BVA9508109 DOCKET NO. 93-13 258 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased disability rating for bilateral sensorineural hearing loss, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from December 1942 to November 1943. Although the veteran's April 1992 notice of disagreement can be interpreted as disagreeing with a denial of an increased evaluation for tinnitus, the veteran, in his substantive appeal, limited the issues on appeal to those shown on the preceding page. An issue of an increased evaluation for tinnitus has not been developed by the regional office and is not part of the veteran's current appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying the claim of entitlement to a disability evaluation greater than 10 percent for bilateral sensorineural hearing loss. He asserts that this disability is more severely disabling than currently evaluated. In addition, the veteran contends that the RO committed error in denying his claim of entitlement to service connection for post-traumatic stress disorder. He asserts that he now suffers from post-traumatic stress disorder as a direct result of his military service. He relates that during World War II he engaged in combat on a Pacific island near. He asserts that he was under fire, that planes were "strafing" him and fellow servicemen on the beach, and that servicemen died all around him. He maintains that, as a result of these in-service episodes, he experiences flashbacks and nervousness. He contends, therefore, that service connection for post-traumatic stress disorder should be granted. 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 the preponderance of the evidence is against the claim of entitlement to a disability evaluation greater than 10 percent for bilateral sensorineural hearing loss. In addition, it is the decision of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for post-traumatic stress disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible. 2. The veteran's bilateral hearing loss is manifested by average pure tone thresholds of 50 decibels in the right ear and 41 decibels in the left ear at 1000, 2000, 3000, and 4000 hertz and by a speech recognition ability of 84 percent in the right ear and 56 percent in the left ear. 3. The veteran does not have post-traumatic stress disorder. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for bilateral sensorineural hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 3, § 3.321 and Part 4, § 4.85, Code 6101 (1994). 2. Post-traumatic stress disorder was not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). I. Bilateral Sensorineural Hearing Loss Disability evaluations are administered under the Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1994) and is designed to compensate a veteran for the average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (1994). In a September 1944 rating decision, the RO granted service connection for defective hearing of the left ear with non suppurative otitis media and rated the disability as noncompensably disabling, effective from November 1943. The RO considered the service medical records as well as the results of the VA examination conducted that month which provided diagnoses of chronic catarrhal otitis media and partial deafness of the left ear. Significantly, the notice of this rating decision, which was furnished to the veteran in the following month, simply stated that service connection had been granted for defective hearing. In a June 1966 rating decision, the RO redefined the veteran's hearing disability as suppurative otitis media of the left ear, which the RO rated as 10 percent disabling, and defective hearing, which the RO confirmed as noncompensably disabling. The Board notes that a Rating Board Worksheet, dated approximately one week prior to the rating decision, indicated that service-connection had been granted previously for suppurative otitis media of the left ear and defective hearing of the left ear. However, the VA examination upon which the June 1966 rating decision was based showed a diagnosis of impaired hearing, and the rating decision defined the veteran's service-connected hearing loss disability as defective hearing. Otitis media was listed as a separate disability. In an April 1971 rating decision, the RO confirmed the noncompensable rating for the veteran's hearing loss disability. Although the results of the VA examination conducted in the same month had demonstrated some degree of hearing loss, the audiometric testing did not demonstrate a compensable level of hearing loss. Subsequently, in a February 1992 rating decision, the RO redefined the veteran's hearing loss disability as bilateral sensorineural hearing loss and granted a 10 percent evaluation for this disability. This increased rating was based on the results of the VA audiometric testing in December 1991, which demonstrated moderate to moderately severe bilateral sensorineural hearing loss and speech reception and word discrimination that was good in the right ear and poor in the left ear. Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. The United States Court of Veterans Appeals (Court) has recently held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Evaluations for defective hearing range from noncompensable to 100 percent and are based on organic impairment of hearing acuity as measured by results of controlled speech discrimination tests and by average pure tone threshold levels obtained by audiometric testing. To evaluate the degree of disability resulting from defective hearing which is service-connected, the rating schedule establishes, based on the average pure tone threshold levels and the results of the controlled speech discrimination tests, 11 auditory acuity levels from numeric designations I (for an essentially normal acuity level) to level XI (for profound deafness). The claims file does not contain any records of outpatient medical treatment that the veteran recently received. In fact, prior to the present appeal, the last medical record regarding treatment or examination of the veteran's hearing loss disability is the report of the April 1977 VA examination. Furthermore, the only medical record regarding the veteran's hearing loss disability which was received pursuant to the present appeal is the report of the December 1991 VA audiological examination. At this examination, the veteran reported that he had a history of noise exposure and that he had bilateral tinnitus and hearing loss but no other ear problems, including drainage or prior surgery. A tympanometry demonstrated normal compliance of both tympanic membranes with absent acoustic reflexes in the left ear. According to the examination report, the veteran's tympanic membrane was clear bilaterally. The audiometric testing demonstrated that the veteran had moderate to moderately severe bilateral sensorineural hearing loss and speech reception and word discrimination that was good in the right ear and poor in the left ear. These results were consistent with presbycusis. Bilateral amplification was recommended. The audiological examination included audiometric tests which revealed pure tone thresholds that were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT XXXX 25 50 60 65 LEFT XXXX 25 25 50 65 The average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz were reported as 50 decibels in the right ear and 41 decibels in the left ear. Speech recognition ability was reported as 84 percent correct in the right ear and 56 percent correct in the left ear. The results of this recent audiometric test do not demonstrate that the veteran's bilateral hearing loss is severe enough to warrant a disability rating greater than 10 percent under the rating schedule. The reported 50 decibel average pure tone threshold loss and 84 percent correct speech discrimination score in the right ear, when entered into Table VI of § 4.85, result in a hearing impairment with a numeric designation of II in the right ear. The reported 41 decibel average pure tone threshold loss and 56 percent correct speech discrimination score in the left ear, when entered into Table VI of § 4.85, result in a hearing impairment with a numeric designation of VI in the left ear. When applied to Table VII of § 4.85, the numeric designations of II in the right ear and VI in the left ear translate to a 10 percent evaluation for the veteran's service- connected bilateral hearing disability. 38 C.F.R. Part 4, § 4.85, Code 6101 (1994). The assignment of a disability evaluation for hearing impairment is a purely mechanical application of the rating criteria. The Court has held that the assignment of a disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). The possibility of an extraschedular evaluation has been considered. Although the veteran has contended that his hearing loss disability has worsened, he has not during the appeal identified any specific problem, such as frequent hospitalization, that this disability has caused. The present appeal does not present an exceptional or unusual disability picture with such factors as frequent hospitalization so as to preclude the use of the regular rating criteria. Thus, an increased rating on an extraschedular basis under 38 C.F.R. § 3.321 is not in order. II. Post-Traumatic Stress Disorder Evidence establishing a true mental disorder is required before service connection for that condition may be granted. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. Part 3, § 3.303 and Part 4, § 4.126 (1994). According to the regulations regarding post-traumatic stress disorder in particular, service connection for this disorder requires evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1994). Consequently, the first question that must be addressed is whether or not there is evidence establishing a clear diagnosis of post-traumatic stress disorder. Medical records regarding treatment that the veteran has received for his mental condition have been received during the present appeal. These records demonstrate that the veteran has been, and continues to be, treated for some type of psychiatric disorder. Significantly, however, these records do not provide a clear diagnosis of post-traumatic stress disorder. In June 1991, the veteran sought treatment for complaints of memory problems, depression, anxiety, and flashbacks. Mental status examination found the veteran to be cooperative, appropriately dressed, alert, oriented, and slightly anxious and depressed and to have appropriate affect, coherent speech, mild psycho-motor retardation, some cognitive decline, and recent memory impairment. The examining physician found no evidence of overt psychosis, delusions of paranoia, overwhelming anxiety, symptoms of major depression, or of suicidal or homicidal ideations, although the veteran was slightly anxious and slightly depressed. The physician noted that the veteran did not have symptomatology of post-traumatic stress disorder at that time, but that, according to information obtained that day from a VA social worker, the veteran had exhibited symptoms of post-traumatic stress disorder in the previous year. The physician noted initial diagnostic impressions of post-traumatic stress disorder, dementia, and alcohol abuse in remission. The examiner also noted that he planned to do dementia follow-up work to rule out any reversible cause of dementia. In July 1991, the veteran sought treatment for flashbacks and depression. The examining psychiatrist noted that the veteran's VA records had been reviewed and that they showed a diagnosis of post-traumatic stress disorder. The psychiatrist found no evidence of overwhelming anxiety and not all of the vegetative signs and symptoms of depression. Because the veteran refused to see a therapist, to take anti-depressants, or to undergo dementia testing, the physician indicated that there was no need for follow-up treatment. In September 1991, the veteran sought treatment for complaints of severe sleep continuity, chronic fatigue, "feeling awful," irritability, and anxiety. According to the treatment record, the veteran had been given a diagnosis of post-traumatic stress disorder by a physician at the VA Mental Health Clinic. The examining