Citation NR: 9622652 Decision Date: 08/13/96 Archive Date: 08/16/96 DOCKET NO. 94-36 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss. 2. Entitlement to service connection for post traumatic stress disorder. 3. Entitlement to service connection for allergies. 4. Entitlement to service connection for a chronic acquired right knee disorder. 5. Entitlement to service connection for a chronic acquired right ankle disorder. 6. Entitlement to service connection for a chronic acquired back disorder. 7. Entitlement to service connection for a chronic acquired eye disorder diagnosed as refractive error. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from April 1969 to June 1976. The claims file contains a report of a rating decision dated in May 1977 wherein entitlement to service connection was denied for hearing loss. The veteran was notified of the denial by letter and of his right to appeal. He did not file a timely appeal. The current appeal arose from a March 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for hearing loss. The RO denied entitlement to service connection for post traumatic stress disorder, hiatal hernia, allergies, and chronic acquired disorders of the eyes, right ankle, right knee, and back. The RO affirmed the determinations previously entered when it issued rating decisions in November 1994 and August 1995. The case has been forwarded to the Board of Veterans’ Appeals (Board) for appellate review. The issues of entitlement to service connection for post traumatic stress disorder, and chronic acquired disorders of the back, right knee, and right ankle will be addressed in the remand portion of the decision. At the RO hearing the veteran raised the issue of service connection for ear infections. This issue has neither been procedurally prepared nor certified for appellate review. The Board is referring it to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he suffers from hearing loss, allergies, hiatal hernia, and refractive error of his eyes as the result of active service, thereby warranting entitlement to grants of service connection. 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 no new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss, the claim for service connection for hiatal hernia is not well grounded, and that the preponderance if the evidence is against grants of entitlement to service connection for allergies and refractive error. FINDINGS OF FACT 1. In May 1977 the RO denied on the merits the veteran’s claim for entitlement to service connection for hearing loss, finding that such disorder was not shown by the evidence of record. 2. Additional evidence since the May 1977 rating decision showing that the veteran has hearing loss and hearing testimony does not show that such disorder is related to service. 3. The additional evidence submitted by the veteran since the May 1977 rating decision, when viewed in light of all the evidence of record, both new and old, does not raise a reasonable possibility of changing the prior outcome. 4. Refractive errors are not recognized as disabilities for VA compensation purposes under the law. 5. Allergies reported at entrance into and during service were productive of acute symptomatology which did not chronically worsen in service. 6. The claim for service connection for hiatal hernia is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The decision of the RO in May 1977, denying the veteran’s claim of entitlement to service connection for hearing loss is final. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.104(a) (1995). 2. Evidence received since the RO denied entitlement to service connection for hearing loss is not new and material, and the veteran’s claim for that benefit has not been reopened. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 5108 (West 1991); 38 C.F.R. §§ 3.156(a), 3.307, 3.309 (1995). 3. A chronic acquired eye disorder diagnosed as refractive error was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(c) (1995). 4. Preexisting allergies were not aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.306(b), 3.380 (1995). 5. The claim for service connection for hiatal hernia is not well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss. Factual Background The evidence which was of record prior to the May 1997 rating decision wherein the RO denied entitlement to service connection for hearing loss will be summarized below. The service medical records revealed no evidence or finding of a hearing loss in either ear. The April 1977 VA audiology examination concluded in a finding that hearing was within normal limits bilaterally. The ear, nose, and throat examination concluded in a diagnosis that deafness had not been found. The additional evidence associated with the claims file following the May 1977 RO rating decision denying entitlement to service connection for hearing loss will be summarized below. A partial hearing loss was noted on an August 1992 private medical report. A December 1992 VA audiology examination concluded in a diagnosis of bilateral high frequency sensorineural hearing loss. The veteran provided testimony in support of his claim for service connection for hearing loss at an RO hearing held in October 1993. He testified that his exposure to noise in association with his duties as a tank turret repairmen caused the development of his hearing loss. Analysis The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). After a review of the record, the Board concludes that the additional evidence is not both “new” and “material.” Accordingly, the veteran’s claim is not reopened and the RO’s decision in May 1977 denying the veteran’s claim for service connection for hearing loss remains final. ‘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 prior outcome. See Cox v. Brown, 5 Vet.App. 95, 98 (1993). The evidence submitted by the veteran subsequent to the May 1977 rating decision wherein the RO denied entitlement to service connection for hearing loss is “new” to the extent that it shows he currently has a hearing loss in both ears. This was not demonstrated prior to the May 1977 rating decision. This evidence, however, is not material in nature as there is no reasonable possibility that such evidence, when considered in the context of all the evidence of record, would change the prior outcome. In this regard, the Board notes that while the veteran undoubtedly has a hearing loss, such hearing loss has not been linked by competent medical authority to his period of service. The VA and private medical documentation of bilateral hearing loss show that the examiners did not relate such hearing loss to service. The record does not show that the veteran is trained in the medical sciences, and therefor is not competent to express an opinion linking his post service reported hearing loss to service. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The same may be said for the testimony provided by the veteran at the RO hearing. The veteran essentially reiterated previously provided arguments and contentions which were rejected by the RO when it issued its rating decision in May 1977. It is therefore neither “new” nor “material” in nature. The additional evidence submitted by the veteran in no way refutes the RO’s conclusion in May 1977 that service connection was not warranted for hearing loss. As noted above, no new and material evidence has been submitted to permit the Board to conclude that the previously denied claim should be reopened. 38 C.F.R. §§ 3.104(a), 3.156(a). II. Entitlement to service connection for a chronic acquired eye disorder diagnosed as refractive error. With respect to the claim for service connection for a chronic acquired eye disorder diagnose as refractive error, the Board does not need to reach the question whether or not this claim is well grounded because the law concerning awards of service connection for a strictly refractive error is dispositive. The service medical records show that refractive error was diagnosed in service and the veteran was issued corrective lenses for such disorder shown when he was examined for entrance in service and subsequently. Refractive error was again diagnosed by VA when the veteran underwent a special ophthalmologic examination in November 1992. The veteran testified on behalf of his claim for service connection for a chronic acquired eye disorder at the RO hearing held October 1993. At the hearing he stated that welding in service without eye protection made his eyes sensitive to light. Neither service nor post service eye examinations of record show the veteran has an eye disorder manifested by sensitivity to light. What the record does show is that the veteran had a refractive error of the eyes in service, and has been diagnosed with same post service. In this regard, 38 C.F.R. § 3.303(c) provides that a “refractive error of the eye... is not a disease or injury within the meaning of applicable legislation governing the awards of compensation benefits. As such, regardless of the character or the quality of any evidence which the veteran could submit, a strictly refractive error cannot be recognized as a disability under the terms of the VA Schedule for Rating Disabilities. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Cf also Beno v. Principi, 3 Vet.App. 439, 441 (1992). (As a matter of law there is no compensable rating disability). Accordingly, although the veteran’s service medical records do reflect the diagnosis of refractive error, service connection for a refractive error must be denied as a matter of law. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(c). III. Entitlement to service connection for allergies. Factual Background The veteran reported a history of hay fever when he completed the medical history portion of the April 1969 general medical examination for enlistment. No abnormalities were reported on examination. The examination physician noted mild hay fever. In June 1972 the veteran was seen with complaints of hay fever. He was again seen in August 1972 for allergic reaction. The veteran reported a history of hay fever when he completed the report of medical history portion of the separation examination in June 1976. No abnormalities were found on examination and the examiner noted hay fever, minimal. When examined by VA in November 1992 the veteran reported a history of seasonal allergies requiring no medication. No abnormalities were reported on examination and the physician diagnosed history of seasonal allergies, not requiring medications. The veteran testified in support of his claim for service connection for allergies at an RO hearing held in October 1993. He testified that his allergy varied from mild to more severe depending on the pollen. He reported receiving post service treatment. Additional records of post service treatment associated with the claims file were negative for allergies. Analysis Service connection may be granted for a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380. The Board’s analysis of the evidentiary record does not permit the conclusion that the record supports a grant of service connection for allergies. In this regard the Board notes that allergies were reported as mild when the veteran initially entered service in 1969. He was seen on two occasions in service for symptomatology and at discharge was found to have minimal hay fever. This is not consistent with a worsening or aggravation of his allergies. The Board notes that while the veteran testified at the RO hearing that he had required post service treatment for allergies, the medical treatment reports associated with the claims file are negative for any symptomatic exacerbations. Of particular importance is the fact that the November 1992 VA examination report shows the veteran had allergies which did not require medication. The Board’s application of the pertinent governing criteria reported above do not permit a grant of service connection for allergies. The veteran’s allergies are not shown to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. § 3.380. IV. Entitlement to service connection for hiatal hernia. Factual Background The service medical records show that in August 1972 and October 1974 the veteran was treated for gastrointestinal symptomatology. The service medical records were silent for a finding of hiatal hernia, nor was a chronic acquired gastrointestinal disorder shown in service. An August 1992 private medical report shows the veteran was diagnosed with hiatal hernia. A November 1992 VA upper gastrointestinal x-ray disclosed minimal evidence of hiatal hernia. The veteran testified in support of his claim for service connection for hiatal hernia at an RO hearing held in October 1993. He argued that gastrointestinal complaints were treated while he was on active duty. Analysis Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that the claim is plausible. See Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim for service connection for hiatal hernia is not well grounded and must be denied. Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well grounded claim, see Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders the veteran’s claim not well grounded. As the Board noted above, hiatal hernia was not shown in service or for many years thereafter. While the veteran did complain on two occasions of gastrointestinal symptomatology in service, such symptomatology was never found to be reflective of hiatal hernia, a disorder initially diagnosed many years following service. The veteran’s claim is based on his assertion that he has hiatal hernia related to service. He is not a medically trained health professional and as a lay person does not constitute competent medical authority to render an opinion as to causation. See Espiritu. The veteran has not submitted a well grounded claim of entitlement to service connection for hiatal hernia. His appeal in this regard must be denied. The Board recognizes that the veteran’s claim has been disposed of in a manner different from that utilized by the RO. The Board therefore considered whether the claimant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. See Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant’s claim and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. The Board views the above discussion as sufficient to inform the veteran of the elements necessary to complete his application for a claim of service connection for hiatal hernia. 38 U.S.C.A. § 5103(a) (West 1991); see Robinette v. Brown, 8 Vet.App. at 77-8 (1995); see also Isenhart v. Derwinski, 3 Vet.App. 177, 179-80 (1992) (VA has a duty to advise claimant of evidence required to complete application). ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for hearing loss, the claim is denied. Entitlement to service connection for refractive error is denied. Entitlement to service connection for allergies is denied. The veteran not having submitted evidence of a well grounded claim of entitlement to service connection for hiatal hernia, the claim is denied. REMAND A review of the service medical records discloses that the veteran sustained repeated injuries to his back, right ankle, and right knee during his active service. Continuing symptomatology in these anatomic areas was noted on the November 1992 VA general medical examination. It is not clear from the record whether the veteran’s current back, right ankle, and right knee symptomatology is related to numerous injuries to these anatomic areas reported in the service medical records. The Board is of the opinion that a contemporaneous comprehensive examination of the appellant by a VA orthopedic surgeon would materially assist in the adjudication of his appeal. 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(s) 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). In this regard, the Board notes that the veteran trained as tank turret repairman and served a tour of duty with the United States Army in Vietnam. His decorations include a Vietnam Service Medal and a Republic of Vietnam Campaign Medal. The appellant is not shown to have been awarded a Purple Heart Medal, Combat Infantryman Badge, or other decoration reflective of combat activity. The stressor statement of record is not as sufficiently detailed as it could be. The Board further notes that the stressor information which the veteran 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 stressor information provided by the veteran is not sufficiently complete to permit the ESG to verify such stressor information. 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 observes that the veteran has been diagnosed with post traumatic stress disorder by VA and non-VA medical health professionals. An examination based on a questionable history, however, is inadequate for rating purposes. See West v. Brown, 7 Vet.App. 70, 77-8 (1995). 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 claims under 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1995), the Board will not decide the issues of entitlement to service connection for post traumatic stress disorder; and back, right ankle, and right knee disorders pending a remand of the case to the RO for further development as follows: 1. The RO should arrange for an examination of the veteran by a VA orthopedic surgeon for the purpose of ascertaining the nature, extent of severity, and etiology of any back, right ankle, and right knee disorders which may be present. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations. All indicated studies are to be conducted. The claims file must be made available to and reviewed by the examiner prior to conduction and completion of the examination. The examiner must be requested to provide an opinion as to whether it is at least as likely as not that any back, right ankle, and right knee disorders found on examination are related to numerous injuries to these anatomic areas reported in service. The opinion provided must be accompanied by a complete rationale. 2. 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. The appellant’s statement should include 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. In this respect, the Board takes this opportunity to inform the veteran that the United States Court of Veterans Appeals (Court) 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, does not constitute an impossible or onerous task. See 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 affect on the outcome of his appeal. 3. After obtaining the foregoing requested information from the veteran, the RO should forward it with copies of obtained service personnel records (on file), 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. 4. 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. This report is then to be added to 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 previously 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. 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 conduction and completion of the examinations. In determining whether 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. 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 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. See West, 7 Vet.App. at 77. 7. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issues of entitlement to service connection for post traumatic stress disorder; and back, right ankle, and right knee disorders. If the benefits requested on appeal are 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. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 -