93 Decision Citation: BVA 93-16528 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-12 354 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for defective hearing. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence sufficient to reopen a claim for service connection for post-traumatic stress disorder (PTSD) has been received. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. L. Shaw, Counse INTRODUCTION The veteran had active military service from March 1968 to July 1970, including a period of service in Vietnam. This matter is before the Board of Veterans' Appeals (the Board) on appeal from rating decisions by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) in October 1988, which denied service connection for tinnitus and defective hearing, and in February 1989, which held that a prior claim for service connection for PTSD was not reopened. The notice of disagreement with both rating decisions was received on August 28, 1989. The statement of the case was issued on September 20, 1989. The veteran's substantive appeal (VA Form 1-9) was received on November 7, 1989. The veteran testified at a hearing at the RO on February 2, 1992; on July 24, 1990, the hearing officer confirmed and continued the denials. A supplemental statement of the case was issued on August 8, 1990. The case was received at the Board on February 15, 1991, and docketed on February 20, 1991. An additional written presentation was received from the veteran's representative, the Disabled American Veterans (DAV), on March 26, 1991. The appeal was remanded by the Board on June 7, 1991, to procure additional information concerning claimed stressors for PTSD during service and to obtain a current psychiatric examination to clarify the psychiatric diagnosis. The veteran was hospitalized at a VA facility in March 1992 for completion of the studies. The claim was subsequently reviewed by a rating board on July 2, 1992, and the denial was continued. A supplemental statement of the case was issued on July 15, 1992. The case was returned to the Board on December 7, 1992, and docketed on December 10, 1992. The file was referred to the Disabled American Veterans on December 15, 1992. An additional written presentation on the veteran's behalf was received from the DAV on January 12, 1993. In correspondence received since the case was returned to the Board, the veteran has raised the issue of entitlement to service connection for additional disabilities based on exposure to Agent Orange. This matter has not been developed or certified for appellate review but is referred to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that defective hearing and tinnitus had their onset during his period of active military service. As evidence of a hearing deficit during service, he cites abnormal findings on audiological testing at separation. He contends further that he is suffering from PTSD which developed as the result of traumatic experiences during Vietnam combat. He maintains in particular that while serving in the area of Chu Lai in May 1970 his barracks were struck by an enemy rocket and one of his best friends was killed. He states that he refused to accept the fact that this had happened until 14 years later. He argues that exposure to Agent Orange contributed to the stress which he experienced in Vietnam. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review of all evidence and material of record in the claims file, and for the reasons and bases hereinafter set forth, it is the decision of the Board that a preponderance of the evidence is against the claims for service connection for defective hearing and tinnitus. It is the further decision of the Board that new and material evidence sufficient to reopen the claim for service connection for PTSD has not been received. FINDINGS OF FACT 1. The evidence required for proper adjudication of the issues on appeal has been obtained. 2. The evidence does not establish that the veteran has bilateral defective hearing which was manifest during service or which is related to military service. 3. The evidence does not establish that the veteran has tinnitus which was manifest during service or which is related to military service. 4. Service connection for PTSD was denied by a rating decision of January 1985; the veteran did not appeal. 5. The evidence received since January 1985 is cumulative and repetitious and does not raise a reasonable possibility of a change in the outcome of the claim. CONCLUSIONS OF LAW 1. Bilateral defective hearing was not incurred in or aggravated by active military service and may not be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a), 7104 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1992). 2. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991). 3. The claim for service connection for PTSD is not reopened inasmuch as no new and material evidence has been received. 38 U.S.C.A. §§ 5107(a), 5108, 7104 (West 1991); 38 C.F.R. §§ 3.104, 3.156(b) (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) in that each is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78 (1990). We find further that the statutory obligation to assist in the development of the evidence to support well-grounded claims has been satisfied by the actions taken by the RO, including those requested in the Board remand. I. Defective Hearing Service connection may be granted for disability which is incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (wartime), 1131 (peacetime) (West 1991). Service connection for defective hearing of the sensorineural type is potentially assignable under statutory provisions by which certain disorders, including organic neurological disease, are presumed to have been incurred in service if manifest to a degree of 10 percent within one year after separation. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137, (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1992). In claims involving defective hearing, service connection is assignable for hearing impairment at the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 hertz, as measured by pure tone and speech recognition criteria. However, hearing status shall not be considered service connected when the thresholds for the above frequencies are all less than 40 decibels; the thresholds for at least of three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC Test are 94 percent or better. 38 C.F.R. § 3.385 (1992), effective on and after May 3, 1990. For many years before May 3, 1990, a VA adjudication manual contained a substantially equivalent nonregulatory standard. VA Manual M21-1, Chapter 50. The record shows that on preinduction examination in September 1967, the pure tone threshold were zero decibels in each ear at all frequencies tested. At separation they were 35 or lower in the right ear. In the left ear, the thresholds were 50 decibels at 500 hertz, 45 at 1,000 hertz, 25 at 2,000 hertz and 20 at 4,000 hertz. After service the veteran filed a claim for service connection for defective hearing in the right ear. VA audiometric testing was performed in September 1970. The pure tone thresholds were 30 or lower at all frequencies in the right ear and 15 or lower at all frequencies in the left ear. Service connection for defective hearing in the right ear was denied by a rating decision of November 19, 1971, but the denial did not become final because no written notification of the adverse action or of the right of appeal was furnished to the veteran. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.103(b), 3.104, 3.160(d) (1992). Thus, while the veteran originally claimed hearing problems in his right ear, audiometric testing at separation and in September 1970 showed completely normal hearing in that ear. Despite a complaint at separation of diminishing hearing in the right ear, there is no clinical evidence of hearing impairment in that ear at any time. In the left ear, the abnormal pure tone thresholds at 500 and 1,000 hertz were not confirmed on testing in September 1970, when hearing acuity was well within normal limits. The postservice medical evidence contains no indication of a significant hearing deficit at the present time. The record contains multiple VA outpatient treatment reports dated from 1988 to 1990 which show that the veteran was seen on several occasions for wax impaction in the ears but that no complaints of hearing problems were made at these occasions. The veteran presented sworn testimony at his hearing on appeal to the effect that hearing problems present during service persisted after separation. The Board is required to make a determination as to the credibility and probative value of such testimony. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, we find that the presence of a postservice hearing deficit is disproved by the negative findings on the VA examination of September 1970. In the context of all the evidence of record, the veteran's sworn testimony has insufficient probative value to support favorable action on this appeal. We find that a preponderance of the evidence is against the claim for service connection. 38 U.S.C.A. § 5107(b) (West 1991). II. Tinnitus The veteran claims that he has ringing in his ears as a result of acoustic trauma in service from rockets and artillery fire and from communications equipment. Service medical records confirm that he was involved in communications (as a cryptographer and communications center specialist), but contain no reference to complaints of ringing in the ears. No such complaints were reported at separation. The postservice medical evidence documents no complaints of ringing in the ears until January 1988, when the veteran complained of ringing in the ears of two weeks' duration. He was found to have impacted cerumen in both ears which was removed several times. He testified at his hearing that he continues to have occasional ringing which is not constant. Since chronic tinnitus was not demonstrated until many years after service, service connection may not be granted on the basis of direct service incurrence. 38 U.S.C.A. § 1110 (West 1991). No clinical evidence has been submitted to suggest that there is a connection between the postservice tinnitus and acoustic trauma in service. Douglas v. Derwinski, 2 Vet.App. 435 (1992); Godfrey v. Derwinski, 2 Vet.App. 352 (1992). To the contrary, the objective evidence is overwhelming in demonstrating that the veteran's tinnitus is of postservice onset and is related to nonservice-connected ear pathology. The preponderance of the evidence is thus against the claim for service connection for tinnitus. III. PTSD a. Background. An original claim for service connection was received in June 1984, wherein the veteran reported having had emotional problems since Vietnam. According to his enlisted qualification record (DA Form 20), he served in Vietnam from March 13 to July 22, 1970, as a communication center specialist (MOS 72F20). In support of his claim the veteran submitted a July 1984 report from the Eastern Metropolitan Counseling and Consulting Services, Inc., to which he had been referred for depression after losing his job for no apparent reason. His complaints included sleep disturbances, flashbacks to Vietnam, and anger over being exposed to Agent Orange. He was given therapy twice per week. Two VA psychiatrists examined the veteran in November 1984. It was reported that he had been released from service early because of his mother's illness. He had never had any psychiatric treatment. He had applied for consideration for Agent Orange benefits a few months earlier, at which time a counselor had suggested that he had PTSD. He reported having recurrent dreams from time to time and related that he had seen a buddy killed in Vietnam in 1970. The diagnosis was no "psychiatric disorder." Both examiners concluded that PTSD was not present. On the basis of this evidence, a rating board on January 9, 1985, denied service connection for PTSD. Notice of the adverse decision and of the right of appeal was furnished in a letter mailed on January 16, 