Citation NR: 9733675 Decision Date: 10/01/97 Archive Date: 10/09/97 DOCKET NO. 95-38 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a shrapnel wound to the left cheek. 2. Entitlement to service connection for a skin disorder claimed as secondary to Agent Orange exposure. 3. Entitlement to service connection for bilateral hearing loss and tinnitus. 4. Entitlement to service connection for an acquired psychiatric condition, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Willett, Associate Counsel INTRODUCTION The veteran had active service from January 1971 to September 1973. This appeal arises from a November 1994 rating decision issued by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in St. Paul, Minnesota, which denied the veteran’s claims for entitlement to service connection. The issues of service connection for PTSD and for a skin disorder secondary to Agent Orange exposure are the subjects of a remand and will be addressed in that portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the claimed disabilities are a direct result of active service and that entitlement to service connection should be granted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims for entitlement to service connection for a shrapnel wound to the left cheek, a bilateral hearing loss and tinnitus, are well- grounded. FINDINGS OF FACT 1. The veteran’s service medical records do not show treatment for, or a diagnosis of any of the claimed disabilities during active service. 2. Department of the Army Form 20B reflects the veteran’s conviction in April 1972 for a special court martial for absence without leave from November 25, 1971 to April 1, 1972. Pursuant to this conviction, he was incarcerated at a military facility from April 9, 1972 to July 25, 1972. 3. The veteran has not submitted the required medical evidence establishing a nexus between any of the claimed disabilities and a proscribed period of active duty. CONCLUSION OF LAW The claims for entitlement to service connection for a shrapnel wound to the left cheek, and a bilateral hearing loss and tinnitus, are not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A review of the veteran’s service records indicates that he entered active service in January 1971. He was stationed in Vietnam from May 1971 to April 1972. Service medical records include an entrance examination report which was negative for any of the claimed disabilities. The veteran’s hearing was reported to be normal in both ears during his enlistment physical examination and his separation physical examination. Tinnitus was not reported. There is no indication in the service medical records that veteran sustained a left cheek wound during service. A VA audiometry test was performed in August 1994. The findings were as follows: HERTZ 500 1000 2000 3000 4000 Ave. RIGHT 20 20 15 30 60 31 LEFT 15 15 15 30 40 25 The speech recognition score in the right ear was 82 percent, while in the left ear it was 92 percent. Mild to moderately severe sensorineural hearing loss in the right ear was indicated at 3,000 to 4,000 Hertz. A mild sensorineural hearing loss in the left ear was found at the same frequencies. Received in August and November 1994 were statements from the veteran’s sister and his cousin regarding the veteran’s physical and mental health before and after service. During his April 1996 hearing at the RO, the veteran stated that he witnessed his friend’s death and was hit by either ricocheting shrapnel or bone fragment in his left cheek. Analysis Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by, the veteran’s active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1996). However, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and was not the result of the veteran’s own willful misconduct. 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(a), (c). For the purposes of this inquiry, the requirements as to the “line of duty” injury or disease are not met if at the time the injury was suffered or disease contracted the veteran was avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty. 38 C.F.R. § 3.1(m)(1). The first step in the Board’s analysis is to determine whether the veteran has presented well-grounded claims on appeal pursuant to 38 U.S.C.A. § 5107(a). A well grounded claim is generally established by competent evidence of the following elements: (1) a current disability established by a medical diagnosis; (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; (3) a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). Where the determinative issue involves medical etiology, competent medical evidence that the claim is plausible is required in order for the claim to be well- grounded. Franzen v. Brown, 9 Vet.App. 235 (1996); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Shrapnel Wound, Left Cheek The veteran claims to have incurred a shrapnel wound to the left cheek while engaged in small arms fire which killed his friend. According to the veteran, this incident occurred in March 1992. As above, according to his military records, the veteran was AWOL from his unit at the time of the claimed injury. Direct service connection for the claimed shrapnel wound to the left cheek is therefore precluded under 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m)(1), 3.301. To the extent that the law is dispositive of an issue on appeal, this claim lacks legal merit. See Sabonis v. Brown, 6 Vet.App. 427, 430 (1994). Hearing Loss and Tinnitus For purposes of applying the laws of disability compensation administered by the VA, impaired hearing will constitute a disability only when the thresholds for any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1996). The