Citation NR: 9612823 Decision Date: 05/14/96 Archive Date: 05/21/96 DOCKET NO. 94-22 752 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased (compensable) evaluation for bilateral high frequency hearing loss. 3. Entitlement to an increased evaluation for tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Westfall, Counsel INTRODUCTION The veteran served on active duty from April 1970 to November 1971. This appeal arises from an April 1993 rating action of the Detroit, Michigan, Regional Office (RO), which denied an evaluation in excess of 10 percent disabling for tinnitus and which denied a compensable evaluation for bilateral hearing loss. In February 1995, the RO denied service connection for PTSD. CONTENTIONS OF APPELLANT ON APPEAL The veteran maintains that bilateral hearing loss is more severe than is reflected by the current noncompensable evaluation. He points out that he wears hearing aids in both ears and continues to have difficulty hearing people at a conversational level, often resorting to lip-reading. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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, it is the decision of the Board that the preponderance of the evidence is against a grant of entitlement to an increased (compensable) evaluation for bilateral hearing loss and against an evaluation in excess of 10 percent disabling for tinnitus. FINDINGS OF FACT 1. A February 1993 VA audiology examination disclosed that right ear pure tone thresholds were 25, 40, 70, and 70 decibels with an average of 51 decibels at 1,000, 2,000, 3,000, and 4,000 Hertz respectively, and a speech recognition of 88 percent. 2. A February 1993 VA audiology examination disclosed that left ear pure tone thresholds were 30, 55, 60, and 70 decibels with an average of 54 decibels at 1,000, 2,000, 3,000, and 4,000 Hertz respectively, and a speech recognition of 88 percent. 3. The veteran has bilateral tinnitus described as constant which he matched to a 4 KHz pure tone at 75 decibels on VA audiology examination in February 1993. CONCLUSIONS OF LAW 1. The criteria for an increased (compensable) evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.85, Code 6100 (1995). 2. An evaluation in excess of 10 percent disabling for bilateral tinnitus is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.87a, Code 6260 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran’s claims for increased evaluations are well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a) with regard to these issues. In accordance with 38 C.F.R. §§ 4.1, 4.2 (1995), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's bilateral hearing loss and tinnitus. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant a detailed exposition of the remote clinical histories and findings. It is of record that the veteran's military occupational specialty was as a field artillery man, and that he served as a cannoneer in Vietnam. Disability evaluations are based on the comparison of clinical findings to the relevant schedular criteria. 38 U.S.C.A. § 1155. In determining the rating warranted, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Modern pure tone audiometry testing and speech audiometry utilized in VA audiological clinics are well adapted to evaluate the degree of hearing impairment accurately. Methods are standardized so that the performance of each person can be compared to a standard of normal hearing, and ratings are assigned based on that standard. The assigned evaluation is determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). A review of the available service medical records indicates that the veteran was placed on limited duty in August 1971 due to hearing loss. In July 1972, the RO granted service connection for high frequency bilateral hearing loss, assigning a no percent evaluation. A VA outpatient clinic treatment record dated in May 1972 included the veteran's complaints of ringing in his ears. The diagnosis was tinnitus aurium and mild high tone deafness. On VA examinations in December 1972 and November 1974, the veteran's complaints included constant ear ringing. A VA hearing acuity examination performed in April 1985 showed speech reception thresholds at 12 decibels in the right ear with 94 percent discrimination ability, and speech reception thresholds at 14 decibels in the left ear with 74 percent discrimination ability. It was noted that the veteran complained of constant tinnitus, bilaterally, at 4 KHz at 75 decibels. In July 1986, the RO granted service connection for tinnitus, assigning a 10 percent evaluation. A VA audiology examination was conducted during February 1993. Pure tone air conduction was 25, 40, 70, and 70 decibels with an average of 51 decibels at 1,000, 2,000, 3,000, and 4,000 Hertz respectively, and speech recognition was 88 percent in the right ear. Left ear studies disclosed pure tone air conduction of 30, 55, 60, and 70 decibels with an average of 54 decibels at 1,000, 2,000, 3,000, and 4,000 Hertz respectively, and speech recognition was 88 percent. Constant bilateral tinnitus was noted which matched to a 4 KHz pure tone at 75 decibels. The veteran presented testimony at an RO hearing held in May 1995. He pointed out that he had served in the artillery and had been a cannoneer. The February 1993 VA audiology examination disclosed that right ear hearing loss was manifested by an average loss of 51 decibels with a speech recognition of 88 percent, and that left ear hearing loss was manifested by an average loss of 54 decibels with a speech recognition of 88 percent. These audiometric findings result in a numerical designation of II and II, respectively, on Table VI of 38 C.F.R. § 4.85 of the VA Schedule for Rating Disabilities. The numeric designations of II and II, respectively, equate to a noncompensable evaluation of no percent under Diagnostic Code 6100. Under Diagnostic Code 6260, a 10 percent evaluation is warranted for persistent tinnitus as a symptom of head injury, concussion or acoustic trauma. In other words, insofar as attaining an evaluation in excess of 10 percent disabling for bilateral tinnitus, the veteran is currently receiving the maximum evaluation for that disability. Additionally, as explained above, his hearing loss does not comport with the criteria warranting a compensable evaluation. No question has been presented as to which of two evaluations would more properly classify the severity of the appellant's bilateral hearing loss and tinnitus. 