1985. The veteran did not appeal. In February 1988 the veteran requested that the claim for service connection for PTSD be reopened. VA outpatient treatment records dated from January 1988 to May 1990 were obtained. The veteran was seen at an outpatient facility in July 1988 for evaluation of mood changes which he said had been present since childhood. A diagnosis was deferred. The veteran was hospitalized at a VA facility in December 1988 and January 1990 with a chief complaint of being "overwhelmed." It was reported that his mood was quite variable. He complained that nothing went right and that he experienced increased flashbacks, bad dreams and irritability. Family members reported that he seemed restless and unable to concentrate and exercised poor judgment in spending money. On mental status examination his mood was anxious and his motor activity was variable. During the hospitalization it was reported that he had had interpersonal difficulties because of inability to stop talking. His symptoms included pressured speech, increased production, easy distractibility and difficulty focusing. Treatment with lithium carbonate was started. He was referred for treatment with a depression group. The Axis I diagnoses were bipolar disorder and PTSD. In testimony at a hearing at the RO on February 2, 1990, the veteran related that his Vietnam duty had involved an assignment to a fixed communication center where he performed functions such as photography and deciphering messages. He stated that he served at numerous duty stations, including a base camp at Chu Lai, which was subjected to frequent rocket attacks. He described one such attack on June 8, 1970, when a Vietcong rocket struck a barracks and killed a friend. He claimed that he had been close enough to the blast to feel heat. In a statement dated in June 1991, he described another incident in which a lieutenant whose platoon had been wiped out climbed up into his tower with severe injuries. After the Board remand, the veteran indicated that the attack on the barracks had happened at about midnight on the night of June 8, 1970. He identified the individual killed as Joseph Macaluso and indicated that the incident involving the first lieutenant, who was named Kelley, occurred on June 11, 1970. An attempt was made to verify the stressor stories through the United States Army and Joint Services Environmental Support Group (ESG) at Fort Belvoir, Virginia. In a report dated December 30, 1991, the ESG indicated that it was unable to confirm the injuries involving servicemen Macaluso or Kelley or document an attack on the Chu Lai base camp on June 8 or June 11, 1970. Following the Board remand, the veteran was hospitalized at a VA hospital in March 1992 for further diagnostic studies. The content of his thoughts was remarkable for current stressors, which included the illness of his wife, inability to have children, and poor finances. He stated that he had not been present during the attack which killed his friend but felt guilty that his friend was killed rather than him. He indicated that his flashbacks were overshadowed by recent concerns relating to his other problems. He was still on lithium. The report contained a notation that "[i]t was felt that the patient appears to have somewhat limited resources for coping premorbidly and so may have suffered even to a greater extent in the face of trauma at war. He has a fairly well- documented history of bipolar disorder as well as the symptoms may have been consistent with PTSD (sic)." On psychological testing it was noted that there were high scores in the depressive scale but that symptoms of PTSD, though not prominent, were present. It was observed that: "[i]t is likely that his experiences in Vietnam impacted him significantly in a psychological way and that he was significantly distressed at some time, however, is less so at this time. Despite the impact of his experiences in Vietnam, the patient seemed to have adjusted or accommodated adequately and appears to be functioning at a reasonable level at this time." It was concluded that elevation in stress on psychological testing was accompanied by symptoms of PTSD but that this was "not significant." It was difficult to state whether the full criteria of PTSD were met and that his impairment was compounded by the bipolar illness. The final diagnosis, concurred in by two examiners, was mixed bipolar disorder. b. Analysis. Since the evidence does not show, and the veteran does not expressly contend, that a chronic psychiatric disability had its onset during service, there is no basis for the granting of service connection for any psychiatric disorder on the basis of direct service incurrence. 38 U.S.C.A. § 1110 (West 1991). The claim is limited to the question of whether the veteran currently has PTSD related to his experiences in service. The denial of service connection for PTSD in January 1985 was a final determination with respect to the evidence then of record. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 3.104 (1992). Consequently, the claim may be reopened only if the additional material received since the prior adjudication is found to constitute new and material evidence within the meaning of 38 U.S.C.A. § 5108 (West 1991) and 38 C.F.R. § 3.156(a) (1992). The United States Court of Veterans Appeals (the Court) has held that evidence is new and material when it is not cumulative of evidence previously considered, when it is relevant to and probative of the issue at hand, and when it raises a reasonable possibility that, when viewed in the context of all of the evidence of record, both old and new, it would change the outcome of the claim. Colvin v. Derwinski, 1 Vet.App. 171 (1991); Smith v. Derwinski, 1 Vet.App. 178 (1991). An award of service connection for PTSD requires that a current diagnosis be established which conforms to the Diagnostic and Statistical Manual of Mental Disorders (3rd ed., rev. 1987) (DSM-III- R) of the American Psychiatric Association. 38 C.F.R. § 4.126 (1991). An essential prerequisite for the diagnosis is that there have been a verifiable "stressor" for PTSD. DSM-III-R defines a stressor as a life-threatening circumstance or other event that is outside of the range of usual human experience and that would be markedly distressing to almost anyone. Id. at 247-248. In assessing an alleged stressor for PTSD, a distinction may properly be drawn between the stress of specific traumatic circumstances and the ordinary stress experienced by anyone in a war zone. Wood v. Derwinski, 1 Vet.App. 190 (1991). The Court has indicated that the Board is not obligated to accept a claimant's uncorroborated account of his Vietnam experiences. Wood v. Derwinski, 1 Vet.App. 190 (1991); Wilson v. Derwinski, 2 Vet.App. 614 (1992). The disputed matters on appeal include the sufficiency of the evidence of a stressor for PTSD. As noted herein, service department records confirm that the veteran served in Vietnam, but they contain no specific reference to combat duty or assignment to a combat unit. Indeed, the veteran's military occupational speciality (MOS) clearly suggests duties which did not involve direct confrontation with the enemy. The veteran's hearing testimony concerning his duties confirms this. The Court has indicated that when it is found that the veteran engaged in actual combat with the enemy, the veteran's version of events becomes conclusive and corroboration of individual stressors is not necessary. Trytek v. Derwinski, U.S. Vet. App. No. 91-1502 (August 25, 1992). However, if actual combat is not documented, the requirement for corroboration remains, and the Board is obligated to seek verification of the claimed stressors. Masors v. Derwinski, 2 Vet.App. 181 (1992). The ESG was unable to confirm the occurrence of either of the events cited by the veteran. In the absence of direct evidence of combat, the veteran may not be relieved of the requirement that the claimed stressors be satisfactorily corroborated. The strongest inference that can be drawn from the record presently before the Board is that the veteran's service did not involve exposure to more than an ordinarily stressful environment of a soldier stationed in Vietnam. The veteran's circumstances are not shown to have been different from those of many other servicemen who served at base camps subject to rocket fire. The veteran cites the potentially harmful effects of exposure to Agent Orange as an additional factor contributing to the stress of Vietnam duty. (As noted in the remand, the present appeal does not involve any question to the toxic effect of Agent Orange). The medical controversy concerning the claimed dangers of exposure to Agent Orange did not arise until long after the veteran's Vietnam service. Be that as it may, exposure to Agent Orange (dioxin) is presumed for all veterans who served in Vietnam during the Vietnam Era. 38 C.F.R. § 3.311a(b) (1992). Such exposure must be regarded as one of the ordinary stresses of Vietnam combat. We would note also that the veteran underwent a VA Agent Orange screening in 1981 and service connection for disabilities based on Agent Orange exposure was denied in July 1984. With respect to the stressors for PTSD, the additional evidence received since the prior denial consists of details provided by the veteran in his hearing testimony and the June 1991 statement which are essentially cumulative of information previously of record and does not substantially alter the likely outcome of the claim. The disputed matters raised on appeal also involve the clinical diagnosis of the veteran's postservice psychiatric disorder. The January 1985 denial was based on the findings of a November 1984 panel of VA psychiatrists who concluded that PTSD was not present and that the veteran did not in fact have a psychiatric disease. The evidence received since January 1985 is consistent in demonstrating that the veteran does now have a serious psychiatric illness. However, such evidence does not establish a diagnosis of PTSD. The diagnosis of PTSD during a VA hospitalization in December 1988 and January 1989 was not confirmed on the much more thorough and complete study performed in March 1992. In fact, the VA medical evidence demonstrates that the current psychiatric diagnosis is that of bipolar disorder and that his current symptoms are in large part a response to various current problems. The report of the March 1992 hospitalization contains language, quoted above, which appears to concede some connection between the psychiatric symptoms and Vietnam service. We would note, however, that the conclusion that the veteran "may have suffered in the face of trauma at war" is based on a history which is not corroborated in the record. The question of a whether a stressor is adequately proved is one of fact, not medical opinion; the Court has held that the Board is not obligated to accept unsubstantiated opinions of medical opinions that a claimant's symptoms are related to combat service. Wood v. Derwinski, 1 Vet.App. 190 (1991); Wilson v. Derwinski, 2 Vet.App. 614 (1992). In any case, the examiners noted that the veteran had adjusted or accommodated "adequately". Though noting the presence of symptoms consistent with PTSD, they stopped short of arriving at a diagnosis of PTSD. The Board finds that the additional material received since the prior adjudication does not satisfy the criteria established by the Court for recognition as new and material evidence. We find that the service connection claim is not reopened and that the Board is not obligated to make a further determination as to whether all of the evidence of record, both old and new, is sufficient to support the granting of service connection. Manio v. Derwinski, 1 Vet.App. 140 (1991). ORDER Service connection for defective hearing and tinnitus is denied. The appeal to reopen a claim for service connection for PTSD is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * STEPHEN L. WILKINS (Member temporarily absent) DANIEL J. STEIN *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.