veteran’s service medical records, including audiometry test results at entrance and separation from service, do not show the existence of a hearing disability under 38 C.F.R. § 3.385 or complaints of tinnitus during active service. In addition, in his personal hearing testimony, the veteran conceded that he did not seek treatment for a hearing loss from the VA or private medical provider following his separation from service. The earliest documentation of record pertaining to the veteran’s claimed hearing disability is the 1994 VA audiometric examination. At that time, the veteran’s reported pure tone threshold scores in the higher frequencies were shown to constitute a bilateral hearing disability under 38 C.F.R. § 3.385. The veteran also described periodic daily tinnitus primarily in the left ear of several years duration, which was relieved by yawning. However, the veteran has submitted no medical evidence establishing an etiological nexus between his current bilateral hearing disability and reported tinnitus and his period of active service. The veteran testified that he believes his hearing loss and tinnitus to be a direct result of exposure to gunfire in Vietnam. However, as indicated previously, the veteran’s DD Form 214 lists his military occupational specialty as a loader operator. In addition, receipt of the Combat Infantryman’s Badge, Purple Heart, or other similar citation documenting combat service was not indicated. The veteran has not submitted lay testimony or other credible evidence of in-service acoustic trauma consistent with the circumstances and hardships of alleged combat service to afford additional consideration under 38 U.S.C.A. § 1154(b). A review of the evidence of record does not show that the veteran has presented the threshold elements of a well- grounded claim for entitlement to service connection for bilateral hearing loss and tinnitus. Accordingly, this claim must be denied. The Board recognizes that this appeal is being disposed of in a manner that differs from that used by the RO. To wit, the RO denied the veteran’s claims on the merits, while the Board has concluded that these claims are not well grounded. However, the Court has held that “when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis.” Meyer v. Brown, 9 Vet.App. 425, 432 (1996). The Board views its discussion as sufficient to inform the veteran of the elements necessary to present well-grounded claims for entitlement to service connection for a shrapnel wound to the left cheek, bilateral hearing loss, tinnitus, a skin disorder claimed as secondary to Agent Orange exposure, and an acquired psychiatric disorder, to include PTSD. See Robinette v. Brown, 8 Vet.App. 69, at 77-78 (1995). Essentially, the veteran needs medical evidence establishing a current diagnosis of a recognized disability and an etiological link between the claimed disability and his period of active service, which does not include the period in which the veteran was determined to be AWOL. ORDER The veteran’s claims for entitlement to service connection for a shrapnel wound to the left cheek, a bilateral hearing loss and tinnitus are denied. REMAND The Board observes that in his hearing testimony, the veteran stated that he had been treated for a skin condition at the VA Medical Center (VAMC) in Minneapolis in December 1973. He was told that the time that it could be the result of exposure to herbicides. The veteran also stated that he had received all of his treatment at that facility. It does not appear that an attempt was made to locate any of those records. VA is presumed to have constructive possession of any VA medical records. Regarding the claim for service connection for PTSD, during the pendency of this appeal, VA issued revised regulations amending the section of the VA Schedule for Rating Disabilities on Mental Disorders. See 61 Fed.Reg. 52695- 52702 (1996) (to be codified at 38 C.F.R. § 4.130). In view of the intended effect of this action to ensure that the rating schedule uses current medical terminology, unambiguous criteria, and that it reflects medical advances which have occurred since the last review, and in an effort to extend to the veteran every equitable consideration, the Board believes that the veteran’s claim should be evaluated pursuant to the revised regulations, and that the veteran be afforded a VA psychiatric examination. 38 C.F.R. § 3.655 addresses the consequences of the veteran’s failure to attend a scheduled medical examination. During his hearing, the veteran also testified that when he arrived in Vietnam, he was associated with the 226 Supply and Service Unit and drove a truck based out of Chu Lai. In January 1972, he was based at Thai Phun (?). He recalled a typhoon that struck in January 1972, destroying the mess hall, and caused other building to collapse, resulting in the death of an officer by decapitation. He indicated some involvement with I Corps, 1st Brigade, 5th Infantry Division, 5th Mechanized Division (Red Diamond) when they were sent to guard an orphanage. A friend of his, Mike Johnson, was killed by small arms fire. The RO has not referred the stressor information provided by the veteran to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), formerly the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the claimed stressors. However, the Board acknowledges that the information provided by the veteran may not be as complete as the USASCRUR 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 in-service traumatic stressor, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2). Accordingly, as the development outlined in M21-1 includes providing the information submitted by the veteran to the USASCRUR, such development is mandatory. 