Citation Nr: 0007159 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-00 344A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased (compensable) rating for left hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from February 1971 to August 1972 and in Vietnam from August 1971 to January 1972. This appeal arises from a decision by the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The veteran has raised the issues of new and material evidence for right hearing loss and dizziness due to an ear condition. These issues are not in appellate status and are referred to the RO for appropriate action. Service connection was granted for tinnitus, 10 percent disabling by rating decision dated in November 1998. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran did not engage in combat. 3. The veteran's accounts of stressors are not credible. 4. The veteran's current diagnosis of PTSD is based on his unverified account of stressors, which is insufficient to support the diagnosis. 5. The veteran has level I hearing in his left ear. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for PTSD. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995). 2. The criteria for a compensable rating for left hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.85, 4.87, Diagnostic Codes 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran served in Vietnam from August 1971 to January 1972. His DA Form 20 indicates that he was trained as a light weapons infantryman. The form also indicates that he was present during an unnamed campaign in Vietnam. His DD Form 214 indicates that he was awarded the National Defense Service Medal, Vietnam Service Medal with one Bronze Star, Vietnam Campaign Medal with 60 device, one overseas service bar and a sharpshooter badge. His records are negative for any evidence of wounds or awards for valor. Service medical records contain a September 1971 report of an examination for proposed separation that states that the veteran had sensorineural hearing loss. In January 1972 Clinical Record Cover Sheet shows that the veteran was found to have used heroin. He was transferred to General Medicine Clinic in the continental United States. He was placed in a medical holding company for his behavioral disorder (drug abuse). A June 1972 Army mental status examination report states that the veteran's behavior was normal and his mood was level. The impression was no significant mental illness. The history segment of the June 1972 separation examination report states that the veteran complained of depression for the 17 months since he had been in the Army. The examination segment found that there was no psychiatric disease demonstrated. A January 1975 rating decision established service connection and awarded a noncompensable evaluation for hearing loss of the left ear. During a June 1987 VA neuropsychiatric examination the veteran stated that he was in Vietnam from July 1971 to January 1972. He was a grunt with the Americal Division until they were broken up and he went to the 1st Cavalry as an armored personnel carrier (APC) driver. He said the had not been right since Vietnam. He saw children eating out of a garbage dump there. He also remembered that Vietnam was a pretty country. The report is negative for any other complaints of stressors. The veteran claimed that he was medevaced from Vietnam because of a hearing loss. The service found out he was on drugs and he spent a lot of time in the drug center. He could not seem to handle it, could not adjust and finally ended up with an Article 15 [nonjudicial punishment]. He still heard a voice from Vietnam. He had been in prison for robbery twice since service. The report does not contain a diagnosis of PTSD. A September 1987 rating decision continued the noncompensable evaluation for the veteran's left hearing loss and denied service connection for PTSD. In August 1993 the veteran stated that his stressors consisted of the death of his friend Ivory McKinney, the wounding of Robert Martin, seeing numerous soldiers die, being attacked and finding children eating from the dump where there were also dead bodies. During an October 1993 VA PTSD examination, the veteran gave a history that while he was in Vietnam, he was in the front lines shooting, killing, watching his friends die and trying to help them. He saw bodies torn apart and dead swollen babies. He described his current symptoms. The diagnosis was PTSD. A March 1994 rating decision found new and material evidence but denied the claim because the stressors were insufficient and because the medical evidence did not constitute PTSD. Treatment records dated from January 1993 to August 1997 from the DeKalb County Mental Health Services reveal that a diagnosis of PTSD was made on several occasions, but are negative for any indication of what stressors, if any, were considered in reaching the diagnosis. A March 1997 VA inpatient treatment note states that the veteran had had several recent stressors but is negative for evidence of specific in-service stressors. An April 1997 VA halfway house evaluation contains a history of serious depression after Vietnam but is negative for a listing of specific stressors. It was opined that in addition to his other problems, the veteran had symptoms of Vietnam-related PTSD, but referral to an appropriate clinic was pending. An April 1997 VA discharge summary concerns the veteran's then current symptoms and is negative for evidence regarding stressors. The diagnoses were alcohol dependence, marijuana dependence, history of intravenous heroine abuse in remission since 1980 and PTSD. A June 1997 VA audiological examination revealed puretone thresholds of: HERTZ 500 1000 2000 3000 4000 Ave. LEFT -- 20 20 20 30 22.5 Speech recognition was 100 percent. The June 1997 VA Assessment of Social Efficiency noted that there was positive middle ear pressure but that the veteran's hearing was within normal limits for rating purposes with excellent word recognition ability for both ears. An August 1997 VA ear, nose and throat consultation report states that the veteran's audiological examination was within normal limits with 100 percent speech discrimination. A November 1997 rating decision