Citation Nr: 0004985 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-16 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to a disability rating greater than 10 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in September 1997 and October 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between the veteran's hearing loss and his period of active duty service. 2. The veteran's PTSD is manifested by a variety of subjective complaints, including consistent symptoms of depression, anxiety, irritability, sleep disturbance with nightmares, suspiciousness, and lack of motivation. Examinations reflect objective evidence of depression, anxiety, some agitation, mild restriction of affect, occasional slightly pressured speech, occasional circumstantial responses to questions, and slight impairment of judgment and insight. The Global Assessment of Functioning scores of 55 and 60 reflect moderate symptoms or moderate difficulty in social or occupational functioning. 3. There is no evidence of psychosis, hallucinations, delusions, speech abnormalities or other indicia of thought disorder, panic attacks, paranoia, obsessional behavior, suicidal or homicidal ideation, memory loss, impaired concentration, impaired cognition, or inability to care for self. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 2. The criteria for entitlement to no more than a 30 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Hearing Loss 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 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (specifically addressing claims based ionizing radiation exposure). Direct 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 reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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). 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). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including other organic diseases of the nervous system). If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Application of 38 U.S.C.A. § 1154(b) does not establish a presumption of service connection, but eases the combat veteran's burden of demonstrating the occurrence of some in- service incident to which the current disability may be connected. See Clyburn v. West, 12 Vet. App. 296, 303 (1999); Arms v. West, 12 Vet. App. 188, 194-95 (1999); Wade v. West, 11 Vet. App. 302, 304-305 (1998); Russo v. Brown, 9 Vet. App. 46, 50 (1996); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Therefore, "[s]ection 1154(b) provides a factual basis upon which a determination can be made that a particular . . . injury was incurred . . . in service but not a basis to link etiologically the [injury] in service to the current condition." Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza, supra). Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 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. Section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). That is, service connection may be in order if the evidence sufficiently demonstrates a relationship between the current hearing loss disability and service. Id. (citing Godfrey v. Derwinski, 2 Vet. App. 352 (1992)). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms, 12 Vet. App. at 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). VA cannot undertake to assist a veteran in developing facts pertinent to his claim until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). The service medical records include a September 1968 pre- induction audiometric examination, and a January 1971 separation audiometric examination. A hearing loss within the above-stated guidelines was not shown. The evidence reveals a January 1995 VA outpatient audiology evaluation report that shows hearing loss disability within the meaning of 38 C.F.R. § 3.385. The veteran asserts that he incurred hearing loss in service. When determining whether the claim is well grounded, the Board presumes the truthfulness of that assertion. Arms, 12 Vet. App. at 193; Robinette, 8 Vet. App. at 75; King, 5 Vet. App. at 21. However, in this case, the Board finds that the veteran's claim for hearing loss is not well grounded because there is no competent medical evidence of a nexus between the hearing loss disability and service. Epps, 126 F.3d at 1468. That is, there is no medical evidence of record that relates the hearing loss to service. Such evidence is required to establish a well grounded claim. To the extent the veteran may assert that he has had continuous symptoms of hearing loss since service, the claim would remain not well grounded. The Board emphasizes that the provisions of 38 C.F.R. § 3.303(b) do not relieve a veteran of the burden of providing a medical nexus in order to establish a well grounded claim. Rather, a veteran diagnosed with a chronic disorder must still provide a medical nexus between the current disorder and the putative continuous symptomatology. Voerth v. West, 13 Vet. App. 117 (1999); McManaway v. West, 13 Vet. App. 60, 66 (1999). Similarly, the veteran's claim that the hearing loss resulted from combat does not eliminate the need for medical nexus evidence. Cohen, 10 Vet. App. at 138. The veteran has not submitted any evidence to suggest that he is a trained medical professional. Therefore, he is not competent to offer an opinion on matters that require medical knowledge, such as determinations of etiology. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for hearing loss. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). The Board recognizes that this appeal is being disposed of in a manner that differs from that used by the RO. The RO denied the veteran's claim on the merits, while the Board has concluded that the claim is not well grounded. However, the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis." Meyer v. Brown, 9 Vet. App. 425, 432 (1996). If the veteran wishes to complete his application for service connection for hearing loss, he should submit medical evidence showing that his hearing loss in related to his period of active duty service. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. Increased Rating for PTSD When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background The RO established service connection for PTSD in an October 1998 rating decision. It awarded a 10 percent rating effective from November 15, 1996, the date of receipt of the claim. The veteran appealed that assigned rating amount. The veteran underwent a VA psychiatric examination in March 1997. He related that he had a history of alcoholism, though he had been sober for 11 years. He had experienced problems keeping a job due to alcoholism and problems dealing with authority. He was self-employed as a handyman, though little interest in employment. He was divorced. Subjective complaints included feelings of bitterness about his participation in Vietnam, melancholy, apathy, lack of motivation, decreased energy, increased appetite with 30- pound weight gain, progressive social isolation, and worsening depression. In addition, he feared being betrayed by others and was increasingly easy to aggravate and to anger. He slept no more than three or four hours at one time. The veteran had dreams, but they were unrelated to war experiences. The veteran was casually dressed and neatly groomed. He was superficially cooperative and polite, though it was clear that he could be easily agitated, as shown through sarcasm and tone of voice on several occasions. Mental status examination revealed generally normal speech with generally linear and goal-directed thought processes. Thought content was appropriate to the interview. Affect was mildly restricted with some intermittent agitation. Judgment for social propriety and self-preservation was intact. Insight into psychological symptoms and presentation was fair. There was no evidence of psychosis. The veteran denied suicidal or homicidal ideation. The Axis I diagnosis was post-traumatic stress syndrome symptoms without a frank diagnosis of the condition. The Axis II diagnosis was antisocial personality features. The examiner commented that the veteran may have had more symptoms of PTSD, but he appeared to have made a relatively adequate adaptation to his experiences, with the exception of angry feelings toward the government and about his own participation. The veteran's other difficulties in adapting to life after the military due were due in part to an apparently pre-existing syndrome of personality disorder characteristics. VA records showed that the veteran was admitted to the PTSD Residential Rehabilitation Program (PRRP) from April 1997 to July 1997 for evaluation of his PTSD symptoms. During the admission, he participated in group and individual counseling. He was discharged to return to work as tolerated. Medications included Paxil. VA outpatient records dated in October 1997 and December 1997 indicated that the veteran continued to complain of lethargy, depression, anxiety, and irritability since the PTSD program. Medications included Paxil and Buspar. The veteran submitted a March 1998 psychological evaluation from Eugene S. Cherry, Ph.D. Although he had been self- employed in the past, the veteran related that he had let the business go. He had had only two long-term relationships. He had no children. He currently lived alone. He continued to maintain sobriety. Subjectively, the veteran perceived the world around him as threatening. He had nightmares about Vietnam three to four times a week. He also reported having flashbacks, though he denied hallucinations or delusions. He slept four to five hours per night. During the day while awake, he stayed away from people and meditated and did yoga to try to control his symptoms. His appetite was adequate with 30-pound weight loss. His depression was improved with medication. He expressed overwhelming feelings of hopelessness, helplessness, and worthlessness associated with physical and emotional impairments, as well as intense feelings of depression sometimes associated with guilt. He also lacked an interest in sex. Energy level was average. Dr. Cherry commented that the veteran was fully oriented and presented with average height and weight and clean clothes and appearance. He generally maintained eye contact. On mental status examination, he demonstrated expressive signs of anxiety, i.e. trembling hands and facial tics, about every five minutes. Thought content was strong for worry about being able to support himself. There was no crying or angry agitation. Responses were relevant and coherent. There was pressure in response time to questions asked concerning his inability to work and continuing PTSD symptoms. There was no slowed response time to questions. There was no evidence of neologisms, looseness of associations, or tangentiality of thought. He denied suicidal or homicidal ideation, hallucinations, or delusions. Although he denied paranoid ideation, he did report some feelings about neighbors and people at VA being out to get him. Short- and long-term memory, concentration, attention, and abstraction ability were all intact. Judgment was considered adequate. Findings from psychometric tests were generally consistent with the veteran's reported symptoms. The Axis I diagnosis was PTSD and alcohol dependence in remission. The Axis II diagnosis was personality disorder not otherwise specified with paranoid personality symptoms. Psychosocial stressors included physical pain, nightmares, depression, and thoughts of violence triggered by seeing violence. Dr. Cherry assigned a Global Assessment of Functioning (GAF) score of 55. He indicated that he felt that the veteran was permanently impaired at the 50 percent level due to PTSD. In September 1998, the veteran was afforded another VA psychiatric examination. His claims folder and medical records were reviewed by the examiner. The veteran had financial problems due to inconsistent employment. He remained sober. He lived alone and was able to care for himself. There was no family history of physical or sexual abuse. The veteran visited his brother once a year but did not see his two sisters. He enjoyed movies, music, and plays. He especially enjoyed being outdoors. He was usually alone but wanted companionship. Subjectively, the veteran complained of decreased energy, a desire for social isolation, little patience or tolerance, impulsiveness, interrupted sleep with nightmares, startle response, hypervigilance, loss of appetite with weight loss, anxiety, depression, decreased concentration, impulsiveness, fear, decreased motivation, and no desire to work. He denied psychosis, panic attacks, or obsessive-compulsive behavior. The examiner reported that the veteran was fully oriented, cooperative with good eye contact, and casually dressed and neatly groomed. He appeared relaxed and confident. Mental status examination showed spontaneous and coherent speech with normal tone, though slightly pressured. Thoughts were circumstantial and focused on Vietnam experiences and often included sarcasm and cynicism. Affect was variable, non-labile, and appropriate. Although the veteran was generally well controlled, there was occasional mild agitation. He reported his mood as frustrated. There was no evidence of hallucinations, delusions, psychosis, paranoia, thought disorder, or psychomotor agitation or retardation. He denied suicidal or homicidal ideation. Cognition was well preserved and memory was intact. Insight was limited. Judgment was fair. The result of the mini mental state examination was 30/30. The Axis I diagnosis was dysthymic disorder, post-traumatic stress syndrome, alcohol dependence in complete remission, and rule out PTSD. The Axis II diagnosis was narcissistic and antisocial personality traits, rule out narcissistic personality disorder, and rule out antisocial personality disorder. Psychosocial stressors included unemployment, financial problems, poor social support, relationship issues, and unresolved issues of loss, grief, and anger. The examiner assigned a GAF score of 60. He commented that the veteran would probably require extended, possible lifetime, treatment. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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 Board observes that, in a claim of disagreement with the initial rating assigned following a grant of service connection, as is the situation in this case, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The veteran's PTSD is evaluated as 10 percent disabling under Diagnostic Code (Code) 9411. 38 C.F.R. § 4.130. A 10 percent rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; when symptoms are controlled by continuous medication. A 30 percent disability rating is appropriate when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating will be assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9411 (1998). In this case, the Board finds that the evidence supports entitlement to a 30 percent evaluation for PTSD. The veteran relates a variety of subjective complaints, including consistent symptoms of depression, anxiety, irritability, sleep disturbance with nightmares, suspiciousness, and lack of motivation. The VA examinations and the evaluation from Dr. Cherry reflect evidence of depression, anxiety, some agitation, mild restriction of affect, occasional slightly pressured speech, occasional circumstantial responses to questions, and slight impairment of judgment and insight. The GAF scores of 55 and 60 reflect moderate symptoms or moderate difficulty in social or occupational functioning. Considering this evidence in terms of the rating criteria set forth above, the Board finds that the overall disability picture more closely resembles the requirements for a 30 percent rating. 38 C.F.R. § 4.7. In addition, the Board finds that the preponderance of the evidence is against a 50 percent rating in this case. Specifically, the record fails to reveal evidence of psychosis, hallucinations, delusions, speech abnormalities or other evidence of thought disorder, panic attacks, paranoia, obsessional behavior, suicidal or homicidal ideation, memory loss, impaired concentration, impaired cognition, or inability to care for self. Although it is clear that the veteran is impaired, and in spite of Dr. Cherry's opinion, the Board cannot conclude that the total disability picture approximates the criteria set forth for a 50 percent rating. 38 C.F.R. § 4.7. Finally, the Board finds no basis for an extra-schedular rating for PTSD pursuant to 38 C.F.R. § 3.321(b)(1). There is no evidence of frequent hospitalization for PTSD. Although it is unclear whether the veteran is unemployed or employed inconsistently, the evidence does not support the finding that PTSD in particular has markedly interfered with employment. In summary, the Board finds that the evidence supports no more than a 30 percent disability rating for PTSD. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.3, 4.7, 4.130, Code 9411. ORDER Entitlement to service connection for hearing loss is denied. Subject to the laws and regulations governing the payment of monetary benefits, entitlement to a 30 percent disability rating for PTSD is granted. RENÉE M. PELLETIER Member, Board of Veterans' Appeals