of bilateral hearing loss but no discussion on etiology or a finding of hearing loss for VA purposes. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran believes he has a current diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence and service connection is denied. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is the result of his active service. STRs are silent for any treatment, diagnosis, or complaints of tinnitus. In August 2016, the Veteran attended a VA Hearing Loss and Tinnitus examination. The Veteran reported tinnitus with that was first observed approximately 5 years ago that was described as "it comes and stays awhile and then it goes". The examiner stated that no opinion could be provided due to the absence of repeatable/consistent responses to audio as audio results for the basis of tinnitus opinions. The remaining evidence of record indicates continued complaints of tinnitus but no discussion on etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. In this case, as noted by the Veteran himself, the first indication of tinnitus occurred over 30 years after he left service. This suggests that there may be no nexus with service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Further, while the Board finds that the Veteran is competent to report and note his symptoms of tinnitus, the evidence of record fails to establish that his tinnitus is the product of his active service. Indeed, as noted above, the Veteran, on several occasions, noted a period of onset well outside of his active service. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.