BVA9506100 DOCKET NO. 93-12 809 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed, including post- traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from October 1968 to February 1970. The claims file contains a report of a rating decision dated in June 1972 including a denial of entitlement to service connection for a psychiatric disorder then diagnosed as anxiety reaction. The current appeal arose from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The RO denied entitlement to service connection for hearing loss and continued the denial of entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed, including post- traumatic stress disorder. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. The Board observes that additional service medical records were associated with the claims file in connection with the veteran's refiled claim for compensation benefits including service connection for a chronic acquired psychiatric disorder. Although the RO previously denied entitlement to service connection for a psychiatric disorder in June 1972, in view of these additional service medical records which were not then available for review, the Board will adjudicate the veteran's current claim on a de novo basis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a hearing loss due to exposure to mortar fire in connection with combat service in Vietnam. He further contends that he has a chronic psychiatric disorder; namely, post-traumatic stress disorder which is directly related to combat stressors in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted evidence of a well grounded claim for service connection for hearing loss, and that the preponderance of the evidence is against a grant of entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed, other for than post- traumatic stress disorder, for which the evidence supports a grant of service connection. FINDINGS OF FACT 1. The claim for service connection for hearing loss is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. Severe inadequate personality and borderline mental retardation reported in service are not recognized as disabilities under the law. 3. Anxiety reaction and major depression were not objectively shown in service, but were initially demonstrated more than one year later. 4. The veteran served with the United States Marine Corps in Vietnam as a mortarman and is a recipient of decorations including a Combat Action Ribbon, Vietnam Campaign Medal w/device, and Vietnam service medal w/1*. 5. The veteran was exposed to psychologically traumatic events during service of such magnitude as to provoke significant symptoms of distress in almost anyone. 6. The veteran has been diagnosed with post-traumatic stress disorder by a VA psychiatrist as a consequence of his military service. CONCLUSIONS OF LAW 1. The claim for service connection for hearing loss is not well grounded. 38 U.S.C.A. § 5107(a). 2. A chronic acquired psychiatric disorder variously diagnosed as severe inadequate personality, borderline mental retardation, major depression, and anxiety reaction were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(c), 3.307 (1994). 3. The requirements for service connection for post-traumatic stress disorder have been met. 38 U.S.C.A. § 1110, 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for hearing loss. The Board observes that section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that a claim is well grounded; that is, that the claim is plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim for service connection for hearing loss is not well grounded, and should be dismissed. Service connection may be granted for any disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107. Sensorineural hearing loss, if not shown in service, may be service-connected if shown to be disabling to a compensable degree during the first post service year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well grounded claim, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claim not well grounded. Although the veteran has contended that he sustained a hearing loss as the result of exposure to mortar fire in Vietnam, his service medical records contain no findings of hearing loss. In this regard, the Board observes that not only was hearing loss not shown during service, the veteran denied a history of hearing loss when examined for separation from service in February 1970, at which time his demonstrated whispered and spoken voice hearing was 15/15 bilaterally. At an April 1972 VA examination, the VA examiner noted that a hearing loss was not noted. A hearing loss is not shown by the evidence of record. The veteran testified as to his claim for service connection for hearing loss at an RO hearing held in December 1992. He testified that he served in a mortar platoon and was always around loud firing mortars. He reported not having received any treatment for hearing loss. The veteran has not submitted competent medical evidence showing that he currently has a hearing loss linked to exposure to mortar fire in service. His claim is accordingly not well grounded and consequently must be dismissed. The Board recognizes that this part of the veteran's appeal has been disposed of in a manner different from that utilized by the RO. The Board therefore considered whether the claimant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's claim and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. In this regard, the Board points out that by the action of dismissing his claim, the Board has not burdened the veteran with a prior final adjudication on the merits. Thus, if he is able to submit a well grounded claim in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105; McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The Board also observes that the RO, in assuming that the veteran's claim was well grounded, accorded him greater consideration than his claim in fact warranted under the circumstances. Bernard. To remand the case to the RO for consideration of the issue of whether the appellant's claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to him. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). II. Entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed, including post- traumatic stress disorder. Initially, the Board finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that in view of his documented service as a mortarman with the United States Marine Corps in Vietnam, it is at least plausible that the veteran has post-traumatic stress disorder. The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the claimant is required in order to comply with 38 U.S.C.A. § 5107(a). The veteran contends that he suffers from a chronic acquired psychiatric disorder, particularly post-traumatic stress disorder as the result of his combat service in Vietnam. The Board observes that the veteran's psychiatric symptomatology has been variously diagnosed. In the paragraphs below the Board will explain that the record supports a grant of entitlement to service connection only for post-traumatic stress disorder. The October 1968 report of general medical examination for enlistment shows there was a normal clinical evaluation of the psychiatric system. In one of two medical history reports the veteran indicated he had a history of depression or excessive worry and nervous trouble. In the other medical history report he denied such psychiatric history. In July 1969 the veteran reported being jumpy and nervous and having lost 25 pounds since induction. He reported a previous history of a nervous heart. Since he had been in service he hardly had any appetite and slept poorly. He had poor memory. He did not want to be bothered with other people. An evaluation resulted in findings including hardship problems stressing personality sensitivity to stress. In August 1969 the veteran reported with complaints of personal problems and stated that he had health problems. He was noted to demonstrate a tendency of being a compulsive worrier with some basis for same. He seemed to be preoccupied with health concerns of a nonspecific nature. He had lost about 30 pounds in service due to anorexia. A psychiatric consultation was recommended. A psychiatric consultation report shows the veteran was diagnosed with severe inadequate personality and borderline mental retardation. It was recommended that he be administratively discharged. The February 1970 general medical examination report shows the psychiatric system was normal. The veteran denied a history of nervous difficulties. The veteran's service documentation shows that he participated in combat actions against insurgent Communist forces; specifically, Operation Pipestone Canyon, in Quang Nam Province. He was trained and served as a mortarman. His decorations include a Combat Action Ribbon, Vietnam Campaign Medal w/device, and Vietnam Service Medal w/1*. An April 1972 VA examination concluded in a finding of anxiety reaction. A May 1972 VA outpatient treatment report shows the veteran was found to have chronic anxiety reaction with conversion symptoms. In a February 1992 statement on file, the veteran provided a lengthy statement as to the personal life threatening stressors he felt he was exposed to in connection with his combat service in Vietnam. At a February 1992 VA psychiatric examination, the veteran was noted to present with symptomatology to suggest post-traumatic stress disorder and major depression, severe, recurrent, without psychotic features. The symptoms included recurring intrusive and distressing recollections of time spent in Vietnam, nightmares and dreams associated with the Vietnam experience of hearing his friend shot by a sergeant, flashbacks of the event with psychologic distress at exposure to events symbolic of or resembling his tour in Vietnam including the recent Gulf War, efforts at avoiding thoughts, feelings, or activities which may arouse recollections of the death of his friend in Vietnam, lost interest in significant activities, feelings of detachment and isolation from others, restricted range of affect, sleep difficulties, irritability and anger outbursts, concentration difficulties, deep depression, sadness and hopelessness. The veteran reported having no interest in life or things he used to enjoy. He was afraid to go hunting and even afraid of the dark. The veteran reported numerous hospitalizations for nerve and stomach problems and two nervous breakdowns, one in 1972 and one in 1987. He reported running mine-sweeper operations in Vietnam. Prior to entering service he had had a good job at General Motors. After returning home his nerves could not take this previous easy job or being around people. He stated that he had not been able to keep a job since. His temper and fears got him fired. A friend of his was said to have been shot by a sergeant. A mental status examination concluded in diagnoses of post- traumatic stress disorder; and major depression, severe, recurrent, without psychotic features. The veteran provided detailed testimony as to his combat experiences and psychiatric symptomatology at an RO hearing held in December 1992. As noted earlier, the veteran's service documentation of record shows that he served as a mortarman with the United States Marine Corps in Vietnam. It has been substantiated that he engaged enemy forces and was subjected to combat as he is a recipient of the Combat Action Ribbon. The Board has considered and is cognizant of the circumstances, conditions, and hardships attendant to the veteran's service in Vietnam. 38 U.S.C.A. § 1154. The nature of the appellant's service is not in doubt in view of his statements on file describing the nature of his service in the combat zone, and his testimony presented at a hearing held at the RO. The Board construes the above evidence as entirely credible in nature. Under 38 C.F.R. § 3.304(f) (1994), service connection for post- traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that he was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. As the Board noted earlier, the appellant, a United States Marine Corps veteran, is a recipient of the Combat Action Ribbon, an award equivalent to the Combat Infantryman Badge given to those who engaged in combat while serving with the United States Army. A VA psychiatrist has evaluated the appellant's medical records and histories and in view of his psychiatric symptomatology has concluded that post-traumatic stress disorder related to experiences of a combat nature in service is present. For the foregoing reasons the Board finds that the evidence of record supports a grant of entitlement to service connection for post- traumatic stress disorder. 38 U.S.C.A. §§ 1110, 1154, 5107. As to the veteran's other variously diagnosed psychiatric symptomatology, the Board observes that anxiety reaction and major depression were not objectively shown in service but were initially demonstrated more than one year later. The Board observes that the veteran admitted and denied a history of depression when he was examined for entrance in service, and as this evidence is equivocal at best, it does not serve to impact on the Board's determination in this case as depression per se was not specifically diagnosed in service. There is no evidence of record to show that post-service reported major depression and anxiety reaction are related to service. Severe inadequate personality and borderline mental retardation are not recognized as disabilities under the law for VA compensation purposes. Accordingly service connection is not warranted for these variously diagnosed psychiatric disorders. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303(c), 3.307. ORDER The claim for service connection for hearing loss is dismissed. Entitlement to service connection for a chronic acquired psychiatric disorder variously diagnosed as severe inadequate personality, suspected borderline mental retardation, major depression, and anxiety reaction is denied. Entitlement to service connection for post-traumatic stress disorder is granted. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.