Citation Nr: 21064581 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-10 099 DATE: October 20, 2021 ORDER Entitlement to a separate evaluation for psychiatric impairment as a manifestation of the Veteran's service-connected bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a current diagnosed mental health disorder that conforms to DSM-5 criteria. CONCLUSION OF LAW The criteria for a separate evaluation for psychiatric impairment as a manifestation of the Veteran's service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1969 to August 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in September 2019, a transcript of which is of record. This matter was remanded by the Board in a February 2021 decision for additional development. The evidence of record indicates the Veteran is still currently employed and working; therefore, the issue of TDIU entitlement is not before us at this time. A "separate evaluation" in this decision as a term of art to refer to VA's practice of "rat[ing] a single disability under multiple diagnostic codes without pyramiding." See Bailey v. Wilkie, 33 Vet. App. 188 (2021) (en banc); Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019); see also Lyles v. Shulkin, 29 Vet. App. 107, 113 (2017); Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In Esteban, the Court held that "[t]he critical element is that none of the symptomatology for any one of these three conditions is duplicative of or overlapping with the symptomatology of the other two conditions; see also Amberman v. Shinseki, 570 F.3d 1377, 1381(Fed. Cir 2009). In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the United States Court of Appeals for Veterans Claims (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." 31 Vet. App. 162, 167. See also Long v. Wilkie. In the February 2021 Board decision, the Board noted that in his September 2019 Board hearing the Veteran raised the issue of entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected bilateral hearing loss. As there was no examination conducted for evaluating the possibility of a psychiatric disability, to include any mental issues, anxiety or depression, a remand would be required to afford the Veteran a new VA examination that adequately identifies all manifestations and functional impairments due to the Veteran's hearing loss, including psychiatric impairment, to specifically include any mental issues, anxiety or depression, because Morgan requires VA to exhaust all schedular alternatives before considering the possibility of an extraschedular rating. Morgan at 167. 1. Entitlement to a separate evaluation for psychiatric impairment as a manifestation of the Veteran's service-connected bilateral hearing loss The Veteran contends that he developed a psychiatric disability secondary to his service-connected bilateral hearing loss. Service treatment records and VA treatment records contain no findings, complaints, treatment or diagnoses of any psychiatric impairment or condition. The United States Court of Appeals for the Federal Circuit however, recently, held that in the absence of a diagnosed condition, symptoms causing functional impairment, may qualify as a "disability" for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that "a veteran could demonstrate service connection simply by asserting purely subjective symptoms because, to establish that a disability is present, the veteran "will need to show that... symptom reaches the level of a functional impairment of earning capacity." Id. at 1367-68. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it" 'to function under the ordinary conditions of daily life including employment.'" Id. at 1363 (quoting 38 C.F.R. § 4.10). The Veteran was afforded a post-remand VA examination for his mental disorder in May 2021. The examination found Veteran did not have a mental health disorder diagnosis that conforms to DSM-5 criteria. The examiner noted a PCP note from January 2021 stated Veteran had no anxiety, depression, sleep or memory problems. There were no psychological treatment records available to review. Veteran did not have any other symptoms attributable to mental disorders and was capable of managing his financial affairs. There were no findings, signs and/or symptoms to support a diagnosis. In the supporting VA medical opinion, the VA examiner opined negatively and held the Veteran denied having any pre-military, military or post-military psychological evaluations/treatment; there is no evidence that the Veteran currently or in the past had any psychological condition(s) meeting the DSM criteria for an acquired psychiatric disorder, or any other psychological condition including anxiety or depression. See May 2021 C&P Exam. The Board refers to a recent decision, Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020), in which the Court held that, while referencing the Federal Circuit's decision in Saunders as it pertains to not limiting the definition of "disability" to pain with respect to psychiatric disabilities, still held acknowledged that the VA expressly limited compensation to disabilities conforming to a DSM-5 diagnosis, and the Court lacked jurisdiction to require such a diagnosis as set out in the schedule of ratings or to require any VA action in adopting or revising it. The Board is sympathetic to the claim of the Veteran in this case, but it is bound by the laws and regulations that apply to Veterans claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). Those laws and regulations require that the Veteran establish a current disability to warrant service connection for any disability. Here, there is no evidence of a diagnosis of a psychiatric disorder at any time prior to or during the pendency of the claim. In addition, the Court's statement in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) that medical evidence is generally required to diagnose a psychiatric disorder and the implicit indication in the general rating formula for mental disorders that it is only formally diagnosed psychiatric disorders that are rated pursuant to the Rating Schedule, implying that these are the only psychiatric disorders for which service connection can be granted, prevent the Board from finding that impairment from psychiatric symptoms could meet the current disability requirement in the absence of a formal diagnosis. For the foregoing reasons, the preponderance of the evidence is against of entitlement to a separate rating for an acquired psychiatric disorder, to include anxiety. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 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 Zarar Ahmed, Attorney Advisor 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.