BVA9500432 DOCKET NO. 93-10 405 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to June 1971. This appeal arises from a rating decision in July 1991 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a present hearing loss disability which is related to his period of active service. He also contends that he has post-traumatic stress disorder. 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 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 record supports an allowance of service connection for bilateral hearing loss and that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include post- traumatic stress disorder (PTSD). FINDINGS OF FACT 1. Hearing loss, which preexisted service, increased in severity during service. 2. An acquired psychiatric disorder was not present in service or until years thereafter, nor is it attributable to any incident or manifestation in service. 3. The veteran does not have post-traumatic stress disorder. CONCLUSIONS OF LAW 1. Preexisting hearing loss was aggravated in service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.306, 3.385 (1994). 2. An acquired psychiatric disorder, to include post-traumatic stress disorder, was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.301(b)(c)(2), 3.303(c), 3.304(f), 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claims are "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. The Board is also satisfied that all relevant facts are properly developed. 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. I. Hearing Loss The service medical records disclose that at an examination for service entrance in August 1968 the veteran's hearing status was impaired. The pure tone thresholds were 50 decibels at 4,000 hertz, bilaterally. During service, an audiometric test in February 1971 showed pure tone thresholds at 4,000 hertz to be 55 decibels in the right ear and 65 decibels in the left ear. At an examination for service separation in April 1971 pure tone thresholds in the right ear were 65 decibels at 2,000 hertz and 60 decibels at 4,000 hertz. The pure tone threshold in the left ear was 65 decibels at 2,000 hertz; the hearing acuity in the left ear at 4,000 hertz was tested, but the result on the examination report is illegible. At a VA audiological evaluation in April 1991, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 30 60 55 LEFT 0 30 65 55 At a personal hearing in June 1992 the veteran testified that: He first knew that he had a hearing problem when he flunked a hearing test at Fort Knox in 1971; in service he was exposed to truck noise and had head injuries; after service in 1973 at an employment physical examination he still had hearing loss; he currently had hearing impairment and a VA audiologist told him in 1991 that he should have hearing aids in both ears. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. When a preservice disability undergoes an increase in severity during wartime service, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In the veteran's case, the audiometric evidence of record shows a shift of the pure tone threshold in the right ear, from service entrance to service separation, of 10 decibels at 4,000 hertz (that is, from 50 decibels to 60 decibels). Also, at service separation, the pure tone threshold in the right ear at 2,000 hertz was 65 decibels; no abnormality at that level was reported at service entrance. Similarly, there was a shift to 15 decibels in the left ear at 4,000 hertz in the service entrance examination in August 1968 to the hearing test in 1971. Also, a 65-decibel loss in the left ear, 2,000 hertz was reported at service separation, whereas no abnormality at that level was reported at service entrance. The VA audiological examination of April 1991 shows a present hearing loss disability, under VA standards. 38 C.F.R. § 3.385. The Board finds that the threshold shifts during service in the veteran's case were significant and demonstrate an increase in the severity of his preservice hearing loss disability. Applicable laws and regulations provide for a presumption of aggravation in such a case and, in the absence of any evidence to rebut the presumption of aggravation, service connection for bilateral hearing loss will be established. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. § 3.306. II. Psychiatric Disorder Service medical records are negative for any complaint, diagnosis or treatment of psychiatric problems or illness. In report of medical history at service separation in April 1971 the veteran denied having had nervous trouble of any sort. The veteran's Form DD-214 shows a military occupational specialty of heavy vehicle driver. His service personnel records show service in the Republic of Vietnam as a truck driver. The veteran did not receive any combat awards or citations. At a VA Agent Orange examination in June 1982, the veteran claimed to be depressed, with lack of energy. He hated draft dodgers. He admitted to suicidal ideas and history of alcoholism. Diagnoses included emotional disorder. At a VA psychology service in June 1982 the veteran complained of being angry and depressed, with a short temper. He could not keep a job. He had multiple failed relationships in marriage and at work. He lost his temper easily and often drank too much. The diagnostic impressions were possible personality disorder and substance abuse. In August 1982 a VA physician reported that there was no evidence of illness related to exposure to toxic chemicals in the veteran's case but it was obvious that he was suffering from severe emotional difficulties. He was advised to seek treatment at a mental health clinic. In July and August 1983 the veteran was evaluated at a public mental health clinic. He stated that he did not have any problems while he was in Vietnam from 1969 to 1970. He received an honorable discharge. He started to drink alcohol, smoke marijuana and use amphetamines in 1971. He used "speed" to stay awake while he was driving a truck. He claimed to abstain from alcohol and drugs for the preceding two months. He was cooperative and communicative but somewhat guarded and evasive. His speech was relevant, coherent and goal-directed. There was no evidence of thought disorder or psychosis. He was not suicidal or homicidal. Affect was appropriate and sensorium was clear. Judgment was good and insight was present. Diagnoses included alcohol abuse; multiple substance abuse, such as marijuana and amphetamines; phase of life problem or life circumstance problem; and rule out personality disorder. The psychiatric examiner found that the veteran did not have any acute psychiatric disorder but should continue counseling with his therapist in an attempt to function better in the community. In a VA psychiatric examination in April 1991 the veteran complained that he was easily upset and could not control his temper. He did not get along well with other people. In Vietnam he suffered a head injury when he was hit in the head with a Pepsi can while he was driving a truck. At times he had been under shrapnel attack but had not been directly involved in combat. He gave a history of heavy drinking until four years earlier. He denied having a history of drug abuse. He claimed to have been anxious and tense since his return from Vietnam. He first sought psychiatric help at a mental health clinic in 1983. Thereafter, he was under psychiatric care off and on until 1988. He was charged with driving while under the influence of alcohol in 1986, and stopped drinking in 1987. He also gave a history of numerous attempts at suicide. On mental status examination he was unkempt and unshaven. His speech was logical and goal-directed. He had no hallucinations or delusions. He exhibited mild depression and overt anxiety. His memory was intact for recent and remote events. Insight and judgment were not grossly distorted. Diagnoses included anxiety disorder; alcohol abuse, by history, in full remission; and passive-aggressive personality. The veteran was advised to seek psychiatric help for his anxiety at a VA outpatient clinic. The examiner commented that the veteran had definite anxiety, aggravated by personal and financial problems. His experiences in Vietnam might have contributed to his anxiety but he did not show the typical symptoms of post-traumatic stress disorder and, therefore, he was not diagnosed as a case of PTSD. In a statement received at the RO in May 1991, the veteran indicated that he drove a tractor-trailer in Vietnam from a barge site to various other sites, including an ammunition dump and an air field. He also drove in a convoy to some fire bases. He claimed that his vehicle came under mortar and rocket attacks, but did not indicate that the vehicle was hit. He described an incident in which, while he was driving, he ignored a soldier who was hitchhiking and the soldier threw something at him, which struck him in the head. Also in service, he received a letter from his wife, who said she would probably divorce him. Thereafter, he became the company "wino" and his weapon was taken away from him. The veteran also stated that some soldiers, who had been accused of illegal drug possession, thought that he had turned them in and tried to sabotage his truck; he did not state that he had been actually injured. After service he held many jobs which mostly ended after disputes with his superiors. He was convicted of driving under the influence of alcohol in 1986 and of domestic violence in 1989. At the hearing in June 1992, the veteran's representative asked him if any doctor had ever told him that he had PTSD. The veteran replied that at the Agent Orange examination in 1982, a VA doctor told him that he had severe emotional problems. He also testified that: In Vietnam the soldiers accused of drug charges had been "messing with" the brakes on his truck; one night he was in a field and they shot a flare at him. Once at an ammunition dump and once in a convoy, he was close to mortar attacks. He saw a soldier "turn himself into a vegetable" by "mainlining in the jugular vein"; he saw a soldier electrocuted; he saw a soldier shooting people. Lay statements by the veteran's wife and mother were submitted. His wife stated that she had been with him for 3 1/2 years and he had a hearing problem all that time. He was sober and no longer having nightmares, but he had emotional scars from his experiences in Vietnam. He was struggling to overcome PTSD. His mother stated that the veteran did not have hearing loss prior to service. He was a changed person when he came back from service. He had personal problems and a drinking problem. She stated, "I feel my son lost himself in Vietnam. You sent home a broken man." Service connection may be granted to an acquired psychiatric disorder when psychosis is compensably disabling within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In the veteran's case, there is no competent evidence of record to show that he had a psychosis during his period of service or the following year, and he does not contend that he had such a disorder. Also, the preponderance of the evidence does not demonstrate that an anxiety disorder, diagnosed on VA examination in 1991, is etiologically related to any incident or manifestation during the veteran's period of active service. As noted above, at service separation, he denied having nervous trouble. He did not seek psychiatric attention until 1982, 11 years after service, at which time the diagnoses were possible personality disorder and substance abuse. A personality disorder is not a disease for which service connection may be granted. 38 C.F.R. § 3.303(c). The veteran's alcohol abuse has not been shown to be other than of willful misconduct origin. Service connection may not be granted for alcohol abuse due to willful misconduct. 38 C.F.R. § 3.301(b)(c)(2). With regard to PTSD, the applicable regulation provides that, "service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that a claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor." 38 C.F.R. § 3.304(f). In the veteran's case, the Board finds that the evidence of record is insufficient to show that he engaged in combat in Vietnam. Furthermore, he has presented no evidence whatsoever to corroborate or substantiate his assertions about claimed stressful incidents. Most importantly, there is no medical evidence establishing a clear diagnosis of PTSD. Indeed, no physician has ever diagnosed PTSD in the veteran's case. The requirements for service connection for PTSD not having been met, service connection for such a disorder is not established. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.304(f). Likewise, service connection for anxiety disorder or any other acquired psychiatric disorder is not established, as the evidence of record does not show the presence of such a disability during the veteran's period of active service or psychosis within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.301, 3.303, 3.307, 3.309. While the Board has considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). ORDER Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, is denied. Service connection for bilateral hearing loss is granted. BRUCE KANNEE 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.