continued the noncompensable evaluation for the left ear. During the veteran's personal hearing in February 1998 he testified that his unit took incoming rounds one night and the next day he could not hear. He was medevaced out of his unit and then out of Vietnam. He had hearing loss in both ears at the time. His left ear has a ringing in it and he is off-balance and has had light-headedness ever since that incident. He was told that an eardrum is inside out. Early in the hearing the veteran testified that he received a Bronze Star. On further questioning he stated that he meant that he received a Vietnam Service Medal with one Bronze Star. He was an 11B [infantryman] at first and drove tracks after he was transferred to the 1st Cavalry. During an ambush one of his gunners took some shrapnel. He drove tanks and APCs in the armored division of the 196th Light Infantry Brigade. The death of Ivory McKinney was a stressor, but he was not with him when he died, he found out about it. Another incident occurred on the outskirts of Da Nang in 1970 or 1971. He was exposed to incoming rounds in Chu Lai. He complained of nightmares and flashbacks. In particular, he complained of one in which he saw a soldier blown up but he could not get to him. He would see children and the bodies of children. During his April 1998 VA PTSD examination the veteran described the incident in which a soldier was blown up. He described incoming rounds and voices calling for help. One time his squad lost six men. The examiner reviewed the March-April 1997 VA discharge summary and stated that a diagnosis of PTSD was supportable; all the other diagnoses were secondary. An April 1998 VA audiological examination revealed puretone thresholds HERTZ 500 1000 2000 3000 4000 Ave. RIGHT -- 15 20 20 20 18.75 Speech recognition was 100 percent. The remarks state that his hearing was normal with excellent speech recognition in both ears. Information obtained from the Vietnam Veterans' Wall Memorial reveals that Cpl. Ivory Mc Kinney was killed in action in May 1970, nine months prior to the veteran entering military service. Analysis Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 3 8 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495. 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." 38 C.F.R. § 3.303(b). If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. at 496-97. Again, whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question. Id. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection for PTSD in particular requires: 1) medical evidence establishing a clear diagnosis of the condition; 2) credible supporting evidence that the claimed in-service stressor actually occurred; and 3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 140 (1997); Zarycki v. Brown, 6 Vet. App. 91, 97 (1993). With respect to the diagnosis criterion, the Court has indicated that a "clear" diagnosis of PTSD is, at minimum, "an unequivocal one." Cohen, 10 Vet. App. at 139. The Court also acknowledged that VA's adoption of the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) effected a shift in diagnostic criteria from an objective standard to a subjective standard. See also Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991) (where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary). Thus, the sufficiency of a stressor to cause PTSD is a clinical determination for the examining mental health professional. Cohen, 10 Vet.App. at 153 (Nebeker, Chief Judge, concurring by way of synopsis). The Court also noted that, if there is an unequivocal diagnosis of PTSD by mental heath professionals, it is presumed that the diagnosis was made in accordance with the applicable DSM criteria as to both adequacy of symptomatology and sufficiency of the stressor (or stressors)." Id. If there is a question as to whether the report or examination is in accord with applicable DSM criteria, the report must be returned for a further clarification as needed. Id. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). If the VA otherwise determines that the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, providing that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(d); Zarycki, 6 Vet. App. at 98. The Court has also stated that a determination of combat status is to be made "on the basis of the evidence of record", Cohen, 10 Vet. App. at 146 (citing West (Carleton) v. Brown, 7 Vet. App. 70, 76 (1994)) and that section 1154(b) itself "does not require the acceptance of a veteran's assertion that he was engaged in combat", Cohen, supra (emphasis added). The Court has also held that combat status may be determined "through the receipt of certain recognized military citations or other supportive evidence". West, 7 Vet. App. at 76. The phrase "other supportive evidence" serves to provide an almost unlimited field of potential evidence to be used to "support" a determination of combat status. Gaines v. West, 11 Vet. App. 353 (1998). If, however, VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen, 10 Vet. App. at 147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see Zarycki, 6 Vet. App. at 98. The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, such after-the-fact medical nexus evidence cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. In addition, medical nexus evidence may not be substituted by application of the provisions of § 1154(b). Clyburn v. West, 12 Vet App 296 (1999); Cohen, 10 Vet. App. at 138. In the present case the veteran initially testified that he was awarded a Bronze Star medal and that he was medevaced because of his hearing loss. However, further questioning by his representative revealed that he was in fact awarded a Vietnam Service Medal with a Bronze Star. His records show that he was present during an unnamed campaign, but there is no documentary evidence that demonstrates that he was ever in combat. The records are negative for the award of a Combat Infantryman's Badge, Purple Heart or any awards for valor, particularly a Bronze Star with V device, or any other awards or decorations denoting direct combat participation. His service medical records are negative for evidence that he was medevaced because of hearing loss. Consequently, the Board concludes that the veteran was not engaged in combat with the enemy. The death of Cpl. Mc Kinney, alleged to be a stressor, occurred before the veteran entered military service. Since the Board has determined that the veteran did not engage in combat with the enemy, it must determine whether the claimed stressors are corroborated sufficiently by service records or other sources to establish the occurrence of the claimed stressful events. In this case, the veteran has alleged that he experienced traumatic events during service. However, the accounts that he has provided regarding stressors are incomplete or unverifiable and are also vague and contradictory. The service records do not corroborate the veteran's statements, and the veteran has not supplied the necessary details to verify that any stressor events took place. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet.App. 406 (1991). Further, if the veteran does not reveal the alleged stressors, together with the dates and places, there is no way to corroborate, or even attempt to corroborate, the information. Swann v. Brown, 5 Vet.App. 229, 233 (1993). Although lay evidence of a PTSD stressor is generally presumed to be truthful, where the appellant's testimony as to his Vietnam combat experience is inherently incredible neither the Board nor the Court is required to accept his assertions as true. Samuels v. West, 11 Vet. App. 433 (1998). In the present case the Board finds that the veteran's various accounts of stressors are inherently incredible. The veteran has testified that he was transferred out of Vietnam because of his hearing loss. However, the January 1972 service Clinical Record Cover Sheet indicates that his unit in Vietnam had him transferred because of heroin use. The veteran also indicated during his June 1987 examination that he finally got a nonjudicial punishment (Article 15) implying that his first problem with discipline occurred late in his active service, after his time in Vietnam. However, the record shows that he received nonjudicial punishment in May, July and August 1971, prior to his time in Vietnam. Of the three instances of nonjudicial punishment after his return from Vietnam, two, one in April and one in May 1972 involved breaches of integrity. His account of stressors has varied. In June 1987 he remembered only that he saw children eating out of a garbage dump and that Vietnam was pretty. By August 1993 he had added the loss of a close friend and the wounding of another, in addition to being attacked several times. In October 1993 he related seeing friends die and bodies torn apart. During his hearing he did not indicate that he saw any friends die. For the above reasons the Board finds that the veteran's testimony is not credible and that there must be corroborating evidence to establish that he was in combat and that he was exposed to stressors. See Gaines, Samuels. Since the record contradicts rather than corroborates the veteran's accounts of his service, the Board finds that he did not engage in combat and that there is insufficient evidence to establish a stressor. Therefore, the diagnosis of PTSD cannot stand. Clyburn, Cohen, Moreau. Increased Rating A veteran's assertion of an increase in severity of a service-connected disorder constitutes a well-grounded claim requiring the VA fulfill the statutorily required duty to assist 38 U.S.C.A. § 5107(a) (West 1991) because it is a new claim and not a reopened claim. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board is also satisfied that all relevant facts pertinent to this issue have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist him as mandated by law. 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and 4.42, the Board has reviewed all the evidence of record pertaining to the history of the veteran's left hearing loss, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability at issue. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Evaluation of hearing impairment is based upon examinations conducted using controlled speech discrimination tests together with the results of pure tone audiometric testing. To evaluate the degree of disability from defective hearing, the revised rating Schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. Evaluations range from 0 to 100 percent and are based on organic impairment of hearing acuity within the conversational voice ranges (1,000, 2,000, 3,000 and 4,000 cycles per second/Hertz), as measured by controlled speech or other audiometric testing. 38 C.F.R. § 4.85, Diagnostic Codes 6100 to 6110. Evaluations derived from the Schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. For VA purposes, impairment of auditory acuity means organic hearing loss for speech. 38 C.F.R. § 4.87. Any reasonable doubt regarding degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has noted that although an entire review of clinical history in a given case is important to a complete understanding of the disability at issue, where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). The four-frequency puretone average during the April 1998 VA examination was 18.75 decibels in the left ear. Speech audiometry revealed speech recognition of 100 percent in the left ear. This is evaluated as level I hearing loss in the left ear. 38 C.F.R. §§ 4.85, 4.87, Table VI. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII; the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). The Board notes that service connection has been denied for hearing loss of the right ear. Therefore, Level I hearing loss in the left ear combined with no service- connected hearing loss in the right ear is rated as noncompensably (0 percent) disabling. 38 C.F.R. §§ 4.85, 4.87, Table VII, Diagnostic Code 6100. The Board has carefully reviewed the entire record regarding the increased rating issue; however, the Board does not find the evidence to be so evenly balanced that there is any doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER The appeal of the issue of service connection for PTSD is denied. Entitlement to an increased evaluation for defective hearing of the left ear is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals