Citation Nr: 0001109 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-10 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted or secured to reopen the veteran's claim of entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to a compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from April 1942 to February 1948 and from February 1951 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 19971 and June 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. The RO originally denied entitlement to service connection for PTSD in a December 1996 rating decision. Although the veteran submitted a notice of disagreement with that decision, he did not timely perfect his appeal. 2. The evidence submitted or secured since the December 1996 rating decision is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran has established that his claim of entitlement to service connection for PTSD is plausible. 4. The veteran has Level I hearing loss in each ear. CONCLUSIONS OF LAW 1. The December 1996 rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1999). 2. New and material evidence has been submitted or secured to reopen the veteran's claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 4. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.85, Diagnostic Code 6100, Tables VI and VII (1999); 38 C.F.R. § 4.87, Diagnostic Code 6100, Tables VI and VII (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen PTSD Claim The RO denied the veteran's claim for service connection for PTSD in a December 1996 rating decision. Although the veteran submitted a notice of disagreement with that decision, he did not timely perfect his appeal. Therefore, the RO's decision of December 1996 is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1999). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three- step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203, 206 (1999). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209, 218 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must first determine whether the evidence is new and material. Winters, 12 Vet. App. at 206. According to VA regulation, "new and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, 12 Vet. App. at 206. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. The evidence of record at that time of the December 1996 rating decision consists of service medical records, service records, VA outpatient medical records, a December 1991 statement from the veteran's brother, a January 1992 statement from the veteran's wife, a January 1992 statement from R.G.D., and a May 1996 statement from E.P.M. The RO denied the veteran's claim because there was no diagnosis of PTSD related to service. Evidence submitted or secured since the December 1996 rating decision consists of the following: additional service records, the report of the February 1997 VA psychiatric examination, a March 1997 statement from the veteran's daughter, an April 1997 statement from the veteran, VA medical records, a transcript of the veteran's January 1999 hearing testimony, a February 1999 statement from Gene A. Simon, M.D., and a March 1999 statement from the veteran, as well as statements from R.G.D., E.P.M., and the veteran's wife and brother. The last four lay statements are duplicates of evidence received before the December 1996 rating decision and therefore cannot be new and material. The remainder of the evidence has not been previously submitted to the RO. Upon a review of this evidence, the Board finds that it is new and material within the meaning of 38 C.F.R. § 3.156(a). Specifically, VA outpatient records dated in May 1998 show a diagnosis of possible PTSD. In addition, in his statement, Dr. Simon appears to indicate his belief that the veteran suffers from PTSD as a result of his wartime experiences. Accordingly, the Board finds that new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108; Winters, 12 Vet. App. at 206. Service Connection for PTSD Because there is new and material evidence to reopen the veteran's claim for PTSD, the Board must now evaluate the claim based on all the evidence of record. Winters, 12 Vet. App. at 206. Initially, the Board notes that the veteran has had ample opportunity to submit evidence and argument as to this claim, and has in fact testified at a personal hearing. The Board therefore concludes that its current consideration of the claim will not result in prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The first task for the Board at this time is to determine whether the veteran's claim for service connection for PTSD is well grounded. Winters, 12 Vet. App. at 206. A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Moreau v. Brown, 9 Vet. App. 389, 393 (1996). 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). In his February 1999 statement, Dr. Simon offers the opinion that the veteran suffers from PTSD as a consequence of his wartime experiences. The Board finds that this statement is sufficient to establish plausibility of the veteran's PTSD claim such that the claim is well grounded. Epps, 126 F.3d at 1468; 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. However, for reasons set forth below, the Board finds that a remand for additional development is required to ensure the proper adjudication of the veteran's claim. Increased Rating for Bilateral Hearing Loss 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) (West 1991); 38 C.F.R. § 3.102 (1998). The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background A June 1997 statement from Thomas M. Schrimpf, M.D., indicated that the veteran had high frequency sensorineural hearing loss beginning at 2000 Hertz. The August 1997 VA audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT ----- 20 45 50 50 LEFT ----- 20 45 45 45 The average pure tone decibel loss was 41 in the right ear and 39 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. In July 1998, the veteran underwent an outpatient audiological evaluation at a VA medical center. Evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT ----- 25 45 50 55 LEFT ----- 20 50 50 45 Average pure tone decibel loss was Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The veteran testified at a personal hearing in January 1999. He had been wearing VA-issued hearing aids in both ears for about five months. He was bothered by background noise now that he could hear it. The veteran explained that, although he could hear most things well, he had difficulty hearing voices once any sort of background noise was added. He thought his hearing was probably about the same as during his last VA examination. The veteran underwent another VA audiological examination in February 1999. The evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT ----- 25 45 55 55 LEFT ----- 25 55 55 50 The average pure tone decibel loss was 45 in the right ear and 46 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in each ear. 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 left ear hearing loss is evaluated as noncompensable under Diagnostic Code (Code) 6100. During the pendency of the veteran's appeal, VA promulgated new regulations amending the rating criteria for hearing impairment, effective June 10, 1999. See 64 Fed. Reg. 25,202 - 25,210 (codified at 38 C.F.R. pt. 4). Generally, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded, notwithstanding Karnas. Rhodan v. West, 12 Vet. App. 55, 57 (1998). The Board notes that the effective date of the amendments is later than the date of last supplemental statement of the case, indicating that the RO did not consider the amended regulations. In such an instance, the Board is obligated first to determine whether the amended regulation is more favorable to the veteran than the previously existing regulation. After careful review of the regulations in question, the Board finds that the changes are not significant to this particular veteran's claim and that the amended regulation is not more favorable to the veteran than the previous version. Moreover, the Board finds that the veteran will not be prejudiced by the Board's application of the amendments in the first instance. The changes in the amendments do not affect the veteran's claim and he has had ample opportunity to submit evidence and argument on the issue. Bernard, 4 Vet. App. at 392-94. Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once disability is established, levels of hearing loss are determined by considering the average pure tone decibel loss and speech discrimination percentage scores. 38 C.F.R. § 4.87, Table VI (1998); 38 C.F.R. § 4.85(b), Table VI (1999). Disability ratings are assigned by combining a level of hearing loss in each ear. 38 C.F.R. § 4.87, Table VII (1998); 38 C.F.R. § 4.85(e), Table VII (1999). See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). In this case applying the results of both VA examinations and the VA outpatient evaluation to Table VI yields a Roman numeral value of I for each ear. Applying these values to Table VII, the Board finds that the veteran's hearing loss is evaluated as 0 percent disabling. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a compensable disability rating for left ear hearing loss. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Code 6100 (1999); 38 C.F.R. § 4.87, Code 6100 (1998). ORDER New and material evidence has been submitted or secured to reopen the veteran's claim of entitlement to service connection for PTSD. The reopened claim is well grounded. Entitlement to a compensable disability rating for bilateral hearing loss is denied. REMAND As discussed above, the veteran has submitted a well grounded claim for service connection for PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (as amended by 64 Fed. Reg. 32,807-32808 (1999)) (effective March 7, 1997) (implementing the decision in Cohen v. Brown, 10 Vet. App. 128 (1997)). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). When a veteran submits a well grounded claim, VA has a duty to assist the veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Epps, 126 F.3d at 1469. In PTSD claims, this duty includes assisting in the verification of the veteran's claimed in-service stressors. In this regard, the Board emphasizes that the evidence required to establish the in-service occurrence of a stressor varies depending on the RO's determination as to the veteran's status as a combat veteran. The Board notes that the veteran has supplied several written statements as well as hearing testimony describing traumatic events experienced in service. The duty to assist also includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). After the RO has completed its development as to the claimed in-service stressors, the RO should afford the veteran a VA psychiatric examination. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should verify that it has all available service medical records from both periods of the veteran's active duty. In addition, the RO should request copies of the veteran's service personnel records from both periods of active duty. 2. The RO should review all pertinent evidence, including the veteran's service records, written statements, and testimony for evidence as to claimed in- service stressors. If necessary, the RO should ask the veteran to clarify names, ranks, dates, locations, and other pertinent information required for verification of those stressors. In that event, the RO should advise the veteran that this information is vitally necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 3. The RO should then prepare a summary of all the claimed stressors. This summary and a copy of the veteran's separation documents and all associated service documents should be sent to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197. The USASCRUR should be provided with a copy of any information obtained above, and should be requested to provide any additional information that might corroborate the veteran's alleged stressors. 4. Following the receipt of a response from the USASCRUR, the RO must prepare a report detailing the nature of any stressor it determined is established by the record. If no stressor has been verified, the RO should so state in its report. This report is then to be added to the claims folder. 5. After completing the above actions the veteran should be afforded a VA psychiatric examination to determine the diagnosis of any and all psychiatric disorders which may be present. All indicated studies, tests and evaluations deemed necessary should be performed, to include psychological testing and PTSD sub scales. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1996), copies of all pertinent records in the veteran's claims file or, in the alternative, the claims file, must be made available to the examiner for review. Specifically, the RO must provide the examiner the summary of any stressors described above, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in the current psychiatric symptoms. The examiner is asked to determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner offer an opinion as to whether the PTSD symptomatology is related to one or more of the in-service stressors found to be established by the RO. The report of examination should include the complete rationale for all opinions expressed. 6. After completing any necessary development in addition to that specified above, the RO should adjudicate the issue of entitlement to service connection for PTSD in light of relevant law, regulations, and court decisions. If the determination remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and provide an opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The Board does not intimate any opinion as to the ultimate outcome of the veteran's claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. RENÉE M. PELLETIER Member, Board of Veterans' Appeals