Citation Nr: 0212961 Decision Date: 09/25/02 Archive Date: 10/03/02 DOCKET NO. 96-26 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina 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 ATTORNEY FOR THE BOARD E. Ward, Associate Counsel INTRODUCTION The veteran had active service from June 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision dated in June 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied claims of entitlement to service connection for PTSD and bilateral hearing loss. The veteran submitted a notice of disagreement in October 1995, and after issuance of a statement of the case in March 1996, timely perfected an appeal to the Board in June 1996. Initially, the veteran requested a personal hearing before a Member of the Board. In May 1997 he was notified at his last known address that a hearing was scheduled for September 1997. However, he failed to report. His hearing request is deemed to have been withdrawn. 38 C.F.R. § 20.702(d) (2001). When this matter was first before the Board in October 1997, the case was remanded for further development. Additional medical evidence has been received and a supplemental statement of the case has been issued. The appeal is ready for adjudication. FINDINGS OF FACT 1. All relevant evidence necessary for disposition of the veteran's appeal has been obtained and associated with the claims file. 2. The veteran did not participate in combat during his military service. 3. There is no credible supporting evidence of in-service stressors supporting the diagnosis of post-traumatic stress disorder. 4. The veteran does not have a bilateral hearing loss disability for VA compensation purposes; pre-existing left ear hearing loss did not increase in severity in service and right ear hearing loss was not demonstrated in service or after service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102 3,.303, 3.304 (2001). 2. Bilateral hearing loss disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.385 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Personnel records show that the veteran was stationed in Kadena, Okinawa as an Aeromedical Technician and Specialist from November 1970 to July 1972, and acted as a member of the Crash Rescue Team. He was then stationed at Offut AFB in Nebraska from July 1972 to his discharge in May 1973. As regards hearing loss, service medical records (SMR's) show that upon induction in February 1969, audiometric testing revealed puretone thresholds at frequencies of 500, 1000, 2000, 3000, and 4000 hertz, of 5,5,5,5 and 0 decibels in the right ear; and in the left of 40, 35, 5, 15, and 20 decibels. Summary of Defects noted impairment of hearing. March 1970 audiological examination for Initial Flying, revealed thresholds at frequencies of 500, 1000, 2000, 3000, and 4000 hertz, of 15, 10, 20, 0, and 0 decibels in the right ear, and in the left, 30, 25, 20, 35, and 50 decibels. On Separation medical examination in October 1972, testing revealed puretone thresholds at frequencies of 500, 1000, 2000, 3000, 4000, hertz, of 20, 25, 10, 0, 0 decibels in the right ear, and in the left, 40, 20, 25, 20, and 25 decibels. Mild high and low frequency hearing loss of the left ear was noted. January 1990 private treatment progress notes from Asheville Head, Neck and Ear Surgeons reflect complaints of humming in the right ear. On examination, eardrums and canals were found to be within normal limits. Audiometry showed hearing loss in the left ear consistent with acoustic trauma, and mild bilateral low frequency loss. Discrimination scores were normal. Diagnostic impression was low frequency loss in the right ear probably causing the humming; possible cochlear hydrops; and left acoustic trauma. September 1993 VA outpatient medical records progress notes show audiological testing with right ear discrimination of 100 percent, and left ear of 90 percent. Employee health records from May 1974 to August 1994 show treatment in March 1988 for bilateral ear pain and dizziness, and in October 1990 and August 1991, for dizziness in the right ear on rapid head movements. September 1994 ENT clinic outpatient notes report complaints of nonpulsatile tinnitus, with vertiginous symptoms with nausea occurring for the past 1-2 years, and lasting 24 hours. Diagnosis was possible Meniere's disease. September 1994 audiometric testing in the right ear at 250, 500, 1000, 2000, 3000 and 4000 hertz was, in decibels,5, 5, 5, 5 ,0, 5; in the left ear the values were 35, 35, 30, 45, 55, 65 decibels. In October 1994, VA ENT notes report that an audiogram showed left moderate to severe sensorineural hearing loss (SNHL), and right ear hearing within normal limits. December 1994 ENT clinic progress notes reflect episodic vertigo three or four times a year, associated with tinnitus. Symptoms were noted as typical for Meniere's disease. Audiogram was noted as normal on the right ear, with high frequency sensorineural hearing loss in the left ear. April 1995 VA ENT clinic notes show a diagnosis of Meniere's disease on the left. The examiner noted one attack of tinnitus, but not severe vertigo, about one month prior. Salt restriction and Antivert treatment was recommended. April 1996 VA outpatient progress notes show mild to moderate SNHL in the left ear. Follow up for possible Meniere's was noted. The veteran underwent VA audiology examination in August 2001. Pure tone audiometry revealed thresholds at 500, 1000, 2000, 3000, and 4000 Hertz, of 15, 10, 5, 5, 5, decibels, with an average of 6.25 in the right ear; and of 40, 55, 50, 60, and 60 decibels in the left ear, with an average of 56.25. Maryland CNC word list was 96% in the right and 36% in the left. The examiner noted review of the veteran's records, and noted that on induction in 1969, he had normal hearing in the right ear, and a low frequency hearing loss in the left ear rising to normal hearing in the mid and high frequencies; at separation in October 1972, left ear thresholds were improved. The examiner noted that there was no additional hearing loss during service, and that in the 1990's, the