Citation NR: 9604523 Decision Date: 02/27/96 Archive Date: 03/08/96 DOCKET NO. 94- 08 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service-connection for post-traumatic stress disorder. 2. Entitlement to service-connection for hearing loss of the left ear. 3. Whether a rating decision of May 20, 1981, denying service-connection for tinnitus, involved clear and unmistakable error. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service-connection for tinnitus. 5. Entitlement to service-connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Jeffrey D. Parker, Associate Counsel INTRODUCTION The veteran served on active duty from March 1972 to March 1974. This appeal arose from a rating decision in May 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a subsequent rating decision in July 1993, the RO denied claims of clear and unmistakable error for a (non-final) May 1993 decision denying service- connection for post-traumatic stress disorder (PTSD) and for a prior final rating decision denying service-connection for tinnitus, and denied a request for reconsideration of the claim of service-connection for PTSD based on 38 C.F.R. § 3.304(f). A statement of the case and certification for appeal referred to one of the issues as whether clear and unmistakable error was committed in the May 1993 rating decision denying service connection for post-traumatic stress disorder. That rating decision, however, was timely appealed and therefore was not a final decision. Consequently, it was incorrect to address as an issue whether clear and unmistakable error was committed in denying denying service-connection for post- traumatic stress disorder. The issue of service connection for post-traumatic stress disorder will be addressed on appeal solely on the merits. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has PTSD as a direct result of his service aboard an aircraft carrier. He specifically contends that he saw a friend being sucked through a jet engine, saw a helicopter blade dismember another crew member, witnessed a tanker explode and kill 6 people, and that a huge bomb fell off a plane onto the ship’s deck in front of him. He also contends that he has left ear hearing loss, and that his tinnitus and left ear hearing loss are causally related to acoustic trauma in service. DECISIONS OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, the decisions of the Board are that the record supports an allowance of entitlement to service-connection for tinnitus, and that the preponderance of the evidence is against the veteran’s claim of entitlement to service-connection for hearing loss of the left ear. FINDINGS OF FACT 1. The veteran is not shown to currently have a left ear hearing loss disability. 2. The RO denied entitlement to service-connection for tinnitus on May 20, 1981, finding that there were no complaints of tinnitus in service, that etiology of right ear sensorineural hearing loss was not shown, and that substantial acoustic trauma in service was not indicated. 3. Regarding the May 1981 rating decision, the veteran has not stated a claim of clear and unmistakable error with sufficient specificity as to what the alleged error was, and has failed to give persuasive reasons as to why the result would have been manifestly different. 4. The rating decision of May 20, 1981, which denied entitlement to service-connection for tinnitus, was adequately supported by the evidence then of record. 5. The evidence received since May 1981, when viewed in the light of all of the evidence of record, raises a reasonable possibility of changing that prior decision. 6. Tinnitus has not been dissociated from acoustic trauma in service and hearing loss. CONCLUSIONS OF LAW 1. Hearing loss of the left ear was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303(1994). 2. The rating decision of May 20, 1981, which denied entitlement to service-connection for tinnitus, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.105(a). 3. New and material evidence has been submitted to reopen a claim of entitlement to service-connection for tinnitus. 38 U.S.C.A. §§ 7105, 5108 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). 4. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran has presented claims for tinnitus and left ear hearing loss that are "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims that are plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). Service-connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Hearing loss of the left ear Service-connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Service-connection may 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. Presumptive periods are intended as liberalizations, and are not intended to limit service- connection to diseases so diagnosed when the evidence warrants direct service-connection. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran who served for 90 days or more during a period of war develops an organic disease of the nervous system, such as a sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from such service, such disease may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. 3.307, 3.309 (1994). Hearing status will be considered a disability when at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 is at least 40 decibels, when the thresholds for at least three of these frequencies are more than 25 decibels, or when speech recognition scores are less than 94 percent. 59 Fed.Reg. 60,560 (1994) (to be codified at 38 C.F.R. § 3.385). In evaluating issues of service-connection, due consideration shall be given to the places, types, and circumstances of the veteran’s service as shown by the service record, the official history of each organization in which the veteran served, medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154. In this veteran’s case, service medical records show that on a report of medical history at service entrance in March 1972, the veteran reported that he did not have hearing loss. At a service entrance examination in April 1972, the veteran’s hearing was recorded as 15/15 bilaterally on the whispered and spoken voice tests, but audiometric testing was not recorded. At the service separation examination in February 1974, audiological evaluation recorded pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 40 20 30 LEFT 90 80 75 80 Speech recognition ability, if measured, was not recorded. In