Citation Nr: 0813492 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-31 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran had active military service from December 1969 to September 1971. This matter comes to the Board of Veterans' Appeals (Board) from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted entitlement to service connection for PTSD, assigning a 50 percent evaluation with an effective date of September 21, 2004, and denied entitlement to service connection for bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. The veteran's PTSD is manifested by no more than occupational and social impairment, with reduced reliability and productivity; and a current GAF score of 45. 2. The medical evidence does not reflect that the veteran currently has a bilateral hearing loss. 3. The medical evidence does not reflect that the veteran currently has tinnitus. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2007); 38 C.F.R. §§ 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2007). 2. Bilateral hearing loss was not incurred in or aggravated by service, directly or presumptively. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 3. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the veteran's claims for service connection, the RO provided the appellant pre-adjudication notice by letter dated in October 2004. No new disability rating or effective date for award of benefits will be assigned as the claims for service connection are denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. The issue of the evaluation to be assigned the now-service connected PTSD, concerning establishing a higher evaluation and effective dates, was provided by a May 2006 letter, subsequent to the denial of a higher evaluation. While the May 2006 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process, and the 646 and informal brief submitted by the veteran's representative reflect actual knowledge of the criteria required for a higher evaluation. A medical examination was not provided regarding the existence or etiology of the hearing loss and tinnitus claims. VA's duty to assist doctrine does not require that the veteran be afforded a medical examination, however, because there is no competent evidence of a current hearing loss or tinnitus, and there is no indication, including a claim of a continuity of symptomatology, that any possible current hearing loss or tinnitus disability may be associated with in-service noise exposure. See, McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); Charles v. Principi, 16 Vet. App. 370 (2002); 38 C.F.R. § 3.159 (c) (2007). VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran a psychiatric examination, and obtained a psychiatric opinion as to the etiology and severity of his PTSD disability. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. I. Initial PTSD Evaluation The RO originally granted service connection for a PTSD disability in January 2005, assigning a 50 percent rating with an effective date of September 21, 2004. In September 2005 the veteran appealed this initial rating to the Board, contending that he meets the criteria for a higher evaluation as shown by the evidence of record. The veteran's wife submitted a letter indicating that the veteran frequently has nightmares, sweats profusely in his sleep, and is demanding and aggressive. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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 required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Given that the January 2005 rating decision represents the initial grant of service connection for PTSD, however, the Board must consider whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran is currently rated as 50 percent disabled under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when there is 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. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsess ional 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 work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 or place; memory loss for names of close relatives, own occupation or own name. Id. The symptoms recited in the criteria in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See Carpenter v. Brown, 8 Vet. App. 240, 242- 244 (1995). In November 2004 a VA examination was conducted for the claim presently on appeal. The examiner reviewed the veteran's claims file and discussed his experiences in the military. It was noted that the veteran has been married since 1980 and in 1976 was employed at the railroad, where he has remained an employee to date. The examiner noted that the veteran exhibited no indications of any delusions or thought disturbance, suicidal ideation, or homicidal thought or intent. Likewise, the veteran's orientation was not impaired, and his memory was grossly intact. The examiner noted that the veteran has significant anger problems, impatience, and irritability. Hypervigilance is manifested by his feeling of "always being on point." An exaggerated startle response was noted. The veteran's presentation and mood were noted as anxious, and his sleep onset was noted as not problematic, although he does wake up chronically before it is time. Recurrent and distressing intrusive recollections related to his service in Vietnam were noted by the examiner. It was further noted that the veteran avoids people, especially ones he finds exceptionally irritating, and is much more comfortable socially isolated. The veteran described his intact family, but that he was never as close to his wife and kids as he would like to be. A diagnosis of chronic PTSD was given, and a GAF score of 45 was assigned. The examiner noted that such a score is indicative of someone who is experiencing moderate to severe symptoms, and that the veteran's symptoms impigined upon his ability to function socially, in the family, contributes to conflict that he has had at work, and affects his capacity to mange financial affairs. June 2005 VA treatment records note that the veteran has PTSD and that he finds that his stress relievers, hiking and walking, work well for him. The veteran also reported getting depressed at times, and that he was then presently unemployed. On the whole, the evidence more nearly approximates the criteria for a 50 percent, rather than a 70 percent, rating. The medical evidence