Citation Nr: 0002830 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 96-40 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD). 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a lumbar spine disorder. 4. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from December 1966 to November 1969. This appeal arose from a September 1995 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to service connection for the above-requested benefits. The denial of service connection for PTSD was confirmed by a rating action issued in August 1996. Supplemental statements of the case were issued in September and October 1997 and January 1999 which continued to deny the benefits sought. FINDING OF FACT The veteran has not been shown by credible medical evidence to suffer from an acquired psychiatric disorder, to include PTSD; a cervical spine disorder; a lumbar spine disorder; or a bilateral hearing loss disability which can be related to his period of service. CONCLUSION OF LAW The veteran has not presented evidence of well grounded claims for service connection. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of well grounded claims; that is, ones which are plausible. If he has not presented well grounded claims, his appeal must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As will be explained below, it is found that his claims are not well grounded. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection for a hearing loss disability may be granted if the disability results from disease or injury incurred in or aggravated by service, or if a sensorineural- type hearing loss disability was demonstrated to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). For the 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. 38 C.F.R. § 3.385 (1999). FACTS Acquired psychiatric disorder, to include PTSD The veteran's Form DD-214 indicated that the veteran received the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Navy Unit Citation. There was no indication that he had received any combat badges or had been wounded in service. The service medical records did not show that the veteran had made any complaints of or was treated for a psychiatric disorder. The July 1966 entrance examination and the October 1969 separation examination noted that he was psychiatrically normal. Private outpatient treatment records developed between October 1994 and February 1995 indicated that he was treated for anxiety and depression, particularly following the death of his son in February 1995. There was no indication of any symptoms of PTSD, nor was this disorder ever diagnosed. In June 1996, the veteran submitted a statement concerning his claimed inservice stressors. He indicated that he had served aboard the USS Enterprise and that he had slept directly below the flight deck, where planes loaded with bombs had landed and taken off daily. Shortly after he left this vessel, an explosion occurred which destroyed the area where he had slept, killing all those sleeping there. In April 1968, he stated that his best friend had had his head severed during flight operations; he also noted that in July 1968, a helicopter with many people he knew aboard had gone down in the Tokin Bay. He claimed that he still had nightmares about these incidents. In August 1997, he stated that the name of the friend who had had his head severed was John R. Burch. VA examined the veteran in September 1997. His medical history indicated that he had been seen in October 1994 for depression, which had gotten worse after the death of his oldest son. He said that he spent most of his days in bed, doing little or nothing. The mental status examination noted that he was markedly obese, chronically apathetic and depressed. He was oriented in three spheres and he answered most questions with as simple an answer as possible. On brief occasions, he showed a sense of humor. The diagnosis was major depressive disorder, recurrent, serious, without interepisodic recovery. In the examiner's opinion, the veteran did not qualify for a diagnosis of PTSD. It was noted that he had worked in the past as a police officer, during which time he had been shot at several times. The examiner opined that these experiences were more likely to be the cause of any PTSD symptoms. Cervical spine disorder The veteran's service medical records made no mention of any complaints of or treatment for a cervical spine condition. The July 1966 entrance examination was completely normal. On August 16, 1968, he was involved in a motor vehicle accident; however, there was no mention of any injury to the neck. The October 1969 separation examination was completely normal. Private outpatient treatment records noted in February 21, 1995 that the veteran had been injured in a motor vehicle accident the previous day. He complained of neck pain, but noted that his back was worse. Forward flexion was to 45 degrees, extension was to 45 degrees and lateral rotation was to 30 degrees. An x-ray showed degenerative disc disease (DDD) at C5-6. The diagnosis was cervical strain with DDD. Lumbar spine disorder The veteran's service medical records indicated no evidence of any complaints of or treatment for a lumbar spine condition. On August 16, 1968, he was involved in a motor vehicle accident; however, he made no mention of any lumbar spine injury. The October 1969 separation examination was completely within normal limits. Private outpatient treatment records developed between October 1994 and February 1995 showed repeated treatment for low back pain. An x-ray from October 6, 1994 showed DDD at L4-5. A CT scan performed later in October showed no real evidence of a herniated disc. On February 21, 1995, he reported that he had been involved in a motor vehicle accident the day before. He stated that his low