38 C.F.R. § 4.7. The Board acknowledges the veteran's complaints regarding his efforts to hear properly, as well as the necessity of using hearing aids. There is no disagreement that the veteran has a hearing loss in each ear, as well as tinnitus. Nonetheless, the severity of such hearing loss is not of such an extent that assignment of a compensable evaluation is shown to be warranted on the basis of the most recent VA audiological studies. The preponderance of the evidence is against a compensable evaluation for high frequency bilateral hearing loss. An evaluation in excess of 10 percent disabling for bilateral tinnitus is not warranted. Because the preponderance of the competent evidence is found to be against the veteran's claims for increased evaluations, the evidence is not found to be in equipoise, and the benefit-of-the-doubt doctrine codified in 38 U.S.C.A. § 5107(b) is not applicable in this case. ORDER Entitlement to a compensable evaluation for high frequency bilateral hearing loss is denied. Entitlement to an evaluation in excess of 10 percent for bilateral tinnitus is denied. REMAND Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, 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) (1995). The available service records indicate that the veteran served in Vietnam from October 1970 to November 1971 as a cannoneer in an artillery battalion. It was indicated that he took part in an unnamed campaign. His service awards did not include the Purple Heart, the Combat Infantryman Badge, or any other decoration reflective of combat activity. He was awarded the Vietnam Service Medal. In a letter dated in October 1994, the RO requested that the veteran provide specific information regarding his claimed inservice stressors. While the veteran did not respond to the request, at a May 1995 hearing the appellant did report participating in combat near the Cambodian border. He further described mortar, rocket, and bomb attacks, as well as close combat incidents. The veteran submitted an affidavit regarding his experiences in Janaury 1996. The Board observes that the stressor information which the veteran has supplied has yet to be referred to the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the claimed stressors. The provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of PTSD state 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). Hence, further development is warranted. The Board also observes that the diagnoses of record conflict as VA physicians are not unanimous in their determination as to whether the veteran suffers from PTSD. For example, VA outpatient clinic treatment records from February 1992 to February 1993 do not include any diagnosis of PTSD, but, rather, diagnose anxiety and depression, as well as an adjustment disorder with depression. The clinical records associated with the veteran's June 1995 admission at Battle Creek VAMC, however, include an Axis I diagnosis of post-traumatic stress disorder and a history of alcohol dependence, in remission. As an examination based on a questionable history is inadequate for rating purposes, West v. Brown, 7 Vet.App. 70, 77-8 (1994), the Board concludes that 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 the 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) (1995), the Board will not decide the issue of whether service connection for PTSD is warranted, pending a REMAND of the case to the RO for further development as follows: 1. The RO should request from the veteran a statement containing as much detail as possible regarding any and all stressful events to which he was exposed in service. He should be asked to provide specific details of the claimed stressful events to the best of his ability, including, particularly, dates, places, detailed descriptions, units of service, duty assignments, as well as the full names, ranks, units of assignment and any other identifying information concerning other individuals involved in the events. The Board takes this opportunity to inform the veteran that the United States Court of Veterans Appeals has held that asking the veteran to provide the underlying facts, i.e., the names of individuals involved, the dates, and the places where the claimed events occurred, is not an impossible or onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The RO should caution the veteran that failure to provide all of the requested information may have an adverse effect on the outcome of his appeal. 2. After obtaining the foregoing requested information from the veteran, the RO should forward it with a copy of his personnel record (DA Form 20), and record of service (DD Form 214) to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield, Virginia 22150, in an attempt to verify any claimed stressors. Any information obtained is to be associated with the claims file. 3. 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 a combat stressor has not been verified, the RO should so state in its report. The report is then to be added to the claims file. 4. Thereafter, the RO should obtain all pertinent psychiatric treatment records from the Mental Health Clinic at Saginaw VAMC, as well as all progress notes associated with the veteran's treatment for the disorder during June and July 1995 from Battle Creek VAMC. These records should be associated with the claims file. 5. Then, and only then, should the RO schedule the veteran for a special psychiatric examination by a board of two VA psychiatrists who have not seen or treated him. 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 No. 0910), and all appropriate studies, including PTSD subscales, are to be performed. The claims file and a copy of this REMAND must be made available to and reviewed by the examiners prior to the examinations. In determining whether or not the veteran has PTSD 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 PTSD 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. 6. 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 PTSD 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, the examination report MUST BE RETURNED as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of PTSD related to service based on an examination which relied upon an unverified history is inadequate. West, 7 Vet.App. at 77. 7. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for PTSD. If this 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. DEREK R. BROWN 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) (1995). -1- - 2 -