Citation Nr: 0004042 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 90-46 211 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for claimed post- traumatic stress disorder (PTSD). 2. Entitlement to service connection for a claimed hearing loss. 3. Entitlement to service connection for the claimed residuals of a pinched nerve in the neck. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran served on active duty from May 1951 to April 1953 and May 1954 to April 1956. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a February 1990 rating decision of the RO. In July 1991, the Board remanded the case for additional development. In April 1995, the veteran testified before this Member of the Board at a hearing held in Washington, D.C. The Board again remanded the case in June 1995. In addition to those issues listed hereinabove, the veteran also appealed the denial of an increased rating for a fractured mandible. In February 1997, however, the RO assigned the highest schedular rating for the disability, effective from the date of claim. Thus, this issue is no longer in appellate status. FINDINGS OF FACT 1. The veteran's claim of service connection for PTSD is plausible. 2. The veteran's claim of service connection for hearing loss is plausible. CONCLUSIONS OF LAW 1. The veteran has submitted evidence of a well-grounded claim of service connection for PTSD. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304(f) (1999). 2. The veteran has submitted evidence of a well-grounded claim of service connection for hearing loss. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.385 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the "Court") has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may 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). PTSD The regulations concerning the adjudication of claims involving entitlement to service connection for PTSD have changed. In June 1999, revised regulations concerning PTSD were published in the Federal Register which reflected the decision of the Court in Cohen v. Brown, 10 Vet. App. 128 (1997). The changes to 38 C.F.R. § 3.304(f) were made effective the date of the Cohen decision. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); 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. 64 Fed. Reg. 32807-32808 (1999) (to be codified at 38 C.F.R. § 3.304(f)); Cohen v. Brown, 10 Vet. App. 128 (1997). To establish a well-grounded claim of service connection for PTSD, there must be medical evidence showing a diagnosis of PTSD, lay evidence of a stressor in service (presumed credible for purposes of well-groundedness), and medical evidence of a nexus between the diagnosis and stressor. See Cohen v. Brown, 10 Vet. App. at 137. Here, a June 1989 VA medical examination report shows a diagnosis of PTSD attributable to the veteran's alleged stressors in service. Thus, the Board finds the claim of service connection for PTSD to be well grounded. 38 U.S.C.A. § 5107. Hearing loss For the purposes of applying the laws administered by 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 is 40 decibels or greater; or when the auditory thresholds for at least three 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. Here, a July 1989 VA medical examination report shows that the veteran suffers from a bilateral hearing loss as defined by VA. The examiner attributed the hearing loss to the veteran's alleged exposure to noise in service. Thus, the Board also finds that the claim of service connection for hearing loss is well grounded. 38 U.S.C.A. § 5107. ORDER As the claims of service connection for PTSD and hearing loss are well grounded, the appeal to this extent is allowed, subject to further action, as discussed hereinbelow. REMAND In the June 1995 remand, the Board noted the difficulty in verifying the veteran's service. As indicated, the veteran reported that he received the Purple Heart Medal as a result of injuries sustained in hand to hand combat with a Chinese soldier (including fracture of the jaw), the Combat Infantryman badge, the Silver Star Medal with a V device, and the Bronze Star Medal. The National Personnel Records Center (NPRC) has reported on various occasions, most recently in February 1992, that the veteran's DA Form 20, which would contain information concerning awards and decorations as well as unit assignments, cannot be located. As an alternative source of relevant information, the ESG suggested that the veteran's Official Military Personnel File (OMPF) be obtained from the National Archives and Records Administration (NARA). The Board instructed the RO to contact those agencies in order to obtain any additional evidence to corroborate the veteran's alleged stressors. The RO was also instructed to contact the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to provide documentation regarding the veteran's allegation concerning 45 drowned servicemen and participation by the veteran's unit in combat operations. Although the RO requested the information from the NPRC and NARA, those agencies replied that they had no additional information. The RO, however, never contacted ESG in an attempt to verify whether the veteran's unit participated in combat operations. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the issue of service connection for PTSD must be remanded again for compliance with the previous remand instructions. Regarding the claims of service connection for hearing loss and the residuals of a pinched nerve in the neck, the veteran attributes these disabilities to injuries suffered in service. Inasmuch as the development requested hereinbelow may result in evidence supporting this claim (see 38 U.S.C.A. § 1154(b) (West 1991)), these matters must be remanded as well for further consideration in light of the development requested hereinabove. In light of the foregoing, the Board is REMANDING this case for the following actions: 1. The RO should take appropriate action once again to contact the veteran in order to request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for PTSD since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. The RO should also take appropriate steps to contact the veteran in order to afford him another opportunity to provide additional information regarding the claimed stressors to which he was exposed during his period of service. He should include providing any additional specific details of the claimed stressful events during service, to include dates, places, detailed descriptions of the events, his service units, duty assignments and the names and other identifying information concerning any individuals involved in the events. The veteran should provide any documentation he may have regarding his period of service during the Korean War, such as his separation papers as well as evidence of the medals and awards he is alleged to have received. 3. Then, the RO should review the claims folder thoroughly and prepare a summary of all stressors alleged by the veteran. This summary of stressors, with specific details regarding the veteran's alleged stressors, and all associated documents, should be sent to the United States Armed Services Center for Research of Unit Records (formerly ESG), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150- 3197. That agency should be requested to provide any information which might corroborate the veteran's alleged stressors, including operational orders and other pertinent reports pertaining to the veteran's units. The agency should be asked to make a further attempt to provide documentation regarding the incident involving the 45 drowned servicemen and participation by the veteran's unit in combat operations. 4. After undertaking any additional development deemed appropriate, including additional VA examinations if indicated, the RO should review the issues on appeal. Due consideration should be given to all pertinent laws, regulations, and Court decisions. If the benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals