Citation Nr: 0003618 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 97-33 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to a compensable rating for bilateral hearing loss. ATTORNEY FOR THE BOARD K. J. Loring, Counsel INTRODUCTION The veteran had active military service from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1997 and August 1997 rating decisions by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veteran's Affairs (VA). In January 1998, the veteran was scheduled for an RO hearing which he canceled. He later requested a hearing before the Board in Washington D.C. In January 2000, the veteran canceled his scheduled Board hearing, and requested that the Board proceed based upon evidence of record. FINDINGS OF FACT 1. The veteran does not suffer from PTSD. 2. The veteran has no more than Level II hearing in each ear. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by the veteran's military service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for PTSD Generally, service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted within the line of duty if the disability is not a result of the veteran's own willful misconduct. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). With respect to establishing a well-grounded claim for PTSD, there must be medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), 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. 38 C.F.R. § 3.304(f). In the instant case, the Board finds that the veteran's service in Vietnam as a combat medic, and the presence of a medical diagnosis of PTSD by a VA social worker, based upon the veteran's combat history, are sufficient to well-ground his claim. In addition, in light of two VA psychiatric examinations and other efforts by the RO to develop the medical record, the Board finds that the duty to assist the veteran has been met. 38 U.S.C.A. § 5107(a). At this point the Board finds that that inservice stressors have been established. In this regard, the Board finds that the veteran did engage in combat with the enemy as evidenced by his military occupational specialty (MOS) as a medic, and as further confirmed by a July 1968 letter of commendation from his captain. Accordingly, the reported stressors are accepted. 38 U.S.C.A. § 1154(b). However, at issue is neither the veteran's combat exposure, nor his report of stressors, but whether he suffers from PTSD. After a review of the evidence, the Board finds that the preponderance of the evidence is against the veteran's claim on the basis that he does not have PTSD. The veteran was noted to have PTSD in a March 1997 VA outpatient "Intake Assessment" from the VA Mental Health Clinic. The veteran had appeared for an Agent Orange protocol examination and stated that he had been encouraged by a friend to seek a mental health evaluation. The veteran reported combat-related nightmares, and he complained of being nervous at work with an exaggerated startle response and hypervigilance. He had no previous history of mental health treatment. He reported that he yelled at his wife, then apologized later. He further reported having been present as a medic at the Battle of Khe San during the TET Offensive in 1968. The veteran was noted to be friendly, verbal, smiling with rapid speech, and tense body posture. The social worker reported a diagnosis of PTSD, combat- related, chronic. The veteran was to return in a month for a prescription, he was not interested in counseling. He saw a VA physician, presumably a psychiatrist, in April 1997. The physician noted no specific abnormality in the mental status evaluation but reported a finding of "rule out PTSD." The veteran was prescribed Vistaril for his nervousness. In conjunction with his claim, the veteran was afforded a VA psychiatric examination for PTSD in June 1997. The veteran complained of nervousness ever since his tour of duty in Vietnam, especially after a rocket blew up in his hand. He reported worrying a lot about his work. He denied feeling depressed or sad. He reported that he slept well for about 8 hours a night. He reported occasional nightmares about Vietnam. He stated that he had seen a VA psychiatrist twice since January 1997, and had been prescribed Vistaril, which he stopped after the first dose because it made him sleepy. The veteran had been married for 27 years to the same woman and had been employed at the same company for 24 years. He reported that he got along well with his supervisors and co- workers. The mental status examination indicated that the veteran was clean, appropriately dressed, and well groomed. He was without psychomotor agitation, retardation, or startle response. He was polite, friendly, and cooperative. His speech was spontaneous, relevant and goal directed, and his mood was cheerful. His affect was appropriate and he was well oriented without cognitive deficit. The examiner reported that the veteran did not have PTSD. He reported a diagnosis of personality disorder, not otherwise specified. In January 1998, the veteran requested further VA examination for PTSD by a different physician. He was evaluated by another VA psychiatrist in February 1998, and reported complaints similar to those from his June 1997 examination. He reiterated his military history as a combat medic, and losing his best friend to an explosion. He reported one nightmare a month and no intrusive thoughts about the war. He stated that he rarely had flashbacks but did experience distress when exposed to war related activities or movies. He reported that he slept okay one-half of the time with sleep problems the other half. He had no problems with anger or concentration at work but sometimes had difficulty concentrating outside of work. He endorsed a mild increase in startle response and a mild increase in hypervigilance. He had no difficulty with restricted affect, depressed mood, hallucinations, homicidal thoughts, or suicidal thoughts. The mental status evaluation revealed no significant abnormalities in speech and behavior. His affect was range appropriate and euthymic, his mood was "okay." Memory was intact, attention and concentration were normal. His judgment and insight were intact. The examiner reported an Axis I diagnosis of anxiety disorder, not otherwise specified. He reported that the veteran had some symptoms of PTSD, but did not meet the full criteria for PTSD as a diagnosis. He further stated that the veteran had no degree of impairment in his interpersonal or professional life as a result of his symptoms. After a review of the veteran's statements and the VA medical examination reports and outpatient records, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for