Citation Nr: 0002687 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 96-24 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to a temporary total rating, pursuant to 38 C.F.R. § 4.29, for a period of hospitalization in April 1990, for a service-connected psychiatric disability. 3. Entitlement to service connection for a chronic stomach disorder. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Helinski, Associate Counsel INTRODUCTION The veteran had active military service from October 1976 to February 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from December 1988, October 1989, and October 1990 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the benefits sought on appeal. Upon a review of the veteran's claims file, it appears that he has raised an issue of entitlement to a total disability rating based on individual unemployability due to service- connected disabilities. That issue has not been developed, and is referred back to the RO. The issue of entitlement to a rating in excess of 30 percent for a psychiatric disorder, most recently characterized as post-traumatic stress disorder (PTSD), is addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. In an April 1990 rating decision, the veteran was granted service connection for generalized anxiety disorder with panic episodes, effective from March 1989. 2. From April 3, 1990 to April 14, 1990, the veteran was hospitalized in a VA hospital with a diagnosis of PTSD and dysthymic disorder. 3. Following discharge from the VA hospital on April 14, 1990, the veteran was prescribed treatment on an outpatient basis two times a week; there is no evidence that the veteran required a prolonged period of convalescence. 4. There is no competent medical evidence of record of a nexus, or link, between a chronic stomach disorder, and an incident of the veteran's active military service. 5. The veteran's does not currently have auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; nor does the veteran's hearing currently manifest auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; and the veteran's speech recognition scores using the Maryland CNC Test are not less than 94 percent; the veteran does not have hearing loss of either ear as defined by the applicable VA regulation. CONCLUSIONS OF LAW 1. The requirements for an award of a temporary total rating pursuant to 38 C.F.R. § 4.29, for a period of hospitalization in April 1990, for a service-connected psychiatric disability, have not been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.29 (1999). 2. The veteran has not presented evidence of a well grounded claim for service connection for a chronic stomach disorder. 38 U.S.C.A. § 5107 (West 1991). 3. The veteran has not presented evidence of a well grounded claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Temporary Total Rating Initially, the Board notes that in the veteran's written Informal Hearing Presentation, dated in October 1999, he claimed entitlement to a temporary total rating for a period of hospitalization from March 1994 to May 1994, for a service-connected psychiatric disability. A review of the record reveals that in an August 1994 rating decision, the RO granted a temporary total rating pursuant to 38 C.F.R. § 4.29, from March 1994 to June 1994. Thus, that issue is now moot. The current issue on appeal involves a period of hospitalization in April 1990. The Board finds that the veteran's claim for a temporary total rating for a period of hospitalization in April 1990, is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). In that regard, the Board notes that a claim that a service-connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board is satisfied that all relevant facts have been properly and sufficiently developed. Accordingly, no further development is required to comply with the duty to assist the veteran in developing facts pertinent to his claim. See 38 U.S.C.A. § 5107(a). According to the law, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service- connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29 (1999). Meritorious claims of veterans who are discharged from the hospital with less than the required number of days but need post-hospital care and a prolonged period of convalescence will be referred to the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321(b)(1). 38 C.F.R. § 4.29(g). The veteran contends, as set forth in his April 1990 claim, that he should be entitled to a temporary total rating for a period of hospitalization in April 1990, in which he was hospitalized for a service-connected psychiatric disability. In that regard, the Board notes that in an April 1990 rating decision, the veteran was granted service connection for generalized anxiety disorder with panic episodes, effective from March 1989. The record further reflects that on April 3, 1990, the veteran was admitted to a VA hospital, and discharged on April 14, 1990. The diagnosis was PTSD and dysthymic disorder. There is no dispute that the foregoing period of hospitalization was less than 21 days. See 38 C.F.R. § 4.29. However, the veteran maintains that he required post-hospital care and thus, should be entitled to a temporary total rating under the provisions of 38 C.F.R. § 4.29(g). In the veteran's substantive appeal, received in May 1991, he maintains that his doctor insisted that he take a period of convalescence and undergo therapy. The veteran also maintains that he was not allowed to return to work until April 30, 1990. The evidence of record pertaining to the veteran's April 1990 hospitalization is set forth as follows. On