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). The 1994 VA psychiatric examination diagnosed PTSD, but the VA psychological evaluation was equivocal. In addition, the Court of Veterans Appeals (the Court) has articulated that, in addressing claims for service connection for PTSD, consideration must first be given to the evidence required to demonstrate the existence of an alleged stressful event, and then, if such stressor is found, a determination as to whether the stressful event is of the quality required to support the diagnosis of PTSD must be made. Zarycki v. Brown 6 Vet. App. 91 (1993). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was “engaged in combat with the enemy.” Recently, the Court held that there is no requirement that such corroboration must be found in the service records. However, the credible supporting evidence cannot consist solely of after-the fact- medical nexus evidence. See Moreau v. Brown, No. 94-883 (U.S. Vet.App. Sept. 12, 1996); Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996). In Zarycki, the Court held that in addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event was sufficient to give rise to PTSD. The claimed stressor must be one which is “outside the range of usual human experience” and “would be markedly distressing to almost anyone”. VA Adjudication Procedure Manual M21-1, Part VI, 7.46(a)(1) (Oct. 11, 1995). Those experiences which are described as being markedly distressing to almost anyone include serious threat to one’s life or physical integrity or seeing another person seriously injured or killed as the result of an accident or physical violence. Id. The Court has held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. West v. Brown, 7 Vet.App. 70 (1994). To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he identify the sources of all treatment, both VA and private, for his psychiatric disability or skin disorder from 1973 to the present. Of particular importance are any documents from the Minneapolis, MN VAMC dated in 1973. After obtaining any necessary authorization, the RO should request and associate with the claims file copies of the appellant’s complete treatment reports from all sources identified. 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 statement should include dates, places, detailed descriptions, units of service, duty assignments, as well as the names, units of assignments 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 has held that asking the veteran to provide the underlying facts, i.e., the names of the individuals involved, the dates, and the places where the claimed events occurred, does not constitute an impossible or an onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). 3. After obtaining the foregoing requested information from the appellant, the RO should forward it and a copy of his record of service, DD Form 214, for April 1970 to September 1973 to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 1, Springfield, Virginia 22150, in an attempt to verify any claimed stressor. Any information obtained is to be associated with the claims folder. 4. Following receipt of the USASCRUR’s report, and the completion of any additional development suggested by that agency, the RO should prepare a report detailing the nature of any combat action, or in service stressful event, verified by the USASCRUR, NPRC, or other appropriate service department. 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 folder. 5. After completion of the above development, the RO should schedule the veteran for a psychiatric examination by a board of two VA psychiatrists who have not previously seen or treated him. All appropriate studies, including PTSD sub scales are to be performed. The claims file must be made available to and reviewed by the examiners prior to completing their 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 USASCRUR, NPRC, the service department and/or the RO may be relied upon. Specifically, the examiners are to determine whether the snake bite incident can be considered a stressor for the purposes of the diagnosis of PTSD. If the examiners believe that PTSD is the appropriate diagnosis, they must specifically identify which stressor(s) detailed in the USASCRUR, NPRC, other appropriate service department, and/or RO’s report is/are responsible for that conclusion. All opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning Score (GAF) which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, DSM IV, and explain what the assigned score means. 6. Following completion of the foregoing, the RO should review the claims file to ensure that all of the requested development has been completed in full. In particular, the RO should review the psychiatric examination report to verify that any diagnosis of PTSD was based on the verified history provided by the USASCRUR, NPRC, other appropriate service department, and/or 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 PTSD, related to service, based on an examination which relied upon an unverified history is inadequate. West v. Brown, 7 Vet.App. 70, 77 (1994). Prior to the examination, the RO must inform the veteran, in writing, of all consequences of his failure to report for the examination in order that he may make an informed decision regarding his participation in said examination. 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 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. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. RENÉE M. PELLETIER Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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. - 2 -