Citation Nr: 0007722 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-16 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased evaluation for post traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to service connection for a bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from March 1944 to June 1945. In July 1993, the Buffalo, New York, Department of Veterans Affairs (VA), Regional Office (RO), had issued a decision which had found that the veteran had not presented sufficient new and material evidence to reopen the claim of entitlement to service connection for a bilateral hearing loss and tinnitus. The veteran did not timely appeal this decision. This appeal arose from an October 1997 rating decision of the Buffalo, New York, RO, which denied entitlement to an evaluation in excess of 50 percent for the service-connected PTSD, and which refused to reopen the claim for service connection for a bilateral hearing loss and tinnitus. This rating action also found that the veteran was not entitled to a total rating based on individual unemployability. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). 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 recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. The issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities will be subject to the attached remand. FINDINGS OF FACT 1. The veteran's service-connected PTSD is manifested by moderate depression. 2. The RO refused to reopen the claim for entitlement to service connection for a bilateral hearing loss and tinnitus in July 1993. 3. The report of a VA examination performed in July 1997 bear directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and by itself or with evidence previously assembled is so significant it must be considered in order to decide fairly the merits of the claim. 4. The new evidence includes a medical opinion relating the veteran's bilateral hearing loss and tinnitus to his period of service. 5. A bilateral hearing loss disability had its onset during service. 6. Tinnitus had its onset during service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for the service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.126, Code 9411 (1999). 2. The RO's July 1993 decision refusing to reopen the claims for service connection for a bilateral hearing loss and tinnitus is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 20.1103 (1999). 3. The evidence submitted since July 1993 is new and material; thus the requirements to reopen the claims of entitlement to service connection for a bilateral hearing loss and tinnitus have been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 4. The veteran's claims for entitlement to service connection for a bilateral hearing loss and tinnitus are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. A chronic bilateral hearing loss disability was incurred in or aggravated by service and may be presumed to have occurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b) 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1999). 6. Tinnitus was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. An increased evaluation for PTSD The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The applicable rating criteria for evaluating psychoneurotic disorders are as follows: 100 percent: 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 and place; memory loss for names of close relatives, own occupation, or own name; 70 percent: 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; 50 percent: 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; 38 C.F.R. Part 4, Code 9411 (1999). Moreover, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (1999). The veteran was originally awarded service connection for what was then diagnosed as an anxiety neurosis by a rating action issued in June 1945. The pertinent evidence of record consists of a VA examination of the veteran conducted in July 1997. It was noted that the mental status examination was a bit difficult because of his hearing problems. However, he was cooperative and affable. There was no evidence of thought blocking, hallucinations or delusions. There was also no obvious psychotic symptomatology. He was not taking any medications for his PTSD and had last been treated 7 to 8 years before. The Beck Depression Inventory score of 11 was consistent with moderate depression. His MMPI results suggested an individual who had been burned out by his psychiatric symptomatology. The diagnosis was moderate, chronic PTSD. His condition was assigned a Global Assessment of Functioning (GAF) Score of 55. After a careful review of the evidence of record, it is found that entitlement to an evaluation in excess of 50 percent for the service-connected PTSD is not warranted. The objective evidence does not indicate that the veteran's symptomatology meets the criteria for the assignment of a 70 percent disability evaluation. Specifically, the VA examination performed in July 1997 did not show that the veteran suffers from such symptoms as suicidal ideation; obsessional rituals which interfere with activities, near-continuous panic or depression affecting his ability to function, impaired impulse control, spatial disorientation, neglect of his appearance and hygiene, or difficulty adapting to stressful circumstances. In fact, this examination found no evidence of any psychotic symptomatology and he was noted to be cooperative and affable. Significantly, he was not taking any medications for his condition, and he indicated that he had not sought any treatment in the last 7 to 8 years. Finally, the examiner assigned his disorder a GAF Score of 55, which represents symptoms which are between moderate and serious. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, pg. 47 (4th ed., Revised 1994). Taken as a whole, this evidence indicates that the veteran is adequately compensated by the 50 percent disability evaluation currently assigned to his service- connected PTSD. In conclusion, it is found that the preponderance of the evidence is against the veteran's claim for an increased evaluation for the service-connected PTSD. II. Whether new and material evidence has been submitted to reopen the claims for service connection for a bilateral hearing loss and tinnitus The issue before the Board is whether the veteran has submitted new and material evidence to reopen the claims of entitlement to service connection for a bilateral hearing loss and tinnitus. In July 1993, the RO had found that such evidence had not been presented and had refused to reopen the claims in question. The veteran did not timely appeal this decision and it is thus final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 20.1103 (1999). Once a RO decision becomes final under 38 U.S.C.A. § 7105(c), absent submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New and material evidence means evidence not previously submitted to agency decisionmakers that 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 to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a) (1999). A three pronged analysis is used to determine whether evidence is "new and material" as defined by 38 C.F.R. § 3.156(a) (1999). First, it must be determined whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Secondly, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made, and finally, a determination must be made as to whether the evidence "is so significant that it must be considered in order to fairly decide the merits of the claim." See Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence, submitted to reopen a claim, will be presumed credible solely for the purpose of determining whether the claim has been reopened. See Justus v. Principi, 3 Vet. App 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. Hodge, supra. Upon reopening the claim, a determination must then made as to whether, based upon all the evidence, and assuming its credibility, the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is well grounded, the claim may then be evaluated on the merits after ensuring that the duty to assist pursuant to 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). Pertinent evidence submitted since the July 1993 RO decision included a statement from a service comrade and the report of a July 1997 VA examination. Specifically, the February 1997 lay statement referred to a head injury suffered by the veteran in service, which resulted in a long period of unconsciousness. The VA examination included an opinion that the veteran's hearing loss and tinnitus were related to acoustic trauma suffered in service. This evidence bears directly and substantially upon the specific matter under consideration, and was not considered by the RO when it made its decision in July 1993. Moreover, it is so significant that it must be considered in order to decide fairly the merits of the claim. This evidence therefore constitutes new and material evidence under 38 C.F.R. § 3.156(a) (1999), and the Board is required to reopen the previously denied claims of entitlement to service connection for a bilateral hearing loss and tinnitus. The Board must now determine whether the veteran's claims are well grounded. To establish that his claims are well grounded, the veteran must produce competent evidence of a current disability; a disease or injury which was incurred in service; and a nexus between the disease or injury and the current disability. See Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). The veteran has contended that he was exposed to loud noises in service. This assertion, coupled with the service medical records and the report of the July 1997 VA examination, demonstrates that the veteran has presented well grounded claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b) (1999). Service connection for a hearing loss disability may be granted if the disability results from disease or injury incurred in or aggravated by service, or if a sensorineural- type hearing loss disability was demonstrated to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 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 1,000, 2,000, 3,000 or 4,000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of frequencies 1,000, 2,000, 3,000 or 4,000 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). The provisions of 38 U.S.C.A. § 1154(b) (West 1991) specifically allow combat veterans, in certain circumstances, to use lay evidence to establish service connection of a disease or injury. This section provides: 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 an 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). Before this provision applies, the Board must make a specific finding that the veteran was engaged in combat with the enemy. See Zarycki v. Brown, 6 Vet. App. 91 (1993). If combat is affirmatively indicated, then the veteran's lay testimony regarding incurrence of an injury during service must be accepted as conclusive as to its actual occurrence and no further development or corroborative evidence will be required, provided that the veteran's testimony is credible and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b) (West 1991); Zarycki, supra, at 98. Clearly, a review of the veteran's records shows that he was engaged in combat with the enemy. His DD-214 indicated that he was involved in the Battle of the Bulge (indicated on his service record as Rhineland Ardennes). Moreover, his medical records confirmed four and one-half months of combat duty. Therefore, the Board accepts the veteran's allegations concerning inservice exposure to loud noises as a rifleman. The veteran's service medical records included a June 1945 Certificate of Disability for Discharge which noted complaints of tinnitus. Thus, the evidence does suggest that this condition was present in service. The VA examination conducted in June 1946 ( which was within the one year period following his separation from service) noted that his hearing acuity for normal conversation was 15/20. The diagnosis was defective hearing with tinnitus, bilateral, mild. The veteran then submitted an April 1974 statement from a private physician who noted that the veteran had been evaluated on August 23, 1967. At that time, he complained of a bilateral hearing loss. He had been exposed to considerable noise in service. He displayed a precipitous drop in hearing acuity in the middle to high frequencies. He was diagnosed with a hearing loss due to noise exposure and acoustic trauma secondary to service with an armored division in World War II. A January 1992 VA hearing aid evaluation noted that the veteran had had trouble hearing since World War II. Tests revealed severe hearing loss at the higher frequencies. In February 1997, a former service comrade submitted a statement in which it was noted that a shell had exploded close to the veteran. He was knocked unconscious. The veteran was then afforded a VA examination in July 1997. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 50 90 90 100 LEFT 15 50 100 95 105 Speech audiometry revealed speech recognition ability of 40 percent in the right ear and of 28 in the left ear. During the examination of his ears, he stated that he had had a hearing loss and ringing in the ears ever since service. The diagnosis was of bilateral tinnitus which appeared to be secondary to acoustic trauma in service (gunfire) and bilateral hearing loss. The hearing loss also appeared to be due to acoustic trauma. It was noted that he had no history of ear infections and his hearing loss was evidently apparent at the time of his separation. Based upon the above evidence, it is found that entitlement to service connection for a bilateral hearing loss and tinnitus is warranted. The evidence clearly shows an injury in service (exposure to loud noise), the existence of current disabilities, and a link between the current disorders and the noise exposure suffered in service. After carefully weighing all the evidence of record and after resolving any doubt in the veteran's favor, it is found that entitlement to service connection has been established. ORDER An increased evaluation for the service-connected PTSD is denied. Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. REMAND The veteran has contended that he is entitled to a total disability rating based on individual unemployability due to service-connected disabilities. Such a rating hinges upon the evaluations assigned to the veteran's various service- connected disorders. The Board has, by the above decision, awarded service connection for a bilateral hearing loss and tinnitus. To handle the total rating claim prior to the assignment of disability evaluations to the now service- connected bilateral hearing loss and tinnitus would be premature. Under the circumstances of this case, it is found that additional assistance would be helpful, and this case will be REMANDED to the RO for the following: 1. The RO should review the evidence of record and assign appropriate disability evaluations to the service-connected bilateral hearing loss and tinnitus. Once these evaluations have been assigned, the RO should then readjudicate the claim for a total disability rating based on individual unemployability due to service-connected disabilities. 2. If the decision as to entitlement to a total rating based on individual unemployability due to service-connected disabilities remains adverse to the appellant, he and his representative should be provided an appropriate supplemental statement of the case, and an opportunity to respond. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that the foregoing development action has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. C. P. RUSSELL Member, Board of Veterans' Appeals