BVA9507545 DOCKET NO. 92-04 839 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for headaches secondary to the service-connected post-traumatic stress disorder. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral defective hearing. 3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for tinnitus. 4. Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and A.O. ATTORNEY FOR THE BOARD William J. Jefferson, III Counsel INTRODUCTION The veteran had active service from September 1963 June 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO). Rating decisions dated in January and February 1991 denied an increased evaluation for post-traumatic stress disorder, evaluated as 30 percent disabling. The veteran disagreed with the determinations in May 1991. A personal hearing was held at the RO in October 1991, which was construed as the veteran's substantive appeal. A hearing was held in July 1992 at the Board, in Washington, D.C., before Bruce E. Hyman, who is the member of the Board rendering this decision, and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). The comments of the veteran's representative at the conclusion of the hearing indicated an attempt to reopen claims of entitlement to service connection for bilateral hearing loss and tinnitus. (Entitlement to service connection for bilateral hearing loss and tinnitus were denied by the Board in a December 1987 decision.) In addition, at the July 1992 personal hearing the veteran raised the issue of entitlement to service connection for a disorder manifested by headaches. In September 1992, the case was remanded by the Board for further development. A rating decision dated in October 1993 granted a 50 percent disability evaluation for post-traumatic stress disorder; determined that new and material evidence had not been submitted to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus; and denied entitlement to service connection for headaches. A supplemental statement of the case concerning all four issues was furnished by the veteran in February 1994. A statement from the veteran's accredited representative received in May 1994, may liberally be construed as a substantive appeal regarding the issues of whether new and material evidence has been submitted to reopen the claims of service connection for bilateral defective hearing and tinnitus, and entitlement to service connection for a disorder manifested by headaches. In the January 1995 informal brief it is argued that the veteran is entitled to a retroactive effective date of award of a 50 percent rating for PTSD since a finding of fact from a June 1, 1988 Board decision, indicates that the veteran's post-traumatic stress disorder was productive of definite social and considerable industrial impairment. Such a question may not be addressed unless a motion for reconsideration of the June 1988 Board decision is filed and granted. Reference is made to the case of Smith v. Brown, 35 F 3rd 1516 (Fed.Cir. 1994). It is also argued on the veteran's behalf in the January 1995 informal brief that the denial of service connection for hearing loss and tinnitus in a December 1987 Board decision is at variance with a June 1991 Board decision concerning the same issues. The representative appears to be referring to a June 1991 Board decision in the case of another veteran. A review of the record in this case does not reveal a June 1991 Board decision. Furthermore, as indicated previously, a claim of clear and unmistakable error in a final Board decision, which it appears is the underlying assertion, requires submission of motion for reconsideration. Concerning the issue of entitlement to service connection for a disorder manifested by headaches, we note that secondary service connection for headaches due to post-traumatic stress disorder was raised at the July 1992 personal hearing, in reference to a private physician's statement. The RO was requested to adjudicate the veteran's claim regarding headaches in the September 1992 Board Remand, and in a May 1994 statement, prior to re-certification of the case to the Board, the veteran's local accredited representative specifically raises service connection for headaches secondary to post-traumatic stress disorder. Service connection for headaches secondary to the service- connected post-traumatic stress disorder has not been adjudicated by the RO. The Board will address the issue of service connection for headaches secondary to the service-connected post-traumatic stress disorder. We find that in accordance with the complete grant of benefits as requested on the veteran's behalf, and to preclude any further delay with this case, that no prejudice to the veteran would result. See, Bernard v. Brown, 4 Vet.App. 384 (1993). In line with the final determination in this case, and as reflected on the title page of this decision, the issue is entitlement to service connection for headaches secondary to the service-connected post-traumatic stress disorder. CONTENTIONS OF APPELLATE ON APPEAL The veteran contends that he his has severe headaches that have existed for many years which should be considered part and parcel of his service-connected post-traumatic stress disorder. The veteran also argues that his bilateral defective hearing and tinnitus were incurred during service, and that he has submitted sufficient evidence to reopen his claims of service connection for those disorders. It is maintained by the veteran that his service connected post-traumatic stress disorder is far more disabling than the current 50 percent disability evaluation indicates, and in fact he is unemployable as a result of the disorder. He argues that a 100 percent disability evaluation is warranted for post-traumatic stress disorder. 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 new and material evidence has not been submitted to reopen the claims of entitlement to service connection for bilateral defective hearing and tinnitus. It is also the decision of the Board that the evidence is in favor of the veteran's claims of service connection for headaches secondary to the service connected post-traumatic stress disorder, and an increased evaluation for post-traumatic stress disorder. FINDINGS OF FACT 1. Headaches are shown to be caused by and to be a manifestation of the post-traumatic stress disorder. 2. In a December 1987 Board decision which addressed the merits of the issues, entitlement to service connection for bilateral defecting hearing and tinnitus was denied. 3. At a July 1992 personal hearing, the veteran raised the issue of whether new and material evidence had been submitted to reopen the claims of service connection for bilateral defective hearing and tinnitus; no evidence whatsoever has been submitted pertaining to the claims of service connection for bilateral defective hearing and tinnitus in connection with the attempted reopening of these claims. 4. The post-traumatic stress disorder with headaches, which is the veteran's sole service connected disability, is productive of severe social and industrial impairment, and precludes him from securing or following a substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The veteran's headaches are proximately due to and a manifestation of the service connected post-traumatic stress disorder. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (a) (1994). 2. The 1987 Board decision on the merits is final; and new and material evidence has not been submitted to reopen the claims of service connection for bilateral defective hearing and tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107, 5108, 7104 (b) (West 1991); 38 C.F.R. § 3.156 (a) (1994). 3. A 100 percent disability evaluation for post-traumatic stress disorder with headaches is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1994); 38 C.F.R. § 4.16 (c), 4.7, Part 4, Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We find that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is we find that he has presented claims which are not implausible. We are also satisfied that all relevant facts have been properly developed. 38 U.S.C.A. § 5107(a). I. Headaches The veteran's service medical records are entirely negative for any complaints or findings referable to headaches. In a statement associated with a VA application for compensation or pension received in April 1973, the veteran reported that he suffered periods of headaches, as well as other physical and mental symptoms due to "shell shock" incurred in Vietnam in 1966. It was reported that an analysis of his symptoms was according to a clinician. Submitted in May 1973 were 1970 private and VA hospital clinical records, primarily revealing treatment for psychiatric problems. The records were negative for any complaints or findings referable to headaches. In an October 1973 statement from a private physician, the veteran's symptoms, including severe headaches, were associated with what was diagnosed as anxiety (war) neurosis. A private physician, in a February 1984 statement, revealed that the veteran had received treatment in February 1984 regarding his headache. It was reported that there was no organic reason for the pain, and his head pain was suggestive of some vascular headache. It was indicated that the veteran obviously had been suffering from long standing psychological effects probably related to his war experience. In a private clinical entry dated in August 1983, the veteran complained of headaches. The diagnostic impression revealed headaches due to anxiety and depression. A VA clinical entry dated in August 1983, reported that the veteran sought relief from persistent headaches. The diagnosis revealed depressive reaction with headaches. Long standing headaches was reported in a December 1983 VA clinical entry. In a November 1986 statement from the veteran's ex-wife, it was reported that after the veteran returned from Vietnam he had psychological symptoms, along with headaches. A private psychiatric examination was performed in April 1987. The diagnosis was post-traumatic stress disorder and among the reported symptoms were headaches. During a period of hospitalization in October 1987 headaches was a secondary diagnosis in relation to a primary diagnosis of post-traumatic stress disorder. Constant right occipital pain worsened by stressful situations was reported in August 1989 VA outpatient treatment records. The veteran testified that he had been prescribed Percocet for headaches which he had had since Vietnam at the Board hearing in July 1992 (Page 26 of the transcript). Received in August 1993 were private clinical records from August through October 1983 which reported treatment for complaints of headaches. It was indicated that he had been looked at for a relationship between his headaches and psychological adjustment. Analysis The Board has reviewed the entire evidentiary data of record and concludes that the evidence is in favor of the veteran's claim of service connection for headaches secondary to the post-traumatic stress disorder. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The record shows that the veteran has psychological problems, which have been diagnosed as post-traumatic stress disorder, a service connected disability. In conjunction with his psychological problems, the clinical data reveals the veteran's complaints of ongoing headaches. The clinical data, for the most part, reveals that along with the more traditional symptoms associated with post-traumatic stress disorder, he has associated headaches. In fact, specific clinical data in the record associates the veteran's headache complaints with his post- traumatic stress disorder. It appears that his post-traumatic stress disorder and headaches go hand-in-hand, and are part and parcel of one another. Evidence to the contrary is not reported. Therefore, based on the evidence, we conclude that the veteran's headaches are proximately due to and a manifestation of his service connected post-traumatic stress disorder. II. Whether New and Material Evidence has been Submitted to Reopen the Claims of Service Connection for Bilateral Defective Hearing and Tinnitus. In a December 1987 Board decision on the merits, entitlement to service connection for hearing loss (defective hearing) and tinnitus was denied. The evidence at the time consisted of veteran's service medical records which were negative for pertinent disorders. VA clinical records from 1986 reported a complaint of ringing in the ears since Vietnam service. At that time bilateral tinnitus was diagnosed. A VA audiometric examination was conducted in September 1986. It was indicated that the veteran reported acoustic trauma in service resulting in tinnitus and hearing loss. Bilateral sensorineural hearing loss was indicated, and it was reported that the audiometric pattern was "very indicative of blast or concussive trauma and definitely compatible with the veteran's reported military service." At an April 1987 personal hearing, the veteran reported that during service he was a weapons mechanic, reloading armor on fighter aircraft on flight lines. He stated that during service in Vietnam he began to have ringing in his ears. The veteran reported current hearing loss. He stated that he was subjected to mortar attacks, and on one occasion a mortar landed near him resulting in a concussion. He indicated that subsequent to that incident he had progressive hearing loss. In the December 1987 Board decision it was determined that hearing loss or tinnitus was not shown during the veteran's period of active service, and that a sensorineural hearing loss was not shown within one year after service, and the disorders were first reported many years subsequent to service. It was concluded that tinnitus and hearing loss were shown too remote in time to be related to the veteran's period of service and service connection for the tinnitus and hearing loss was denied. Since the December 1987 Board decision, in July 1992, a personal hearing was held. At that time on the veteran's behalf, in closing, the issues of service connection for tinnitus and hearing loss were raised. The remainder of the record is absent for any data concerning tinnitus or hearing loss. Analysis In a case where a final rating or Board decision has been rendered, additionally submitted evidence must be considered "new and material" or the appellant's claim cannot be reopened. Manio v. Derwinski, 1 Vet.App. 140 (1991). "New and material" evidence is that evidence which has not been previously submitted, which bears directly and substantially upon the specific manner under consideration, and which is neither cumulative nor redundant. To justify the reopening of a claim on the basis of "new and material" evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In Glynn v. Brown, 6 Vet.App. 523 (1994), the Court of Veterans Appeals essentially concluded that where there is an attempt to reopen a claim, the plain meaning of 38 U.S.C.A. § 5108 (West 1991), requires review of all the evidence submitted since the last denial of the claim on the merits, in order to determine whether the claim must be reopened and readjudicated on the merits. In view of the fact that no pertinent data concerning tinnitus or defective hearing has been proffered since the December 1987 Board decision, we must conclude that no "new and material" evidence has been submitted to reopen the claim. In essence, in the case at bar, there is absolutely no evidence which bears directly and substantially on the claims of service connection for bilateral defective hearing and tinnitus. III. Post-Traumatic Stress Disorder with Headaches In an October 1993 rating decision the RO assigned a 50 percent disability evaluation for post-traumatic stress disorder under the provisions of Diagnostic Code 9411 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. VA mental health clinic treatment records from May through July 1989 report ongoing treatment for post-traumatic stress disorder symptoms, including nightmares and flashbacks. Treatment for headaches was also indicated. Psychotropic medication was continued. The veteran was hospitalized at a private facility from November to December 1989. He complained of post-traumatic stress disorder, and he reported that he was unable to deal with stress in his life. It was indicated that his depressive symptoms required days of recuperation. The admitting diagnosis was post- traumatic stress disorder, with depressive symptoms. The diagnosis at discharge was dysthymia, generalized anxiety disorder. A VA psychiatric examination was performed in June 1991. The veteran reported anxiety and somatic complaints, including constant, diffuse headaches. He indicated that he was less able to deal with his symptoms. It was indicated that he had been hospitalized six times within the last year. The veteran also reported sleep disturbance and nightmares. Survival guilt was reported. The mental status examination revealed a depressed mood. His affect was constrained with dejected mood. He dwelled on guilt from Vietnam experiences. He was increasingly agitated and re-experienced his stress symptoms in relation to the recent Gulf War and his son serving there. The veteran indicted that he had failed vocational rehabilitation and college. Chronic post-traumatic stress disorder was diagnosed. The veteran testified at an RO hearing in October 1991, that medications he used for flashbacks and nightmares did not help. He noted that he slept 4 hours per night. The veteran stated that he had not worked in over four years, and he was receiving social security benefits due to post-traumatic stress disorder. Submitted in conjunction with the October 1991 personal hearing was a September 1991 statement from a private physician indicating that the veteran was receiving treatment for post- traumatic stress disorder. It was reported that the veteran had been hospitalized for the disorder on several occasions and that he was depressed and unable to move about in a functional manner. The physician stated that the veteran had attempted suicide in July 1991. VA hospital records from October 1991 reported that the veteran was admitted to a facility for an accidental drug overdose, and a possible manipulative suicide gesture. Received in December 1991 were hospital records from a private facility, dated in July 1991, indicating that the veteran was admitted for a drug overdose. Ongoing treatment for post-traumatic stress disorder at VA facilities was reported in 1991 and 1992. At the July 1992 Board hearing, the veteran testified that his last employment was in March 1987 as a computer technician, and that he had been employed two years. He reported that as a result of his problems his ability to work had become shortened as time went on. The veteran reported that he suffered from nightmares. He averred that he went out when forced to. He stated that he read Scripture and the newspaper. The Board remanded the case in September 1992. As regards the pertinent development, the RO was requested to obtain the veteran's complete medical records; obtain his social security records; and provide the veteran a psychiatric evaluation to determine the current extent and severity of his post-traumatic stress disorder. Additional VA clinical records obtained in response to the remand reveal that the disorder was classified as severe in September 1991, on outpatient treatment. In December 1991, there was a 3 day hospitalization for a drug overdose. The outpatient treatment records show treatment for the psychiatric disorder through December 1992. A VA psychiatric examination was performed in May 1993. The veteran's military history and war experiences were reported. There was nausea and increased headaches. He reported that his appetite varied, he was unable to tolerate people, he lived alone, and he was withdrawn. He enjoyed seeing his wife somewhat. The veteran reported that he had tried college and a rehabilitation program but nothing had worked. With respect to his employment history, it was reported that he had had a long list of jobs and that as his symptoms worsened he could not hold a job. Objectively, the veteran appeared agitated and depressed with a blunted affect. There was slightly increased psychomotor behavior. He had poor eye contact. His face was expressionless and he appeared depressed. The veteran was alert, active, oriented, neat, and clean. There was no overt psychosis. The diagnoses were post-traumatic stress disorder; chronic anxiety and depression. In a contemporaneous attachment for post-traumatic stress disorder, it was reported that the veteran had frequent daily memories of Vietnam, but flashbacks had decreased over the past year. It was indicated that he had frequent nightmares and mixed insomnia. He was unable to sleep without medication. Helicopters, the Fourth of July, fireworks, thunder, and lightning reminded him of Vietnam. The veteran avoided thoughts or feelings associated with his service trauma, and he had markedly diminished interest in significant activities. It was indicated that he used to enjoy sports, and the more he exercised the sicker he became. It was also reported that the veteran had difficulty concentrating, hypervigilance, and exaggerated startle response. Received in August 1993 was a June 1988 Social Security Administration determination, associated with pertinent clinical records indicating that the veteran was entitled to disability benefits due to post-traumatic stress disorder as a primary diagnosis and depressive syndrome as a secondary diagnosis. It was noted that the veteran had been disabled for social security purposes since April 1987. An August 1993 statement from a VA physician it was reported that the veteran indicated that he had not been addicted to any drugs for 2 1/2 months. It was also reported that the veteran wanted to be sure that the record indicated that he was unable to be gainfully employed because of his mental illness. Analysis After a review of the entire evidentiary data of record, the Board concludes that the evidence is in favor of the veteran's claim of entitlement to an increased evaluation for post- traumatic stress disorder with headaches. The record shows that the veteran continues to complain of post- traumatic stress disorder symptoms, including nightmares on a daily basis with sleep disturbance, hypervigilance, guilt, startle response, diminished interest in activities, social isolation, and increased headaches. Concerning his industrial adaptability, the record shows that he has been unemployed at least since 1987. His failure to gain or maintain employment has been attributed to his psychoneurotic symptoms, primarily diagnosed as post-traumatic stress disorder. Private clinicians and employers in the past have corroborated his inability to maintain employment due to psychiatric problems. Furthermore, the record also indicates that he has enrolled in college in the past, but he has been unable to continue in college or in vocational rehabilitation as a result of stress. The adverse impact that the veteran's post-traumatic stress disorder has on his social industrial adaptability is readily apparent from the record. We note however, that a clinical determination relating the degree or severity of the post- traumatic stress disorder or specifically, its impact on the veteran's social and even more importantly his industrial adaptability has not been offered, although requested by the Board. While a classification of the post-traumatic stress disorder is not determinative, its weight could be assessed in light of the remaining data of record. In any event, we find that considering the multiplicity of post-traumatic stress disorder symptoms, along with headaches that the veteran has, along with evidence of his inability to work, corroborated by Social Security Administration records noting disability due to post-traumatic stress disorder, the Board is of the opinion that the post-traumatic stress disorder with headaches is productive of severe social and industrial impairment, which entitles the veteran to a 70 percent schedular rating. While it has been concluded that the veteran's post-traumatic stress disorder with headaches results in social isolation and probable demonstrable inability to obtain or retain employment, we find that the symptomatology as has been reported does not appear to be productive of totally incapacitating symptoms bordering on gross repudiation of reality. We find that the disability picture does not more nearly approximate the criteria necessary for a 100 percent disability evaluation for post- traumatic stress disorder. 38 C.F.R. § 4.7, Code 9411 (1994). Therefore, as a result of this decision the veteran's sole service connected disability is post-traumatic stress disorder with headaches which has been evaluated as 70 percent disabling. The provisions of 38 C.F.R. § 4.16 (c), indicate that if such mental disorder precludes a veteran from securing or following a substantially gainful occupation, a 100 percent schedular evaluation should be assigned. Here the record shows that the veteran's post-traumatic stress disorder with headaches precludes his ability for employment. Based on the evidence, the Board concludes that the veteran's service connected post-traumatic stress disorder with headaches meets the requirements for a 100 percent rating pursuant to the provisions of 38 C.F.R. 416(c) (1994). ORDER Service connection for headaches secondary to post-traumatic stress disorder is granted. New and material evidence not having been submitted, the veteran's appeal to reopen the claims of entitlement to service connection for bilateral defective hearing and tinnitus is denied. A 100 percent disability evaluation for post-traumatic stress disorder with headaches pursuant to the provisions of 38 C.F.R. § 4.16(c) (1994) is granted, subject to the laws and regulations regarding the payment of monetary benefits. BRUCE E. HYMAN 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.