Citation Nr: 0007762 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 97-01 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active military service from February 1943 to December 1945. This matter comes to the Board of Veterans Appeals (Board) from various determinations of the Regional Office (RO). The veteran's initial claim for service connection for hearing loss was denied by the RO in a May 1994 rating action. He subsequently sought to reopen his claim for service connection for defective hearing, but it was initially concluded that the evidence submitted by the veteran was not new and material. A supplemental statement of the case issued in February 1998 informed the veteran that the evidence of record was new and material, and his claim for service connection for bilateral hearing loss was reopened. Accordingly, this matter will be considered on a de novo basis. By rating decision dated March 1998, the RO denied the veteran's claim for service connection for PTSD. The Board notes that previous rating decisions had denied service connection for a psychiatric disability, but the March 1998 determination was the initial decision concerning a claim for service connection for PTSD. Effective March 1, 1999, the name of the United States Court of Veterans Appeals was changed to the United States Court of Appeals for Veterans Claims ("the Court"). FINDINGS OF FACT 1. With respect to the claim for service connection for PTSD, all relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran did not engage in combat with the enemy. 3. The record does not contain credible supporting evidence that any of the claimed in-service stressors actually occurred. 4. The veteran's current diagnosis of PTSD is not attributable to military service or to any incident incurred therein. 5. The veteran's hearing was normal on the separation examination in December 1945. 6. There is no competent medical evidence demonstrating that the veteran's bilateral hearing loss, which was first shown many years after service, is related to service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(a) (West 1991). 2. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The following laws and regulations apply to both issues in this case. Service connection may be granted for disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if 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. I. Service Connection for PTSD The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The Court has held that a well-grounded claim is one which is plausible, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet App. 78, 81 (1990). In this case, the evidence of record concerning the onset of PTSD is sufficient to conclude that the claim is well grounded. No further development is necessary, therefore, in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Factual background Most of the service medical records are unavailable. Daily sick reports show that the veteran was seen in March 1944 and on February 9 of an unspecified year. These records do not provide the reason the veteran was seen. It was indicated in each instance that the veteran was returned to duty. On the discharge examination in December 1945, the veteran did not mention any wounds or injuries. No mouth or gum abnormalities were found and there was no mention of a neck wound or scar. A psychiatric evaluation was normal. The veteran's discharge certificate discloses that his military occupational specialty was surveyor and that he served with the 1879th engineer's battalion. He was awarded four Bronze Stars. The veteran was admitted to a private hospital in April 1972 for unrelated complaints. It was noted that he had a history of being shot through the mouth, with the bullet being removed. It was indicated that this occurred some time after service. In a statement received in July 1978, a private physician reported that he had treated the veteran in early 1946 for gastritis of nervous origin. VA medical records reveal that the veteran was seen in September 1987 for complaints including loss of memory and depression. The veteran was admitted to a VA domiciliary in September 1987. The veteran reported that he had sustained a bullet wound to the left side of his neck in service. Following a psychological evaluation, the diagnoses were alcohol dependence, rule out major depression and dementia, secondary to alcohol abuse. A VA social work service report in October 1987 reveals that the veteran stated that he was in combat and involved in six invasions. He asserted that he was injured in the Philippines and had a bullet removed from his neck. On VA hospitalization in September 1990, the veteran related that he had been hearing voices since the 1940's, after his separation from service. It was noted that he had retired in 1984, following the deaths of two workmen on his project. It was reported that the veteran felt in some way that he was partially responsible for their deaths. The pertinent diagnoses were alcohol dependence and schizoaffective disorder. VA outpatient treatment records disclose that the veteran reported in August 1991 that he had heard voices at night since he got out of service. On VA general medical examination in March 1992, there was a scar on the left neck area, which the veteran stated was secondary to a gunshot wound. Additional VA outpatient treatment records reflect the fact that the veteran stated in October 1991 that he had heard voices for many years, since he got out of service. He related that he spent two years in combat. He noted that he had flashbacks of the war. The diagnosis was PTSD. When he was seen the next month, the veteran reported that he saw the people who were killed, and that he relived the scenes of war. The assessment was PTSD. In July 1993, he stated that he heard the voices of friends who died in combat. On VA hospitalization in July 1993, the veteran reported that he had a diagnosis of PTSD secondary to his experiences in World War II. The diagnosis was PTSD traits. Following a request by the VA, the veteran, in October 1996, furnished information concerning his claimed in-service stressors. The veteran was afforded a psychiatric examination by the VA in June 1997. He stated that he was a combat engineer in service and that he had suffered a concussion injury when he was blown out of a foxhole. He maintained that he woke