back pain was worse. The physical examination noted exaggerated pain symptoms with lots of grimacing. Forward flexion was to 60 degrees and extension was to 10 degrees. He complained of lots of pain during motion. There were no focal neurological deficits and there was no evidence of muscle tenderness. He ambulated without difficulty and straight leg raises were negative. An x-ray showed no change in the DDD of the L4-5 area. The diagnosis was lumbar strain with DDD. Bilateral hearing loss The veteran's service medical records included an entrance examination conducted in July 1966. On the authorized audiological evaluation, pure tone thresholds, in decibels (converted to ISO units), were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 20 10 15 10 10 On February 19, 1969, he was seen for complaints of a right ear ache for the past seven days. The ear was swollen and inflamed and there was some purulent substance in the ear. The ear was irrigated and some white substance was removed. The October 1969 separation examination noted hearing acuity was 15/15 bilaterally. ANALYSIS Initially, in order to establish service connection, the following three elements must be satisfied: 1) the existence of a current disability; 2) the existence of a disease or injury in service, and 3) a relationship or nexus between the current disability and a disease contracted or an injury sustained in service. Caluza v. Brown, 7 Vet. App. 498 (1995); Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). An acquired psychiatric disorder, to include PTSD A review of the evidence of record indicates that the veteran has been diagnosed with anxiety and depression. Therefore, it is clear that he suffers from a current disability, thus satisfying one element of the Caluza test for well groundedness. However, there is no indication that anxiety or depression were noted in service, nor has any medical opinion been offered that would suggest a link between any currently diagnosed anxiety and depression and his period of service. The veteran has also asserted that he suffers from PTSD as a result of his service in Vietnam. However, there is no current diagnosis of this disorder of record. In fact, the VA examination conducted in September 1997 specifically found that the veteran did not qualify for this diagnosis. Moreover, there is no indication of record that the veteran was ever engaged in combat with the enemy. He received no combat injuries and was not awarded any combat badges or citations. Therefore, any claimed inservice stressors would have to be corroborated. See Zarycki v. Brown, 6 Vet. App. 91 (1993). While he has provided the name of an individual that he claimed was killed, corroboration of this event is not necessary given the lack of any current diagnosis of PTSD. In conclusion, it is found that the veteran has not presented evidence of a well grounded claim for service connection for an acquired psychiatric disorder, to include PTSD. Cervical and lumbar spine disorders Initially, it is noted that the veteran has been diagnosed as suffering from DDD of the cervical and lumbar spines. Therefore, the current existence of a disability has been established. The service medical records did show that he was involved in a motor vehicle accident in August 1968; however, the objective records did not show any injury to either the neck or the low back. Therefore, it cannot be found that an injury existed in service. Moreover, there is no objective medical opinion of record relating his current cervical and lumbar spine DDD to his period of service. Therefore, it is concluded that the claims for service connection for cervical and lumbar spine disorders are not well grounded. Bilateral hearing loss disability A review of the objective evidence of record does not show the current existence of a bilateral hearing loss disability. Thus, there is no evidence of the existence of a current disability. Moreover, there is no evidence of the existence of a hearing loss in service. While he did experience a right ear ache in February 1969, there is no medical evidence that this resulted in the development of a chronic hearing loss disability. His hearing was normal at the time of his discharge from service and, as noted, there is no medical evidence of the current existence of any hearing loss disorder which could be related to this isolated right ear ache. In conclusion, it is found that the veteran has failed to present evidence of a well grounded claim for service connection for a bilateral hearing loss disability. The appellant has not informed VA of the existence of any specific evidence germane to any claim at issue that would complete an incomplete application for compensation, i.e., well ground an otherwise not well grounded claim, if submitted. Consequently, no duty arises in this case to inform that appellant that his application is incomplete or of actions necessary to complete it. See 38 U.S.C.A. § 5103(a) (West 1991); Beausoleil v. Brown, 8 Vet. App. 459 , 465 (1996); Johnson v. Brown, 8 Vet. App. 423, 427 (1995); cf. Robinette v. Brown, 8 Vet. App. 69 (1995) (when a claim is not well grounded and claimant inform VA of the existence of certain evidence that could well ground the claim, VA has duty under 38 U.S.C.A. § 5103(a) to inform claimant that application for compensation is incomplete and to submit the pertinent evidence). It is also found that there is no prejudice to the veteran in denying these claims as not well grounded, even though the RO decision was on the merits. Edenfield v. Brown, 8 Vet. App. 384 (1995). ORDER Service connection for an acquired psychiatric disorder, to include PTSD; a cervical spine disorder; a lumbar spine disorder; and a bilateral hearing loss is denied. C. P. RUSSELL Member, Board of Veterans' Appeals