does not demonstrate findings of suicidal ideation, obsessional rituals, illogical, obscure, or irrelevant speech, near-continuous panic or depression, spatial disorientation, or neglect of personal appearance and hygiene, which would be indicative of occupational and social impairment with deficiencies in most areas. See 38 C.F.R. § 4.130, DC 9411. Irritability, impinged ability to function socially and in the family, and self-reported occasional depression are indicated by the evidence of record, however these symptoms alone do not establish that the veteran's PTSD more nearly approximates the criteria for a 70 percent, rather than his current 50 percent, rating. In addition, although the reported GAF score of 45 is defined as denoting serious symptoms, this score alone does not entitle to the veteran to a 70 percent rating in the absence of corroborating symptoms which would be indicative of occupational and social impairment with deficiencies in most areas contemplated by a 70 percent rating. See 38 C.F.R. § 4.130, DC 9411. As the criteria for assignment of the next higher 70 percent rating are not met, the criteria for the even higher rating of 100 percent are likewise not met. As noted above, the Board must consider whether a "staged" rating is appropriate (i.e., different percentage ratings for different periods of time). Fenderson v. West, 12 Vet. App. 119. "Staged ratings" are inappropriate in this case because there is no identifiable period of time since the effective date of service connection during which the veteran's PTSD warranted a rating higher than 50 percent. The Board has considered the statements of the veteran and his wife. The veteran is competent as a lay person to report that on which he has knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, neither the veteran, nor his wife, are competent to offer a medical opinion as to the extent of his disabilities, as there is no evidence of record that they have specialized medical knowledge. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran's disability picture has not been rendered so unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation. 38 C.F.R. § 3.321(b)(1); Shipwash v. Brown, 8 Vet. App. 218, 227. The evidence does not show frequent hospitalization or marked interference with employment. The veteran reportedly consistently worked until June 2005, and the veteran has not claimed that his unemployment is related to any symptoms of his PTSD. The current schedular criteria adequately compensate the veteran for the current nature and extent of severity of the disability at issue. Having reviewed the record with these mandates in mind, there is no basis for further action on this question. The preponderance of the evidence is against an initial evaluation in excess of 50 percent for PTSD; there is no doubt to be resolved; and an increased rating is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. II. Service Connection for Hearing Loss and Tinnitus The veteran seeks service connection for bilateral hearing loss and tinnitus disabilities. He claims that his disabilities began while he was in service. His representative notes that the veteran was a combat gunner during the Vietnam War and that he was subjected to loud noises without hearing protection. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2007). Where certain chronic diseases, including sensorineural hearing loss, become manifest to a degree of 10 percent within one year from the date of separation from service, such disease shall be considered to have been incurred or aggravated by such service, notwithstanding there is no evidence of that disease during service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The medical evidence of record does not show present diagnoses of hearing loss or tinnitus. There is no evidence of record indicating that the veteran has sought treatment for hearing loss or tinnitus at any time following service. There is one notation in the veteran's VA medical records dated in December 2004 that he has decreased hearing, however no diagnosis or treatment plan was made. Likewise, there is no evidence of record, including the veteran's lay statements, indicating that the vetearn has experienced a continuity of symptomatology related to his claimed hearing loss or tinnitus disabilities since service. Additionally, service medical records (SMRs) do not indicate an in-service incurrence of hearing loss or tinnitus. However, because the veteran's personnel records indicate that the veteran served as an armor crewman and received the Purple Heart, and because the Board finds that the veteran and his representative's statements regarding his combat experiences to be credible, exposure to acoustic trauma in service is conceded. Nonetheless, regardless of the fact that the veteran experienced acoustic trauma while in service, service connection cannot be granted if there is no present disability. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. That a condition or injury occurred in service is not enough; there must be a current disability resulting from that condition or injury. See Rabideau v. Derwinkski, 2 Vet. App. 141, 144 (1992); Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran has stated that he has hearing loss and tinnitus. Although the veteran is competent to report the symptoms that he has experienced, he is not competent to offer an opinion as to matters requiring medical expertise, such as a diagnosis or the etiology of a disease or disorder. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the veteran's lay assertions and the December 2004 VA medical treatment record have been considered they do not outweigh the evidence of record, which does not show any diagnosis of, or treatment for, hearing loss or tinnitus. See 38 C.F.R. § 3.385 (2007). Finally, presumptive service connection for hearing loss is not warranted because there was not a diagnosis of hearing loss within one year of the veteran's discharge from service. 38 C.F.R. § 3.307. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and service connection for hearing loss or tinnitus is not warranted. Gilbert v. Derwinski, 1 Vet App. at 57-58; 38 U.S.C.A. § 5107 (b), 38 C.F.R. § 3.102. ORDER Entitlement to an initial evaluation in excess of 50 percent for PTSD is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs