Citation Nr: 0007569 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-14 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Dissatisfaction with the initial rating assigned following a grant of service connection for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Fleet Reserve Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from November 1968 to April 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision by the Winston- Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for PTSD and assigned a 10 percent evaluation for that disability; and which denied entitlement to service connection for bilateral hearing loss. By a rating action in July 1998, a 30 percent evaluation was assigned to the veteran's service-connected PTSD. FINDINGS OF FACT 1. Attempts to obtain all available evidence necessary for an equitable disposition of the veteran's appeal have been made by the RO. 2. The veteran's service-connected PTSD is manifested by occasional decrease in work efficiency due to depression, anxiety, nightmares, exaggerated startle response, hypervigilance, chronic irritability and anger, social isolation, significant guilt, mild concentration impairment, and a Global Assessment Functioning (GAF) Scale score of 60. 3. The veteran clearly and unmistakably had left ear hearing loss prior to his entry into active duty, and during the veteran's period of active service, his preexisting left ear hearing loss was not permanently aggravated as a result of service. 4. The record contains no competent medical evidence linking the veteran's currently-diagnosed bilateral hearing loss with his military service, and the claim for service connection is not plausible. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of a 30 percent schedular evaluation for PTSD have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. § 4.130, Code 9411 (1999). 2. The veteran's pre-service left ear hearing loss was not aggravated by active military service. 38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. § 3.306 (1999). 3. The claim for service connection for bilateral hearing loss is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION PTSD The Board finds that the veteran's claim for a higher rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that he has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet. App. 78 (1991); Proscelle v. Derwinski, 2 Vet. App. 269 (1992). Since the appeal arose from the initial grant of service connection and the ratings assigned therefrom, the Board has considered the application of "staged ratings," as set forth in Fenderson v. West, 12 Vet. App. 119 (1999). Historically, the RO granted the veteran entitlement to service connection for PTSD in a September 1997 rating decision, and assigned a 10 percent evaluation to that disability. Thereafter, a July 1998 RO rating decision increased the veteran's evaluation to 30 percent for his service connected PTSD, effective from the date of service connection. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of an increased rating for PTSD remains in appellate status. The evidence of record includes VA records which show occasional psychiatric evaluation, treatment, and counseling of the veteran between May 1997 and April 1998. According to the evidence of record, the veteran first described his PTSD symptoms during VA outpatient treatment in May 1997. At that time, the veteran reported nightmares, sleep disturbance, anxiety flashbacks, isolation, startle, hypervigilance and survivor's guilt. Thereafter, VA examination in July 1997 noted that the veteran was on time for his appointment, and was cleanly and casually dressed. The veteran's presenting complaints included nightmares, depression, anxiety, feelings of detachment from others, hypervigilance, exaggerated startle response, sleep disturbance, and guilt. Mental status examination revealed that the veteran maintained good eye contact, and was articulate in his speech. He was well oriented times three, and neither complained of nor displayed memory deficits. Affect was noted to be generally euthymic though tense when describing Vietnam events -- affect was appropriate to thought. Gross delusions were not elicited, perceptual disturbances were denied, and suicidal/homicidal ideation was denied. Thinking was logical and goal directed, and insight and judgment were intact. The examiner indicated that the veteran suffered from PTSD of mild to moderate intensity given its variable and periodic occurrence. The examiner added that the veteran's most notable symptoms appeared to include recurrent recollections and dreams of Vietnam events, emotional numbing primarily through social isolation and constricted affect, and associated symptoms of hypervigilance and exaggerated startle, disturbed sleep, survival guilt, mild concentration impairment, and avoidance of distressing reminders. Diagnosis was PTSD with a GAF score of 60. VA outpatient treatment records from October 1997 through April 1998 show that the veteran underwent individual counseling for his PTSD. His presenting complaints during treatment were similar to those expressed during his July 1997 examination. These records also indicate that the veteran had been married for over 25 years, and had been employed as a postal worker for 25 years. Also of record is an April 1998 memorandum from a treating VA psychiatrist and a treating VA clinical psychologist of the veteran which documents the veteran's mental status and treatment at a VA facility. Specifically, the memorandum noted that the veteran had been seen regularly in individual counseling and that he had had ongoing psychiatric evaluations, but had refused psychiatric medications. The memorandum also indicated that the veteran had been diagnosed with PTSD because of chronic and severe symptoms. The memorandum noted that the veteran had maintained a positive work history only with significant effort, and had increased difficulty with attention and concentration with emotional control. According to the memorandum, the veteran had coped in part by distancing himself physically and emotionally from others, including his family. He often isolated himself on weekends, and he recently for the first time abruptly left home and stayed away for three weeks, with no contact with his wife. There were chronic marital and family problems secondary to PTSD. In conclusion, the doctors noted that, "Because of symptom presentation, elevated stress level, social impairment, and probable vocational disruption, a diagnosis of PTSD is warranted." During the veteran's June 1998 personal hearing at the RO, the veteran testified that he currently has problems getting along with other at work. According to the veteran, he was told that as long as he could not get along with his co- workers that there was no way his supervisor could recommend a promotion or better assignments for him. The veteran testified that he prefers to be alone, and that relations with his family are strained. Subsequent VA mental health clinic records note continuing therapy and counseling through October 1998. These records note findings similar to those summarized in the April 1998 memorandum. The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1999). When there is a question as to which of two evaluations should 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. (1999) The veteran is rated under Diagnostic Code 9411 using the General Rating Formula for Psychoneurotic Disorders. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130 (1999). The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated analogous to the General Rating Formula for Mental Disorders. The rating criteria provide a 30 percent rating for 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 is provided for 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. A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130 (1999). In this case, the 30 percent evaluation assigned thus contemplates the veteran's 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 his symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss and social isolation. Higher evaluations may be warranted for symptomatology productive of social and/or industrial impairment that is more severe, as delineated above. However, the medical evidence of record does not show that the veteran exhibits the required manifestations for a rating in excess of 30 percent. Specifically, the medical evidence shows that the veteran does not exhibit the criteria associated with a 50 percent evaluation such as panic attacks more than once per week, difficulty in understanding complex commands, impaired judgment, or difficulty in establishing effective work and social relationships. Although the veteran has difficulty maintaining close personal relationships and difficulty adapting to a work setting, the recent evidence shows that the veteran has in fact been married for 25 years and has maintained employment with the postal service for 25 years. The Board acknowledges that the aforementioned April 1998 memorandum and subsequent progress records indicated that the veteran's symptoms, characterized as chronic and severe, had worsened in recent years. However, the Board notes that the veteran's PTSD evaluation was increased from 10 percent to 30 percent commensurate with the veteran's symptomatology. Moreover, the veteran's GAF score as reported on his July 1997 VA examination is 60 and the examiner diagnosed the veteran's PTSD as mild to moderate. Accordingly, the Board concludes that the veteran's PTSD symptoms do not rise to the level of severity to warrant a 50 percent rating. As such, the criteria for the assignment of a rating higher than 30 percent for PTSD since the date of service connection are not met. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.31, 4.130, Diagnostic Code 9411 (1999). The Board has considered staged ratings, under Fenderson, but concludes that they are not warranted as the veteran's service-connected PTSD is not shown to have been more than 30 percent disabling at any time since the effective date of the grant of service connection. The preponderance of the evidence is against the claim for an increased rating for PTSD. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing loss In this case, the veteran contends that he did not have hearing loss prior to service, and that his current bilateral hearing loss was due to exposure to a nearby explosion in Vietnam. Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty, or for aggravation of a pre-existing injury suffered, or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Additionally, the pertinent laws and regulations provide that sensorineural hearing loss will be presumed to have been incurred in service if it becomes manifest to a degree of ten percent or more within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Finally, the regulations pertaining to hearing loss provide that, for the purpose of applying the laws administered by the 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 (1999). a. Left ear hearing loss The law further provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 1991). In determining whether there is clear and unmistakable evidence that the injury or disease existed prior to service, consideration is given to the history recorded at the induction examination, together with all other material evidence. Crowe v. Brown, 7 Vet. App. 238, 245-246 (1994). In this case, the evidence is clear that the veteran had left ear hearing loss prior to service. Specifically, the veteran's service medical records indicate that hearing loss was noted on the veteran's entrance examination prior to his entry into service in November 1968. In addition, the results of an audiogram in October 1968 show left ear hearing loss. The Board notes that if the veteran's disability is shown to have pre-existed service, a determination must then be made as to whether the veteran's preexisting left ear hearing loss underwent an increase in severity during service. A pre- existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. 3.306(b) (1999). In this case, however, there is no medical evidence establishing that the veteran's disability, in fact, underwent an increase in severity during service. The veteran's service medical records (other than the entrance examination) are negative for complaints, findings, or diagnosis of left ear hearing loss. In addition, examination upon discharge from service did not show hearing loss. A June 1971 VA examination, while not conducted expressly for evaluation of hearing, did not note hearing loss and examination of the ears was normal. The veteran's post-service medical evidence of record is negative for a diagnosis and/or treatment for hearing loss from the time of the veteran's discharge from service in 1970 until May 1997. The Board recognizes that it does not appear that the veteran was afforded an audiogram at the time of his discharge examination. However, there is no medical evidence in service, or for almost thirty years since service to show that the veteran's hearing loss was permanently aggravated as a result of service. On the basis of the foregoing, the Board must conclude that aggravation of the veteran's pre- existing left ear hearing loss by his active military service has not been established. b. Bilateral hearing loss The veteran contends that he did not have hearing loss prior to service, and that his current hearing loss is a result of exposure to acoustic trauma in Vietnam. The threshold question as to the issue of bilateral hearing loss is whether the appellant has presented a well-grounded claim. A well-grounded claim is one which is plausible. If he has not presented a well-grounded claim, the claim must fail, and there is no further duty to assist him in the development of the claim. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). This requirement has been affirmed by the U.S. Court of Appeals for the Federal Circuit in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). That decision upheld the earlier decision of the U.S. Court of Appeals for Veterans Claims (known as the U.S. Court of Veterans Appeals prior to March 1999) (hereinafter "the Court"), which held that it would be error for the Board to proceed to the merits of a claim which is not well-grounded. Epps v. Brown, 9 Vet. App. 341 (1996). The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. 38 U.S.C.A. § 5107(a). In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam 78 F.3d 604 (Fed. Cir. 1996), the Court outlined a three-prong test to determine whether a claim is well-grounded. The Court held that, 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). The Court has also stated that a claim must be accompanied by supporting evidence; a mere allegation is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). A claim is not well-grounded where a claimant has not submitted any evidence of symptomatology of a chronic disease within the presumptive period, continuity of symptomatology after service, or other evidence supporting direct service connection. Harvey v. Principi, 3 Vet. App. 343 (1992). The veteran's mere assertion that his bilateral hearing loss had its onset in service does not make the claim well- grounded if there is no competent medical nexus evidence linking any disability in service to his alleged current disability. See Savage v. Gober, 10 Vet. App. 489 (1997); Heuer v. Brown, 7 Vet. App. at 387 (1995) (lay evidence of continuity of symptomatology does not satisfy the requirement of competent medical evidence showing a nexus between the current condition and service). As such, the Board will review the record to assess whether all three of the criteria of Caluza are met, and whether the veteran's assertions are supported by the evidence of record. A review of the veteran's DD 214 shows that the veteran had foreign service and was awarded the Purple Heart, Rifle Sharpshooter Badge, and the Combat Action Ribbon. In addition, it is indicated that his Military Occupational Specialty was Mortar Man. The pertinent law provides that if the veteran was engaged in combat with the enemy while in active service, the Secretary shall accept lay or other evidence as sufficient proof of service connection if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 1991). In this case, the Board finds the veteran is a combat veteran. As noted above, where a combat veteran alleges he suffers disability, including hearing loss, due to an injury (acoustic trauma) incurred in service, 38 U.S.C.A. § 1154(b) must be considered. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8 Vet. App. 563 (1996); Caluza v. Brown, 7 Vet. App. 498 (1995). 38 U.S.C.A. § 1154 makes it clear that special considerations attend the cases of combat veterans. The veteran currently asserts that he was exposed to acoustic trauma during his service in Vietnam, that this acoustic trauma resulted in bilateral hearing loss, and that he still suffers from bilateral hearing loss. As previously noted, there is no evidence of bilateral hearing loss at the time of the veteran's discharge from service in 1970. Post-service medical evidence shows that in June 1971, the veteran was afforded a VA examination because of a claim for an unrelated disability. While that examination was not conducted to specifically evaluate hearing status, no significant complaints or findings were found on examination of the ears, and the examiner indicated that no hearing loss was noted. In May 1997, the veteran was afforded a VA audiological evaluation. At that time the veteran was diagnosed with steeply sloping bilateral sensorineural hearing loss, worse in the right ear. Specifically, audiological test results indicated pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 65 100 100 LEFT 5 10 65 80 95 Speech audiometry revealed speech recognition ability of 84 percent bilaterally. Although the veteran reported a history of acoustic trauma in Vietnam, the examination report contained no medical opinion as to the etiology of the veteran's bilateral hearing loss. The veteran also submitted a May 1997 private audiological evaluation showing steeply sloping hearing loss similar to the results set forth in the aforementioned May 1997 VA examination. Importantly, there is no medical evidence of record showing a diagnosis of and/or treatment for hearing loss from the time of the veteran's discharge until May 1997, almost thirty years since service. The veteran testified before a hearing officer at the RO in June 1998. The veteran testified that his hearing was not tested during his discharge examination. The veteran also testified that he did not have hearing loss prior to entry into service. The veteran testified that he was exposed to a booby trap explosion in Vietnam. According to the veteran, the wounds he suffered due to the explosion were of utmost concern, and his hearing loss was secondary, and a distant concern at that time. According to the veteran, his hearing improved to some extent, but has never approached the level that it was prior to the explosion. The veteran also testified that he sought treatment for hearing loss in 1970 from a private physician, but that the physician's records were destroyed in a fire. In addition to the veteran's hearing testimony, he also provided two lay statements, one from his wife, and the other from a lifelong friend which document that the veteran's hearing loss developed after he returned from service in Vietnam. As noted, the Board may accept as true the fact that the veteran currently has hearing loss. However, while the two lay statements note that the veteran's hearing worsened after service in Vietnam, neither the veteran nor the other laypersons who furnished the aforementioned lay statements are medical experts competent to establish a medical nexus between the veteran's current hearing loss and his military service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). There is no available medical evidence of record supporting their lay assertions. In sum, the veteran apparently had left ear hearing loss upon entry, but not during service, or at discharge. In fact, there is absolutely no medical evidence whatsoever which links his current hearing loss to service. Moreover, there is no medical evidence whatsoever showing treatment for hearing loss until almost 30 years after the veteran's discharge from service. In the absence of medical evidence of hearing loss in service or sensorineural hearing loss within 1 year of separation therefrom, in view of the documented medical history indicating the lack of treatment for hearing loss for many years post service, and in the absence of competent medical evidence establishing a nexus between the current diagnosis of bilateral hearing loss and any event in service, all of the criteria of Caluza required to establish a well-grounded claim have not been met. As such, the Board finds that the claim for service connection for bilateral hearing loss is not well-grounded, and the appeal is denied. Since the claim is not well-grounded, the veteran cannot invoke the VA's duty to assist in the development of the claim under 38 U.S.C.A. § 5107(a) (West 1991). Grivois v. Brown, 6 Vet. App. 136 (1994). In claims that are not well-grounded, the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim. However, the VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). A review of the correspondence in this case, to include the statement of the case shows that the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a) (West 1991) as the veteran was fully informed of the reason for the denial of his claim and was advised of what evidence was needed in order to support his claim. ORDER The appeal for a rating in excess of 30 percent for service- connected PTSD is denied. The appeal as to the issue of entitlement to service connection for bilateral hearing loss is denied, as the claim is not well-grounded. D. C. Spickler Member, Board of Veterans' Appeals