BVA9503351 DOCKET NO. 93-11 793 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for an acquired psychiatric disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Associate Counsel INTRODUCTION The appellant served on active duty from December 1950 to December 1953. This appeal arose as a result of an August 1991 rating decision of the Department of Veterans Affairs (VA) Louisville, Kentucky, Regional Office (RO). In that decision, the RO denied the appellant's claims for entitlement to service connection for a nervous condition and for a hearing loss. The case was received at the Board of Veterans' Appeals (the Board) in May 1993, and docketed in June 1993. The appellant has represented himself throughout his appeal, and the case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that the RO committed error in denying his claim of entitlement to service connection for chronic bilateral defective hearing since he is currently diagnosed as having bilateral high frequency sensorineural hearing loss, a defect which cannot be easily disassociated from acoustic trauma. He contends that his hearing loss is the result of the acoustic trauma experienced working as a medic in service during combat in Korea. Secondly, the appellant asserts that the RO committed error in denying his claim of service connection for a psychiatric disorder, currently diagnosed as a generalized anxiety disorder, since it is related to treatment he received during service for nervous problems. Although he continued to have nervous problems following service, his initial treatment at a mental health clinic was in 1961. He has received almost continual treatment for his psychiatric disorder ever since. Unfortunately, the record of the psychiatric treatment received by the appellant in service has not been located; nor have several critical records of pertinent post-service treatment. The appellant should not, however, be penalized simply because those records could not be secured. 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 appellant'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 appellant's claim of service connection for bilateral defective hearing, and is against the appellant's claim for service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been requested or obtained by the RO. 2. Bilateral defective hearing was not clinically documented in service or for many years following separation from service, and is not shown to be related to any incident of service. 3. An acquired psychiatric disorder, variously diagnosed as an adjustment disorder with anxious mood, a passive-aggressive personality, an avoidant personality disorder, a depressive neurosis with anxiety, and more consistently, a generalized anxiety disorder, was first shown many years after service and is not related to service. CONCLUSION OF LAW 1. Defective hearing was not incurred in or aggravated by service nor may sensorineural defective hearing be presumed to have been incurred in service. 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 (1994). 2. An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board is satisfied that, to the extent possible, all relevant facts have been properly developed. The appellant has expressed understandable concern that some of his records, particularly most of his service medical records, have not been located. The Board notes, however, that the RO made a diligent search for all pertinent records claimed to be in existence by the appellant throughout the course of his appeal. In particular, in 1991 an exhaustive but unsuccessful search was made for the appellant's service medical records. This search included a search of the National Personnel Records Center and a search of the medical and personnel records of the appellant's service unit. The record is devoid of any indication that there are other records available which might show a relationship between the appellant's current hearing or psychiatric disorders and his period of service. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). The appellant is not currently service-connected for any disorders. The evidence consists of the appellant's service medical separation examination report, private and VA post-service medical records, the report of a March 1991 VA compensation and pension examination, the report of a September 1992 special VA Post-Traumatic Stress Disorder examination, and written and oral statements of the appellant, himself. Bilateral Defective Hearing The appellant has testified that he was exposed to acoustic trauma during combat in service. He noted that on one occasion, a shelling incident resulted in a temporary ringing in his ears. He stated, however, that he did not remember his hearing in service, and that he was not treated in service for any hearing problems. Available service medical records are limited to the report of the appellant's December 1953 separation examination. Test results for the whispered and spoken voice tests were each 15/15, bilaterally, revealing hearing in both ears to be within normal limits. On examination, the clinical evaluation of the appellant's ears was normal, and the report of the examination was silent for complaints, treatment, or diagnosis of defective hearing. The appellant submitted an original application for compensation benefits in January 1991. Although he reported no treatment for a hearing loss in service, he indicated that his hearing had "gradually worsened over the years and could be from being a medic on the front lines for 180 days." He reported that he had received post-service treatment for a hearing loss at a VA facility in October 1990. In fact, the appellant's post-service VA outpatient treatment records reveal that in October 1990 the appellant was seen for complaints of decreased hearing, being worse in the right ear. The appellant reported that it had become progressively worse over the prior year, with a general decrease in hearing acuity over a period of time. The diagnosis was chronic hearing loss. This represents the initial documentation in the record of defective hearing. The appellant was scheduled for an audiogram with the ear, nose, and throat clinic. During a VA psychiatric examination performed in March 1991, the appellant related that following his separation from service in 1953, he entered the construction-carpentry field, and had been employed in that occupation ever since. In March 1991 a VA audiometric evaluation was conducted pursuant to the appellant's request for compensation. It was noted that the appellant's history was positive for military and occupational noise exposure. Following examination, the examiner's assessment was bilateral moderate to severe mid and high frequency sensorineural hearing loss. Fair word recognition ability was noted. Hearing aids were recommended. During his January 1992 personal hearing at the RO, the appellant testified that he did not remember his hearing in service, and did not recall having any hearing problems in the 1950's. He further indicated that it was some time after separation from service that he noticed a permanent hearing loss. Under the law, service connection for defective hearing may be granted if it resulted from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. In addition, as the appellant served continuously for ninety (90) or more days during a period of war, if sensorineural defective hearing became manifest to a degree of 10 percent within one year from the date of his termination of such service, that condition would be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3,307, 3.309. Service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status shall not be considered service connected when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 hertz are all less than 40 decibels; the thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC Test are 94 percent or better. 38 C.F.R. § 3.385. It is undisputed that the appellant now has bilateral sensorineural defective hearing. The most recent 1991 VA audiometric examination confirms these findings. What has not been established, however, is that his hearing loss is of service origin. Although the appellant claims that his impaired hearing must be the result of acoustic trauma in service, he is not shown to have the medical background required to provide the etiology of his current bilateral hearing disorder. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). It appears that following service, the appellant was treated regularly on an outpatient basis for several disorders unrelated to hearing acuity. Although presented with ample opportunity to document complaints of a hearing loss he failed to do so until 1990, over 36 years following separation from service. Other than the appellant's stated history of exposure to acoustic trauma in service, there is no positive evidence linking his current defective hearing to service. Further, he has a 40 year history of employment in the construction-carpentry field, thus exposing himself to high levels of occupational noise. Since the required chronicity between service and what is present today has not been demonstrated, the Board can only conclude that the preponderance of the evidence is against his claim for entitlement to service connection for bilateral defective hearing. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. Acquired Psychiatric Disorder At his January 1992 personal hearing held at the RO , the appellant testified that, in 1952 while still in service, following his return from combat duties as a medic in Korea, he "sort of lost it one day." He claimed that he was referred by his lieutenant to a psychiatrist at Fort Campbell, Kentucky for a nervous condition. He stated that he was told by the psychiatrist to go "fishing, hunting, boat riding or something" to relax. He stated that he never went back to the psychiatrist after that. Records of this purported treatment have not been found despite a concerted effort on the part of the appellant and the RO. Available service medical records are limited to the report of the appellant's December 1953 separation examination. On examination, the psychiatric clinical evaluation of the appellant produced normal findings. The report of the examination was silent for complaints, treatment, or diagnosis of a psychiatric disorder. In the appellant's original application for compensation benefits submitted in January 1991, he reported post-service treatment for "nerves" in 1955 and 1956 by a Dr. Ridgeway from Anderson, Indiana, and by a Dr. Benham from Bedford, Indiana from 1956 to 1968. He reported treatment for "nerves" at the Louisville, Kentucky, VA medical center since 1967, and treatment by a Dr. Mudd since 1973. In his notice of disagreement, issued in October 1991, the appellant claimed that he received treatment at the Louisville VA hospital in 1961 and 1967 for his "neuroses." He further claimed that he had been in "group counseling at the Indiana Mental Health and Guidance Center [with] Dr. Brill and Counselor Bill Dinwittie from 1967 to 1969." At his 1992 hearing, the appellant testified that he was first seen by a doctor for a nervous condition in 1961, and 1967 at the Louisville, VA medical center. Concerted efforts to obtain the medical records of Dr. Ridgeway were unsuccessful. Similar efforts to obtain VA medical records for the treatment of the appellant in 1961 were also unsuccessful. The first documentation of the treatment of the appellant for a psychiatric disorder is contained in a VA application for medical benefits certificate dated on February 24, 1972. In that report, a non-VA examining physician, Dr. L. E. Benham, M.D. indicated, by history, that the appellant had nervous difficulty "since about 1967." It was noted that the appellant had "many fears." It was also indicated that he had been seen on an outpatient basis by a Jeffersonville, Indiana, psychiatrist, Dr. Brill, for several years, but had gone to a local mental health clinic over the previous 1 1/2 to 2 years. Dr. Benham's diagnosis was that the appellant was "mentally ill." The appellant was referred to the VA for evaluation. A VA outpatient treatment report of the same date, February 24, 1972, indicated that the appellant had appeared at the VA hospital because of an acute depressive state. It was noted that he had been under treatment at an Indiana mental hospital for paranoia over the prior six or seven years, and had been treated with Thorazine. It appears that the appellant had been referred to the VA hospital for treatment after being accused of physically abusing his wife. The VA examiner's impression was a "paranoid reaction." The appellant was admitted the next day to the VA neuropsychiatric ward. The admitting diagnostic impression was a situational stress reaction (with paranoid and depressive aspects); depressive neurosis (chronic); explosive personality; and, Peyronie's disease. A one month period of hospitalization followed, that included a series of mental status examinations, numerous psychological tests, and a mixed treatment regimen. The treatment included interviews with the appellant's wife. The pertinent discharge diagnosis in March 1972 was "anxiety in a passive aggressive personality." The appellant was admitted to Our Lady of Peace Hospital in December 1972 with a complaint of "bad nerves," and "a psychiatric history dating back some six years . . ." The appellant related his problems to "a great deal of marital conflict and an impending divorce." Following an 80 day hospitalization, the final diagnosis was a depressive neurosis and passive aggressive personality, passive-dependent type. The appellant's prognosis was considered poor; it was recommended that he remain in therapy. Diagnostic records from the Louisville VA medical center shows intermittent treatment of the appellant at the neuropsychiatric clinic from February 1972 to January 1976 for anxiety and depression. The records of the Southern Indiana Mental Health and Guidance Center note that the appellant appeared for intake in November 1974, although it was indicated that the appellant had previously been in outpatient treatment at the Center in 1967. As background information, it was noted, by history, that the appellant had felt that he had achieved his life goals in the early 1960's, namely, his own home that he had built, a good family, and a good marriage. "In the middle 60's his wife started 'running around,' he started drinking and in 1967 came to the Mental Health Center." The report further indicated that it was then that the appellant entered group therapy at the Center with Dr. Brill and Mary Jane Livingston. It was noted that the appellant had divorced two years prior, following a series of fights and arrests. The diagnostic impression upon intake in 1974 was the existence of a depressive neurosis. The appellant was treated intermittently at the Southern Indiana Mental Health and Guidance Center between 1974 and 1984. The treatment "mainly focused on severe anxiety problems and adjusting to a very messy divorce . . . " The appellant was last seen at the Center between June 1983 and February 1984, after "experiencing significant relationship problems with one of the women he was dating and secondarily he experienced some sexual dysfunction." He was treated by Bill Dinwiddie, A.C.S.W., a Clinical Social Worker, whose diagnostic impressions, upon intake and termination of treatment, were the same. On Axis I, an adjustment disorder with anxious mood, and inhibited sexual excitement, intermittent, were diagnosed; and on Axis II, a passive aggressive personality was diagnosed. The appellant's prognosis for future adjustment was fair. The treatment records of Doctor Mudd from January 1985 through January 1991 shows that the appellant had been treated over those years for a variety of physical problems. He had also been prescribed psychotropic medications much of the time. A note from January 1991 makes the diagnosis of acute depression and nervousness, with the appellant being upset over his father's death and the problems associated with probating the will. A March 1991 VA compensation examination resulted in a diagnostic impression of "generalized anxiety disorder, chronic, moderate." The examiner opined that the appellant did not appear to be experiencing post-traumatic stress disorder. He noted that there was insufficient data to confirm the onset of the appellant's symptoms while in service 40 years prior. The appellant was seen at the VA psychiatric clinic on an outpatient basis in June 1991 following complaints of being "hyper." The examiner's impression was "rule-out generalized anxiety disorder, and rule-out adjustment disorder with mixed features." In September 1992, the appellant was evaluated by the VA in a special post-traumatic stress disorder examination. The examination included a complete review of the appellant's psychiatric, medical and social history, a thorough mental status examination, and an extensive battery of psychological tests. The examiner noted that the appellant appears to have met minimal criteria for post-traumatic stress disorder in the past, but did not meet minimal criteria for post-traumatic stress disorder as of the time of the examination. It was further noted that the appellant evidenced chronic, long lasting interpersonal difficulties which appeared to the examiner to be predominantly characterologically based but which were very likely exacerbated by symptoms of post traumatic stress. The examiner's diagnostic impression on Axis I was Benzodiazepine dependence, and a generalized anxiety disorder; and on Axis II, a personality disorder not otherwise specified with passive/aggressive and narcissistic features. As previously indicated, in order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during wartime service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The appellant claims that he had received abbreviated treatment for his nerves in service. This alleged treatment was limited to a single visit to a psychiatrist. Attempts by the VA to obtain additional service medical records were not successful. Nevertheless, the available service medical records document a normal psychiatric history in service. The separation examination produced normal findings, with no notation of any psychiatric episodes. The record as a whole fails to verify a history of in- service treatment for a psychiatric disorder. The appellant's version of events appear to be inconsistent with the record. His ability to recall the years in which he received treatment, and from whom, is highly questionable. Notwithstanding the lack of positive evidence supporting the appellant's claim, for the sake of argument the Board may assume that the appellant did experience the single nervous episode in service that he has alleged. Further, although the record appears to be in direct conflict, the Board may even assume that the appellant was treated for a nervous condition as early as 1961. These alleged isolated episodes, in their best light, can only be viewed as acute and transitory patterns of behavior. 38 C.F.R. § 3.303(c). There are still no available medical opinions that associate the appellant's current generalized anxiety disorder with any alleged service experience. In contrast, the medical evidence supports the proposition that the appellant's current disorder is more likely associated with marital problems that he experienced in the mid- 1960's, for which he received treatment. Since there is no evidence of an acquired psychiatric disorder in service or for many years following the appellant's separation from service, we cannot establish the required chronicity between service and what is present today. Further, the appellant is not shown to have the medical background required to provide the etiology of his current generalized anxiety disorder. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). It may be presumed that the appellant now has an acquired psychiatric disorder, diagnosed as a generalized anxiety disorder, superimposed upon a significant personality disorder. The most recent VA psychiatric examinations in 1991 and 1993 unquestionably established that diagnosis; recent VA and private outpatient treatment records have confirmed it. What has not been established, however, is the required nexus between what is present today and the appellant's period of service. Since an acquired psychiatric disorder was not shown until years after service, we can only conclude that the preponderance of the evidence is against his claim for entitlement to service connection for a psychiatric disorder, to include a generalized anxiety disorder. Absent contemporaneous records during active service affirming the existence of a psychiatric disorder, or evidence relating the appellant's current generalized anxiety disorder to service, service connection for that disorder is not warranted. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(b)(c). ORDER Service connection for bilateral defective hearing is denied. Service connection for a psychiatric disorder is denied. RENÉE M. PELLETIER Member, Board of Veterans Appeals (CONTINUED ON THE NEXT PAGE) 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.