physician noted in September 1991 that the veteran was alert, oriented, had no objective memory impairment, was moderately depressed, and was not psychotic. The physician again noted the diagnosis of post-traumatic stress disorder and also stated that the veteran's symptoms were symptoms of major depression. In September and October 1991, the veteran underwent a psychiatric examination for compensation or pension purposes. In September 1991, the veteran underwent a clinical interview and psychological testing. At the clinical interview, the veteran reported being scared nearly all the time (but could not specify what he feared) and nervous and having a memory problem. The psychologist found that the veteran did not display overt signs of significant pathology during the interview and that he did not appear particularly depressed or anxious. The psychologist noted that he had much difficulty obtaining a reasonable history from the veteran to develop specific and definitive information concerning the veteran's alleged stressors. According to the examination report, the veteran's descriptions of combat were vague and incomplete. The veteran simply reported that he had a brief (30 to 40 days) combat experience on a Pacific island before being evacuated for some sort of medical problem (the service medical records show that the veteran was discharged due to his ear disability). The veteran was able to recall that he was never wounded in combat but that he did see American and Japanese soldiers being killed. Despite the veteran's assertion that he thought about his combat experiences frequently, the psychologist concluded that the veteran did not appear to experience flashbacks or nightmares about his combat experience. Although a psychological test was administered, the results were invalid. The psychologist explained that the veteran's limited intelligence undoubtedly contributed to the invalidity. The Neurobehavioral Cognitive Status Exam (NCSE), which addresses aspects of dementia, was also administered. According to the medical report, the veteran's performance on this test revealed significant impairments in memory, attention, construction, and abstract thinking. The psychologist explained that these cognitive deficits represented mild to moderate dementia. The psychologist expressed his opinion that the findings obtained from the clinical interview provided little or no support for a diagnosis of post-traumatic stress disorder and that the NCSE results show much more a diagnosis of dementia than a diagnosis of post-traumatic stress disorder. In addition, the psychologist expressed his opinion that it is doubtful that the veteran's moderate social and occupational functioning impairment originated in or evolved from his apparent brief and vaguely defined combat stress which occurred more than 45 years prior to the examination. In October 1991, the veteran underwent psychiatric evaluation. In the examination report, the examining physician noted several times that the veteran was not a particularly good informant. In any event, the veteran did report that he developed anxiety during service when he was placed in combat and that he continued to be anxious even after his separation from service. The examiner noted the veteran's subjective complaints of nervousness, anxiety, tremulousness, confusion, and feelings of worry, preoccupation, depression, and compulsiveness. Examination of the veteran's mental status found the veteran to be rather disheveled and somewhat garrulous, inclined "to get carried away as he talks about his symptoms." The physician noted that the veteran described a compulsive sort of behavior and a rather depressive preoccupation, which the physician explained was not supported by clinical evidence. In addition, the physician noted that the veteran was a little anxious, which the physician found not to be particularly disabling. The veteran had some recent memory problems, but nothing which was of great significance, and his remote memory was good. The physician found the veteran's judgment to be good and noted that the veteran acted rather passive and dependent and saw himself as being totally disabled. The diagnosis of generalized anxiety disorder with some compulsive components and early dementia was made. Significantly, the examiner expressed his medical opinion that he found no evidence of post-traumatic stress disorder. The physician concluded that the veteran had a chronic anxiety problem and a little depression. A review of the claims file indicates that, after the September through October 1991 psychiatric examination, the veteran continued to receive treatment for a mental condition. According to these additional records, which are dated from November 1991 to March 1993, the veteran sought treatment for complaints of nervousness and flashbacks. Many of these medical treatment records do not include a diagnosis of the veteran's psychiatric disability. A medical record dated in February 1992 included a notation that the veteran has an Axis I diagnosis of post-traumatic stress disorder. In a June 1992 record, a notation was made of post-traumatic stress. No examination appeared to have accompanied the diagnosis at either time. At an August 1992 examination, the veteran reported that during service he engaged in "large amount" of direct action and that his duties included "cleaning up the dead" during and after battles. The examining physician noted that the veteran reported that he thinks about what happened in World War II but did not clearly describe flashbacks. The veteran reported being tense, jittery, and depressed. Examination found the veteran to be cooperative and oriented and to have coherent and relevant speech, mild depression and anxiety, often very poor memory, and good judgment. The veteran showed no signs of a thought disorder and was neither delusional, hallucinatory, or suicidal. After conducting the mental status examination, the physician diagnosed dysthymia, generalized anxiety disorder, and an organic mental disorder not otherwise specified. In January 1993, the veteran sought treatment for "severe nerves." He also explained that he had memory problems and that, although he did not have flashbacks, he did think about the war all the time. The examining physician noted that he planned to have the veteran undergo further testing for possible early dementia and to give the veteran Ativan for generalized anxiety disorder. In March 1993, the veteran reported having a history of post-traumatic stress disorder symptoms starting after his discharge from service. In addition, the veteran explained that these symptoms have been constant but "wax and wane" in intensity. The veteran complained of frequent nightmares with war themes, feeling anxious and "on the edge" during the day, and flashbacks of war experiences. The veteran denied depression, suicidal ideation, and psychotic symptoms. According to the treatment report, the plan involved dispensing medication to the veteran for his condition. A notation of post-traumatic stress disorder was made. Based on a review of all of these records, the Board concludes that the veteran has not been found to have post-traumatic stress disorder. Although in June 1991 the examining physician noted post-traumatic stress disorder as well as dementia, the physician's notation of post-traumatic stress disorder was based on prior evidence that the veteran had exhibited symptoms of post-traumatic stress disorder. At the June 1991 examination, the examining physician specifically stated that he did not find evidence of post-traumatic stress disorder at that time. In fact, the physician recommended follow-up testing for another disorder, dementia. At the July 1991 treatment session, the examining physician noted that VA records showed a diagnosis of post-traumatic stress disorder. However, the veteran refused to undergo the additional testing that the physician recommended at the July 1991 treatment session. Consequently, the physician was unable to confirm this prior diagnosis and to provide a diagnosis of the veteran's mental disability at that time. At the September 1991 treatment session, the examining physician also noted that a physician at the VA Mental Health Center had diagnosed post-traumatic stress disorder. Significantly, however, the examining physician concluded in September 1991 that the symptoms exhibited by the veteran at that time were more likely associated with depression than with post-traumatic stress disorder. Moreover, the clinical interview, psychological testing, and psychiatric evaluation, which were conducted at the September through October 1991 compensation or pension examination, found no support for a diagnosis of post-traumatic stress disorder. These records provided evidence that the veteran in fact has a generalized anxiety disorder with compulsive components, early dementia, and slight depression. Outpatient treatment records dated in February and June 1992 gave a notation of post-traumatic stress disorder. Significantly, no examinations accompanied the diagnosis of post-traumatic stress disorder at either time. Furthermore, the psychiatric examination that the veteran was given in August 1992 resulted in diagnoses of dysthymia, a generalized anxiety disorder, and an organic mental disorder not otherwise specified. A diagnosis of post-traumatic stress disorder was not made. In addition, in January 1993 the veteran was treated for what the examining physician concluded was early dementia and a generalized anxiety disorder. Although the March 1993 record included a notation of post-traumatic stress disorder, this notation was based, not on the results of a psychiatric examination, but on the veteran's own assertion that he had experienced symptoms of post-traumatic stress disorder since his separation from service. The outpatient treatment records which predated the compensation or pension examination conducted in September and October 1991 noted the prior diagnosis of post-traumatic stress disorder but did not find any evidence at the time of the treatment sessions to confirm the previous diagnosis. The comprehensive compensation or pension examination conducted in September and October 1991 found no evidence to support a diagnosis of post-traumatic stress disorder. Two notations of post-traumatic stress disorder were made in 1992 and one notation of this disorder was made in March 1993. However, the Board notes that the regulations provide that the VA is not required to accept every diagnosis. See 38 C.F.R. Part 4, § 4.126 (1994) (it is the responsibility of rating boards to accept or reject diagnoses shown on reports of examination). The 1992 and 1993 notations of post-traumatic stress disorder were based on the veteran's own assertions and not on the results of any psychiatric examinations. These notations were, therefore, unconfirmed and unsubstantiated by medical evidence. Moreover, private psychiatric examinations conducted in August 1992 and in January 1993 found no evidence of post-traumatic stress disorder and, instead, provided evidence to support the diagnoses of dysthymia, a generalized anxiety disorder, an organic mental disorder not otherwise specified, and early dementia. Therefore, the Board finds that the 1992 and 1993 notations of post-traumatic stress disorder were not diagnoses of this disorder. Consequently, the Board concludes that, regardless of any diagnosis of post-traumatic stress disorder which may have been made prior to June 1991, comprehensive testing and examination in September and October 1991 determined that the veteran does not have post-traumatic stress disorder. There is no current medical evidence supporting such a diagnosis. Without clear evidence of a present diagnosis of post-traumatic stress disorder, a claim of entitlement to service connection for this condition cannot be granted. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. Part 3, §§ 3.303, 3.304(f) and Part 4, § 4.126 (1994). ORDER An increased disability evaluation for bilateral sensorineural hearing loss is denied. Service connection for post-traumatic stress disorder is denied. WILLIAM J. REDDY 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.