veteran began to experience dizziness, and his hearing began to worsen, with symptoms very much like Meniere's disease, with occasional tinnitus in the right ear. The VA examiner opined that there was no bilateral hearing loss. Hearing was normal on the right ear, and left ear hearing loss was not the result of acoustic trauma sustained in service, nor attributable to service. The examiner noted that noise exposure in service would have affected both ears, and there was no specific incident related by the veteran of noise exposure in service. Thus the decline in hearing began long after service, which is more likely due to Meniere's syndrome. The examiner concluded that the left ear hearing test at separation actually reflected better results than the induction examination. As regards a psychiatric disorder, SMRs show no combat service. His principal duty in service is noted as Aeromedical Specialist. There are no complaints, treatment, or diagnosis of a psychiatric disorder, including depression. February 1969 induction examination noted no psychiatric abnormalities, and an October 1972 separation examination indicated no psychiatric abnormalities. SMRs also show that the veteran was hospitalized in service in March 1973, for drug abuse, multiple drugs, and excessive drinking. Physical and neurological examinations were within normal limits as were routine laboratory data. He expressed unhappiness with his job, and disclosed that 2 weeks prior to hospitalization he attempted to cut his wrists while high on drugs. He entered the drug treatment program, made good progress, and was discharged on April 1973. The evidence of record does not show the presence of any psychiatric disorder, complaint or treatment in service, or after, until the early 1980's. The veteran was seen in October 1982 with chief complaints of low tolerance with his family, and provisionally diagnosed with PTSD in October 1982. VA outpatient treatment notes show participation in assertiveness training beginning in August 1987, and in a mental health clinic for Vietnam Veterans. In November 1982, the veteran filed a claim of entitlement to service connection for drug abuse and alcoholism, with low tolerance and frustration, and short temper. Service connection was considered for a nervous condition as a way to establish service connection for alcohol or drug abuse in the absence of any chronic organic secondary effects. Service connection was denied by rating decision of February 1983, with the asserted nervous condition attributed to the veteran's own habits, history of alcohol, and drug abuse. VA Outpatient Mental Health Center Progress notes from August 1987 show treatment and an April 1989 diagnosis of PTSD and Dysthymic disorder. In a May 1989 statement, the veteran asserted several stressors: that as a medic he was exposed to numerous friends who attempted suicide; that three or four friends killed themselves; while in Okinawa he was assigned to duty on medivac airplanes evacuating wounded from Vietnam and saw many wounded die. In August 1994, the veteran filed claims of entitlement to service connection for PTSD citing onset in 1971, and for bilateral hearing loss with onset in 1969. In a June 1995 rating decision, the RO denied service connection. The veteran submitted a lengthy statement received by VA in October 1995, asserting that exposure to loud aircraft noise in service increased his pre-existing hearing loss. He also asserted the following stressors: (1) in tech school/training at barracks he saw another airman slashing his wrists in attempted suicide; (2) at George AFB, Victorville, California, a close friend committed suicide by inhaling exhaust fumes; (3) Overseas in Okinawa, a close friend slashed his wrists, and he could still hear him calling his name and seeing the blood; (4) at Offut AFB, Omaha, Nebraska, two close friends committed suicide by drowning and carbon monoxide gas inhalation; finally, (5) and a WAF girl with whom he had become close, attempted suicide. He asserted that shortly thereafter, he slashed his own wrists in attempted suicide. On appeal to the Board in October 1997, the case was remanded for further development, for verification of the veteran's stressors, and for examination and opinion on the nature and extent of hearing loss, and its causal relationship to military service. In April 1998, the RO requested PTSD stressor confirmation from the US Armed Services Center for Research of Unit Records (USASCRUR), provided the stressors reported by the veteran, and noted his service as an aeromedical specialist at USAF, Okinawa, Japan from November 1970 to July 1972, on the crash ambulance team. In a statement received in May 1998, the veteran asserted an additional stressor, reporting that while at George AFB with the 479 CSG hospital, he was assigned on flying status with a crash rescue helicopter. He recounted being ordered to incinerate an arm since the body had already been shipped. He also reported assisting the flight surgeon with autopsies, and with stabilizing a wounded evacuee so he could die at home. He identified the names of the supervisors who issued these orders. In June 1998, the RO requested PTSD treatment records from identified private physician Dr. Noel Rivers-Bulkeley, and informed the veteran of same. The request to the physician, at the address provided by the veteran, was returned by the Post Office as undeliverable. The RO also renewed requests for stressor confirmation from USASCRUR in June 1998, September 1998, and December 1998. In a February 1999 response, USASCRUR noted being unable to confirm the stated stressors. In March 1999, the RO sent USASCRUR copies of the veteran's AF 909, AF 1712 and other service department records, and provided the names of the persons the veteran had identified in relation to the stressors. The veteran's personnel records confirm his assignment in the USAF Dispensary in Kadena AB, Okinawa, and as a member of the crash rescue team. In August 1999, the RO sent a follow-up request for information. In December 1999, USASCRUR responded that the stressors were unverifiable by the information provided. In an April 2000 letter to the veteran, the RO requested more detailed information such as specific places, units and assignments, dates, month and year, in which the stressors occurred. A follow-up letter was sent in September 2000. The veteran did not submit any additional specific details as requested. In March 2001, the RO sent a VCAA letter, informing the veteran of what evidence was already in the record, and what he needed to submit to prove his claim. The veteran did not submit any additional evidence. Duty to Assist The Board notes that during the pendency of this claim, the Veterans' Claims Assistance Act of 2000 (VCAA) was signed into law. This legislation is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). It essentially eliminates the requirement that a claimant submit evidence of a well-grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. Specifically, it requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Regulations implementing the VCAA are now published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). Except as specifically noted, the new regulations are effective November 9, 2000. The veteran has been provided with several VA examinations to determine the nature and extent of his disabilities. He and his representative have been provided with statements of the case and supplemental statement(s) of the case that discuss the pertinent evidence, and the laws and regulations related to the claims, and essentially notify them of the evidence needed by the veteran to prevail on the claims. In letters dated in August 1999, April 2000, and September 2000, and in a specific VCAA letter dated in March 2001, the RO requested that the veteran supply specific information on his stressors, and notified him of evidence still needed, and what he could do to assist with his claims, and what evidence he needed to substantiate his claims. Additionally, the veteran's representative has been given the opportunity to submit written argument. Under the circumstances, the Board finds that the veteran has been provided with adequate notice of the evidence needed to successfully prove his claims and that there is no prejudice to him by appellate consideration of the claims at this time without a prior remand of the case to the RO for providing additional assistance to the veteran in the development of his claims as required by the VCAA or to give the representative another opportunity to present additional evidence and/or argument. Bernard v. Brown, 4 Vet. App. 384 (1993). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The record on appeal demonstrates the futility of any further evidentiary development and that there is no reasonable possibility that further assistance would aid him in substantiating his claims. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection for PTSD Service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection for PTSD generally requires (1) medical evidence establishing a 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 evidence establishes that the veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, the veteran's lay statements alone may establish occurrence of the claimed in- service stressor, 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. 38 C.F.R. § 3.304(f). Where, however, VA determines that the veteran did not engage in combat, or was not a POW, or the claimed stressor is not related to combat or POW experiences, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence which corroborate the stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); Gaines v. West, 11 Vet. App. 353, 357-358 (1998). Any current PTSD diagnosis should comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV); See 38 C.F.R. § 4.130, which reflects a subjective stressor standard. See also, Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The sufficiency of a stressor is, accordingly, a clinical determination for the examining mental health professional. The medical evidence of record shows a diagnosis of PTSD. However, the Board will first determine whether there is credible evidence of an inservice stressor upon which to base the diagnosis of PTSD. The veteran claims he is entitled to service connection for PTSD, which he alleges is causally related to his asserted stressors in service. Personnel records do not indicate the veteran engaged in combat with the enemy while in service. Nor does the veteran allege that he engaged in combat with the enemy while in service. After consideration of all the evidence, including the veteran's statements and testimony, the Board finds that the preponderance of the evidence shows that the veteran did not engage in combat with the enemy while in service. Since the veteran did not engage in combat while in service, there must be credible supporting evidence, other than his own statements, to support his alleged inservice stressors in order to link any PTSD that may be present to an incident of service. Statements and testimony from the veteran alone cannot, as a matter of law, establish the occurrence of a noncombat stressor. Nor can the after-the-fact medical nexus diagnosis of PTSD serve to support the actual occurrence of the inservice stressor Moreau v. Brown, 9 Vet. App. 389 (1996). Review of the evidence shows that although the veteran was hospitalized in March 1973 while in service for drug treatment and alcoholism, there were no complaints, diagnosis or treatment for a psychiatric condition. Although he reported attempting to slash his own wrists, there is no competent medical evidence of record other than his own report, to substantiate that assertion. He was inducted and discharged with reported normal mental condition. There is no evidence of any type of psychiatric disorder for many years after service. Records show that the veteran was seen several years later in October 1982 with chief complaints of low tolerance with his family, and he was provisionally diagnosed with PTSD in October 1982. VA outpatient treatment notes show participation