April 2, 1990, the veteran was admitted to a VA hospital in Beckley, West Virginia, with a diagnosis of recurrent major depression. It was noted that the veteran had attempted suicide that morning by taking an overdose of his medications. Upon discharge later that same day, it was recommended that the veteran be sent for further care and treatment to another VA medical center (VAMC). On April 3, 1990, the veteran was hospitalized at a VAMC in Clarksville, West Virginia. The discharge summary report reveals that the veteran was discharged on April 14, 1990. It was noted that the veteran should not return to that facility, but should "follow-up two times a week in private therapy and family therapy." He was given medications, and the veteran was described as "competent and employable." On a VA outpatient record dated April 25, 1990, it was noted that the veteran had "full recovery of control." In the examiner's professional opinion, the veteran was "currently medically and psychiatrically stable." Further, it was noted that the veteran was "able to resume work with interruption," and that none of his medications would interfere with work performance. In light of the foregoing evidence, the Board concludes that there is no evidence of "post-hospital care and a prolonged period of convalescence," as contemplated by 38 C.F.R. § 4.29(g). The Board acknowledges and accepts the veteran's contentions that he had to undergo treatment following his hospitalization, and that he was not working during that time period. However, according to the evidence of record, the veteran's condition greatly improved by late April 1990, and there is no evidence that the veteran required a prolonged period of convalescence. Furthermore, the Board acknowledges the veteran's contention, as set forth in his substantive appeal, that his entire period of treatment, including the hospitalization and the post-hospitalization, amounted to more than 21 days. However, the standard in 38 C.F.R. § 4.29(g) is not whether a total of 21 days of treatment can be found. Rather, the focus is on the type of post-hospital case, and the length of a period of convalescence, if any. In the present case, the Board simply finds no basis to require that this claim be remanded back to the Director, Compensation and Pension Service for review, and the veteran's claim is denied. See 38 C.F.R. § 4.29(g). II. Service Connection Service connection may be granted for diseases or injuries incurred or aggravated while in active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In reviewing any claim for service connection, however, the initial question is whether the claim is well grounded. The veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To establish that a claim for service connection is well grounded, a veteran must demonstrate "medical evidence of a current disability; medical evidence, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury." Epps v. Gober, 126 F. 3d 1464, 1468 (1997). Alternatively, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. See Savage, 10 Vet. App. at 498. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. Id. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Id. A. Stomach Disorder The veteran maintains that he currently has a chronic stomach disorder, which is related to his active military service. The Board has thoroughly reviewed the record, and for the reasons set forth below, finds that the veteran has not presented evidence of a well grounded claim, and as such, his appeal must be denied. The veteran's service medical records reveal that in an April 1976 pre-induction examination report, the veteran was noted to have gastritis. A January 1980 service medical record contains a diagnosis of gastroenteritis. There are no accompanying clinical notes with that diagnosis. An August 1980 service medical record indicates that the veteran was seen with complaints of epigastric pain for four months. The provisional diagnosis was epigastric pain, probably peptic ulcer disease. However, the final diagnosis was a resolved viral syndrome. In a December 1989 hearing at the RO, the veteran denied giving a history of gastritis prior to entering military service. He indicated that he described having occasional hard stools, but nothing like the symptoms he was currently experiencing. A February 1990 VA examination report indicates that the veteran complained of recurrent gastrointestinal upsets. From February 1990 to March 1990, the veteran was hospitalized for an ultrasound of the abdomen to assess his complaints of pain. The veteran reported a history of nausea and vomiting for eleven years. The study was unremarkable. In several more recent statements of record, the veteran claims that he has a stomach disorder secondary to the medications he takes for his psychiatric disability. The Board has thoroughly reviewed the record, as summarized above. However, the Board finds that the veteran's claim for service connection for a chronic stomach disorder must be denied as not well grounded. The Board notes that the veteran's service medical records indicate that he was seen with complaints of stomach problems. Furthermore, the Board acknowledges that following service separation, the veteran frequently complained of stomach problems, including nausea. However, despite the foregoing, the crucial element missing in this appeal is competent medical evidence of a nexus, or link, between any current stomach disorder, and an incident of the veteran's active military service or a service- connected disability. See Epps, 126 F. 3d at 1468. Although the veteran complained of stomach problems during service, and also on several occasions following service, there is no medical evidence of record of a chronic stomach disorder during service, nor does the record reflect that the veteran's inservice symptoms of a stomach disorder were continuous following service separation. See Savage, 10 Vet. App. at 498. The Board acknowledges the veteran's complaints of stomach pain, but in the absence of competent medical evidence of a nexus, or link, between any current complaints of a stomach disorder and the veteran's active military service, the claim is simply not well grounded. Additionally, despite the veteran's more recent complaints that his stomach pain is due to his medications taken for his service-connected psychiatric disorder, there is no competent medical opinion to that effect. See 38 C.F.R. § 3.310(a). The Board acknowledges the veteran's statements that he currently has a stomach disorder, which he believes is due to his time in active military service. However, as the veteran does not appear to have any medical expertise or training, he is not competent to comment on the question of medical etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the absence of medical evidence that any current stomach disorder is related to the veteran's military service, or a service-connected disability, the veteran's claim must fail as not well grounded. As the Board finds that the veteran has not presented evidence of a well grounded claim, the VA is under no further duty to assist the veteran in developing the facts pertinent to that claim, including obtaining an additional medical opinion. See Epps, 126 F.3d at 1468 ("there is nothing in the text of [38 U.S.C.A.] § 5107 to suggest that the [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim."). Furthermore, the Board is unaware of the existence of any relevant evidence, which, if obtained, would well ground the veteran's claim. See McKnight v. Gober, 131 F.3d 1483, 1485 ( Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of any evidence necessary to present a well grounded claim for service connection for a stomach disorder. Id; Robinette, 8 Vet. App. at 77-78. In that regard, medical evidence is needed that establishes a current diagnosis of the claimed disorder, along with medical evidence of a nexus or link between a current disorder and an incident of the veteran's active military service or a service-connected disability. B. Hearing Loss The veteran contends that he currently has bilateral hearing loss which is related to his active military service. The Board has thoroughly reviewed the record, but for the reasons set forth below, finds that the veteran has failed to submit a well grounded claim for service connection for hearing loss and, therefore, his appeal must be denied. The veteran's service medical records reveal that in September 1977, he was seen with complaints of hearing difficulties and headaches. An examination revealed a "normal ear exam." It was noted that the audio was normal, with extremely mild high frequency hearing loss. It was further noted that as compared to the veteran's induction audiometric examination, he had a reduction in hearing loss at 4000 Hertz. The impression was probable early noise induced hearing loss, and the veteran was to be rechecked in six months. A July 1979 service examination is negative for any diagnosis of hearing loss. At 4000 Hertz, the veteran's pure tone thresholds, in decibels, was 20 decibels, bilaterally. The veteran's service separation examination report, dated in July 1980, reveals pure tone thresholds of 15 decibels in the right ear at 4000 Hertz, and 20 decibels in the left ear at 4000 Hertz. Following service separation, in a June 1989 hearing at the RO, the veteran testified that sometime around 1977, when he was working in radio control in service, he noticed that he had to keep increasing the volume controls to better understand the aircrafts. His supervisor had him report to an audiological examination, at which time it was noted that he had high frequency hearing loss. In July 1989, the veteran underwent a VA audiological examination, and was diagnosed with high frequency hearing loss at 4000 and 6000 Hertz, "possibly due to noise exposure." At 4000 Hertz, the veteran's bilateral pure tone threshold was 30 decibels. Speech discrimination in the right ear was 96 percent and 100 percent in the left ear. A VA outpatient treatment record dated in November 1991, indicates that the veteran had normal hearing, bilaterally, for the low and mid speech frequencies, and a mild loss for the high frequency. Based on a review of the evidence of record, as summarized above, the Board finds that there is some medical evidence to show that the veteran has mild high frequency hearing loss. There is also some indication that it began during service or as the result of his exposure to noise while on active duty, although a recent opinion regarding its etiology was rather equivocal. However, the Board finds that his appeal must fail as the evidence of record does not reflect that the veteran meets the criteria for impaired hearing as a disability for VA purposes. In that regard, VA regulations provide that for VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 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. In the present appeal, the veteran does not meet the foregoing criteria. Therefore, the veteran's mild high frequency hearing loss is not a disability for VA purposes, and in the absence of evidence of a current hearing loss disability, the veteran's appeal must fail. As the