Citation Nr: 22014239
Decision Date: 03/11/22	Archive Date: 03/11/22

DOCKET NO. 15-17 910
DATE: March 11, 2022

ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include polysubstance abuse disorder and bipolar disorder, is denied.

Entitlement to an initial compensable rating for bilateral hearing loss is denied.

FINDINGS OF FACT

1. The evidence is persuasively against a finding that the Veteran's acquired psychiatric disorder began during active service or is otherwise related to an in-service injury or disease; his polysubstance abuse disorder is not eligible for direct service connection. 

2. During the period on appeal, the Veteran's hearing loss in both ears was characterized by no worse than Level III.

CONCLUSIONS OF LAW

1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 105(a), 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

2. The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Marine Corps, on active duty from May 1976 to June 1978. 

These matters were previously before the Board in May 2020, at which time it denied the claim for service connection for an acquired psychiatric disorder and remanded the claim for an initial compensable rating for bilateral hearing loss. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Partial Remand (JMPR), reversing the Board's prior decision regarding an acquired psychiatric disorder and remanding the claim for further development. 

Regarding the compensable rating claim for bilateral hearing loss, the Board is now satisfied there was substantial compliance with its Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and he underwent a new VA examination. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in October 2021. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).

A service connection claim that describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Rather, as reflected in the title page, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Therefore, the Board will consider service connection for any acquired psychiatric disorder shown by the record.

1. Entitlement to service connection for an acquired psychiatric disorder, to include polysubstance abuse disorder and bipolar disorder

The Veteran asserts that he is entitled to service connection for an acquired psychiatric disorder. Specifically, he contends that the onset of his bipolar disorder began during service when he struggled with alcohol abuse. The Board determines that service connection is not warranted for an acquired psychiatric disorder, to include polysubstance use disorder or bipolar disorder. 

The Board concedes the Veteran's current psychiatric diagnoses. Specifically, he was diagnosed with polysubstance use disorder in December 2002, and bipolar disorder in May 2007. Thus, the question before the Board is whether these disorders onset during, or are otherwise related to, active service. 

The Veteran claims onset of his bipolar disorder during active service, manifested as alcohol abuse. Initially, the Board notes that his in-service treatment records indicate he participated in an outpatient alcohol therapy group from February to March 1978. However, his treatment specialist recommended a return to full duty in March 1978. Further, he was honorably discharged after his examiner concluded that he had no medical problems, to include psychiatric symptoms, at separation. Thus, the Board finds that the Veteran had no psychiatric disorders when he separated from active service. 

Indeed, the first indication of a psychiatric condition post-service is in December 2002, 24 years after service. The December 2002 VA treatment note indicates the Veteran was diagnosed with heroin, alcohol and Xanax abuse. The treating physician noted no cognitive issues, and during a screen for psychiatric conditions answered "no" to whether the Veteran had any psychiatric disorder, specifically denying bipolar disorder. Of note, the Veteran told his treating physician that he abused multiple substances so that he could "kill [his] hip pain". The first indication of treatment of a bipolar disorder is shown in a May 2007 VA treatment note, when he was diagnosed with the psychiatric disorder. 

As the Veteran's polysubstance abuse disorder and bipolar disorder was not shown for many years after service, the Board concludes that service connection based on continuity of symptoms is not warranted. While the Veteran attended group therapy for alcoholism during service, the record indicates he had no issues at separation  specifically his group therapist returned him to "full duty" following therapy. Therefore, continuity of symptoms is not shown by the evidence of record. 

The Board recognizes the Veteran's statements regarding his history of symptoms. In this regard, while the Veteran is not competent to diagnose psychiatric disorders, he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

However, service connection cannot be warranted based purely on the assertions of continuous symptoms in this case. Moreover, the Board notes that the Veteran previously sought service connection for other disorders but did not mention a psychiatric disorder at that time. The fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation related to other disorders, but made no reference to the other scars he claims now weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). 

Unfortunately, the Board cannot use the buddy statements submitted by the Veteran's friends as independent evidence of an in-service event regarding a psychiatric disorder. In one letter, dated February 2019, W.S. states that the Veteran was "chubby" before service and he came home "changed" after boot camp, saying that other Marines ridiculed him during boot camp for his weight. W.S. does not discuss any type of substance abuse or psychiatric disorder, writing that he rarely saw the Veteran following his service. Further, W.S. writes that he learned "about all of the legal trouble he was getting into based on drugs and alcohol" years later, however, he opines that "[w]hatever lead him down the path that he took did not start until he entered service." While this statement may be probative in showing the Veteran had no major issues prior to service, it cannot serve as evidence of an in-service event. W.S. learned of the Veteran's polysubstance abuse years after service and writes mostly about his change in weight before and after boot camp. Lastly, W.S. writes about a positive family and neighborhood environment prior to the Veteran's service and does not relate his polysubstance abuse or bipolar disorder to anything that occurred in service. 

The Veteran's friend, T.C. wrote in a May 2019 letter that they were close in childhood, but he returned from boot camp as "aggressive". T.C. wrote that he believes the Veteran's "anger drove him to alcohol. He has been troubled ever since." While T.C. is competent to report that the Veteran returned from service as "aggressive", he does not tie the onset of an alcohol, polysubstance abuse, or bipolar disorder to any event in service. Accordingly, the statements from W.S. and T.C. cannot service as evidence of an in-service injury which would be the onset of  his psychiatric symptoms. Therefore, despite the Veteran's report of mental health symptoms since service, continuity is not established by the medical and lay evidence. 

Notwithstanding a lack of continuity, service connection may also be based on medical evidence of a nexus to service. Unfortunately, though, the evidence does not show such a nexus. 

The Board relies on the only opinion of record, provided by a VA examiner in March 2015. Here, the examiner noted the Veteran's history of bipolar and polysubstance abuse disorders. Further, the examiner stated he may have some form of cognitive impairment as the Veteran relayed loss of short-term memory. The March 2015 VA examiner opined against service connection, writing that while the Veteran sustained a head injury during service associated with a brief loss of consciousness, there were no residual psychiatric or cognitive effects. In support of this argument, VA treatment records dated December 2002 and April 2003 indicate normal cognitive ability. Further, the Veteran underwent three-day neuropsychological testing in January and February 2010, which revealed normal cognitive ability.  

According to the examiner, the more likely cause of any current cognitive or psychiatric impairment was due to several post-service events. The Veteran sustained multiple head blows after service, one recently from a baseball bat, which most likely caused any cognitive impairment. Further, the March 2015 examiner concluded that an acquired psychiatric disorder, which onset several decades after service, may be related to his current polysubstance abuse. In providing their opinion, the examiner stated that there was no indication of an in-service event to which his cognitive or psychiatric condition could be related to. 

The Board has also considered the statements made by the Veteran and his friends relating his psychiatric disorders to his active service. The United States Court of Appeals for the Federal Circuit has held that "[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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, however, the Veteran and his friends are not competent to provide testimony regarding the etiology of an acquired psychiatric disorder. See Jandreau, 492 F.3d at 1377, n.4. Because psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. The Board notes the Veteran's friends' statements indicating that the Veteran maintained good relationships before service, changed during service, and that he had legal and substance abuse issues afterwards. Unfortunately, the Veteran's friends were not direct witnesses to any ridiculing in service or a particular in-service event. Therefore, the friends' statements linking the Veteran's current polysubstance and bipolar disorders to in-service experiences do not have the necessary competence to warrant a grant of service connection. 

The Board finds the Veteran's statements regarding service connection for a psychiatric disorder not competent or credible. In the record, at various times, he states he began drinking alcohol at ages 9, 12 and 14. During his November 2018 Board hearing, he testified that he "never drank" before active service. While some alcohol use is noted in service, as discussed above, his alcohol group therapist returned him to full duty, presumably as it was under control. Regarding other substances, the Veteran stated in an April 2003 VA treatment note that he started using cocaine, heroin and others in the 1980s and 1990s. Further, several medical providers, in the record, found him to be an unreliable historian. For example, VA psychiatric notes dated January 2008 and May 2009, wrote he was an "unreliable" and "vague" historian regarding his psychiatric disorders. Finally, the Veteran stated that he used multiple substances in order to treat his left hip pain. Because the Veteran's statements regarding onset contradict each other and the medical record, the Board finds they lack credibility. Even if found credible, statements relating his psychiatric disorders to service would not be competent as he is a layperson, and the etiology of such disorders are medically complicated. 

The Board observes the Veteran's argument that his bipolar disorder is caused by his polysubstance abuse disorder, which he asserts began during or is related to his active service. As discussed above, the March 2015 VA examiner found his bipolar disorder was not related to active service but may be related to his polysubstance abuse. The Board notes that under 38 U.S.C. § 105(a), "[a]n injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs (emphasis added)." 38 U.S.C. § 105(a), 1131. Because the Veteran's polysubstance abuse disorder is not secondary to another condition, it is not eligible for service connection.

Additionally, because his polysubstance abuse disorder is not eligible for service connection on a direct basis, the fact that the Veteran may have had alcohol abuse disorder before he entered active service does not matter. A Presumption of Soundness analysis is not necessary because it is impossible for this condition to be service connected on a direct basis. The only way for the Veteran's polysubstance abuse disorder to be eligible for service connection is if it had been secondary to another psychiatric disability. While the Veteran was diagnosed with an acquired psychiatric disorder, as the May 2015 VA examiner explained, the Veteran's psychiatric disorder was likely the result of his substance abuse disorder, not the other way around.

In light of the above discussion, the Board concludes that the evidence is persuasively against the claim for service connection for an acquired psychiatric disorder, to include polysubstance abuse and bipolar disorder, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107. Therefore, the appeal is denied. 

Increased Rating

2. Entitlement to an initial compensable rating for bilateral hearing loss

The Veteran disagrees with his noncompensable rating for bilateral hearing loss. This rating, effective September 7, 2010, was assigned under 38 C.F.R. § 4.85, DC 6100 in rating decisions for the right and left ear, in May 2013 and April 2015 respectively. A timely NOD was received by VA in June 2013. Thus, the appeal period begins September 7, 2010. 

Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85.

An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.

Based on the evidence of record, a compensable rating is not warranted for the period on appeal. Specifically, at a VA examination in May 2012, the examiner was unable to test his left ear due to it being completely occluded. Nevertheless, the Veteran reported trouble hearing in his left ear for years. As for his right ear, his pure tone thresholds, in decibels, were as follows:

	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz	Average

Right Ear	15	15	30	60	50	34

Left Ear	30	20	45	65	70	46

Speech audiometry revealed speech recognition ability of 88 percent in the right ear, however, the audiologist noted they could not test speech recognition in the left ear. Based on these values, the Veteran demonstrated Level III hearing loss in his left ear, and Level II hearing loss in his right ear. See 38 C.F.R. § 4.85, Table VI, Table VIA. 

Next, the Veteran underwent an audiological evaluation during a March 2015 VA examination. At this examination, the Veteran stated he had difficulty hearing with background noises. Upon examination, his pure tone thresholds, in decibels, were as follows:  

	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz	Average

Right Ear	15	15	25	60	45	32

Left Ear	20	15	50	60	60	41

Speech audiometry revealed speech recognition ability of 88 percent in both ears. An exceptional pattern of hearing impairment has not been shown. Based on these values, the Veteran demonstrated Level II hearing loss bilaterally. See 38 C.F.R. § 4.85, Table VI. 

At his November 2018 Hearing, the Veteran testified that his hearing loss had worsened. He voiced several consequences of his hearing loss, including asking others to repeat themselves, listening to the television on higher volume, and problems hearing his significant other. 

As a result of his November 2018 hearing testimony, the Veteran was afforded a new examination in October 2021. At this examination, he reiterated his struggle with hearing conversations. Upon examination, his pure tone thresholds, in decibels, were as follows: 

	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz	Average

Right Ear	25	15	45	55	55	39

Left Ear	30	25	55	60	60	46

Speech audiometry revealed speech recognition ability of 98 percent in the right ear, and 100 percent in the left ear. An exceptional pattern of hearing impairment has not been shown. Based on these values, the Veteran demonstrates Level I hearing in both ears. Id. 

Applying the results of each examination to Table VII, a noncompensable rating is for application throughout the appeal period. Therefore, an initial compensable rating is not warranted. 

In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his hearing loss is worse than the rating he currently receives. Specifically, the Veteran asserts that he has trouble hearing conversations, asks others to repeat themselves, has trouble hearing is significant other, and listens to his television on high volume. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

In this case, the Veteran is not competent to state that his symptoms merit a higher rating for his hearing loss. The competent evidence concerning the nature and extent of the Veteran's claimed disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.

Based on the evidence of record, the Board determines that a compensable rating is not warranted for the Veteran's bilateral hearing loss.  

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald