Citation Nr: A25041227 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 220304-225584 DATE: May 6, 2025 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, unspecified (claimed as depression and mood swings), is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder is the result of his active service. 2. The Veteran does not have a current diagnosis of bilateral hearing loss for VA disability benefit purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, unspecified (claimed as depression and mood swings), have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty in the United States Marine Corps from May 2000 to May 2002, and had active service in the United States Army, from February 2005 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In March 2022, the Veteran timely filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), and selected the Evidence Submission review option. The Board may therefore consider only the evidence of record at the time of the October 2021 agency of original jurisdiction (AOJ) rating decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Service connection may be granted for a disability resulting from a disease or an injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Service connection requires evidence of (1) a current disability; (2) the in service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation: "In the absence of proof of a present [i.e., current] disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) ("The requirement of a currently existing condition is not contrary to the statute, and in fact comports with the other provisions of the statute as a whole."). A disability is current when it exists near or when a claim is filed, or at any point during the claim's pendency. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt is to be resolved in favor of the claimant. 38 U.S.C. § 5107(b). Evidence is in approximate balance when the evidence in favor of and against an issue is equal or nearly equal. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc). Evidence is not in approximate balance, and the benefit-of-the-doubt rule need not apply, however, when the evidence persuasively favors one side or the other. Id. 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran claims entitlement to service connection for depression and mood swings as a result of his active service. See July 2021 VA Form 21-526EZ. The Board has reviewed the record in light of Clemons v. Shinseki, and expands the Veteran's claim to encompass any acquired psychiatric disorder supported by the record. 23 Vet. App. 1 (2009). In that regard, the record confirms the Veteran has a current disability. Here, the AOJ favorably found the Veteran has a diagnosis of bipolar disorder, unspecified. See October 2021 Rating Decision (favorable findings); see also September 2021 Mental Disorders DBQ; and April 2022 Private Psychological Evaluation at 9. The record also confirms the incurrence of an in-service event. In this case, the AOJ favorably found that the Veteran's service treatment records note an acute mental health evaluation from April 2002. See October 2021 Rating Decision (favorable findings). Those in-service treatment records show that the Veteran sought medical attention for acute suicidal ideation with reports of depression and anhedonia, and was provisionally diagnosed with depressive disorder, not otherwise specified. See April 2002 Chronological Record of Medical Care; and April 2002 Acute Mental Health Evaluation. Therefore, the question for the Board is whether there is a causal relationship, or nexus, between the Veteran's current acquired psychiatric disorder and his active military service. For the reasons explained below, the Board finds that there is. Here, the Veteran's May 2000 and November 2004 service treatment records note his psychiatric condition as normal at enlistment. See May 2000 Enlistment Report of Medical Examination (Marine Corps); November 2004 Enlistment Report of Medical Examination (Army). In September 2021, the Veteran underwent a VA examination to evaluate the nature and etiology of his mental health condition. See September 2021 Mental Disorders DBQ. The September 2021 examiner met the Veteran for an in-person examination and noted a review of the Veteran's claims file. During the in-person consultation, the Veteran reported that he was bullied while in the Marine Corps, and received a psychiatric evaluation in 2002 for suicidal ideation. See id. at 3 (History, Part 2C). The September 2021 VA examiner confirmed a diagnosis of bipolar disorder, unspecified, in conformity with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See September 2021 Mental Disorders DBQ at 1 (Diagnosis). The VA examiner opined that the Veteran's bipolar disorder was less likely than not incurred in or caused by his military service, stating only that, based on the Veteran's current presentation and medical records, his current diagnosis is less likely than not caused by the claimed bullying. See September 2021 Medical Opinion at 2 (Section III). The VA examiner's etiology opinion is conclusory, and provides no analysis that the Board can evaluate. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (stating a medical opinion must support its conclusion with an analysis that the Board can weigh, and that a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.") (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). Consequently, the September 2021 VA examiner's etiology opinion is not probative. In April 2022, the Veteran underwent a private psychological assessment to evaluate the nature and etiology of his mental health condition. See April 2022 Private Psychological Evaluation. The April 2022 examining psychologist met with the Veteran for a live video consultation, and noted a review of the claims file. During the live video consultation, the Veteran reported no mental health issues or treatment prior to service. The Veteran reported that he experienced bullying and harassment in the military, and that he subsequently felt isolated, alienated, trapped, overwhelmed, and hopeless. See id. at 6 (Current Self-Report). The April 2022 private psychologist confirmed a current diagnosis of bipolar disorder, unspecified, as well as alcohol use disorder, consistent with the DSM-5. See April 2022 Private Psychological Evaluation at 9 (Diagnostic Opinion). The April 2022 private psychologist opined that the Veteran's acquired psychiatric disorder is at least as likely as not due to, the result of, or was incurred during service, including the symptoms documented in the Veteran's military mental health treatment records. See id. at 10 (Nexus). As support for that opinion, the April 2022 private psychologist explained the Veteran first began to experience, and first had documented, mental health symptoms in service that meet the full DSM-5 diagnostic criteria for a major depressive episode. The psychologist noted the Veteran's experiences with harassment and bullying, and his struggle to fit in with the military. Because of