light of subsequent audiometric testing, however, the Board finds that this examination is erroneous. Private audiological testing in October 1979, resulted in the examiner’s conclusion that hearing in the left ear was essentially normal. On a VA audiological evaluation in April 1981, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 60 75 80 LEFT 10 15 NT 20 Speech audiometry revealed speech recognition ability of 94 percent in the left ear. On a VA audiological evaluation in April 1993, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 70 80 85 LEFT 10 15 20 25 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 96 percent in the left ear. The examiner described the results as normal hearing status for the left ear, with excellent word recognition scores for the left ear. Middle ear pressure and tympanic compliance were found to be normal, with normal middle ear and VII and VIII cranial nerve function. The data was described as indicative of normal peripheral auditory function. In November 1993, the veteran testified at a personal hearing that he was involved in flight operations for 17 months aboard an aircraft carrier, which involved working near jet engines, and that he wore ear protection, even though it did not seem to help. The evidence of record does not establish that the veteran has a current hearing loss disability of the left ear. The United States Court of Veterans Appeals (Court) has held that “[i]n order for the veteran to be awarded a rating for service-connected [disability], there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury.” Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). In this regard, the Board finds that, while audiological testing service separation examination appeared to reflect the presence of left ear hearing loss disability at that time, subsequent testing indicates that those examination results were flawed. At a private audiological examination in October 1979, the examiner noted no left ear hearing loss. An April 1981 VA examination specifically commented that “[i]t certainly can be said without equivocation that the administrative discharge audiogram February 27, 1974, was seriously in error. Polytomographic x-rays of the right internal acoustic canal does not indicate the presence of an acoustic nerve tumor.” For these reasons, the Board finds that the evidence does not demonstrate current left ear hearing loss. Tinnitus: clear and unmistakable error The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination: (1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made”; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet.App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc). The Court has further stated that a CUE is a very specific and a rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993) citing Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc) (Emphasis in the original). Neither the veteran nor his representative has presented a claim of clear and unmistakable error with sufficient specificity as to what error of fact or law was committed, and how such error would have manifestly changed the outcome at the time the May 1981 rating decision was made. The representative has merely asserted disagreement with the RO’s exercise of judgment in denying service-connection for tinnitus. A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet.App. at 245. Therefore, the representative’s assertion that the hearing officer was somehow impartial because he presided over the November 1993 hearing is entirely irrelevant, as it requires consideration of evidence not of record at the time of the May 1981 rating decision. The evidence at the time of the May 1981 rating decision was sufficient to support the RO’s conclusion. Service medical records were negative for any complaints or findings relative to tinnitus. The evidence of record at the time showed that the veteran first complained of tinnitus to a private physician in October 1979, notably five and one-half years after service. Despite the representative’s assertion that this private physician offered the opinion that tinnitus was causally related to acoustic trauma in service, the record contains no such opinion. At a VA compensation examination in April 1981, seven years after separation from service, the veteran complained that his right ear rang constantly, though the exact onset was unknown. The examiner entered a diagnosis of tinnitus but did not state its etiology. Based on this evidence of record at the time, the May 1981 rating decision found that there were no complaints of tinnitus in service, that etiology of right ear sensorineural hearing loss was not shown, and that substantial acoustic trauma in service was not indicated. The representative argues that, as the medical evidence beginning in October 1979 recorded the veteran’s complaints of the presence of tinnitus, that the examiner was bound to find that tinnitus was related to service. The fact is that the examiner in 19981 did not so find. He rendered no opinion. If the examiner had offered an opinion, it is not absolutely clear that a different result would have ensued. Accordingly, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo, 6 Vet.App. at 43-44. Tinnitus: new and material evidence "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand, and which must be of sufficient weight or significance (assuming its credibility, see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992)) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The additional relevant evidence received since the RO’s May 1981 rating decision denying service-connection for tinnitus consists of a VA audiological examination in April 1993 and the veteran’s sworn testimony at a November 1993 personal hearing. At a VA audiological examination for compensation purposes, conducted in April 1993, the veteran reported constant bilateral tinnitus, worse on the right than the left, described as a high-pitched noise. He related a two year exposure to jet engine noise. In the findings, the examiner reported tinnitus, right worse than left, with onset in 1974. The examiner noted the tinnitus was constant. At a personal hearing in November 1993, the veteran entered sworn testimony of a history of working around jet engines on the flight deck of an aircraft carrier during service. The Board finds that there is a reasonable possibility that this “new” evidence, when viewed in the context of all the evidence, would change the outcome of the prior final decision. Accordingly, the veteran’s claim is reopened. The veteran is service-connected for right ear hearing loss as a result of exposure to acoustic trauma in service. The Board notes that tinnitus is often associated with sensorineural hearing loss. A medical examiner has now given an opinion that the tinnitus is associated with service. For these reasons, resolving reasonable doubt in the veteran’s favor, the Board finds that service-connection for tinnitus has been established. 38 U.S.C.A. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Service-connection for left ear hearing loss is denied and, resolving reasonable doubt in the veteran’s favor, service- connection for tinnitus is granted. REMAND Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the disorder, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). In this regard, the record available to the Board shows that the veteran’s military occupation was store clerk, and that he served aboard the U.S.S. Ranger aircraft carrier. He is not shown to have been awarded the Combat Infantryman Badge, Purple Heart Medal, or any other decoration reflective of combat activity. He has, however, provided descriptions in several statements which are on file and at a personal hearing, as well as in a clinical setting that, in connection with his service in Vietnam, he saw a friend being sucked through a jet engine, saw a helicopter blade dismember another crew member, witnessed a tanker explode and kill 6 people, and that a huge bomb fell off a plane onto the ship’s deck in front of him. He testified at a personal hearing that he could not recall specific dates. The record reflects that the veteran did not respond to a request from the RO that he provide a more detailed stressor statement. Still, the Board observes that the stressor information which the appellant has supplied to the RO has not been referred to the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the claimed stressors. In this respect, the Board acknowledges that the information provided by the veteran probably is not as complete as the ESG will need to verify the existence of the veteran’s claimed stressors. Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of post-traumatic stress disorder provide that, “where records available to the rating board do not provide objective or supportive evidence of the alleged inservice traumatic stressor, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2) (emphasis added). Accordingly, as the development outlined in Manual M21-1 includes providing the information submitted by the veteran to the ESG, such development is mandatory. The Board also observes that VA psychiatrists have already determined that the veteran has post-traumatic stress disorder, and diagnoses of post-traumatic stress disorder are also contained in correspondence of record. An examination based on a questionable history, however, is inadequate for rating purposes, West v. Brown, 7 Vet.App. 70, 77-8 (1994). Thus, it is necessary that the veteran be provided an examination where the examiner has an accurate and verified history of the appellant’s military service. Therefore, pursuant to VA’s duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994), the Board will not decide the issue of entitlement to service- connection for post-traumatic stress disorder pending a REMAND of the case to the RO for further development as follows: 1. The RO should forward the information the veteran has supplied regarding exposure to stressful events in service, with copies of obtained service personnel records, and a copy of his record of service (DD-214), to the United States Army and Joint Services Environmental Support Group (ESG), Building 5089, Stop # 387, Fort Belvoir, Virginia 22060, in an attempt to verify any claimed stressor. Any information obtained is to be associated with the claims file. 2. Following receipt of the ESG’s report, and the completion of any additional development warranted or suggested by that agency, the RO should prepare a report detailing the nature of any combat action, or inservice stressful event, verified by the ESG. If no combat stressor has been verified, the RO should so state in its report and no further action is required. This report is then to be added to the claims file. 3. If, and only if, any stressor is verified by the ESG, then the RO should schedule the veteran for a psychiatric examination. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations (AMIE Worksheet Number 0910) (located in VBA/ARMS electronic database on CD-ROM update issued 21 September 1995), and all appropriate studies, including post- traumatic stress disorder sub scales, are to be performed. The claims file must be made available to and reviewed by the examiners prior to the examinations. In determining whether or not the veteran has post-traumatic stress disorder due to an inservice stressor the examiners are hereby notified that only the verified history detailed in the reports provided by the ESG and/or the RO may be relied upon. If the examiners believe that post-traumatic stress disorder is the appropriate diagnosis, they must specifically identify which stressor detailed in the ESG’s and/or the RO’s report is responsible for the conclusion. Any and all opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning Score which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, and explain what the assigned score means. The examination report should be typed. 4. Following completion of the foregoing, the RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the VA psychiatric examination report to verify that any diagnosis of post-traumatic stress disorder was based on the verified history provided by the ESG and/or the RO. If the examiners relied upon a history which was not verified, that examination report must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of post- traumatic stress disorder, related to service, based on an examination which relied upon an unverified history is inadequate. West, 7 Vet.App. at 77. 5. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service-connection for post-traumatic stress disorder. If the benefit requested on appeal is not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. _________________________ BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -