Citation Nr: 0024434 Decision Date: 09/14/00 Archive Date: 09/21/00 DOCKET NO. 98-00 420 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a nervous disorder, to include major depression. 2. Entitlement to service connection for PTSD. 3. Entitlement to an increased evaluation for mechanical low back pain with history of bulging disc, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and her spouse ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from July 1990 to October 1992. The issue of entitlement to service connection for a nervous disorder, to include major depression, was previously denied by Department of Veterans Affairs (VA) rating decisions of October 1995 and January 1996. The veteran did not appeal the decision within one year of notification thereof in February 1996. This current matter came before the Board of Veterans' Appeals on appeal from rating decisions of the Columbia Regional Office (RO). By a rating action in March 1997, the RO denied the veteran's claim of entitlement to service connection for a nervous disorder. A notice of disagreement (NOD) with that determination was received in April 1997. A statement of the case (SOC) was issued in June 1997, wherein the RO indicated that the proper reason for the continued denial of the veteran's claim for service connection for a nervous disorder was the failure to provide new and material evidence to reopen said claim. By a rating action in June 1997, the RO denied the veteran's claim for service connection for PTSD. A substantive appeal, with respect to the denial of the veteran's attempt to reopen her claim for service connection for a nervous disorder, was received in July 1997. An NOD with the denial of service connection for PTSD was received in October 1997, and an SOC was issued in November 1997. By a rating action in December 1997, the RO denied the veteran's claim for a rating in excess of 20 percent for her service-connected low back disorder. A substantive appeal pertaining to the claim for service connection for PTSD was received in January 1998. The veteran and her spouse appeared at a hearing before a hearing officer at the RO in January 1998, at which time they offered testimony regarding the claims for a nervous disorder and PTSD. A transcript of that hearing is of record. A supplemental statement of the case (SSOC), regarding a nervous disorder and PTSD, was issued in January 1998. An NOD as to the denial of an increased rating for a low back disorder was received in January 1998. An SOC regarding the claim for an increased rating was issued in January 1998, and a substantive appeal was received in February 1998. A lay statement was received in March 1998. An SSOC was issued in April 1998. The appeal was received at the Board in May 1998. For reasons that will be set forth below, the issue of entitlement to an increased rating for mechanical low back pain with bulging disc will be addressed in the Remand section following the decision. The veteran is currently represented by The American Legion, which submitted written argument to the Board in February 2000. FINDINGS OF FACT 1. The veteran was denied service connection for a nervous disorder, to include major depression, by the RO in October 1995 and January 1996. She was notified of each denial and did not appeal. 2. The evidence submitted since the January 1996 rating decision, consisting of the veteran's contentions regarding a nervous disorder in service or within one year of service, is not new, because similar evidence was considered in January 1996 and the new evidence which was submitted since January 1996 is not so significant that it must be considered to fairly decide the merits of the claim for service connection for a nervous disorder. 3. The veteran has a current medical diagnosis of PTSD, and several medical providers have related the diagnosis to her claimed in-service sexual assault/rape. 4. The veteran's claimed in-service stressor is not related to combat. 5. The occurrence of the veteran's claimed in-service sexual assault/rape is not supported by credible corroborating evidence. 6. The current diagnosis of PTSD is based on unsubstantiated reports of a stressor as provided by the veteran. CONCLUSIONS OF LAW 1. The January 1996 rating action is final, and evidence submitted since that decision does not constitute new and material evidence to reopen the veteran's claim for a nervous disorder, to include major depression. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1999). 2. PTSD was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (1999); 64 Fed. Reg. 32,807-808 (1999) (to be codified at 38 C.F.R. pt. 3); VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c (Feb. 20, 1996); VA Adjudication Procedure Manual M21-1, Part III, paragraph 7.47c(2) (Oct. 11, 1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and material evidence to reopen a claim for service connection for a nervous disorder, to include major depression In order to establish service connection for a disability, there must be objective evidence which establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Certain chronic diseases will be considered to have been incurred in service, under certain circumstances, even though there is no evidence of such disease during service. 