Citation Nr: 0003883 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97-20 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased (compensable) rating for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for a nervous disorder as secondary to the service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole R. Kammel, Associate Counsel INTRODUCTION The veteran served on active duty from May 1962 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 1998, the Board remanded and referred the first and second issues on the front page of this decision, respectively, for additional development. The requested development has been completed and the case has since been returned to the Board for final appellate review. Issue number three listed on the front page of this decision will be addressed in the remand portion of the decision. FINDINGS OF FACT 1. VA audiometric test results obtained in January 1997 and February 1999 equate to level I hearing in both ears. 2. In September 1990, the Board denied service connection for an acquired psychiatric disorder, to include PTSD, on a direct basis. 2. Evidence received since the September 1990 Board decision is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.87, Diagnostic Code 6100 (1999). 2. The September 1990 Board decision denying service connection for an acquired psychiatric disorder, to include PTSD, on a direct basis is final. 38 U.S.C.A. § 7104 (West 1991). 3. The evidence received since the September 1990 Board decision is not new and material; the veteran's claim for that benefit is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Evaluation Claim As a preliminary matter, the Board finds that the veteran's claim for an increased rating is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that all relevant facts needed to adjudicate a schedular evaluation of the veteran's bilateral hearing loss have been properly developed, and that no further assistance is required on this issue to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of the Schedule for Rating Disabilities which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In an April 1997 rating decision, the RO continued the noncompensable evaluation assigned to the service-connected bilateral hearing loss. The veteran disagreed with this determination and this appeal ensued. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second (Hertz). To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, Codes 6100-6110. The Board observes that certain regulatory changes were recently made to the criteria for evaluating audiological disabilities, as included in 38 C.F.R. §§ 4.85-4.87. These changes were made effective as of June 10, 1999. See 64 Fed. Reg. 25202-25210 (1999). Generally, when the laws or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). But see Rhodan v. West, 12 Vet. App. 55, 57 (1998) (where compensation is awarded or increased pursuant to an act of Congress or an administrative issue, the effective date of an award or increase shall not be earlier than the effective date of the act of Congress or the administrative issue); 38 U.S.C.A. § 5110(g) (West 1991). The Board observes that the summary information accompanying the regulatory changes to the criteria for evaluating audiological disabilities specifically indicates that, except for certain "unusual patterns of hearing impairment," the regulatory changes do not constitute liberalizing provisions. Id. at 25204. The "unusual patterns of hearing impairment" include cases where the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. The Board observes that the RO has not yet had an opportunity to apply the regulatory changes noted above to the veteran's case. However, as such regulatory changes would not materially affect the outcome of this case because the veteran's hearing loss, described below, does not fit either of the "unusual patterns of hearing impairment" set forth in the revised regulations, the application of these regulatory changes does not result in prejudice to the veteran. See generally Bernard v. Brown, 4 Vet. App. 384 (1994). The RO has assigned a noncompensable evaluation to the service-connected bilateral hearing loss pursuant to Diagnostic Code 6100. A January 1997 VA audiological evaluation report reflects that the average pure tone threshold level, in decibels, was 41 for the right ear and 49 for the left ear. Speech recognition ability was 100 percent in the right ear and 96 percent for the left ear. These results equate to level I in both ears, which warrants a noncompensable rating under Code 6100 of the rating schedule. During a February 1999 VA audiological examination, the average pure tone threshold level, in decibels, was 44 in the right ear and 55 in the left ear. Speech recognition ability was 92 percent in the right ear and 84 percent in the left ear. These results equate to level I in both ears, which warrants a noncompensable rating under Code 6100 of the rating schedule. Accordingly, the assignment of an increased rating for the veteran's service-connected bilateral hearing loss is not in order. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.87, Part 4, Diagnostic Code 6100. In reaching the foregoing determination, the Board would point out that the propriety of assigning a noncompensable rating for service-connected hearing loss by means of a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluation has been upheld by the United States Court of Appeals for Veterans Claims. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). II. New and Material Evidence Under the law, in the context of this issues on appeal, service connection may be granted for any disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). A claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7104. Title 38, United States Code, Section 5108, however, provides that, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); See also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (the evidence must merely "contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision"). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Where there is a prior Board decision, the claim may not be reopened and allowed, and a claim based on the same factual basis may not be considered, unless new and material evidence is presented. 38 U.S.C.A. § 7104. When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107 has been met. Elkins v. West, 12 Vet. App. 209, 218 (1999). In a September 1990 decision, the Board denied service connection for an acquired psychiatric disorder, to include PTSD, on a direct basis. Thereafter, in a statement, submitted by the veteran, dated in June 1998, he requested entitlement to service connection for PTSD. As such, the Board finds that the evidence that must be considered in determining whether new and material evidence has been submitted in this case is the evidence added to the record since the Board's September 1990 decision. Evidence that was of record at the time of the September 1990 Board decision denying service connection for an acquired psychiatric disorder, to include PTSD, consisted of: (1) service medical records reflecting that in December 1969 and April 1970, the veteran complained of being nervous in connection with a pilonidal cyst. A chronic psychiatric disorder was not found during service. At an April 1978 examination for separation from service, the veteran was found to have been psychiatrically normal;(2) Service personnel records reflecting that the veteran had been awarded the Combat Infantryman's Badge and that he had served in Vietnam from February 1970 to January 1971;(3) VA examination reports and private treatment records, submitted by Appalachian Regional Hospitals, Inc., Grady Arnold, M.D., and A. Dahhan, M.D., dating from 1979 to 1988, showing that the veteran received treatment for various unrelated disorders; (4), a May 1988 hearing transcript reflecting that the veteran had testified that he had been a platoon sergeant during service in Vietnam. He reported that he had occasional nightmares, attended church social activities and disliked loud noise. The appellant testified that since he had been discharged from service, he had not sought any treatment for his nervous disorder and had never been hospitalized for any psychiatric problems; (5) a June 1988 VA examination report reflecting a diagnosis of adjustment disorder with anxious mood. Evidence received since the September 1990 Board decision denying service connection for an acquired psychiatric disorder, to include PTSD, on a direct basis includes medical reports, dating from 1980 to 1996, submitted by Appalachian Regional Hospital, Inc., VA examination reports, dated in October 1996 and January 1997, testimony from a June 1998 hearing, VA outpatient reports, dating from October 1994 to March 1995, VA examination reports, dated in February and March 1999, and treatment reports, submitted by Timothy C. Ford, DPM and Tri County Baptist Hospital, dating from December 1998 to February 1999. Medical reports, submitted by Appalachian Regional Hospital Inc., dating from 1980 to 1996, reflect that the veteran was seen for un-related disorders. These records are silent with respect to any subjective complaints or objective findings relating to a psychiatric disorder, to include PTSD. During VA examinations, conducted in October 1996 and January 1997, a chronic psychiatric disorder was not found nor was a diagnosis of PTSD entered by the examining physicians. During a June 1998 hearing before the undersigned Board member, the veteran did not offer any testimony with regards to his claim for service connection for an acquired psychiatric disorder, to include PTSD. VA outpatient reports, dating from October 1994 to March 1995, reflect that in October 1994, a diagnosis of depression was entered. The remainder of the reports are devoid of any additional psychiatric complaints. VA examination reports, dated in February and March 1999, reflect that when examined by VA in March 1999, the examiner indicated that he had reviewed the veteran's entire claims file prior to the examination. During the March 1999 examination, the examiner noted that the veteran had not received any inpatient psychiatric treatment or counseling. The VA examiner reported that in June 1988, the veteran had been evaluated by a psychiatrist (the location of which was unknown) and had been found to have been oriented in all phases with no evidence of delusions or hallucinations. The VA examiner reported that the examiner in 1988 had noted that the appellant did now show any significant indications of anxiety or depression and that his intellect was within normal limits. The examiner in 1988 determined that the veteran did not fill the criteria for PTSD and diagnosed the veteran as having an adjustment disorder with an anxious mood. During the March 1999 VA examination, the veteran indicated that he had had an alcohol problem but that he had not drank since 1982. The appellant related that he had a good relationship with his wife, four children and six grandchildren. He reported that he had been employed as a truck driver but that he stopped when he had a "stroke." He reported that he had not been employed since 1994. After a mental status examination of the veteran, the examiner entered a diagnosis of mild anxiety disorder. The examiner related that the veteran had been found to have had some mild anxiety during a previous examination, conducted ten years previously. It was noted by the examiner that the symptomatology which the appellant described as a being a "nervous condition" included being bothered by constant ringing in his ears, feeling stressed out, difficulty dealing with pressures and having anxious episodes. The VA examiner found it significant that the veteran had not sought any psychiatric treatment during his sixteen years of service, and he felt that the worsening of the appellant's medical conditions (i.e., tinnitus, hypertension and diabetes mellitus), as well as losing his employment in 1994, had caused him to become increasingly fretful. The examiner concluded that the appellant's symptomatology was anxiety- related and not connected to an incident during service. Medical reports, submitted by Timothy C. Ford, DPM and Tri County Baptist Hospital, dating from December 1998 to February 1999, are silent for any subjective complaints or objective findings relating to a psychiatric disorder, to include PTSD. In considering whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, the Board has considered all of the evidence presented since the 1990 Board decision in light of the evidence that was available at that time. Significantly, however, while some of this evidence is new, none of the evidence is material, and none of the evidence is so significant that it must be considered in order to fairly decide the merits of the claim. Notably, the VA examiner in March 1999 concluded, after a complete review of the claims file and a thorough examination of the veteran, that while the veteran had some mild anxiety, it was not the result of an incident in service but to other unrelated factors such as, medical conditions and unemployment. The veteran has not submitted any competent medical evidence to refute the VA examiner's opinion or to support his assertion that he currently has an acquired psychiatric disorder, to include PTSD, as a result of service. Hence, there remains no competent evidence suggesting that an acquired psychiatric disorder, to include PTSD, was incurred or aggravated during the appellant's active duty. As such, the evidence submitted since the Board's September 1990 decision is not new and material, and the claim is not reopened. The benefit sought on appeal is denied. In reaching the foregoing decision the Board views its discussion as sufficient to inform the appellant of the elements necessary to reopen his claim. See Graves v. Brown, 9 Vet. App. 172, 173 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). In this regard, the above discussion informs the appellant of the steps he needs to fulfill in order to reopen his claim, and an explanation why his current attempt to reopen the claim must fail. ORDER An increased (compensable) evaluation for bilateral hearing loss is denied. New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, on a direct basis is denied. REMAND A review of the record discloses that in a September 1990 decision, the Board denied service-connection for an acquired psychiatric disorder, to include PTSD, on a direct basis. In statements, submitted by the veteran and his representative, they specifically requested entitlement to service connection for a nervous disorder as secondary to the service-connected bilateral hearing loss and tinnitus. In support of these contentions, the Board observes that during a March 1999 VA examination, the examiner indicated that the veteran had become more "fretful" as a result of his service-connected tinnitus, unemployment and other medical conditions (i.e., hypertension, diabetes mellitus and a stroke). In a June 1999 rating decision, the RO adjudicated the issue of whether or not new and material evidence had been submitted to reopen a claim for service connection for an acquired psychiatric disorder, to include PTSD, depression, an anxiety disorder and a nervous disorder as secondary to the service-connected bilateral hearing loss. After receiving notice of the RO's decision that same month, the veteran entered a timely Notice of Disagreement. While the RO issued a Statement of the Case in August 1999, it did not contain the appropriate laws and regulations addressing the veteran's claim of entitlement to service connection for a nervous disorder as secondary to the service-connected bilateral hearing loss and tinnitus on a de novo basis. In Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), the Court held that, where a NOD had been filed, the Board erred in finding that the issue was "not now in appellate status," and should have remanded rather than referred the case to the RO. Accordingly, the issue of entitlement to service connection for a nervous disorder as secondary to the service-connected bilateral hearing loss and tinnitus is REMANDED to the RO for the following actions. 1. Thereafter, the veteran should be afforded a VA examination by a Board certified psychiatrist, if available. The examiner should determine the nature and extent of any psychiatric disorder found during the examination. The examiner is requested to review the veteran's claims file, including the service medical records, all VA reports of examinations and all VA and private treatment records, with specific attention to the March 1999 VA examination report. The veteran should then be examined. The examiner must proffer an opinion, with supporting analysis, as to the likelihood that any psychiatric disorder found on examination was caused or aggravated by the appellant's service-connected bilateral hearing loss and/or tinnitus. The degree of the identified psychiatric disorder which would not be present but for the service-connected bilateral hearing loss and/or tinnitus should be determined. Reasons and bases for all conclusions should be provided. 4. The RO should then review the report pertaining to the VA examination performed in response to the previous directive to ascertain whether it is in compliance with the Board's examination instructions. If it is not, it must be returned for corrective action. 4. The RO should issue a statement of the case concerning the issue of entitlement to service connection for a nervous disorder as secondary to the service-connected bilateral hearing loss and tinnitus on a de novo basis. Only if the veteran completes his appeal by filing a timely substantive appeal on the aforementioned issue should this case be returned to the Board. See 38 U.S.C.A. § 7105. F. JUDGE FLOWERS Member, Board of Veterans' Appeals