PTSD. While the veteran does have a March 1997 diagnosis of PTSD from a VA social worker, the Board notes that the diagnosis was based upon the veteran's report of combat without further elaboration. As reflected in the VA social worker's clinical notes of March 1997, he did not perform a mental status evaluation, or report in any detail, the veteran's symptoms or the specific stressors for a PTSD diagnosis. He did note that the veteran reported nightmares, and was nervous at work, but there was no objective evaluation of the veteran's mental status. See 38 C.F.R. § 4.125(a). Moreover, the April 1997 notation to "rule out" PTSD was never investigated further through the VA mental health clinic, and there is no evidence of abnormality in the mental status evaluation that accompanies this April 1997 clinical notation. In addition, the veteran reported that he had seen a VA psychiatrist on only two occasions since January 1997 In contrast, the veteran has been evaluated specifically for PTSD by two different VA psychiatrists, several months apart, and neither one found sufficient criteria for a diagnosis of PTSD. Each VA examination report was detailed and specific in its report of stressful events and the veteran's report of symptoms, in addition to reporting an objective mental status evaluation. Although the February 1998 examining VA psychiatrist did find some symptoms of PTSD, he did not find that they rose to a level sufficient for a diagnosis of PTSD. Accordingly, the Board concludes that the opinions of two different VA psychiatrists, who found no diagnosis of PTSD, after thorough and objective evaluations, weigh heavily against a single diagnosis of PTSD by a VA social worker who failed to conduct a thorough mental health evaluation. While the Board does not dispute the credentials of the social worker, or his professional expertise, the psychiatrists, by their professional requirements, have more extensive training and education in the field of mental health, and by their reported examinations, performed in-depth, careful evaluations of the veteran's mental health status. Thus, the Board finds that their opinions are more probative of the question at issue. The Board also considered the veteran's statements that he experienced terrible trauma in Vietnam, and his belief that he has PTSD. However, although the veteran unquestionably was exposed to horrific events during his tour of duty and performed his service admirably, he is a layperson and not qualified to offer a diagnosis as required to support his claim. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In finding that the preponderance of the evidence does not support a finding that the veteran currently suffers from PTSD, the Board notes that consideration was given to all of the medical evidence of record. In the Board's opinion, the social worker's diagnosis of PTSD does not suffice to render the evidence in relative equipoise, warranting resolution of reasonable doubt in the veteran's favor. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Therefore, as the preponderance of the evidence is against the veteran's claim, entitlement to service connection for PTSD is denied. II. Compensable Rating for Bilateral Hearing Loss The veteran is appealing the original assignment of a disability evaluation following an award of service connection, and, as such, the claim for an increased (compensable) rating is well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). After reviewing the claims file, the Board further finds that the duty to assist the veteran has been met and that the record as it stands allows for an equitable determination of the veteran's appeal. 38 U.S.C.A. § 5107(a). Since this is an appeal from an initial grant of service connection and originally assigned evaluation, separate evaluations may be assigned for separate time periods that are under evaluation. That is, appellate review must consider the applicability of "staged ratings" based upon the facts found during the time period in question. Fenderson v. West, 12 Vet. App. 119 (1999). Thus, the Board must look to whether a compensable evaluation is warranted from the effective date of the allowance for bilateral hearing loss. Id. In assessing the veteran's disability, the Board reviews the evaluation as determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.7. The veteran was granted service connection for bilateral hearing loss effective from March 1997. He was assigned a noncompensable rating based upon an April 1997 VA examination report which showed an average puretone threshold of 34 decibels in the right ear and 34 decibels in the left ear with a speech recognition score of 84 percent in the right ear and 88 percent in the left ear. The diagnosis for each ear was the same; mild sensorineural hearing loss at 250 Hertz (Hz), with normal hearing sensitivity from 500 to 2000Hz, and a moderate sensorineural hearing loss from 3000 to 6000Hz, back to normal at 8000Hz. Tympanometry was normal. In conjunction with his current claim for an increased rating, the veteran was afforded further VA audiological examination in February 1998. Puretone threshold averages were reported to be 33 decibels for the right ear and 33 decibels for the left ear. Speech audiometry revealed speech recognition ability of 100 percent for both the right ear and for the left ear. The diagnosis was slight to moderate sensorineural hearing loss from 250 to 800Hz in each ear with excellent speech discrimination. Evaluations of defective hearing for VA rating purposes range from non-compensable to 100 percent. The evaluation is based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. To evaluate the degree of disability in service connected defective hearing, the revised rating schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. The audiometric findings of the veteran's April 1997 and February 1998 VA examinations correspond to no higher than Level II hearing in each ear. The findings of each of these examinations are commensurate with a noncompensable rating according to the schedular criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. Accordingly, the Board finds that the preponderance of the evidence is against a compensable disability rating for bilateral sensorineural hearing loss, at any time since the award of service connection effective March 1997. In reviewing this issue, the Board has considered and found no indication of an 'approximate balance of positive and negative evidence' that would otherwise warrant a favorable determination pursuant to 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals