BVA9507793 DOCKET NO. 92-09 649 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from March 1966 to March 1969. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he incurred post-traumatic stress disorder (PTSD) and defective hearing during active service. He maintains that during service in Vietnam he experienced stressful experiences which are currently manifested by nightmares, flashbacks, survivor's guilt, and other similar PTSD symptomatology. He asserts that he entered service with normal hearing, but that working on a flight line resulted in a hearing loss during service and that this defective hearing continues to this day. DECISION OF THE BOARD The Board of Veterans' Appeals (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 claims of entitlement to service connection for PTSD and entitlement to service connection for defective hearing. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office (RO) insofar as possible. 2. The veteran was not engaged in combat with the enemy. 3. The veteran did not experience a stressor during service that might lead to PTSD. 4. The medical evidence in this case does not establish a clear diagnosis of PTSD. 5. Defective hearing in either ear is not shown presently for Department of Veterans Affairs (VA) compensation purposes. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (a), 3.303, 3.304(f) (1994). 2. Defective hearing was not incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (a), 3.303, 3.307, 3.309, 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist The Board finds initially that the appellant's claims are well- grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, the claims are not inherently implausible. The VA, therefore, has a statutory obligation to assist the veteran in the development of facts pertinent to the claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (a) (1994). In a September 1991 letter to the veteran, the RO requested that he provide a complete detailed description of the specific traumatic incident or incidents which produced the stress that resulted in the claimed PTSD. In January 1992, without response from the veteran, the RO forwarded to the U.S. Army and Joint Services Environmental Support Group (ESG) pertinent data from the claims folder for any available confirmation or other information associated with the specific stress incidents described. ESG responded in a January 1992 letter that it had forwarded the request to the Commandant of the Marine Corps for appropriate action. In a February 1992 response, the Commandant wrote the RO that the veteran's summary of stressful events was insufficient to provide a basis for research of the unit diaries to verify casualties, and that at the very least the Marine Corps would need a last name and initials, as well as the unit and date where the incident took place, in order to search the records. In a January 1993 remand, the Board directed that several steps be taken to further develop the evidence of record and comply with the duty to assist. A review of the record indicates that the RO has complied with the Board's remand, including contacting the veteran in a March 1993 letter asking the veteran to provide further amplifying information relevant to claimed stressors, and requesting private and VA medical records. In a July 1993 letter the RO also took appropriate action pursuant to the January 1993 remand to develop evidence relevant to the defective hearing claim. Furthermore, a review of the record indicates that the veteran failed to report for scheduled VA psychiatric and audiometric examinations which were requested in the January 1993 remand. In a September 1994 statement, the veteran's representative argues that further additional development may be required. The duty to assist is, however, not always a one-way street. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). In light of the attempted assistance described above and the inaction of the veteran, the Board is of the opinion that further assistance is not required. On appellate review, we see no areas in which further development may be fruitful. II. Service Connection for PTSD Service connection may be granted for disabilities resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). With regard to the requirement of stressors, the Court set out the analysis required in claims of service connection for PTSD: Where it is determined, through the receipt of certain recognized military citation or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," e.g., credible, and "consistent with the circumstances, conditions, or hardships of such service." Clear and convincing evidence to the contrary may serve to rebut service connection. Where, however, the VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor. West v. Brown, 7 Vet.App. 70, 76 (1994) (citations omitted); see Zarycki v. Brown, 6 Vet.App. 91, 98 (1993). A June 1991 VA hospital report indicates that the veteran was admitted for depressive symptoms and suicidal ideation. The examiner reported a history of PTSD and stated that the veteran "was treated initially for 'PTSD' at a non-VA hospital." The admission diagnosis was PTSD versus depressive disorder, not otherwise specified, and sociaphobia and episodic alcohol abuse in remission. The examiner noted various measures of mental status, including a neural behavior cognitive status examination that was within the normal range. On a Beck depression inventory, the veteran scored 40, or "severe depression" (30+). On a PTSD questionnaire, the veteran answered 14 of 15 yes/no items as "yes." A full Minnesota Multiphasic Personality Inventory had an increased F scale of 110 and was "not really interpretable," and the examiner noted that this could be seen as a plea for help. The examiner further stated that it was the impression of a VA psychologist that the veteran had an alcohol abuse problem in remission with possible major depression and possible PTSD secondary to Vietnam. While these findings show that the hospital report includes a diagnosis of PTSD, other disorders were also reported, including depression and alcohol abuse. Significantly, the information in the body of the report shows only possible PTSD. The Board also notes that in a January 1991 letter, W.O. Dugan, a private psychiatric caseworker, reported diagnoses of PTSD, alcohol dependence, and personality disorder. The June 1991 VA hospital report, however, prepared by a VA physician six months later, provides a more accurate depiction of the veteran's psychiatric condition. The Board finds, therefore, that the evidence of record does not show a clear diagnosis of PTSD as required for the establishment of service connection. Nor does the evidence of record show credible evidence that the claimed inservice stressors actually occurred. In a July 1991 statement and his September 1991 personal hearing, the veteran articulated two claimed stressors. First, that while in Vietnam in June or July 1968 he was standing nearby when another soldier shot himself in the head with a handgun. Second, that he stood next to a man in Vietnam who was shot in the head by three rounds when a weapon accidentally discharged. During his service in Vietnam, the veteran received the National Defense Service Medal, the Vietnam Service Medal with three stars, the Vietnam Campaign Medal with device, the Good Conduct Medal, and the Rifle Marksman Badge. These citations, however, do not signify exposure to combat. The service records also reveal that the veteran was involved in counter insurgency operations from December 3, 1967, to December 19, 1968. The service record entry lists this event under the general heading "combat history - expeditions" but does not identify the veteran's contributions to these operations and whether those contributions were combat-related. The record of service shows that the veteran was assigned as a anti-air weapon batteryman to Battery C of the 1st Light Amphibious Marine Battalion, 1st Marine Air Wing of the Fleet Marine Force Pacific. But these entries alone also do not specify whether the veteran was engaged in combat. Significantly, the service records do not show that the veteran was awarded the Combat Infantryman's Badge or Purple Heart, awards that, under section 3.304(f) in the absence of evidence to the contrary, are to be accepted as conclusive evidence of the claimed inservice stressor. The veteran's military citations and other supporting evidence in the service record, therefore, do not indicate that the veteran was engaged in combat with the enemy. Having determined that the military citations and service record entries do not warrant a finding that the veteran was engaged in combat, the Board must determine whether the veteran's testimony as to the claimed stressors is corroborated sufficiently by other supportive records to establish the occurrence of the claimed stressful events. Review of the veteran's service medical records indicates that there were no complaints, treatment, or findings of a psychiatric disorder during active service. The enlistment examination in February 1965, a service examination in October 1965, and a separation examination in February 1969 all reported normal psychiatric clinical evaluations. In an April 1984 statement, the veteran wrote that he had been told that some of his problems were a direct result of his combat experience. He stated that shortly after his return he experienced, and continued to experience, nightmares and found night time to be disturbing, but he did not identify the nature of the nightmares or why he felt the night time was disturbing. In a March 1984 VA outpatient treatment report (OPTR), a nurse noted that the veteran complained of flashbacks and insomnia, felt nervous, and did not get along well with others and preferred being alone. It was also reported that he worked near an airport, that the noise bothered him, and that he claimed to live at home with his wife and four children. In a March 1984 VA OPTR, an examiner wrote that the veteran's sleep was irregular and was feeling depressed which he related back to approximately 1969. The examiner wrote that the veteran stated that he felt he had been more depressed since four months earlier and he also had been having problem of a family nature. It was reported that the veteran stopped drinking two months earlier and he felt more depressed and had more sleeping problems since he stopped drinking, that he had been thinking more about his Vietnam experiences and memories about Vietnam and reaction of friends and family. The examiner wrote that on examination the veteran's mood was mildly depressed, his affect appropriate, and that he had no formal thought disorder. It was also recorded that the veteran denied any illusions, hallucinations, or suicidal ideation, but did admit to having distrust towards other people. The examiner's impression was of PTSD and rule out adjustment disorder. In a January 1991 letter, W.O. Dugan wrote that he had been seeing the veteran weekly for one hour in outpatient therapy since March 1990. He reported that the veteran had a diagnosis of delayed PTSD. In a VA hospital report for a period of hospitalization in January to February 1990, an examiner wrote that a "work-up" for PTSD was pending, but the evidence of record does not include evidence of such care. As noted above, in the June 1991 VA hospital report it was noted that the veteran was admitted voluntarily and had a history of PTSD and admission for evaluation of depressive symptoms and suicidal ideation. The veteran reported difficulty with depressive symptoms since his discharge from the Marines in 1969 and his response usually had been to binge drink alcohol or smoke marijuana. The veteran had been married for 25 years with four children until 1989 when his wife divorced him. The veteran reported losing his job in 1989 related to alcohol abuse and chronic low back pain. It was around this time that he had first developed suicidal ideation and related doing things like "letting go of the steering wheel" and "play[ing] with a gun," the last time being in March of 1991. The veteran related that he was usually sober when he contemplated suicide. The report showed a history of drunk driving arrests. The report further noted that the veteran was initially treated for "PTSD" in 1982 at a non-VA hospital and that he saw a psychiatrist and alcohol counselor weekly for about two and one half years. At a personal hearing held in September 1991, the veteran testified that he joined the Marines at age 19 years and went to Vietnam in December 1967. He stated that in June or July of 1968, while receiving mail from home, he stood near another soldier who shot himself in the head. He reported that at the time he was "really shook up" and that he started using alcohol and drugs "just to escape." The veteran also testified that in another incident while he was part of a detail dumping trash, the man next to him was shot in the head by three rounds when a machine gun accidentally discharged. The veteran testified that in both cases he could not remember the names of the individuals who died or their service specialties. As noted above, the Board is not bound to accept