38 C.F.R. § 3.307 (1999). Psychosis is defined by law as a chronic disease, and the presumptive period is one year; thus, a psychosis will be considered to have been incurred in service, even though there is no evidence of it in service, if it became manifest to a degree of 10 percent or more within one year after separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (1999). When the Board or the RO has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (1999). Because the present appeal does not arise from an original claim, but rather comes from an attempt to reopen a claim which was previously denied, the Board must bear in mind the important distinctions between those two types of claims. We must first note that the United States Court of Appeals for Veterans Claims had previously held that the Secretary of Veterans Affairs, and, on appeal, the Board, were required to perform a two-step analysis when a claimant sought to reopen a claim based upon new evidence. First, it was to be determined whether the evidence was "new and material." Second, if the Board determined that the claimant had produced new and material evidence, the claim was reopened and the Board evaluated the merits of the veteran's claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 144 (1991). Whether the new evidence was "material" turned essentially upon the reasonable possibility that, when viewed in the context of all the evidence, it would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court more recently held that the two-step Manio process has been replaced with a three-step process. See Elkins v. West, 12 Vet.App. 209 (1999) (en banc), interpreting and applying a decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). The procedure which we must now follow is - first, it must be determined whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a); second, after the claim has been reopened, it must be determined whether, based upon all the evidence of record, the claim, as reopened, is well grounded; third, if the claim is well grounded, the merits of the claim must be addressed and, if ripe for decision, adjudicated. Winters v. West, 12 Vet.App. 203, 206 (1999) (en banc), overruled on other grounds sub nom. Winters v. Gober, ___ F.3d ___, No. 99-7108 (Fed. Cir. July 26, 2000). In addition, Hodge overruled Colvin and its progeny as to the materiality element of the new-and-material-evidence test. Elkins, supra, at 214. As defined by regulation, new and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). The Federal Circuit Court has held that the regulatory standard alone must be the test of materiality. Hodge, supra. Therefore, the ruling in Hodge must be considered as easing the veteran's evidentiary burden in seeking to reopen a previously and finally denied claim. In determining whether new and material evidence has been presented, VA must initially decide whether evidence submitted since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial caselaw, "new" evidence is that which was not of record at the time of the last final disallowance ("on any basis" - merits or otherwise) of the claim, and is not "merely cumulative" of other evidence that was then of record. See Evans v. Brown, 9 Vet. App. 273, 283-285 (1996). This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. Although, as noted above, Hodge overruled Colvin and its progeny as to the materiality test, it does not appear that the analysis as to what is new evidence has been overruled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 326 (1999), noting that Hodge did not deal with the test for determining whether the evidence is new, which is a determination separate from whether it is material. See also Anglin v. West, 203 F.3d 1343, 1346 (Fed. Cir. 2000) ("nothing in Hodge suggests that the understanding of "newness" as embodied in the first prong of the Colvin test is inadequate or in conflict with the regulatory definition of new and material evidence"). As to the materiality standard, the Federal Circuit's holding in Hodge has been further interpreted by the Court of Appeals for Veterans Claims: "Hodge provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim." Fossie v. West, 12 Vet.App. 1, 4 (1998), motion for recon/review denied, 12 Vet.App. 234 (1999). In determining whether newly submitted evidence is material under the caselaw discussed above, we are further guided by the Federal Circuit Court's discussion of the "uniquely pro-claimant" quality of the veterans' benefits system such that, although "not every piece of new evidence is 'material' . . . we are concerned . . . that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, supra, at 1363. The credibility of new evidence is assumed for the limited purpose of determining whether it is material. Evans, supra; Justus v. Principi, 3 Vet.App. 510 (1992). This principle has been recently reaffirmed by the Court. Kutscherousky v. West, 12 Vet.App. 369 (1999) (per curiam). As noted above, under the precedent decision of the Court in the Evans case, supra, in order to reopen a previously and finally denied claim there must be new and material evidence entered into the record since the most recent denial on any basis, either on the merits or on an attempted reopening. Id. at 285. When the claim for service connection for a nervous disorder was denied by the RO in a final rating action in January 1996, the record consisted of: the service medical records, a private hospital report dated in May 1995, report of a VA compensation examination conducted in September 1995, private treatment reports dated from May 1995 to August 1995, and private treatment reports dated from February 1993 to January 