Citation Nr: 21073873 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-35 775A DATE: December 13, 2021 ORDER 1. Service connection for a psychiatric disorder is denied. 2. Service connection for hearing loss is denied. 3. A nonservice connected pension prior to March 28, 2018 is denied. FINDINGS OF FACT 1. The Veteran does not have a psychiatric disorder that was incurred in or due to service. 2. The Veteran's hearing loss did not have its onset during active service or within one year of discharge and is not causally or etiologically related to any disease, injury, or incident during service. 3. Prior to March 28, 2018, the Veteran was not prevented from securing and following substantially gainful employment as a result of disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder are not met. 38 U.S.C. §§ 105, 1110, 1131, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.304, 3.310. 2. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385. 3. Prior to March 28, 2018, the criteria for entitlement to payment of nonservice-connected pension benefits were not met. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to April 1988, December 1990 to June 1991, and from January 8, 2002 to January 31, 2002. The case is on appeal from an April 2014 rating decision. The Veteran requested a Board hearing in a July 2016 VA Form 9. However, in a September 2021 statement, the Veteran's representative requested that the hearing be cancelled. Therefore, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). In October 2021, the Veteran submitted additional evidence. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Service Connection General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present 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 or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Service connection for a psychiatric disorder. Specific Legal Criteria Service connection for a posttraumatic stress disorder (PTSD) specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, if a stressor claimed by a veteran is related to a personal assault or the veteran's fear of hostile military or terrorist activity, if a psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where drug or alcohol use is at issue, service connection is precluded in two situations: (1) for primary alcohol abuse disabilities; and (2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. Service connection is not precluded if substance abuse is secondary to a service-connected disability. However, if a veteran has a service-connected disability, service connection would be precluded for the alcohol or drug abuse disability if it is due to willful action rather than the result of the service-connected disability. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(n), 3.301(c); Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran is seeking service connection for a psychiatric disorder. He claimed service connection for PTSD in an October 2013 claim form. In an August 2015 total disability rating based on individual unemployability (TDIU) application form he claimed that he is unable to work due to PTSD, anxiety, and depression. In an October 2021 letter, the Veteran reported being sexually molested during service in 1987 and reporting the assault to his squad leader. He also reported being in fear during service at a civilian camp for dislocated persons in Saudi Arabia and Iraq. The Board has recharacterized the claim to be broader in scope to include a psychiatric disorder in general. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran's service personnel records (SPRs) show that he served as a combat engineer in support of Operation Desert Shield and Operation Desert Storm. His service treatment records (STRs) do not include reports of or treatment for psychiatric symptoms. The Veteran denied experiencing frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort in a post-deployment March 1991 report of medical history. The Veteran was afforded an examination performed by a VA psychiatrist for this claim in October 2013. He reported being sexually molested once by a sergeant while sleeping, whom he verbally rebuffed. He denied experiencing other incidents of personal assault during service. The Veteran also reported drinking socially, episodically and excessively during his first period of service. The Veteran further reported being scared during a deployment to Saudi Arabia and Iraq during Operation Desert Shield and Operation Desert Storm due to hearing gunshots in the distance and serving as security support for Kuwaiti refugees. The Veteran stated that he resumed drinking excessively after returning to the United States after such service. He also stated that he was treated for alcohol and marijuana abuse after service. The psychiatrist diagnosed the Veteran with alcohol dependence, but denied the presence of PTSD. The psychiatrist explained that the Veteran's reported stressors of sexual assault and fear of hostile enemy activity are stressors that meet the criterion for a PTSD diagnosis. However, the psychiatrist found that the Veteran does not meet the other criteria for a PTSD diagnosis. The psychiatrist also found that the Veteran does not meet the criteria for a psychiatric diagnosis other than alcohol dependence. The Veteran's subsequent treatment records do not indicate a diagnosis of a psychiatric disorder other than substance dependance disorders. The Board finds that service connection for a psychiatric disorder is not warranted. The most probative evidence of record does not show that the Veteran has been diagnosed with PTSD or found to have another psychiatric condition due to service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, the opinion provided by the October 2013 VA psychiatrist is clear and unequivocal and are based on the relevant information, including the Veteran's statements, SPRs, STRs, post-service treatment records, and diagnostic testing. Moreover, the psychiatrist's explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The psychiatrist explained that the Veteran does not meet the criteria for a PTSD diagnosis or other psychiatric condition other than alcohol dependence. He also explained that the Veteran's psychiatric symptoms are caused by alcohol dependence. Furthermore, the Veteran cannot be granted service-connection for alcohol abuse on a secondary basis because he is not service connected for another condition. Thus, this condition is not eligible for service connection. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(n), 3.301(c), 3.310; Allen, 237 F.3d at 1381. While the Veteran believes that he has a psychiatric disorder that is related to service, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. The Veteran is competent to report his symptoms, but, as a lay person, he has not established the competence needed to rebut expert medical opinion in regard to the nexus question. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo, 26 Vet. App. at 106. In addition, establishing a psychiatric diagnosis that meets the DSM criteria is a complex medical question which falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Therefore, the Veteran's opinion as to whether he has PTSD or another psychiatric disorder due to service are not afforded probative value. Accordingly, the evidence does not show that the Veteran has a psychiatric disorder that was incurred in or is related to service. Additionally, service connection is precluded for a primary alcohol abuse disorder. Therefore, as the evidence is not at least in equipoise, the benefit-of-the-doubt doctrine is not applicable and service connection for a psychiatric disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for hearing loss. Specific Legal Criteria Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Analysis The Veteran is seeking service connection for hearing loss. In an October 2021 statement, he reported that the earplugs used during service did not keep noise out. He also reported that his hearing has worsened since a 2013 VA examination and having difficulty understanding speech and television programs. The Veteran was afforded a VA examination for this claim in October 2013. The Veteran reported experiencing the onset of hearing loss ten to fifteen years earlier. He also reported serving as a demolition specialist and being exposed to noise from explosions, mine detector headsets, trucks, heavy equipment, construction tools, and gunfire. He further reported occupational noise exposure working in construction intermittently for 25 years with noise from heavy equipment and construction tools. The examiner reported that the claims file was unavailable for review. The examiner found that the Veteran has bilateral hearing loss and did not provide a nexus opinion due to the claims file being unavailable. In December 2013, the RO obtained an addendum opinion from an audiologist for this claim. The audiologist reviewed the claims file. The audiologist found that the Veteran's hearing loss is less than likely caused by or a result of military service. The audiologist explained that the Veteran had hearing bilaterally within normal limits using calibrated audiometric testing during active military service without evidence of any significant auditory threshold shift during service. He also explained that the Veteran had many years of occupational noise exposure that is likely the basis of the current bilateral hearing loss. The audiologist further explained that the Institute of Medicine (IOM) found in 2006 that there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime after the cessation of that noise exposure. The audiologist noted that, although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The Board finds that service connection for hearing loss is not warranted. In this regard, the December 2013 audiologist's opinion is clear, unequivocal, and is based on the relevant information, including the October 2013 audiometric examination report, Veteran's statements, STRs, post-service medical records, and medical research. In addition, his explanation is logical and follows from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the audiologist's conclusion that the Veteran's hearing loss is due to occupational noise exposure rather than in-service noise exposure is highly persuasive and probative evidence. To the extent that this opinion relies on the 2006 IOM study finding insufficient evidence of delayed onset hearing loss, he noted that the study indicated definitive evidence has not been found and explained that delayed effects from noise exposure on hearing are unlikely based on the available anatomical and physiological data. The Veteran believes that he has hearing loss that is related to in-service noise exposure, however, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. The Veteran, as a lay person, has not established the competence needed to rebut the expert medical opinion in this case. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo, 26 Vet. App. at 106. As such, the Veteran's opinion is not adequate to rebut the audiologist's conclusion, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between his service and hearing loss. Accordingly, the preponderance of the evidence is against a finding that the Veteran's hearing loss had its onset during service or within one year of discharge or is causally or etiologically related to any disease, injury, or incident during service. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. II. Pension 3. A nonservice connected pension prior March 28, 2018. Legal Criteria VA nonservice-connected pension benefits are payable to a veteran who has attained the age of 65 years or is permanently and totally disabled from nonservice-connected disability or disabilities, which is not the result of willful misconduct where the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a); 38 C.F.R. § 3.3. Analysis The Veteran is seeking a nonservice connected pension prior to March 28, 2018. In October 2013, the Veteran filed a claim for a nonservice-connected pension. In an August 2015 TDIU application, the Veteran reported being unable to work due to PTSD, anxiety, and depression. He also reported completing high school and one year of college. The Veteran's service personnel records (SPRs) show that he was born in February 1967. The Veteran's VA treatment records show that he was evaluated to be released from inpatient treatment in January 2013. The VA nurse reported that he was rational and oriented with fair judgment and insight. The nurse also reported that he had finished two years of college and had no barriers to learning. The Veteran denied drinking excessively. The Veteran was afforded a VA general medical examination for this claim in October 2013. The Veteran reported working parttime as a housekeeper a few hours weekly. The examining physician did not find the presence of a chronic disabling condition. As discussed above, the Veteran was afforded also afforded a VA psychiatric examination in October 2013. The psychiatrist reported that the Veteran completed a General Education Development (GED) and two years of college. The psychiatrist found that he left positions or was released from work typically complicated by alcohol abuse. The psychiatrist also reported that the Veteran was working parttime as a maintenance man. The psychiatrist further reported symptoms of anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work, and intermittent inability to perform activities of daily living. The psychiatrist concluded that the severity of the symptoms results in occupational and social impairment with reduced reliability and productivity. The Board notes that the psychologist provided a global assessment of functioning (GAF) score. However, GAF scores have been found to be unreliable and not sufficient evidence for rating a psychiatric disorder. See Golden v. Shulkin, 29 Vet. App. 221, 226 (2018). As such, the Veteran's GAF scores have not been factored into the Board's evaluation of the functional impairment caused by psychiatric disability. In March 2020, the Veteran's Social Security Administration (SSA) records were associated with the file. The Veteran reported working fulltime as a dishwasher and laborer for six months or more each year from January 2015 through March 2018. The SSA found that the Veteran first became too disabled to work March 28, 2018 due to a stroke. In an April 2020 decision, the Veteran was granted a nonservice-connected pension effective March 28, 2018 based on an intracranial injury that occurred on such date. The Board finds that the Veteran was not at least 65 years old or prevented from working due to disability during the period on appeal. The Veteran claimed disability based on a psychiatric condition. However, his VA treatment records indicate that he was rational and oriented with fair judgment and insight, had no barriers to learning, and was not drinking excessively. In addition, the Veteran graduated from high school and reported working fulltime for much of the period on appeal in unskilled manual labor positions. Therefore, the Board finds that the Veteran was not permanently and totally disabled prior to March 28, 2018, because he was able to work manual labor positions that would not require him to have extended interactions with customers or coworkers, such as performing landscaping or custodial work. In this regard, these types of employment do not require specialized experience or frequent interaction with supervisors or coworkers. The medical evidence does not indicate that the Veteran was prevented from securing and maintaining such employment due to a psychiatric condition prior to March 28, 2018. The VA nurse reported that the Veteran was rational and oriented with fair judgment and insight and had no barriers to learning. The VA psychiatrist explained that the Veteran's psychiatric symptoms result reduced reliability, but not occupational and social impairment with deficiencies in most areas or total impairment. The Board is sympathetic to the Veteran's assertions regarding the impact the psychiatric disability had on him. However, the evidence does not indicate that the limitations caused by this condition resulted in permanent and total disability prior to March 28, 2018. Disability pension claims are not purely medical questions. Here, the Board has considered both the relevant medical evidence as well as the non-medical evidence such as work history and lay statements. In sum, the preponderance of the evidence shows that during the period on appeal the Veteran was not prevented from securing and following substantially gainful employment as a result of disabilities and has not attained 65 years of age. Therefore, the benefit-of-the-doubt rule is not applicable, and nonservice-connected pension benefits prior to such date are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jimerfield, David 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.