the veteran's uncorroborated accounts of alleged stressors during service, nor is the Board required to accept psychiatrist's unsubstantiated opinions that the alleged PTSD had its origin in service. This is particularly true when there has been a considerable passage of time between the putative stressful events encountered by a veteran and the onset of alleged PTSD. Wood v. Derwinski, 1 Vet.App. 190 (1991), reconsidered, 1 Vet.App. 406 (1991); see also Doran v. Derwinski, 6 Vet.App. 283 (1994), appeal dismissed, No. 94-7070 (Fed. Cir. May 6, 1994) (where the veteran was not engaged in combat, the veteran's lay testimony must be corroborated by credible supporting records). The veteran has presented no evidence other than his own testimony that corroborates the claimed stressors. As discussed above regarding the VA's duty to assist, the Marine Corps could not verify the occurrence of the claimed stressors without additional detailed information. The veteran has not responded to requests for additional information. The information the veteran has provided did not include specific dates of the alleged stressors and the veteran indicated that he did not know the names of the individuals killed. Moreover, the veteran's service records do not confirm the occurrence of the incidents the veteran claims as stressors. The service medical records show normal psychiatric clinical evaluations. The service administrative records do not show combat awards constituting conclusive evidence of a combat- related stressor nor other evidence of exposure to combat. The evidence of record subsequent to service shows treatment for "PTSD" but does not shed light on the claimed inservice stressors supporting the diagnosis of PTSD. Attempts to verify the diagnosis and stressors were unsuccessful as the veteran failed to report to scheduled VA examinations or respond to VA requests for additional information regarding the claimed stressors. As the veteran's service records do not confirm the occurrence of the claimed stressors, and the veteran did not supply detail as to the particular incidents surrounding the claimed stressors in service sufficient for a meaningful search of Marine Corps records, the Board finds his testimony to be uncorroborated. West, 7 Vet.App. at 76-78. See also 38 C.F.R. § 3.304(f) (1994); Zarycki, 6 Vet.App. at 98. While the Board does not make light of the dangerous area in which the veteran served during active service, it is the distressing event, rather than the mere presence in a "combat zone," that may constitute a valid stressor for purposes of supporting a grant of service connection for PTSD. Wood, at 193. Service connection for PTSD requires that the veteran have a clear diagnosis of PTSD established by medical evidence and a requisite stressor in service that might reasonably lead to the disorder. The evidence of record show neither a clear diagnosis of PTSD nor verifiable stressor in service. The criteria for establishing service connection for PTSD, therefore, have not been met. It is the determination of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for PTSD. III. Service Connection for Defective Hearing Service connection may be granted for disabilities resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). Where a veteran served during a period of war and sensorineural hearing loss 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, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection connotes many factors but basically it means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred with service in the Armed Forces. 38 C.F.R. § 3.303(a) (1994). The Court noted in Hensley v. Brown, 5 Vet.App. 155 (1993), that "the threshold for normal hearing is between 0 and 20 [decibels], and higher threshold levels indicate some degree of hearing loss. Id. at 157. However, for the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Disability Due to Impaired Hearing, 59 Fed.Reg. 60560 (1994) (to be codified at 38 C.F.R. § 3.385). A review of the veteran's service medical records demonstrates that at the time of his February 1965 enlistment physical examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -10 -5 10 LEFT 0 -10 5 15 At an October 1965 pre-induction examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 15 LEFT 0 0 0 15 35 On a March 1966 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 15 LEFT 0 10 -5 15 35 The veteran's February 1969 separation examination does not show that the veteran was provided with an audiometric evaluation, but does indicate that on the whispered and spoken voice tests the veteran's hearing was measured as 15/15 bilaterally. At a personal hearing in September 1991, the veteran testified that in entering active service his hearing was normal. He stated that he originally worked about two months on a flight line on an airport crash crew team, but was taken off that duty because he had a hearing loss from working on the flight line near aircraft. He related that hearing protection was afforded at that time, but that he did not wear the protection when he was near trucks away from the flight line approximately 100 yards. He testified that he currently has to constantly ask people to repeat themselves and that he does not remember any pain, drainage, or tympanic membrane problems during service. At the service separation examination in February 1969, the veteran had normal hearing measured as 15/15 bilaterally using the whispered and spoken voice tests. The October 1965 and March 1966 service audiometric evaluations show a 35 decibels pure tone threshold at the left ear 4000 Hz level. These readings indicate some degree of hearing loss, see Hensley, at 157; however, evaluation of the veteran's hearing at service separation, nearly three years later, was considered normal. Furthermore, the record indicates that the veteran failed to report for scheduled VA audiometric evaluations in July and September 1993, despite attempts by the VA to schedule the evaluations to determine the nature and severity of any hearing loss. Except for the veteran's contentions expressed in his September 1991 personal hearing, therefore, the veteran has not provided evidence of a current hearing loss for VA compensation purposes. Based on the evidence of record and in light of the analysis above, it is the determination of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for defective hearing. ORDER Entitlement to service connection for post-traumatic stress disorder is denied. Entitlement to service connection for defective hearing 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.