BVA9507335 DOCKET NO. 92-05 725 ) DATE ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from April 1970 to April 1973, including a period of duty in Vietnam. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a June 21, 1991, rating decision by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal was remanded by the Board on February 23, 1994, for additional evidentiary development. The actions requested have been completed, and the case is again before the Board for appellate review. As originally developed for appeal, the veteran's claim included the additional issue of entitlement to service connection for shrapnel wounds of the right chest and right leg. However, the veteran indicated at his hearing on appeal in November 1991 that he did not wish to pursue a claim for either disability and the issue was withdrawn. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has PTSD which is the result of experiences during combat in Vietnam. He states that since returning from Vietnam he has been impaired both socially and industrially and has not been able to maintain steady employment. He claims that, unlike before he went to Vietnam, he usually has to leave his job because of problems dealing with authority. He complains of flashbacks and nightmares and states that when under stress his reaction is to hide in the woods and stay away from the people. He maintains that the letter from his counselor at a Vet Center, which is based on numerous visits, gives a clearer picture of his condition than the reports of the VA examinations, which were brief. The veteran contends further that he has defective hearing in each ear as a result of exposure to acoustic trauma during service. He maintains that while serving as a tank driver in Vietnam he was continually exposed to loud noises; he cites one particular incident in 1971 where he was exposed to a tank blast while standing only 10 or 15 feet away from the muzzle. He states that he could not hear for days following the incident and claims that defective hearing was documented in service medical records. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the claim for service connection for PTSD. It is the further decision of the Board that the claim for service connection for defective hearing in the left ear be denied by operation of law. It is the further decision of the Board that a preponderance of the evidence is against the claim of service connection for defective hearing in the right ear. FINDINGS OF FACT 1. The evidence required for proper adjudication of the issues on appeal has been obtained. 2. During active military service, the veteran engaged in actual combat with the enemy and received multiple decorations, including the Combat Infantryman Badge and Bronze Star. 3. A credible postservice diagnosis of PTSD related to military service has not been established. 4. The veteran is not shown to have defective hearing in the left ear for VA purposes. 5. The veteran's current sensorineural defective hearing in the right ear is not shown to be the result of disease or injury in service. CONCLUSIONS OF LAW 1. The veteran is not shown to have PTSD due to disease or injury which was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991); 38 C.F.R. § 4.126 (1994). 2. The veteran does not have defective hearing in the left ear for which service connection can be granted. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991); 38 C.F.R. § 3.385 (1994). 3. The veteran's defective hearing in the right ear is not due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991); 38 C.F.R. §§ 3.303, 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. PTSD Background. During active duty the veteran served in Vietnam from September 12, 1970, through September 11, 1971. His medals included the Bronze Star, the Vietnam Service Medal and the Combat Infantryman Badge. His principal duties in Vietnam consisted of serving as a scout observer for an infantry unit. The veteran's original claim for service connection for PTSD was received in March 1991. A VA psychiatric examination was performed in April 1991. He described difficulties which had arisen in his life since returning to the United States after Vietnam, in particular an inability to establish relationships with other people and having great difficulty with jobs. He indicated that he had been in therapy at a Vet Center for 6 to 8 months. He described depression which had been present since Vietnam. There were no particular flashbacks. The examiner was not impressed that the veteran's involvement in fire fights in Vietnam was particularly traumatic for him and concluded that the veteran was subject to depression related to a personality disorder. The findings were found not to support a diagnosis of PTSD. Received in September 1991 was a statement from A. Matlock, MSW, a readjustment counseling therapist, who reported having initially seen the veteran at the Boulder Vietnam Veterans Outreach Center in March 1987, where he attended individual and group therapy until June 1988. The report indicated, in part, that the veteran isolated himself, had few friends, and felt alienated and guilty that he survived when others had not. The veteran reported that for a period of time after his return from Vietnam he had experienced sleep disturbance and nightmares, but that he currently