up a few days later in a field hospital. He reported that he started hearing voices shortly after his separation from service. He maintained that he experienced flashbacks and exaggerated startle response. He stated that he suffered a gunshot wound to the mouth in service. He claimed that the bullet was later removed where it was lodged. He added that he had suffered numerous head injuries over the years with loss of consciousness. The Axis I diagnoses were PTSD and psychotic disorder, not otherwise specified, and alcohol dependence, in remission. The Axis IV diagnosis was traumatic wartime experience during World War II. The RO subsequently referred the veteran's claim to the Environmental Support Group (now known as the United States Armed Services Center for the Research of Unit Records (USASCRUR)). By letter dated August 1997, USASCRUR replied and included with its report documents listing the combat activities of the veteran's unit. Many combat incidents encountered by the veteran's division were listed, and it was noted that there were numerous casualties. It was further stated that in order to provide research concerning specific combat incidents and casualties, the veteran had to provide more specific information, including the specific date, type and location of any incident, the names of any casualties, the unit designation to the company level and other units involved. In December 1998, the veteran reported that he had been a combat pilot in service, and that he saw extensive action. In a letter dated January 1999, the RO requested that the veteran provide information concerning all treatment he had received for PTSD since service. In addition, he was asked to furnish "as much detail as possible regarding the alleged incident in which two of your friends were killed in your foxhole. You should provide specific details of the claimed stressful events during service..." The veteran was advised that the information was necessary to obtain supportive evidence of the alleged stressful events and failure to respond may result in adverse action. He was further informed that the evidence was needed within sixty days and that if it was not received, a decision would be made based on the evidence of record. No response was received. Analysis Service connection for PTSD requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; 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 may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner of war under the provisions of Sec. 3.1(y) of this part and the claimed stressor is related to that prisoner of war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardship's 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) (effective March 7, 1997). In adjudicating a well grounded claim for service connection for PTSD, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); see also Hayes v. Brown, 5 Vet. App. 60, 66 (1993). The evidence necessary to establish the occurrence of a stressor during service to support a claim for entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." Hayes, supra. A review of the record confirms that the veteran's military occupational specialty was surveyor. As such, there is no basis on which it may be concluded that he engaged in combat with the enemy. Since the service records fail to establish that the veteran engaged in combat with the enemy, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, corroborating evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor during service is required. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, the Court has held that the requirement in 38 C.F.R. § 3.304(f) for "credible supporting evidence" means that the "[veteran's] testimony, by itself, cannot establish the occurrence of a noncombat stressor." See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The Board acknowledges that VA treatment records reflect that the veteran has been diagnosed with PTSD. In this regard, the Board points out that following the VA psychiatric examination in June 1997, the examiner attributed the veteran's PTSD to his experiences in service. Clearly, however, this was predicated on the history furnished to the examiner by the veteran. It is significant to point out that the veteran's accounts are not consistent with the available evidence of record. He has variously argued that he was blown out of a foxhole, that he received a gunshot wound to the mouth during service and that a bullet was removed from his neck while he was in service. While most service medical records are not of record, the separation examination is negative for any wound or injury. Moreover, there is nothing on the separation examination which would lend credence to the veteran's allegations that he was wounded in the mouth or neck. In this regard, the Board emphasizes that the discharge examination did not suggest any scar of the neck or abnormalities of the mouth. Private medical records suggest that the veteran received a bullet wound to the mouth many years after service. This tends to contradict the veteran's allegations regarding the in-service origin of any bullet wound. The Board also finds it significant that the veteran failed to respond to the recent request from the RO to furnish additional details concerning either any treatment he has received for PTSD or more specific information regarding the alleged in-service stressors. In view of the fact that the veteran has not provided details which have been verified, as well as the inconsistencies in his accounts, which establish his lack of credibility, the descriptions of his in-service stressors are of extremely limited probative value. Inasmuch as no supporting evidence has been added to the record regarding the alleged in-service stressors, the Board finds that an essential element required by 38 C.F.R. § 3.304(f) for the grant of service connection for PTSD is missing. In the absence of evidence of combat service, and the absence of any confirming evidence of a stressor, service connection for PTSD is denied. The conclusions of record to the effect that the veteran has PTSD are predicated on the veteran's description of the in-service traumas, for which no credible supporting evidence has been provided. See Moreau, 9 Vet. App. at 396 (holding that credible supporting evidence of the existence of a stressor cannot consist solely of after-the- fact medical nexus evidence). As such, the Board is not required to accept the veteran's uncorroborated account of his claimed stressor(s) as a basis for substantiating his claim, notwithstanding mental health professions who accept as truthful the veteran's reported service history for purposes of treatment and diagnosis. See Cohen, 10 Vet. App. at 142 (an opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of a stressor). See also Swann v. Brown, 5 Vet. App. 229, 233 (1993); Wood v. Derwinski, 1 Vet. App. 406 (1991). As demonstrated by the evidence discussed above, the veteran's account of incidents occurring during service are not corroborated by the information of record and no credible evidence has otherwise been presented to support the occurrence of the in-service stressors. An alleged link set forth by various examiners between the claimed stressor and service is not in and of itself sufficient to grant service connection for PTSD. While in this case, medical evidence establishing a clear diagnosis of PTSD is present, credible supporting evidence demonstrating the existence of the claimed in-service stressor is not. As such, the veteran's claim for service connection for PTSD therefore fails on the basis that all three elements required for such a showing under 38 C.F.R. § 3.304(f) have not been met, and the preponderance of the evidence is against the claim for service connection for PTSD. II. Service Connection for Bilateral Hearing Loss The threshold question in this case is whether the veteran has presented evidence of a well-grounded claim, that is, one which is plausible, meritorious on its own or capable of substantiation. If not, his appeal must fail and there is no duty to assist him further in the development of his claim, since any such development would be futile. 38 U.S.C.A. § 5107; Murphy, 1 Vet. App. 78. In Tirpak v. Derwinski, 2 Vet. App. 609 (1992), the Court held that a "claim must be accompanied by evidence." Id. at 611. As will be explained below, the veteran has not submitted competent evidence to support his claim for service connection. Thus, the Board finds that his claim is not well grounded. Accordingly, there is no duty to assist him in the development of his claim. Factual background The available service medical records are negative for complaints or findings pertaining to hearing loss. A whispered voice hearing test on the discharge examination in December 1945 was 15/15, bilaterally. The veteran was admitted to a private hospital in August 1967 for unrelated complaints. An ear, nose and throat evaluation was not remarkable. The veteran submitted claims for service connection for unrelated disabilities in January 1946 and January 1977. During a VA hospitalization beginning in February 1987, an examination revealed that the veteran had a fairly marked sensorineural hearing loss. He was seen by an ear, nose and throat specialist, and that evaluation resulted in a diagnosis of otosclerosis. Additional medical records dated in the 1990's confirm that the veteran has a bilateral hearing loss. In 1999, the RO attempted to obtain treatment records from 1946 from the VA facility where the veteran claimed he had been treated for a hearing loss shortly after service. No medical records for hearing loss were found. Analysis Where a veteran served 90 days or more during a period of war and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). For the purposes 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 25 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). The Court, citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), stated in Hensley v. Brown, 5 Vet. App. 155 (1993), that "the Court [has] held the [above] regulation, although prohibiting an award of service connection where audiometric test scores are within established limits, does not prevent a veteran from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service." Id. at 158. In Hensley, citing Current Medical Diagnosis & Treatment 110-11 (Stephen A. Schroeder et. al eds., 1988), the Court also indicated that the threshold for normal hearing was from 0 to 20 decibels, and that higher threshold levels revealed some degree of hearing loss. Hensley, 5 Vet. App. at 157. 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). Caluza v. Brown, 7 Vet. App. 498 (1995). As noted above, the available service medical records demonstrate that the veteran's hearing was normal at the time of the separation examination in December 1945. The Board readily concedes that the whispered voice test which was conducted at that time is not as precise as an audiogram. The fact remains, however, that the Board must base its determination on the evidence of record which, in this case, fails to establish that the veteran had a hearing loss in service. The initial clinical evidence of any hearing loss was when the veteran was hospitalized in early 1987 and a sensorineural hearing loss was documented. The only evidence in this case alleging that the veteran's current hearing loss is related to service consists of the veteran's statements in support of his own claim. No competent medical evidence has been submitted which establishes that the veteran's bilateral hearing loss, which was first shown more than forty years after his discharge from service, is etiologically related to service. The Court has held that if the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). Thus, the veteran's lay assertions to the effect that he has a bilateral hearing loss which is related to service are neither competent nor probative of the issue in question. Indeed, in Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions and, therefore, those opinions do not even serve as a basis for a well-grounded claim. The Board concludes, therefore, that the veteran has not submitted a well-grounded claim of service connection for bilateral hearing loss. With respect to the veteran's allegations that he has had a hearing loss ever since he was blown out of a foxhole, even if 38 U.S.C.A. § 1154(b) is applicable, the veteran must still submit medical evidence that the hearing loss is related to the in-service incident. Arms v. West, 12 Vet. App. 188 (1999). Clearly, that aspect of the Caluza test has not been met. ORDER Service connection for PTSD and bilateral hearing loss is denied. James R. Siegel Acting Member, Board of Veterans' Appeals