this, the Veteran experienced severe and recurrent suicidal ideation, suicidal behaviors, and increased maladjustment and depression while in service. Following the Veteran's separation from service, such episodes, coupled with hypomanic episodes periodically reoccurred consistent with bipolar disorder. See id. at 10 (Service-Connection Rationale). The April 2022 private psychologist also addressed the competing and conflicting VA medical opinion evidence, and explained the inadequacies of that evidence. In that regard, the April 2022 private psychologist stated that a review of the military treatment records clearly documented an emergent and radical decompensation in functioning including suicidal ideation, suicidal behaviors, and non-suicidal self-injurious behaviors, and that those records consistently documented diagnoses of either depression or adjustment disorder. The private psychologist further noted the Veteran's military treatment records lacked any evidence-based personality assessment or structured interviewing, lacked differential diagnostic discussion, and identified no symptoms sufficient to meet the DSM-5 criteria of personality disorder. See April 2022 Private Psychological Evaluation at 11. The April 2022 private psychological evaluation is highly probative, as it is based on live video consultation with the Veteran, a noted and demonstrated review of the Veteran's entire claims file, considers the Veteran's history and lay assertions, addresses competing medical evidence, and provide a thorough and compelling rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007). The Board has also considered the Veteran's lay assertions. Lay testimony is competent to prove personal knowledge of symptoms and events capable of observation by lay persons, and the Veteran is competent to report his personal experiences during his active military service, and his current symptoms and experiences with his acquired psychiatric disorder. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Based on the foregoing, the Board finds and concludes the competent, credible, and probative evidence of record persuasively weighs in favor of finding that the Veteran's acquired psychiatric disorder, to include bipolar disorder, unspecified, resulted from his active service in the military. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, unspecified (claimed as depression and mood swings), is granted. 2. Entitlement to service connection for bilateral hearing loss. The Veteran claims entitlement to bilateral hearing loss as a result of his active military service, asserting that he had exposure to noise from weapons, vehicles, and ranges during his time in the military. See July 2021 VA Form 21-526EZ; September 2021 Hearing Loss and Tinnitus DBQ at 5 (Remarks). The record confirms the Veteran was exposed to hazardous noise during active service. See October 2021 Rating Decision (favorable findings). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the reasons explained below, the Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes, and has not had one at any time during the pendency of or approximate to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In assessing the Veteran's claim for service-connected bilateral hearing loss, the Board must determine, at the threshold, whether the Veteran has a current disability. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); and Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under VA regulations, a hearing impairment is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 dB, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157-160 (1993). An examination for hearing impairment for VA disability benefit purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). Here, the Veteran's service treatment records show that he had normal hearing in the military. See November 2004 Enlistment Report of Medical Examination. In September 2021, the Veteran underwent a VA examination with an audiologist to evaluate the nature and etiology of his claimed hearing impairment. See December 2020 Hearing Loss and Tinnitus DBQ. The December 2020 VA audiologist met the Veteran for an in-person examination, and noted a review of the claims file. During the in-person consultation, the Veteran reported exposure to noise from weapons, vehicles, and ranges, and that he used hearing protection during the military. See September 2021Hearing Loss and Tinnitus DBQ at 5 (Remarks). The September 2021 VA audiologist noted the Veteran has difficulty hearing people who speak at a normal volume. See September 2021Hearing Loss and Tinnitus DBQ at 4 (Functional Impact). However, on diagnostic examination, the September 2021 VA audiologist found that the Veteran had normal hearing bilaterally, and measured the puretone thresholds shown in the table below: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 15 LEFT 5 5 10 20 25 The reported measurements did not show auditory thresholds of 40 decibels or greater in any of the five listed frequencies, nor did they show thresholds of 26 decibels or greater in at least three of the frequencies specified in the regulations. Speech audiometry showed Maryland CNC wordlist speech recognition ability of 100 percent bilaterally. See September 2021 Hearing Loss and Tinnitus DBQ at 2. The results of the September 2021 VA audiology examination do not satisfy the criteria for a current diagnosis of bilateral hearing loss under VA regulations and, consequently, do not establish the threshold service-connection requirement for a current disability. See 38 C.F.R. § 3.385. The Board has also considered the Veteran's assertions. The Veteran is competent to report his experience of diminished hearing, and the noises that he was exposed to during his active miliary service. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the evidence needed to diagnose a current hearing loss disability for VA purposes requires special audiological knowledge and diagnostic testing, and there is no evidence in the record that the Veteran has the special qualifications needed to perform and interpret the diagnostic tests and measurements needed to diagnose a hearing loss disability for VA disability benefit purposes. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Jandreau v. Nicholson, 492 F.3d 1372, 1377 and n.4 (Fed. Cir. 2007). Consequently, the Board accords greater probative weight to the medical evidence. Based on the foregoing, the Board finds and concludes that the competent, credible, and probative evidence of record persuasively weighs against finding that the Veteran had a current hearing loss disability, in accordance with controlling VA regulations, at any time during or approximate to the pendency of the instant claim. As such, the benefit-of-the-doubt doctrine is not applicable. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc). Entitlement to service connection for bilateral hearing loss is denied. Cory M. Picton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Galindo 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.