slept well unless he was under stress. He also described hyperalertness in that he was constantly 'on guard' and very uncomfortable being in close proximity to other people. He reported having had intrusive thoughts or 'daydreams' during which he replayed situations in Vietnam and experienced violent thoughts about how he would like to handle situations in his current life. He feared at times that he would lose control of his rageful, angry feelings and get physical. It was reported that the veteran's score was 113.5 on the Mississippi Scale, with a 90 percent classification score for PTSD being 107. The examiner expressed the conclusion that the veteran experienced PTSD which was chronic and severe. Following a hearing on appeal at the RO in November 1991, the veteran underwent a further psychiatric examination by VA. At that time, he reported that he was working as sheet metal worker. He was not receiving any psychiatric treatment or using medication. He reported that he slept "okay." He had crying spells when something touched him emotionally and felt helpless and hopeless in periods, but not as bad as he used to. He had suicidal feelings, but no fixed plan. The veteran thought that he lost time occasionally, but there were no particular intrusion. He remembered little about his Vietnam experiences and was angry about the fact that he was not adequately prepared to operate equipment in service. The examiner noted that the veteran's complaints mainly had to do with since being back in the United States. He felt very alienated and that Vietnam veterans were discriminated against in job hiring. At one time, prior to being arrested and incarcerated, he had fallen to the point where he felt that the world owed him a living and that he did not care what other people thought. On examination, the veteran displayed no delusional or hallucinatory material. He also was noted to be oriented without memory or judgment deficit. Based on the examination, the psychiatrist stated the following:: This veteran does not give evidence for symptoms of post-traumatic stress disorder; rather, there is a long history of difficulty with periods of authority antedating his experience in the service. The veteran does feel alienated and has despaired. He also seems to have suffered from substance abuse in the past, and also mood disorder, which does not seem to be active at this time. There was no diagnosis on Axis I. The diagnosis on Axis II was personality disorder, mixed type. The examiner recorded that there was insufficient clinical evidence to warrant a diagnosis of any acute or chronic or delayed postservice stress disorder. The veteran underwent a psychiatric examination by VA in June 1994 following the Board remand. He described a long history of difficulty with employers and relationships with women. It was noted that he and his wife had undergone recurrent marital counseling and that the police had been called on a number of occasions because of domestic problems. He also had been in court on charges of felony menacing after getting into an argument with his brother. He had also been incarcerated in the past for four years for being a 'thief.' When asked about his current mental health symptoms, the veteran was quite vague and said that he still had "some anger and upset" because society owed things to him and never followed through. He admitted, in a roundabout fashion, that he did yell and get angry and irritable without directly admitting or elaborating on the nature of the incidents. He indicated that most of these incidents happened at home and to some extent at work. The veteran's wife felt that the veteran had a rather suspicious nature and became apprehensive or fearful when he thought something detrimental was happening. When specifically asked about other mental health symptoms, including manifestations of PTSD, he said that he had none of these and that he had 'no mental health problems.' When describing his day, the veteran indicated that he slept through the night most often, but was awakened by noisy neighbors or traffic noise. He stated that he had periodic nightmares which were related to things that happened during the day. On examination, the veteran was noted to have a "rather schizoid antagonistic and irritable demeanor, answering questions either in brief, vague comments saying that he did not know and looking to his wife to answer the questions or, at other times, becoming quite precise and overinclusive about certain details." He was noted to be oriented with logical speech and no loose associations. His affect was markedly constricted. His mood was suspicious and mildly anxious with an angry edge. After review of current findings and prior records, the examiner gave the following psychiatric assessment: This individual presents with symptoms of a mixed personality disorder with paranoid, schizoid, rigid and obstructionistic features. He has had a longstanding difficulty with authority, relationships with women, and continues to have a very problematic relationship with his wife. On specific questioning, he denies symptoms suggestive of post-traumatic stress disorder. I cannot document, on this examination, symptoms suggestive of post- traumatic stress disorder. In August 1994, the veteran underwent an examination by a VA clinical psychologist, who found the veteran's evaluation consistent with efforts to minimize the effects of Vietnam experiences on his life. The examination resulted in the following conclusion: It would be easy to ally with the part of [the veteran] which wishes to deny the impact that the traumas of Vietnam have had on his life. To do so, however, would overlook the pervasive effect which lies hidden from direct view. This is a man whose stance vis-a-vis the world is a traumatized one; he wants little to do with the world. Suspicious of its motives, he keeps it at arm's length. While he may not show the more overt, orthodox symptomatology of PTSD, his world clearly bears its imprint. His condition is more than just antisocial or paranoid personality features. The psychiatrist who performed the VA psychiatric examination in June 1994 was thereafter given an opportunity to review the psychological testing report in August 1994. He concluded that, despite these tests: I believe that [the veteran] suffers from a lifelong personality disorder. While his service experience may [have] 'left an imprint' on him (as all our experiences do, to some degree), I do not see symptoms consistent with PTSD and do not make that diagnosis. Analysis. The Board finds that the veteran's claim for service connection for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) in that it is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Board further finds that the statutory duty to assist in the development of the evidence to support a well-grounded claim has been satisfied. The law permits the granting of service connection for a disability which results from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (wartime), 1131 (peacetime) (West 1991). In claims for service connection for PTSD, a VA regulation, 38 C.F.R. § 3.304(f) (1994), is applicable: Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence contrary, as conclusive evidence of the claimed inservice stressor. In view of evidence confirming that the veteran received the Combat Infantryman Badge, the veteran is relieved of the obligation to document individual stressor events. Therefore, the inquiry involves the question of whether a current diagnosis of PTSD is adequately established. Under an additional VA regulation, an award of service connection for PTSD requires that a current diagnosis be established which conforms to the criteria set forth in the Diagnostic and Statistic Manual of Mental Disorders, Third Edition (DSM-III) of The American Psychiatric Association. 38 C.F.R. § 4.126 (1994). The veteran bases his claim primarily on the diagnostic opinion of a social worker, A. Matlock, M.S.W., who is associated with a private program for treatment of PTSD. The Board is not free to ignore the opinion of a medical professional but is free to discount the credibility of such individual's statement. Sanden v. Derwinski, 2 Vet.App. 97, 101 (1992). The United States Court of Veterans Appeals has held that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and a medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet.App. 467, 470-71 (1993). The veteran's claim also is somewhat supported by the VA psychologist in 1994. However, the value of both judgments must be viewed in the context of all of the evidence, which includes several opinions by VA psychiatrists which conclude that a diagnosis of PTSD is not sustainable. By sheer weight of numbers, the unfavorable diagnostic opinions outweigh the favorable ones (see reports of VA examinations in April 1991, November 1991 and June 1994). However, the veteran contends that the opinion by Ms. Matlock is more probative by virtue of the fact that she had spent much time with him than the VA examiners and did so over an extended period. The Board would note, however, that the so-called treating physician rule, which gives the opinion of treating physicians (in this case a social worker) greater weight in evaluating claims made by veterans has not been adopted for the adjudication of VA claims; it has, in fact, been specifically rejected. Guerrieri v. Brown, Id. Numerical superiority aside, the three negative opinions are more persuasive to the Board as a proper basis for adjudicating the present claim. All three were based on a review of the record and were the result of independent inquiries. The diagnostic judgments were, in each case, based on findings which were reviewed in conjunction with applicable diagnostic criteria. The most recent VA studies, the psychiatric and psychological evaluations conducted in June and August 1994, respectively, were performed for the specific purpose of reconciling the diagnostic conflict in this case. Both examination reached the same basic conclusion that the veteran did not present clinical findings which would support the diagnosis of PTSD. Both opinions are consistent in noting the absence of "overt orthodox symptomatology of PTSD" (see the August 1994 psychologist's report), but the psychologist, in characterizing the veteran's stance vis-a-vis the world as a "traumatized" one, does not support a conclusion in terms of an actual diagnosis of PTSD. The explanation by the psychiatrist that the veteran's problems are more suggestive of a longstanding personality disorder is more consistent with the prior medical record. In absence of current symptoms which can be related to PTSD, the Board finds that a clear preponderance of the evidence is against the veteran's claim. The Board therefore finds that the cumulative weight of the opinions unfavorable to the service connection claim is greater than that of the favorable opinions; therefore, a preponderance of the evidence is against the claim and the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 1991). II. Defective Hearing Background. Service medical records show that, at the time of enlistment into the Army in February 1970, audiometric testing showed a pure tone threshold of 25 decibels at 4,000 hertz in the right ear and thresholds of 0 in all of the remaining frequencies tested (500, 1,000, 2,000, 3,000 and 6,000 hertz, respectively), in that ear and in the left ear. Audiometric studies performed on examination for separation in March 1973 showed pure tone thresholds of 30, 5, 0 and 25 decibels at 500, 1,000, 2,000 and 4,000 hertz, respectively, in the right ear and 10, 5, 0 and of 10 decibels at the same frequencies in the left ear. A claim for service connection for defective hearing was received in March 1991. VA audiometric testing in April 1991 showed pure tone thresholds of 0, 5, 10, 65 and 60 decibels, respectively, in the right ear and 5, 0, 5, 15 and 15 decibels, respectively, in the left ear. The speech recognition scores were 84 percent in the right ear and 96 percent in the left ear. These findings were interpreted to show sensorineural defective hearing. Further VA audiometric testing was performed in August 1994 pursuant to the Board remand. The pure tone air conduction thresholds in the right ear were 5, 5, 10, 65 and 65 decibels at 500, 1,000, 2,000, 3,000 and 4,000 hertz, respectively. In the left ear the thresholds were 0, 5, 10, 10 and 10 decibels at the same frequencies. The speech recognition score was 96 percent in each ear. These findings were interpreted to show moderate hearing loss in the right ear and normal hearing in the left ear. In response to questions posed in the remand, the examiner reviewed the audiometric test results reported in service and stated that the decrease in hearing acuity at the examination of March 1973 "could very well be due to military noise exposure" but that the hearing level reported would be classified as within normal limits under VA guidelines. He stated that it was unlikely that acoustic trauma between 1970 and 1973 would have resulted in further decreased hearing in 1991 and noted that a closed head injury in 1984 could have caused a further hearing decrease. He indicated in conclusion that he was "unable to establish military link for decrease between 1973 & 1994 audiogram." Analysis-Defective hearing in the left Ear. The degree of hearing impairment which is regarded by law as a disability for VA compensation purposes is defined in a VA regulation, 38 C.F.R. § 3.385 (1994), which provides as follows: For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In view of the audiometric findings recorded in service, service connection for a hearing deficit in the left ear is not warranted under this standard. Both audiometric examinations during service and both examinations performed since separation show no impairment of hearing in the left ear for VA purposes. In the absence of a current hearing disability which satisfies the requirements of 38 C.F.R. § 3.385, the claim must be denied by operation of law. Sabonis v. Brown, 6 Vet.App. 426 (1994). Analysis-Defective hearing in the right Ear. The preliminary requirement for establishing entitlement to any VA benefit is that the applicant submit a claim which is sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Board concludes that the claim for service connection for defective hearing in the right ear is well grounded under this standard. The veteran contends that his present right ear hearing deficit is the result of noise exposure in service but he has submitted no evidence to substantiate that allegation. The service medical records show that, at separation, he had impaired hearing which at the time of the recent examination was noted to be that of a slight decrease at the 500 and 4000 hertz levels and to be classified as "WNL" by VA standards. The examiner also indicated that there was a mild hearing loss in the right ear shown on recent hearing testing in 1991 and 1994 when the VA standards were met. However, the examiner was of the opinion that it was "unlikely that acoustic trauma between 1970 and 1973 would have resulted in further decreased hearing in 1991" and that he was "unable to establish a military link for decrease between 1973 & 1994 audiogram." The examiner added that a reported accident with a closed head injury after service in 1984 "could have caused further decrease in hearing." The Board would note that the audiologist who examined the veteran in August 1994 expressed a medical conclusion, based on a complete review of the records, that the hearing loss is not related to service. Accordingly, without competent evidence establishing a nexus between his current hearing loss and disease and injury in service, service connection is not warranted. ORDER Service connection for PTSD is denied. Service connection for defective hearing in the left ear is denied. Service connection for defective hearing in the right ear is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.