in assertiveness training beginning in August 1987, and in a mental health clinic for Vietnam Veterans. The veteran maintains that his PTSD resulted from exposure to the asserted non-combat stressors. However, the Board notes that as a layman, the veteran has no competence to give a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As a layperson, his own statements of medical diagnosis, causation, or opinion are not binding on the Board. See also Pearlman v. West, 11 Vet. App. 443, 447 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Notably, the RO made repeated attempts to obtain verification of the asserted stressors from USASCRUR. The veteran's personnel records were forwarded to USASCRUR, yet none of the stressors were verifiable from this information. Additionally, the RO specifically informed the veteran in an April 2000 letter, that additional specific information of the stressors was needed for further research. Significantly, in his statements of asserted stressors, the veteran did not identify the names of the close friends whose suicide he was exposed to. The RO specifically advised that names, specific places, units and dates (at least the month and year) be provided, along with any/all other specific information useful in verifying the veteran's claims. The veteran did not provide any additional specific information as requested. Additionally, the record indicates that the case was held in abeyance for approximately 60 days pending the receipt of additional evidence. However, no additional evidence was forthcoming. Without verification of any of the asserted in service stressors, there can be no causal link between the veteran's current diagnosis of PTSD, and his military service. Moreover, although the mental health examiners ascribe the veteran's PTSD to his military service, any causal link in this instance would necessarily be based entirely on the veteran's self-reported history. The Board is not bound to accept a medical opinion many years after service when an examiner relies on history provided solely by the veteran. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1996). The Board finds the probative weight of the veteran's statements concerning the existence of non-combat stressors in service completely outweighed by the lack of documentation in the service records, and the absence of any psychiatric symptoms until many years after service. There is no credible supporting evidence of the inservice stressors upon which to base a diagnosis of PTSD. The preponderance of the evidence is against the veteran's claim for service connection for PTSD and the claim is denied. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Bilateral Hearing Loss Service medical records reveal that the veteran underwent induction medical examination in February 1969, and hearing impairment was noted, though the specific ear was unidentified. On May 1973 separation examination, the veteran was noted as having mild high and low frequency hearing loss of the left ear. The veteran's military specialty reflects that he was an Aeromedical Specialist and served as a member of the Crash Ambulance Team. The records do not show that the veteran was routinely exposed to hazardous aircraft noise. In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. By some medical authorities, decibel thresholds of 0 to 20 represent normal hearing and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The evidence shows that the veteran currently has left ear hearing loss that meets the criteria of 38 C.F.R. § 3.385, and he may be granted service connection if the hearing loss can be linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The veteran argues that his current hearing loss is causally related to exposure to aircraft noise in service, in his position as an aeromedical specialist. The Board notes that the service medical and personnel records do not indicate any chronic exposure to hazardous noise. Although later examinations beginning several years after service in the 1980's, showed increasing symptomatology of dizziness, ear pain, and increasing hearing loss, an August 2001 VA examiner opined that current hearing loss is not related to the veteran's military service. Meniere's syndrome was diagnosed in September 1994 VA examination, with symptoms detected as early as January 1990. The record shows that although the left ear hearing loss meets the criteria of 38 C.F.R. § 3.385 for service connection of such a condition, such hearing loss was identified on induction and separation. Under the circumstances, service connection for a hearing loss disability is prohibited since the data fails to show that there was a worsening of the veteran's pre-existing impaired hearing during military service. In August 2001 VA examination performed with noted review of the claims, the examiner opined that left ear audiometric test at separation actually reflected better hearing than at induction. Moreover, the examiner noted that the veteran has no bilateral hearing loss, but does have left ear hearing loss. Post service VA examinations of October 1994, December 1994 and August 2001 consistently note right ear hearing within normal limits. The August 2001 VA examiner noted that hearing loss on the left ear only was inconsistent with in service exposure to hazardous noise, since both ears would have been affected. Thus, since there was normal hearing in the right ear, the left ear hearing impairment was more likely due to Meniere's syndrome, and less likely due to in service noise exposure. Accordingly, the Board finds this examination and opinion accomplished with review of the claims file for the express purpose of evaluating the veteran's current disability, is entitled to great evidentiary weight. There is no competent medical evidence of record to refute the examiner's opinion. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West Supp. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. Service connection for bilateral hearing loss is denied. J. E. Day Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.