Citation Nr: 0513514 Decision Date: 05/18/05 Archive Date: 06/01/05 DOCKET NO. 00-14 412A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for degenerative disc disease of the lumbar spine. 3. Entitlement to service connection for a leg disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran-appellant served on active duty in the Unites States Marine Corps from July 1972 to July 1975, and in the United States Army from July 1976 to July 1978. When the veteran's claims were last before the Board of Veterans' Appeals (Board) in September 2001, they were remanded to the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas for further development and readjudication. Following the completion of the requested development, supplemental statements of the case were issued in July 2004 and October 2004, and the case was returned to the Board for further appellate review. In the introduction to the Board's September 2001 remand, the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder other than PTSD, was referred to the RO for initial consideration and appropriate adjudicative action. Those requested actions do not appear to have been accomplished, and are once again referred to the RO for appropriate action. The issue of entitlement to service connection for a leg disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. All evidence necessary for review of the issues considered and not remanded herein on appeal have been obtained, and the VA has satisfied the duty to notify the veteran of the law and regulations applicable to those claims and the evidence necessary to substantiate them. 2. The veteran is not a veteran of combat. 3. Diagnoses of PTSD are based upon unsubstantiated stressors. 4. There is credible evidence of an injury to the lumbar spine in service, and competent medical evidence diagnosing a current degenerative disc disease of the lumbar spine. The competent evidence is in equipoise as to whether there is a link between the current lumbar spine disorder and the in- service back injury. CONCLUSIONS OF LAW 1. PTSD was neither incurred in nor aggravated by service, and the veteran is not entitled to service connection for post-traumatic stress disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2004). 2. Degenerative disc disease of the lumbar spine was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duties to Notify & to Assist On November 9, 2000, during the pendency of the claimant's appeal, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)). The VCAA revises VA's obligations in two significant ways. First, VA has a duty to notify the appellant of any information and evidence necessary to substantiate and complete a claim for VA benefits. See 38 U.S.C.A. §§ 5102, 5103 (West 2002). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A (West 2002). VA issued regulations to implement the VCAA in August 2001. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The amendments became effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which became effective August 29, 2001. VA specified that except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), the amended regulations otherwise apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date. 66 Fed. Reg. 45,620. In its discussion of the scope and applicability of the regulations, VA stated that except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. VA went on to state that it would apply the new regulations to any claim pending but not decided by VA as of November 9, 2000. Id. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has held that 38 U.S.C.A. § 5103(a), as amended by the VCAA, and 38 C.F.R. § 3.159(b), as amended, which pertain to VA's duty to notify a claimant who had submitted a complete or substantially complete application, apply to those claimants who seek to reopen a claim by submitting new and material evidence pursuant to 38 U.S.C.A. § 5108. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board has considered whether the requirements of the VCAA have been fulfilled. First, there is no issue as to the substantial completeness of the application. 38 U.S.C.A. § 5102 (West 2002). These were original claims filed by the veteran in December 1998, utilizing VA Form 21-526, the document used for such purposes. They appeared substantially complete on their face. The veteran clearly identified the disabilities in question and the benefit sought. Further, he referenced the bases for the claim. Second, VA has a duty to notify the veteran and his representative of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b). The veteran has been advised of the type of evidence lacking to demonstrate entitlement to the benefit sought with the December 1999 rating decision, August 2000 statement of the case, May 2000 supplemental statement of the case, September 2001 Board remand, the April 2004 letter from the RO explaining the VCAA, and the July 2004 and October 2004 supplemental statements of the case. The September 2001 Board remand, the April 2004 letter from the RO explaining the VCAA, and the July 2004 supplemental statement of the case specifically provided the veteran with notice of the VCAA and explained the respective rights and responsibilities under the VCAA. It was further noted in the foregoing documents that what was lacking was evidence associated a current disorder with a disease or injury of service origin, or in the case of the claim of entitlement to service connection for post-traumatic stress disorder, there was lacking corroboration of a claimed stressor. VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. Third, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). The RO obtained or made exhaustive efforts to obtain the veteran's service medical records pertaining to the veteran's service in both the Marine Corps and the U.S. Army, and VA treatment records and private treatment records as they were identified by him. In addition, the RO made and exhaustive attempt to obtain corroboration of the veteran's alleged stressors through the appropriate offices of the United States Marine Corps. Essentially, the veteran has not identified or authorized the release of any other medical, historical or personnel records pertaining to his claims. Therefore, the duty to notify has been satisfied. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(2004). There is no indication that there is any probative evidence available that has not been obtained concerning the issue on appeal. By the September 2001 Board remand, the April 2004 letter from the RO, and the July 2004 supplemental statement of the case, the veteran was clearly advised as to which portion of evidence is to be provided by him and which portion is to be provided by VA. The veteran was further advised of this information - including specifically the duties of the RO where federal records are concerned - in these documents. That requirement of VA has been satisfied, and there is no additional evidence that needs to be provided. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Multiple VA examinations have been conducted which have specifically addressed the issue of whether any current disorder at issue may be related to service. Significantly, in addition to others, VA examinations were conducted in May, June, and July 2003, pursuant to the Board's September 2001 remand. The veteran has made no contentions, and subsequent medical evidence does not indicate, that the evidence is lacking so as to require the scheduling of another VA examination. See 38 U.S.C.A. § 5103A(d) (West 2002). The requirements of the VCAA have been substantially met by the RO. Every possible avenue of assistance has been explored, and the veteran has had ample notice of what might be required or helpful to his case. VA has satisfied its duties to inform and assist the appellant in this case. Further development and further expending of VA's resources is not warranted. Additionally, it is noted that in Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (CAFC) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.A. § 5103(b)(1). The CAFC made a conclusion similar to the one reached in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The CAFC found that the 30-day period provided in § 3.159(b)(1) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. In the instant case, the veteran was provided with notice of the provisions of the VCAA and its effect on the development of his claim in the April 2004 letter from the RO. This letter did not indicate that the veteran was limited to 30 days to respond. Instead, it indicated that the veteran had 60 days to respond. Notwithstanding, It is most significant to note that additional medical evidence was sought and obtained long after the 60 day response period; more than one year has transpired since the April 2004 notice in question, and there has been no indication of the existence of additional pertinent evidence. Given that the veteran has been fully advised of his rights and responsibilities under the VCAA, that he has had more than a full year to respond to that VCAA notice, the Board has concluded that VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. VA has satisfied its duties to inform and assist the veteran in this case. Further development and further expending of VA's resources is not warranted. The Board finds that there will be no prejudice to the appellant if the Board decides his appeal at this time and the Board will, therefore, proceed to consider the appellant's claim on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). At this juncture, it is noted that the CAVC decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II) (withdrawing and replacing Pelegrini v. Principi, 17 Vet. App. 412 (2004)) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial AOJ decision was made prior to November 9, 2000, the date the VCAA was enacted. The Board finds that any defect with respect to the VCAA notice requirement in this case was harmless error for the reasons specified herein. In the present case, a substantially complete application was received prior to the December 1999 rating decision that constituted the RO's initial denial of the veteran's claims for service connection. Only after that rating action was promulgated did the AOJ provide notice to the claimant regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. Because the VCAA notice in this case was not provided to the appellant prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the CAVC in Pelegrini II. In Pelegrini II, the CAVC pointed out that it was not holding that in a case in which pre-AOJ-adjudication notice was not provided the case must be returned to the AOJ for the adjudication to start all over again as though no AOJ action had ever occurred. No nullification or voiding requirement, either explicit or implicit, was found. The CAVC recognized that where pre-initial-AOJ adjudication notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice because an initial AOJ adjudication had already occurred. Instead, the appellant has the right to VCAA content-complying notice and proper subsequent VA process. Pelegrini II, 18 Vet. App. at 120. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the appellant was not given prior to the first AOJ adjudication, the notice was provided by the AOJ prior to the transfer and certification of the appellant's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the claimant was provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial to the claimant. As discussed in detail above, the statute and the regulation implementing VCAA provide for pre-initial-AOJ-adjudication notice, but the CAVC in Pelegrini II specifically recognized that, where, as here, notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice specifically complying with VCAA. The CAVC stated in that decision, that "the appellant had the right on remand to VCAA content-complying notice and proper subsequent VA process." Note that the CAVC in Pelegrini II did not state that the appellant had the right on remand to VCAA notice and subsequent AOJ adjudication. Pelegrini II, went on to explain that "readjudication of the appellant's claim may well have to be carried out by the AOJ once complying notice is given on remand . . ." The CAVC then set out the circumstances under which AOJ adjudication would have to either be undertaken or waived, and those circumstances were specifically limited to the introduction of newly submitted evidence. It would follow that without such newly submitted evidence, AOJ adjudication is not a necessary part of "proper subsequent VA process." Finally, in the Pelegrini decision, the CAVC also held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In this case, although the April 2004 letter that was provided to the veteran did not contain the exact wording of the "fourth element," the Board finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. Specifically, in the letter, the RO stated, "If you have any other evidence in your possession that pertains to your claim, please send it to us." Thus, the Board finds that in this case, each of the four content requirements of a VCAA notice has been fully satisfied, and that any error in not providing a single notice to the veteran covering all content requirements is harmless error. 38 C.F.R. § 20.1102. PTSD Factual Background The veteran's service records, including his DD Form 214 indicate that he served with the Unites States Marine Corps from July 1972 to July 1975, and in the United States Army from July 1976 to July 1978. During his service with the Marine Corps in the Vietnam War era, the veteran's principal duty was as a general warehouseman stationed in Japan and in Nam Phong, Thailand. For his service, the veteran received the National Defense Service Medal, Rifle experts badge, and Good Conduct Medal. There is no record of medals or awards associated with combat. The veteran's service medical records show multiple evaluations for low back pain during his first period of service. Ultimately, the veteran was referred for psychiatric evaluation. In August 1973, a diagnosis was made of psychophysiologic musculoskeletal reaction, that was determined to have existed prior to service. During hospitalization, the veteran reported a history of suicide attempts on three occasions during adolescence. He also reported attempting to murder his brother on two occasions. The veteran was again hospitalized in September 1973 for psychiatric treatment. He was discharged with a diagnosis of acute situational reaction resolving. The service medical records also show complaints of depression in 1976, but no diagnosis was made. Discharge physical examination reports were negative for psychiatric abnormalities. There were no complaints of, or treatment for PTSD in the service medical records. Post-service medical records document the veteran's treatment for drug abuse and depression beginning in 1991 through the present. The results of a VA psychiatric examination in May 2003 included a provisional diagnosis of PTSD, conditioned on the verification of the stressful experiences that the veteran claimed to have occurred in Thailand and Vietnam. VA examination in January 2004 showed a diagnoses of PTSD, by history; drug abuse; a substance-induced mood disorder; and a personality disorder. Social Security Administration records document that the veteran was granted Social Security benefits from 1998 with a primary diagnoses of major depression, a personality disorder, and a history of polysubstance abuse in partial remission. The veteran filed the initial claim for service connection for PTSD in December 1998. In response to that claim, the RO directed a letter to the veteran in November 2001 that asked that he provide exact information regarding the in-service stressor events, including dates, times, and places of event; exact unit of assignment numbers; full description of events, including details of the veteran's involvement; and the full names and ranks of any other personnel involved, and the names of witnesses. After receiving no response, in December 2002, the RO directed a second letter to the veteran asking for the same information. Eventually, in the context of his psychiatric evaluations, the veteran provided details pertaining to stressful incidents that he allegedly experienced in service. The veteran has reported that on his way to his duty station in Thailand, he landed in Vietnam and while there, witnessed a 7 year old child being shot. There was also a reference to a plane being shot down. He also reported that while in Thailand, he had to shoot a 14 year old female sniper, and that on another occasion, he had to recover the body parts of children from a theater that had been blown up. In June 2003, the RO submitted requests to the United Stated Marine Corps for confirmation of any stressors reported by the veteran relating to the veteran's service during the Vietnam War era. The Marine Corps wrote back in June 2003, and stated that the information provided was insufficient for the purpose of conducting any meaningful research on the veteran's behalf. The RO was referred to the Marine Corps Historical and Museum Division for assistance in obtaining specific historical information pertaining to the veteran's unit. In May 2004, the Marine Historical Center responded that more specific information needed to be provided pertaining to the veteran's service and his stressful events allegedly experienced therein. After attempting to contact the veteran for more specific information without success, the RO directed a letter to the Marine Historical Center providing the requested information. In June 2004, the Marine Historical Center responded by providing information pertaining to the activities of the veteran's unit during the Vietnam War era. None of the information provided by the Marine Corps was specific to the veteran nor did it tend to corroborate the stressful events that the veteran claimed to have experienced. The veteran provided no additional information or details pertaining to the alleged stressors in service. Analysis Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). The veteran does not claim that he had PTSD during service, nor is there evidence supporting such an allegation. Rather, it is the veteran's contention that he experienced traumatic events during service related to combat experiences both in the Republic of Vietnam and Thailand during the Vietnam War era, and that these stressful events are responsible for his current PTSD. Effective on and after March 7, 1997, in order for a claim for service connection for PTSD to be successful there must be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (2002); see also Cohen v. Brown, 10 Vet. App 128 (1997). 38 C.F.R. § 4.125(a) (2004) requires the diagnosis of a mental disorder to conform to the criteria in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV), or be returned by the rating agency to the examiner to substantiate the diagnosis. The diagnosis of PTSD appears on several occasions in the veteran's post-service medical records, including most recently, by history, as noted in a January 2004 VA examination that was conducted for the purpose of identifying the current existence of post-traumatic stress disorder. The Board, however, does not reach the question of whether there is medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a). The veteran's claim instead turns a threshold question of whether there is credible supporting evidence that the claimed inservice stressor actually occurred. As explained in detail below, the Board finds that there is no such evidence. If the claimed stressor is related to combat, service department evidence that the appellant engaged in combat or that the appellant was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. "Credible supporting evidence" of a non-combat stressor may be obtained from service records or other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). However, the CAVC has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). A determination as to whether the appellant is a veteran of combat is particularly significant in a post-traumatic stress disorder claim because he is entitled to have his lay statements as to his alleged stressors accepted, without corroboration, if he engaged in combat with the enemy and the stressors are related to the combat. See Gaines v. West, 11 Vet. App. 353 (1998). The CAVC has held that: "[w]here it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be 'satisfactory,' e.g., credible, and 'consistent with the circumstances, conditions, or hardships of [combat] service.'" Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); see also 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (2004). VA's General Counsel has defined the phrase "engaged in combat with the enemy" to mean that the appellant must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99. The fact that the appellant served in a "combat area" or "combat zone" does not mean that he himself engaged in combat with the enemy. Id. Moreover, a general statement in the appellant's service personnel records that he participated in a particular operation or campaign would not, in itself, establish that he engaged in combat with the enemy because the terms "operation" and "campaign" encompass both combat and non- combat activities. Id. Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized military citations or other supportive evidence. No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each relevant item of evidence. Id. The claimant's assertions that he engaged in combat with the enemy are not ignored, but are evaluated along with the other evidence of record. Id. However, the claimant's assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this fact. The initial question to be addressed is whether the veteran received the requisite military citations or whether there is other supportive evidence to establish that the veteran "engaged in combat with the enemy." The appellant did not receive any award or decoration that would provide "conclusive evidence" that he "engaged in combat with the enemy." While he did receive the National Defense Service Medal as shown on his DD Form 214 for his period of Marine Corps service, he did not receive any other medal or indication of participation in combat such as the Combat Infantry Badge, Purple Heart, or "V" devices. Without such accompanying medals or devices, the National Defense Service Medal is not conclusive evidence of combat. See M21-1, Part VI, paragraph 11.38(b)(1). Secondly, there is no supporting evidence that the veteran engaged in combat. The veteran has cited as potential stressors several incidents including having to kill a 7 year old and a 14 year old while on patrol in Vietnam or Thailand. He also reports having been involved in the attempted rescue of children after a theater blew up in Thailand. While these alleged events are related to combat, his assertions alone are not sufficient, by themselves, to establish that these things occurred or that he is a veteran of combat. There being no evidence that the veteran was a veteran of combat, the preponderance of the evidence is against this element of his claim. Accordingly, there must be satisfactory corroboration in order to establish the existence of a stressor. See 38 C.F.R. § 3.304(f). In this case, the veteran's only evidence of his in-service stressors is once again limited to his own testimony. Significantly, the Marine Corps was unable to verify any claimed stressors. With respect to the stressors the veteran asserted in response to the RO's inquiries, his responses lacked the specificity required by the Marine Corps for further research. The Board notes that there is, in fact, no corroboration that the veteran was ever in the Republic of Vietnam, although it appears that he was in Thailand. In that regard, the medical record contains several psychiatric examination reports in which the veteran reported considerable service in Vietnam. This lack of consistency in the record suggests that the veteran may not be an accurate historian with regard to his alleged Vietnam or combat service. Regardless, there is no evidence of any of the alleged stressful events reported by the veteran in the pursuit of his claim for service connection for PTSD. Any evidence from the service department or any other evidence supporting a description of the event is sufficient to establish the occurrence of a stressor. See M21-1, Part III, paragraph 5.14(a). In this case, the diagnoses of PTSD in the record are based on unverified stressors provided to the examiner by the veteran. As the CAVC has stated, neither the appellant's testimony or after-the-fact medical nexus evidence is sufficient "credible supporting evidence" of the actual occurrence of an in-service stressor. See Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). In other words, neither the veteran's written or oral statements nor the medical opinions of post-traumatic stress disorder based on the veteran's history establish the actual occurrence of an in-service stressor. In summary, there has been presented no credible supporting evidence that the claimed in-service stressors actually occurred. The Board finds the veteran's own accounts of his stressors to be contradictory and very general in nature, and therefore lacking in credibility. Secondly, it is inconceivable that one would experience such stressful events and not know the names of any fellow participants or witnesses, the general location of the incidents, or the time it occurred. Given the unreliability of the veteran's accounts and the lack of any supportive documentation of the occurrence of the stressors, the preponderance of the evidence is against establishing any stressor in service. In the absence of a diagnosis that is based on verifiable stressors, therefore, the Board is constrained to deny the veteran's claim for service connection for PTSD. The preponderance of the evidence is against the claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. See 38 U.S.C.A. § 5107(b)(West Supp. 2001); 38 C.F.R. § 3.102 (2002). Degenerative Disc Disease of the Lumbar Spine. The veteran contends that his currently diagnosed degenerative disc disease of the lumbar spine is related to an injury to his low back and treatment for low back pain that he experienced during service. In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2004). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service will rebut the presumption. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2004). A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2004). A disorder may also be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In order to prevail on the issue of direct service connection there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Applying the Hickson analysis to the instant case, the first question is whether there is a current diagnosis of the claimed lumbar spine disorder. Current treatment records, including X-ray studies and reports of VA compensation examinations conducted in 2003, show a lumbar spine disorder diagnosed as degenerative disc disease. A May 2003 X-ray study shows marked disc space narrowing at L3-L5. The records also note that the veteran has required and undergone surgery, namely L3-S1 laminectomies and fusion, for his lumbar spine disorder. Clearly, the question of a current disorder can be answered in the affirmative. The next question for analysis is whether there is evidence of a lumbar spine disease or injury during service. Again, the question must be answered in the affirmative. Service medical records for the veteran's first period of service in the United States Marine Corps documents that he was treated for low back pain in service. In August 1973, he was admitted to a Naval Hospital with a diagnosis of low back pain. It was noted in the records that the veteran had reported at that time that he had experienced intermittent low back pain since the age of 14, when he had injured the back in a football game. While in the Naval Hospital, neurological and orthopedic studies showed no physical abnormalities. It was the opinion of the treating orthopedic surgeon that the veteran's back injury and low back pain had predated his military service. Service medical records document subsequent treatment of the veteran for complaints of low back pain. Without addressing the question of whether the veteran had a pre-existing back disorder or that he had an initial injury to his low back during service, the Board must conclude that the veteran did indeed experience a back injury in service, in satisfaction of the second element of the Hickson paradigm. With respect to Hickson element three, that is, "medical evidence of a nexus between an in-service injury or disease and the current disability," the Board finds the most probative evidence on the matter to be the various VA orthopedic and neurological examinations conducted for the specific purpose of obtaining opinions as to whether such a relationship exists between the veteran's lumbar spine degenerative disc disease and his period of service. The most authoritative and probative evidence against the veteran's claim is contained in a report of a VA orthopedic examination conducted in June 2003, by DV, MD for the purpose of determining the etiology of the veteran's current low back disorder. Although Dr. DV conducted the initial examination of the veteran's spine without the benefit of a review of the veteran's claims file, a subsequent analysis was conducted in July 2003 based upon such a review. Following the physical examination of the veteran in June 2003, but without the review of the claims file, including the veteran's service medical records, Dr. DV's pertinent impression was degenerative disc disease of the lumbar spine, with history of cauda equina syndrome, status post emergent MRI with residual mechanical low back pain and epidural fibrosis. A diagnosis of recent spinal stenosis of the cervical spine was also made. With regard to etiology, the examiner remarked that the veteran's current difficulties with his back and legs was due to surgery of 1999, the result of an injury, or the result of recently diagnosed cervical stenosis. Dr. DV noted the veteran's denial of significant lumbar spine injury prior to service, and noted further that the veteran appeared to have sustained a self-limiting soft tissue injury in service that would not be expected to evolve into a chronic process following service. Following a review of the veteran's claims file in July 2003, including his service medical records, Dr. DV issued an addendum to his initial report and concluded that the veteran's current leg and back symptoms are most likely related to the post-service 1999 injury. Dr. DV noted that the veteran did have a lower back injury in service, but no medical follow-up between 1978 and 1999. The examiner stated that if those records appear, a further addendum may be in order. The examiner noted further that there was no evidence to suggest a radicular finding in service and that would therefore not be considered aggravated by service. The most compelling evidence supporting the veteran's claim is contained in a report of a VA neurological examination conducted in June 2003, by AS, MD for the purpose of determining the etiology of the veteran's current low back disorder. Although Dr. AS conducted the initial examination of the veteran without the benefit of a review of the veteran's claims file, a subsequent analysis was conducted in July 2003 based upon such a review. Following the physical examination of the veteran in June 2003, but without the review of the claims file, including the veteran's service medical records, the pertinent impression was chronic low back pain with right-sided sciatica, most likely related to underlying degenerative disc disease involving the lumbosacral strain, likely aggravated by the veteran's service-connected low back strain. In making this conclusion, Dr. AS noted that the veteran had reinjured his low back in 1999, after leaving the service, and that reinjury caused further worsening of the symptoms. Following a review of the veteran's claims file in July 2003, including his service medical records, Dr. AS issued an addendum to his initial report and concluded that the veteran's chronic low back pain with associated right-sided sciatica is most likely related to the underlying degenerative disc disease which likely predated the veteran's military service. Dr. AS opined further that the veteran's degenerative disc disease was most likely aggravated by the previous injuries and also by the service-related injury. Dr. AS did concede, however, that the extent of contribution by the service-related injury could not be established with reliability. As a physician, Dr. AS has the medical expertise to give an opinion as to what he believes to have been the consequences of the documented in-service injury in question, in terms of both immediate and remote residuals. Significantly, Dr. AS provided reasons and bases for his opinions with reference to the medical evidence in the claims file, including the intervening 1999 injury to the veteran's back. Dr. AS did not offer his opinion regarding the origin of the lumbar spine disorder conditionally or with hesitancy. He emphasized the likelihood of a relationship through aggravation between the in-service incident and the current lumbar spine disability. In summary, applying the Hickson analysis, the Board concludes that there was an in-service injury to the veteran's back, and that the veteran has a current degenerative disc disease of the lumbar spine. Hickson elements (1) and (2) are accordingly met. With respect to Hickson element (3), medical nexus evidence, the Board finds that the evidence is in equipoise as to the question of whether the current lumbar spine disorder is etiologically related to the in-service injury. Each of the medical care providers for and against the claim have provided equally compelling reasons for their conclusions. Pursuant to 38 U.S.C.A. § 5107, where, after review of all the evidence, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See also 38 C.F.R. § 3.102. As to this issue, the Board finds that there is an approximate balance of the positive and negative evidence as to whether the veteran currently has degenerative disc disease of the lumbar spine that is related to the in-service injury. Thus, the Board concludes that the veteran's claim for service connection for a degenerative disc disease of the lumbar spine is granted. ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. REMAND This claim must be afforded expeditious treatment by the Veterans Benefits Administration (VBA) AMC. The law requires that all claims that are remanded by the Board or by the CAVC for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, codified at 38 U.S.C.A. §§ 5109B, 7112(West 2002). The veteran essentially contends that he has a leg disorder, and has claimed that it is either the result of an injury in service or secondary to his now service-connected low back disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2004). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2003); Allen v. Brown, 7 Vet. App. 439 (1995). As indicated, service connection is now in effect for degenerative disc disease of the lumbar spine. When the veteran's claims were remanded in September 2001, it was requested that VA orthopedic and neurological examinations be conducted for ascertaining the nature and etiology of his low back disorder, but also for the purpose of ascertaining the nature and etiology of his claimed leg disorder, including as secondary to his back disability. Although the foregoing examinations were conducted, the issue of whether there exists a leg disorder was not specifically addressed. It was unclear from the reports, in any event, as to whether the veteran had a leg disorder that could be distinguished as a separate entity versus as part of the symptomatology of the degenerative disc disease of the lumbar spine. Under U.S.C.A. § 5103A(d)(1) (West 2002), obtaining a medical examination and medical opinion is necessary if there is competent medical evidence of a current disability and evidence that the disability may be associated with the claimant's active duty, but the record does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Under the circumstances of this case, the Board finds that an examination is necessary to determine whether the veteran has a leg disorder as a separate entity, and whether it can be associated with service by way of incurrence or as secondary to a service-connected disorder. The Board observes that additional due process requirements may be applicable as a result of the enactment of the Veterans Claims Assistance Act (VCAA )and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). Accordingly, this case is REMANDED for the following: 1. After any additional evidence has been obtained and associated with the file, VBA AMC must make arrangements with the appropriate VA medical facility for the veteran to be afforded an orthopedic and neurological examination by an appropriate physician to show the nature, extent, and etiology of his claimed leg disorder. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. Any further indicated special tests and studies should be conducted. The examiner must address the following medical questions: Is it at least as likely as not that that the veteran has a leg disorder found on examination that can be classified as a distinct pathological entity separate and apart from any other disease process active in the veteran? Is it at least as likely as not that any leg disorder found on examination is related to service on any basis, including incurrence or as secondary to service-connected degenerative disc disease? If no such causal relationship is determined to exist, is it at least as likely as not that the service-connected degenerative disc disease of the lumbar spine aggravates any leg disorder found present? If the examiner is unable to make such a determination based upon the existing evidence, he or she should so state. A complete rationale for any opinions expressed should be provided. 2. Thereafter, the VBA AMC should review the claims file to ensure that all of the foregoing requested development has been completed, and pursue any development required by the record at hand, including further medical examination. In particular, the VBA AMC should review the requested examination reports and required medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the VBA AMC should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any development deemed essential in addition to that specified above, the VBA AMC should readjudicate the claims of entitlement to service connection for a leg disorder. If the benefit requested on appeal is not granted to the veteran's satisfaction, the VBA AMC should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the claims currently on appeal. 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 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 VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claims of entitlement to service connection, and may result in a denial(s). 38 C.F.R. § 3.655 (2004). _________________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs