Citation Nr: 0001053 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 94-24 880 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for bilateral defective hearing. 2. Entitlement to service connection for a heart disorder. 3. Entitlement to service connection for an innocently acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from November 1971 to July 1973. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of a May 1993 rating decision of the RO. In December 1996, the Board remanded this matter in order to afford the veteran an opportunity to offer testimony at a personal hearing before a traveling Member of the Board at the local office. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In January 1974, the RO denied the veteran's original claim of service connection for hearing loss. The veteran was notified of this determination but did not file a timely appeal. 3. New evidence, which bears directly and substantially on the veteran's claim of service connection for bilateral defective hearing and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim, has been presented. 4. No competent evidence has been submitted to show that the veteran's current bilateral hearing disability is due to exposure to acoustic trauma or other disease or injury which was incurred in or aggravated by service. 5. No competent evidence has been submitted to show that the veteran suffers from a current heart disability due to disease or injury which was incurred in or aggravated by service. 6. No competent evidence has been submitted to show that the veteran has an innocently acquired psychiatric disability due to disease or injury which was incurred in or aggravated by service. 7. No competent evidence has been presented to show that the veteran currently has a clear diagnosis of PTSD due to disease or injury which was incurred in or aggravated by service. CONCLUSION OF LAW 1. New and material evidence has been submitted for the purpose of reopening the veteran's claim of service connection for bilateral defective hearing. 38 U.S.C.A. §§ 1131, 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 2. The veteran has not submitted evidence of well-grounded claims of service connection for bilateral defective hearing, an innocently acquired psychiatric disorder, to include PTSD, or a heart disorder. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Determination of New and Material Evidence When a claim is disallowed by the RO, appellate review is initiated by the filing of a Notice of Disagreement within one year from the date of mailing of notice of the result of the initial disallowance. 38 U.S.C.A. § 7105(a), (b). If a Notice of Disagreement is filed within the one-year period, the RO shall issue a Statement of the Case. 38 U.S.C.A. § 7105(d). The veteran is provided a period of 60 days (or the remainder of the one-year period from the date of mailing of notice of the determination being appealed) to file the formal appeal. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.302(b). In the absence of a perfected appeal, the RO's decision becomes final, and the claim will not thereafter be reopened or allowed, except as otherwise provided. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In January 1974, the RO denied entitlement to service connection for hearing loss and provided the veteran with notification of that decision and his appellate rights. In the absence of a timely filed appeal, that decision became final. The United States Court of Appeals for Veterans Claims (Court), in Elkins v. West, 12 Vet. App. 209 (1999) (en banc), has held that the Board must perform a three-step analysis when the veteran seeks to reopen a claim based on new evidence. First, the Board must determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted 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). See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998) (expressly rejecting the standard set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), that, in order to reopen a claim, the new evidence, when viewed in the context of all the evidence, both new and old, must create a reasonable possibility that the outcome of the case on the merits would be changed) Second, if the Board determines that the claimant has produced new and material evidence, the claim is reopened and the Board must determine whether, based upon all of the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69 (1995), the claim as reopened (and distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999) (en banc). The evidence of record at the time of the January 1974 rating action included the veteran's service medical records, which were entirely negative for complaints or findings relative to a bilateral hearing loss. The evidence received since the January 1974 rating decision includes a report from a VA examination conducted in May 1997 documenting a mild to severe sensorineural hearing loss in the right ear and a mild to moderate sensorineural hearing loss in the left ear. In addition to the above evidence, the veteran offered testimony at a hearing before a traveling Member of the Board at the RO in August 1997. At that time, the veteran testified that he had sought treatment for hearing problems while he was in service. He noted that he served in the artillery and that he never used earplugs. Upon review of the record, the Board finds that the additional evidence which has been submitted is new. In addition, the new evidence is relevant to the veteran's claim of service connection and is instrumental in ensuring a complete evidentiary record for evaluation of her claim. See Hodge, supra. In other words, the new evidence submitted is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. See 38 C.F.R. § 3.156(a). New and material evidence having been submitted, the claim of service connection for bilateral defective hearing is reopened. Where the Board determines that the claimant has produced new and material evidence, the claim is reopened and a determination must be made as to whether, based upon all of the evidence of record in support of the claim, presuming its credibility, see Robinette, supra, the claim as reopened (and distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is well grounded, the Board may then proceed to evaluate the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Winters, supra. II. Service connection for bilateral defective hearing, heart disorder and psychiatric disability to include PTSD. The threshold question to be answered is whether the veteran has presented evidence of well-grounded claims of service connection. If not, his applications for service connection must fail, and there is no further duty to assist him in the development of his claims. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). Although a claim need not be conclusive, it must be accompanied by supporting evidence in order to be considered well grounded; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Generally, a well- grounded claim requires (1) medical evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). The evidentiary assertions by the appellant must be accepted as true for purposes of determining whether the claim is well grounded, except where the claim is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (1993). When the issue involves a medical question of diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). Statements and testimony from lay witnesses or the appellant in this regard are not sufficient to establish a plausible claim as they are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 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; 38 C.F.R. § 3.303. The 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). If the disorder is a chronic disease, service connection may be granted if manifest to a degree of 10 percent within the presumptive period; the presumptive period for psychoses and organic diseases of the nervous system is one year. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). In the case of PTSD, service connection requires medical evidence establishing (1) a clear diagnosis of the condition, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. If the claimed stressor is related to combat, evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). A. Hearing Loss As noted hereinabove, the veteran's service medical records are entirely negative for complaints or findings of bilateral hearing loss. In fact, the first medical evidence of bilateral hearing loss is documented in a VA audiological examination conducted in May 1997. Although the veteran has submitted sufficient evidence to prove that he currently suffers from a bilateral hearing disability for VA compensation purposes, no competent evidence has been submitted to support his lay assertions that his hearing disability is the result of exposure to acoustic trauma or other disease or injury incurred in or aggravated by service. The veteran is not, as a lay person, competent to offer an opinion as to any question of medical diagnosis or causation presented in this case. See Espiritu v. Brown, 2 Vet. App. 492 (1992). Since the veteran has submitted no medical evidence that his bilateral hearing loss is due to disease or injury which was incurred in or aggravated by service, the second prong of Caluza is not satisfied. It follows that the third prong also is not satisfied. As such, service connection for a bilateral defective hearing must be denied. In the absence of medical evidence that the veteran's bilateral hearing loss is due to disease or injury which was incurred in or aggravated by service, the Board must conclude that the veteran has failed to meet his initial burden of producing evidence of a well-grounded claim of service connection for bilateral defective hearing. B. Heart disorder The veteran contends that he suffers from a heart disorder as the result of disease or injury which was incurred in service. He maintains that he was diagnosed as having an aortic aneurysm in 1980 which the physician informed him was probably the result of an injury that the veteran had most likely sustained approximately seven years earlier. The veteran testified that he did, in fact, receive injuries to the chest during a bar fight in service in 1973. The veteran's service medical records are negative for complaints or findings of a heart disorder or any sort of chest injury in service. VA medical record dated in September 1980 documents treatment for left chest pain aggravated by cough, lifting and movement. X-ray studies performed at the time were noted to show calcification and some dilatation of the aorta just beyond the arch, most probably due to a previous injury, but the final diagnosis was that of musculoskeletal pain, left chest. Although VA medical records submitted in support of the veteran's claim document a history of aortic aneurysm repair conducted in 1986, there is nothing in the record to substantiate that such a procedure was actually performed. VA examination of the arteries/veins conducted in May 1997 also reported a diagnosis of status post thoracic aneurysm repair in 1986 by patient history. The veteran has submitted no competent evidence to support his lay assertions that he currently suffers from a heart disorder due to disease or injury which was incurred in or aggravated by service. Although the veteran asserts that he currently has a heart disorder which is attributable to his service, he is not, as a lay person, competent to offer an opinion as to any question of medical diagnosis or causation presented in this case. See Espiritu. Since there is no medical evidence that the veteran is presently suffering from a heart disorder due to service, the first prong of Caluza is not satisfied. It follows that the third prong also is not satisfied. Likewise, the Board notes that, in the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). As such, service connection for a heart disorder must be denied. In the absence of medical evidence to show that the veteran has a heart disorder due to disease or injury which was incurred in or aggravated by service, the Board must conclude that the veteran has failed to meet his initial burden of producing a well-grounded claim of service connection for a heart disorder. C. Psychiatric disorder, to include PTSD The veteran's service medical records are entirely negative for any findings or diagnoses of a psychiatric disability. In fact, the Mental Hygiene Consultation Service evaluated the veteran in June 1973 and determined that he possessed no psychiatric disease or disorder. Furthermore, there is no evidence of a post-service psychiatric disability until February 1992, at which time a diagnosis of mixed substance dependence, cocaine and alcohol, cocaine intoxication, was rendered. In May 1997, the veteran was afforded a VA psychiatric examination. The final diagnosis was that of chronic alcohol abuse, poly-substance abuse - heroin, cocaine, etc., by history. Although the veteran has presented sufficient medical evidence which documents that he suffers from a psychiatric condition manifested by substance abuse, no competent evidence has been submitted to show that he currently has an innocently acquired psychiatric disability due to a disease or injury which was incurred in or aggravated by service. Furthermore, no medical evidence has been submitted to demonstrate that the veteran has a clear diagnosis of PTSD which can be attributed to disease or injury which was incurred in or aggravated by service. The veteran is not competent to offer an opinion as to questions of medical diagnosis or causation presented in this case. See Espiritu. Since the veteran has submitted no medical evidence that his current psychiatric disability was incurred in or aggravated by service, the second prong of Caluza is not satisfied. It follows that the third prong also is not satisfied. Furthermore, absent a clear diagnosis of PTSD, the first prong of Caluza and the first requirement of Cohen are not satisfied. As such, service connection for a psychiatric disorder, to include PTSD, must be denied. In the absence of medical evidence that the veteran's psychiatric disability is due to disease or injury which was incurred in or aggravated by service, and in the absence of medical evidence demonstrating a current, clear diagnosis of PTSD, the Board must conclude that the veteran has failed to meet his initial burden of producing evidence of a well- grounded claim of service connection for an innocently acquired psychiatric disorder, to include PTSD. If a well-grounded claim has not been submitted, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a veteran 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 veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that a remand is not required in this case. The veteran has not put VA on notice that competent evidence exists that supports his claims of service connection for a heart disorder, a psychiatric disorder, to include PTSD, or bilateral defective hearing. By this decision, the Board is informing the veteran of the evidence necessary to make his claim as set forth above well grounded. ORDER As new and material evidence to reopen the claim of service connection for a bilateral defective hearing has been submitted, the appeal to this extent is allowed. Service connection for bilateral defective hearing, a heart disorder and a psychiatric disorder, to include PTSD, is denied, as well-grounded claims have not been presented. STEPHEN L. WILKINS Member, Board of Veterans' Appeals