veteran does not have hearing loss of either ear as defined by the cited legal authority, his claim must be found not well grounded. Epps, supra. As the Board finds that the veteran has not presented evidence of a well grounded claim, the VA is under no further duty to assist the veteran in developing the facts pertinent to that claim, including obtaining an additional medical opinion. See Epps, 126 F.3d at 1468 ("there is nothing in the text of [38 U.S.C.A.] § 5107 to suggest that the [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim."). Furthermore, the Board is unaware of the existence of any relevant evidence, which, if obtained, would well ground the veteran's claim. See McKnight v. Gober, 131 F.3d 1483, 1485 ( Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of any evidence necessary to present a well grounded claim for service connection for hearing loss. Id; Robinette, 8 Vet. App. at 77-78. In that regard, medical evidence is needed that establishes a current diagnosis of the claimed disorder, as defined by 38 C.F.R. § 3.385, along with medical evidence of a nexus or link between a current disorder and an incident of the veteran's active military service or a service-connected disability. ORDER In the absence of evidence of a well grounded claim, service connection for a chronic stomach disorder is denied. In the absence of evidence of a well grounded claim, service connection for bilateral hearing loss is denied. REMAND The record reveals that in an April 1990 rating decision, the veteran was granted service connection for generalized anxiety disorder with panic episodes, and assigned a 30 percent evaluation effective from March 1989. In a July 1990 rating decision, the RO confirmed the 30 percent evaluation. The veteran disagreed with that decision, and initiated this appeal. The Board notes that more recently, in a May 1995 rating decision, the RO granted service connection for PTSD, and assigned a 30 percent rating. Essentially, it appears that both psychiatric disabilities were incorporated into one psychiatric disability, rated as 30 percent disabling, and the veteran's appeal for an increased rating has been pending since October 1990. The Board notes that during the pendency of this appeal, the regulations pertaining to evaluation of mental disorders were amended, effective November 7, 1996. See 61 Fed. Reg. 52695- 52702 (1996) (presently codified at 38 C.F.R. §§ 4.125- 4.130 (1997) (hereinafter referred to as "current" regulations). The United States Court of Veterans Claims ("Court"; known as the United States Court of Veterans Appeals prior to March 1, 1999) has held that "where the law or regulation changes after a claim has been filed or reopened but before the ... judicial appeal process has been concluded, the version most favorable to appellant should and ... will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The Board has reviewed the record, and it appears that since the regulations for evaluating PTSD were amended, the RO has evaluated the veteran's claim based solely on the current regulations, as reflected in the November 1998 Supplemental Statement of the Case. There is no indication in the record that the RO continued to also consider the version of the regulations in effect prior to November 1996, as mandated by the Court in Karnas, supra. Furthermore, the veteran has not been afforded a VA examination since the amended regulations for mental disorders were effectuated more than three years ago. In view of the foregoing, it is the Board's judgment that the veteran should be afforded a VA psychiatric examination for the purpose of determining the current degree of impairment due solely to his service-connected PTSD. Caffrey v. Brown, 6 Vet. App. 377 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The RO must then readjudicate the increased rating claim, considering the regulations that were in effect prior to and from November 7, 1996. Accordingly, this case is remanded to the RO for the following: 1. The veteran should undergo a VA psychiatric examination to determine the current nature and severity of his PTSD. Any and all studies and tests deemed necessary, including psychological testing, should be accomplished. The claims folder and a copy of this REMAND should be made available to the examiner for review. The examiner is specifically requested to assign a GAF solely based on PTSD symptoms and comment on the industrial impairment currently imposed on the veteran solely by PTSD symptoms. Clinical findings and the rationale for all opinions expressed should be reported in detail. 2. After completion of the foregoing, the RO should evaluate the veteran's PTSD under both the former and the current versions of the regulations for evaluating PTSD, including all other pertinent criteria, and apply the most favorable result. If the determination remains adverse to the veteran, he and his representative should be furnished a Supplemental Statement of the Case, which includes a summary of all pertinent evidence and legal authority, including both the former and current version of the rating criteria for evaluating PTSD, as well as the reasons for the decision. The veteran should be afforded a reasonable period in which to respond. The record should then be returned to the Board for further appellate review. The purpose of this REMAND is to ensure that all due process requirements are met. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires in connection with his current appeal. No action is required of the veteran until he is notified. R. F. WILLIAMS Member, Board of Veterans' Appeals