Citation Nr: 21024018 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-38 942 DATE: April 21, 2021 ORDER Service connection for an acquired psychiatric disorder, to include as secondary to service-connected bilateral hearing loss, is denied. FINDING OF FACT The Veteran is not diagnosed with an acquired psychiatric disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1957 to April 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2019. A transcript of that hearing has been associated with the claims file. The Board remanded the matter in May 2019 for further development, to include a VA examination. The matter has returned for adjudication. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden / Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Service connection for an acquired psychiatric disorder, to include as due to service-connected bilateral hearing loss. The Veteran seeks service connection for an acquired psychiatric disability. Specifically, the Veteran contends that an acquired psychiatric disability is secondary to his service-connected bilateral hearing loss. However, the Board finds that service connection is not warranted. Service treatment records do not reflect treatment for an acquired psychiatric disability. An October 2016 VA examination found the Veteran had not been diagnosed with a mental health disorder. The examiner noted the Veteran denied any mental health symptomatology. The Veteran stated that his representative made the claim for anxiety and depression because the Veteran expressed feelings of frustration regarding the delays he felt were occurring in the VA system regarding his hearing loss. The Veteran denied any anxiety, depression, inappropriate anger, insomnia, psychotic symptomatology, suicidal or homicidal ideation. According to the VA examiner, the Veteran denied any psychiatric distress and denied desiring compensation for any mental health issues. No psychiatric disorder was found to be present, and no diagnosis was assigned. In a November 2016 Notice of Disagreement, the Veteran stated his mental health claim is a direct result of the hearing loss he suffered while in military service. The Veteran stated that he has been frustrated, embarrassed, and angry for 50 years because he cannot fully comprehend what is being said around him. Later, in the Veteran’s June 2017 Form 9 he reiterated his contention that his service-connected hearing loss has led to a mental health condition. He stated it is embarrassing and frustrating to not be involved in conversations which makes him angry. He misunderstands names and that is embarrassing. He stated that if he is service-connected for hearing loss, then he should be service-connected for a mental health condition as well. In February 2019 hearing before the Board the Veteran stated that he stays angry because he cannot hear. For example, the Veteran testified that when he goes to a restaurant with his wife she has to tell him what the waitress ha said because he cannot understand it and gets angry about it. Additionally, he testified having difficulty understanding his son, and being frustrated and embarrassed by it. He recounted his meeting with a psychiatrist where he stated he is angry half the time because he cannot understand what’s going on. The Veteran stated the experience with the psychiatrist soured him and he has not been to another one since. Furthermore, the Veteran testified he was frustrated with the psychiatrist for not recording his statements accurately. Finally, the Veteran reiterated his claim that any psychiatric problems are secondary to his hearing loss. In a June 2020 examination a VA examiner opined that the Veteran’s claimed psychiatric disability is less likely than not due to any service-connected disability. In support of this opinion, the examiner concluded that the Veteran has not been diagnosed with any mental disorder, basing this conclusion on the fact that the Veteran reported insufficient symptoms to meet DSM-5 diagnostic criteria for any mental disorder. Moreover, the examiner stated that, both in his lay statement and during the interview, the Veteran reported that he felt frustrated, embarrassed, and angry due to his hearing loss for 50 years. However, he did not report any significant impairment in his relationships or his daily activities due to those feelings. For example, he reported that he felt frustrated and embarrassed that his wife has to repeat what a waitress says in a restaurant, but that does not prevent him from going to a restaurant or otherwise enjoying the outing. He reported good social relationships and has been married for 65 years and he regularly interacts with several friends and family members. He reported a successful work history with no history or difficulties in the workplace. He reported no significant difficulty completing daily tasks or interacting with others. Records were absent for any history of mental health diagnosis or treatment. The examiner further observed that two separate mental health evaluations, conducted in 2016 and 2017, similarly concluded that he did not meet DMS-5 diagnostic criteria for any mental disorder. Without a diagnosis of an acquired psychiatric disability that conforms with DSM-5 criteria, there is no current disability to support the service connection claim for an acquired psychiatric disorder. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). The Board acknowledges the Veteran’s contentions and sympathizes with his symptoms. However, while he is competent to testify as to his observations, 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). Therefore, the Veteran’s lay opinion as to whether he has a psychiatric diagnosis is not afforded probative value. In this case, the evidence does not show that the Veteran’s mental health symptoms result in a psychiatric diagnosis that meets the DSM criteria. Weighing against the claims are the October 2016 and June 2020 VA examination reports, which show no diagnosis of this claimed disability. The Board finds compelling the fact that both VA examiners specifically considered the Veteran’s reported symptoms of embarrassment, frustration, and anxiety, and both concluded that these symptoms do not rise to the level of a diagnosable psychiatric disability at any point during the appeal period. The Veteran’s symptoms do not constitute a disability for which service connection can be granted. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran has not met the current disability requirements with regard to his claim for entitlement to service connection for an acquired psychiatric disability. The benefit of the doubt doctrine is therefore not for application in this regard and the claim for an acquired psychiatric disability on a direct or secondary basis is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, Associate 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.