1996. Essentially, the veteran's service medical records are completely silent with respect to any findings or diagnosis of a nervous disorder. While private treatment reports indicate that the veteran was being followed by a social worker and, in February 1993, was diagnosed as suffering from an adjustment disorder (which is not considered a disease as the term is used under the law); the records do not reflect any hospital admission or treatment for a nervous disorder within one year after the veteran's discharge from service. The medical evidence of record in January 1996 showed that the veteran was first diagnosed with a nervous disorder in May 1995, more than one year following her discharge from service. By a rating action in January 1996, the RO denied the veteran's claim of entitlement to service connection for a psychiatric disorder, to include major depression and anxiety, based upon a finding that the service medical records did not reveal the presence of any psychiatric disorder during service. The evidence received since the January 1996 decision essentially consists of: a VA treatment report dated in November 1996; VA outpatient treatment reports dated from September 1996 to December 1996; VA outpatient treatment reports dated from November 1996 to March 1997; a statement dated in April 1997; a medical statement dated in April 1997; VA progress notes dated from November 1996 to October 1997; a duplicate lay statement dated in April 1997; a report of contact (on VA Form 119) dated October 29, 1996; VA treatment reports dated from November 1996 to December 1996; service medical records dated from December 1991 to October 1992; a copy of a report from the United States Criminal Investigation Command dated from September 1992 to October 1992; VA outpatient treatment reports dated from April 1997 to November 1997; the veteran's testimony offered at the personal hearing before a hearing officer at the RO in January 1998; VA outpatient treatment reports dated from December 1997 to January 1998; and a lay statement dated in March 1998. In this regard, the Board notes that the newly received medical records reflect findings of major depression and PTSD. While this evidence is new, it is not material as it merely shows that the veteran currently suffers from a psychiatric disorder, which has no bearing on the issue of whether a psychiatric disorder was present in service or whether a psychosis was present within one year of service. While the new service medical records reflect the veteran was seen at the coummunity mental health service from September 1991 to October 1992, where she received counseling for "situational stress" and marital discord, they do not report any finding of a psychiatric disorder during service. In fact, during a clinical visit in October 1992, it was noted that the veteran's mood displayed no evidence of depression, although she had said that she was feeling depressed; it was noted that she displayed a normal behavior pattern. Therefore, these records are not so significant that they must be considered in order to fairly decide the merits of the case. We have noted the statement from the clinical staff chaplain at the psychiatric unit, at the Dorn VA medical center, dated in April 1997, indicating that the veteran had been his patient during the months of November and December 1996, during which time her diagnosis was extreme depression with suicidal ideations. This document can only be viewed as a confirmation that the veteran suffers from a psychiatric disorder, currently diagnosed as depression, a fact that was previously considered in January 1996. Thus, it is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection. The veteran's testimony reiterates her contentions that she developed a psychiatric disorder during military service. Such evidence is not new, because similar contentions were made at the time of the January 1996 rating decision. The Board notes that the lay statements from the husband and friend of the veteran are new, insofar as they were not previously considered by the RO; however, they are not material because they are silent as to any indications that the currently diagnosed psychiatric disorder had its onset in military service or within one year thereof. Therefore, based on the foregoing, the Board finds that the evidence received subsequent to the January 1996 rating action is not new and material, and does not serve to reopen the veteran's claim for service connection for a nervous disorder, to include depression. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). Accordingly, the benefit sought on appeal is denied. The Board further notes that, in its June 1997 statement of the case, the RO cited to 38 C.F.R. § 3.156, the regulation discussed with approval in Hodge, and quoted that regulation's pertinent language as it relates to new and material evidence claims. The RO's analysis, however, by concluding that "[t]o justify a reopening of a claim, on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome," appears to be predicated, in part, upon language found impermissible by Hodge. It is therefore unclear whether the RO has appropriately considered the veteran's claim under the language of section 3.156. This raises the question as to whether the case should be remanded in order to protect the veteran's due process rights, by ensuring that the RO did consider the case using the correct interpretation of the law. With respect to the veteran's current appeal, the Board finds that our proceeding to a decision, without remanding to the RO, does not unduly prejudice the veteran. In reaching this conclusion, we note that the evidence submitted by the veteran does not "bear directly or substantially on the specific matter under consideration." As indicated above, the veteran has submitted evidence which is either duplicative or cumulative of the evidence considered in the previous final decision. Therefore, after careful review of the record, the Board can find no reason that a remand of the veteran's appeal, for reconsideration by the RO under the Hodge new-and-material-evidence standard, would be judicially expedient or otherwise result in a different finding. Thus, such a remand would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, supra, at 207; Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Accordingly, as the veteran has not presented new and material evidence to reopen her previously denied claim of entitlement to service connection for a nervous disorder, to include major depression, that claim may not be reopened. II. Service connection for PTSD A. Factual background The records indicate that the veteran served on active duty from July 1990 to October 1992. The service medical records indicate that she was seen on several occasions for recurrent back pain. A treatment report indicates that the veteran was seen for counseling in January 1992, at which time it was noted that she was 24 weeks pregnant, with marital discord and apparent adjustment problems. It was noted that the veteran was under stress due to her problems with her marriage; she was reported to be motivated and willing to go through counseling at the mental health service for stress management. No suicidal or homicidal ideations were noted, but she did complain of not eating or sleeping. No pertinent diagnosis was reported. Received in July 1995 was a private hospital report indicating that the veteran was referred to the hospital in May 1995 for a psychiatric evaluation; at that time, she indicated that she had been depressed since 1991 and realized that she could not function well. The veteran also stated that she was having problems with her functioning at home; she stated that she often became irritated with her husband and her children. The veteran related that she sometimes screamed at her kids, and had been crying everyday. It was noted that she had seen a counselor from November 1992 to July 1994, at which time she was treated for several medical problems, including depression. She admitted to suicidal ideations since age 12; she stated that past traumatic events included being raped in September 1992. The veteran reported that she was unable to tolerate stress and screamed at her husband and kids; she had lost friends and was currently isolating herself from others. On mental status evaluation, it was observed that the veteran's affect was sad; she easily cried throughout the interview, with decreased intensity in range of affect. She suffered from hopelessness and helplessness; her mood was very depressed. She frequently cried three or four times a day. Her thoughts were mood congruent. She had recurrent suicidal ideation, with poor judgment and reasoning. She had lack of motivation and lack of energy, and suffered from anhedonia and also had been withdrawn due to losing her friends. She was easily irritable, screaming at home at the children for no reason at all and then feeling very guilty about doing that. She stated that she had enough insight to know that she needed help and that she had "been depressed for too long of a time and needed some help now." The examiner indicated that the veteran was in need of hospitalization at time. She was oriented to time, place, and person. She appeared to be in good contact with reality. Her thoughts showed no delusional system, no hallucinations and no signs of psychosis, and no clouding of consciousness. The veteran suffered from no acute confusion and she did not appear to be withdrawn or detoxifying, or in withdrawal from any substances. She denied the use of substances and admitted to drinking only occasionally. The diagnostic impression was major depression with anxiety and insomnia. The report of a VA compensation examination conducted in September 1995 reflects evaluation of a physical disability; this report does not reflect any complaints or findings of a psychiatric disorder, to include PTSD. Received in November 1995 was a copy of a private hospital report dated from May 1995 to August 1995, the findings of which were reported and discussed above. Received in January 1996 were outpatient treatment reports from the Gorgas Community Hospital, dated from February 1993 to January 1996, indicating that the veteran had received 8 sessions of individual and family counseling beginning on February 22, 1993. The veteran's treatment was centered around communications, marital problems, and problem solving. During a clinical visit in February 1993, the veteran was diagnosed with adjustment disorder and marital problems. During a clinical visit in March 1993, the veteran reported problems with depression; she reported being physically abused by members of her own family. During a subsequent visit in July 1993, the veteran reported that she had been sexually assaulted, but she did not want to talk about it. The veteran's initial claim for service connection for PTSD was received in November 1996. Submitted in support of the claim was a VA treatment report, dated in November 1996, indicating that the veteran was being followed on an outpatient basis for borderline personality disorder, with episodes of psychotic decompensation and PTSD. Of record is a report of contact (VA Form 119), dated October 29, 1996, indicating that the veteran was being treated at the Columbia Vet Center for PTSD; it was also indicated that she was referred to the VAMC mental hygiene clinic for medication assessment for the anxiety and depression that accompanied the PTSD. Received in December 1996 were VA outpatient treatment reports, dated from September 1996 to December 1996, which show that the veteran received clinical evaluation and treatment for several disabilities, including a psychiatric disorder diagnosed as PTSD. The records indicate that the veteran was referred to the mental health clinic on November 7, 1996, due to anxiety and depression; she indicated that she continued to experience suicidal ideations and was receiving marital counseling. The assessment was depressive disorder secondary to rape in 1992. The veteran was next seen on November 22, 1996, at which time it was noted that she had been seen in the emergency room the night before. It was noted that the veteran had a history of PTSD secondary to assault while in service; she also suffered from borderline personality and depressive-type psychosis. The assessment was PTSD secondary to assault. A treatment note dated in December 1996 indicates that the veteran was brought to the emergency room by a friend; she was tearful and upset; she admitted to striking herself in the face, but denied any suicidal or homicidal ideations. The diagnosis was depression. Received in March 1997 was a PTSD questionnaire, wherein the veteran reported that, while on active duty at Fort Irwin, California, on September 12, 1992, she invited some friends to her house to watch a boxing match on television; she indicated that she was ill at the time and was taking medications for back pain. The veteran stated that the medications sedated her and she went to sleep; she woke up to discover that a person who was a "friend" had forcibly had sexual relations with her while she was unconscious. She noted that he had had intercourse with her for five hours before she became alert enough to know what he was doing; she stated that she was in excruciating pain. The veteran explained that she told the person to stop, and she had to push him repeatedly until he got off her; they then engaged in an argument when she threatened to call the military police (MPs), and he threatened to kill her and her family. The veteran indicated that, although her friend told her to go to the hospital and call the MPs, she was in so much pain and fear of retaliation that she did not follow the friend's advice; she noted that the individual subsequently stalked and threatened her. The veteran stated that, when she finally called the MPs, the man got in a car and tried to flee, but he was later caught and brought to custody. Received in April 1997 were VA outpatient treatment reports dated from November 1996 to March 1997, reflecting treatment for several disabilities including a psychiatric disorder variously diagnosed as depression, borderline personality disorder, and PTSD. These reports were previously discussed above. Received in July 1997 was a statement from the veteran's husband, dated in April 1997, wherein he expressed having personal knowledge of his wife's condition after she was sexually assaulted in September 1992. He recalled being stationed in Panama on September 30, 1992, when the Red Cross notified him that his wife had been sexually assaulted by another soldier; he had no words to express how he felt upon hearing that news. He stated that his wife was in a lot of distress, both physically and mentally, at that time; he explained that the veteran did not seek immediate medical attention due to threats made by the assailant. He indicated that he brought the veteran back to Panama, where she was very depressed and cried every day; there was a complete change in her behavior towards him and the children, which caused marital problems. He reported that they subsequently sought psychological treatment, and learned that the veteran was suffering from depression and anxiety attacks. He also reported that the veteran continued to experience problems with depression, and was subsequently hospitalized in 1995; he noted that, in 1996, she was admitted to a VA hospital in South Carolina where she was diagnosed with PTSD, borderline personality disorder, and psychosis. Also received in July 1997 is a medical statement from a clinical staff chaplain at the Dorn VA medical center, dated in April 1997, indicating that the veteran was his patient at the psychiatric unit during the months of November and December 1996. The chaplain reported that the veteran's diagnosis was that of extreme depression with suicidal ideations; he stated that she was given a combination of medicine and group therapy in attempts to alleviate her symptoms. The chaplain related that he counseled the veteran privately on several occasions and noticed a frightened and angry patient who related several instances in her life when she was the victim of sexual attacks by both family members and a military soldier. The veteran indicated that the family member attacks happened at a very young age, but the traumatization never really came to a head until she was raped by a military member while on active duty; in her terms, "it was the straw that broke the camel's back." The Chaplain noted that the veteran suffered from recurring nightmares and flashbacks from the rape that stifled her mental and spiritual growth and caused her obsessive anger and fear; he stated that counseling and medicine only seemed to give her a temporary cure for a problem so deep and psychological that it will be years before she is able to function normally. Received in October 1997 were VA progress notes dated from November 1996 to October 1997, which show that the veteran continued to receive ongoing clinical evaluation, brief periods of hospitalization and treatment for several disabilities, including symptoms of a psychiatric disorder; she also attended and participated in a Women's group, in which they discussed stress and how it impacted on the individuals as well as the losses that they have experienced. During a clinical visit in April 1997, it was noted that the veteran continued to struggle with her feelings of shame, fear, and guilt that have been a part of her life since she was a victim of acquaintance-rape while in the military. During a clinical visit in June 1997, the veteran expressed feelings of anxiety and depression. In July 1997, it was noted that she remained upset that the rape charges in service were dropped; she stated that it was "eating her up" every day. Received in October 1997 were VA treatment reports dated from November 1996 to December 1996, indicating that the veteran was being followed on outpatient basis for borderline personality disorder with episodes of psychotic decompensation and PTSD. Also received in October 1997 were additional service medical records dated from December 1991 to October 1992, which show that the veteran was being followed at the community mental health service while on active duty. A problem list indicated that the veteran's major problems were situational stress, pregnancy (back problems), and marital discord. During a clinical visit in October 1992, it was noted that the unit reported that the veteran had a pending Field Grade Article 15 (non-judicial punishment under the Uniform Code of Military Justice) per adultery charges. The veteran related that she and a male had become good friends over the course of two months, and had engaged in sexual activity on three occasions. The veteran explained that she was upset after receiving information that her husband had cheated on her while he was stationed in Panama; as a result, she became enraged and wanted to "pay her husband back." These records do not reflect any finding or diagnosis of a psychiatric disorder, including PTSD. Also received in October 1997 was the report of an investigation conducted by the United States Army Criminal Investigation Command in September 1992. The report indicated that the office was notified by the Military Police (MP) of a rape that occurred on September 12, 1992. During the interview with the veteran, she related the incident that occurred on the day in question, as previously reported on her PTSD questionnaire in March 1997. In his statement, the named individual admitted that he and the veteran did have sexual relations several times on the night in question; however, he claimed that it was consensual. Following interviews with the veteran and the named subject, on September 19, 1992, the Special Agent in Charge determined that there was not enough evidence to believe that the individual named had committed the crime of rape. The Special Agent also determined that, based on statements rendered by both parties, there was enough probable cause to believe that both the veteran and the individual named only committed the crime of adultery. The investigation was terminated on September 19, 1992, wherein no crime was committed within the investigative purview of USACIDC. Also received in October 1997 was a copy of the Commander's Report of Disciplinary or Administrative Action, dated in October 1992, indicating that an Article 15 action was taken against the veteran based on a charge of adultery. Received in December 1997 were VA outpatient treatments report dated from April 1997 to November 1997, which show that the veteran received clinical evaluation and treatment for several disabilities. These records also reflect that the veteran continued to attend and participate in weekly group sessions at the Women's clinic, where she discussed sources of stress in her life, and ways in which to handle those sources of stress. At her personal hearing in January 1998, the veteran reported that, although she had been to the mental health clinic while in service, she had not been seen by a psychologist prior to being sexually assaulted in September 1992. The veteran indicated that the reason she did not seek medical assistance after her assault is because she was much too scarred. She stated that, although she reported the incident and a preliminary investigation was conducted, the charges were dropped without her knowledge; she was only because aware that the charges had been dropped when she was charged with adultery. The veteran related that she did not seek any assistance from the civil authorities because she did not realize that she had a right to do that. The veteran's husband offered testimony regarding his knowledge of the incident, similar to that related in his statement dated in April 1997. The veteran's husband related that, after the incident, she began to experience flashbacks, nightmares, and crying spells; he stated that they both eventually went to counseling, at which time the doctor indicated that the veteran's problems were related to the sexual assault. Received in January 1998 were VA treatment reports dated from December 1997 to January 1998, which show that the veteran received clinical evaluation and treatment for several disabilities, including a psychiatric disorder. Received in March 1998 was a lay statement from an individual who reported to have known the veteran for over a year, and had noted a constant change in her mental and physical health. She reported taking the veteran to the emergency room because of panic attacks, resulting from the incident in service; she noted that the veteran cries in her sleep, seldom goes out, and is a very scarred person. The veteran's friend stated that it was her belief that the veteran's current mental condition was a direct ramification of her rape which occurred on September 13, 1992, and that her family has also suffered because of that incident. B. Legal analysis Initially, the Board finds that the veteran's claim seeking service connection for PTSD is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, she has presented a claim which is not inherently implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In this regard, the Board notes that, in order for a claim to be well grounded, there must, in general, be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus (that is, a link or connection) between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Also, evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet.App. 19, 21 (1993). More specifically, the Court of Appeals for Veterans Claims has held that a PTSD claim is well grounded where the veteran has "submitted medical evidence of current PTSD; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability". Cohen v. Brown, 10 Vet.App. 128, 137 (1997); see also Harth v. West, 14 Vet.App. 1, 4 (2000) (citing Cohen). Applying these standards to the current claim, the Board notes that the veteran has contended that she was raped by another soldier while on active duty in September 1992, and that he subsequently threatened her and her family. Solely for the purpose of determining the well-groundedness of her claim, these contentions will be deemed credible. See King, supra. Furthermore, there has been a medical diagnosis of PTSD, attributed to the alleged stressor incidents, made by VA physicians at the VA Medical Center in Columbia. Accordingly, the Board finds that the claim is plausible, as there is evidence of a stressor incident or incidents in service, evidence of a current disability, and also seemingly competent evidence that the current disability is a "residual" of the stressor experienced in service. However, the establishment of a plausible claim does not dispose of the issues in this case. The Board must review the claim on its merits and account for the evidence which it finds to be persuasive and unpersuasive and provide reasoned analysis for rejecting evidence submitted by or on behalf of the claimant. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). For a claim to be denied on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet.App. 518 (1996), citing Gilbert, at 54. In order to establish service connection for a disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. §§ 1110, 1131. If a disability is not shown to be chronic during service, service connection may nevertheless be granted when there is continuity of symptomatology post- service. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Board notes that, at the time the veteran initiated her claim for service connection for PTSD, the applicable regulation provided, in pertinent part, as follows: Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1997). That regulation has been amended, and now provides, in pertinent part: Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 64 Fed. Reg. 32,807 (Jun. 18, 1999), now codified at 38 C.F.R. § 3.304(f) (1999). That amendment implemented the Cohen decision, which had held that 38 C.F.R. § 3.304(f) did not adequately reflect the law of the governing statute, 38 U.S.C.A. § 1154(b). The effective date of the amendment is March 7, 1997, the date the Cohen decision was issued by the Court. When regulations are changed during the pendency of an appeal, the veteran is entitled to a decision on the claim under the regulation most favorable thereto. See Fischer v. West, 11 Vet.App. 121, 123 (1998), quoting Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Here, we observe that the RO, in its discussion of PTSD in the January 1998 SSOC, referred to the obsolete, "clear diagnosis" version of the regulation. If the present case turned upon the diagnosis, we might be compelled to remand this issue for the RO to reconsider the matter under the new regulation. However, because the Board is not directly questioning the diagnosis of PTSD, we believe that remand would simply delay the resolution of this claim unnecessarily, with no benefit to the veteran. See Winters, Soyini, Sabonis, supra. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet.App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). If the claimed stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence from any source that corroborates the veteran's testimony or statements. YR v. West, 11 Vet.App. 393, 397 (1998); Cohen, 10 Vet.App. at 147. In the particular case of claimed personal assault, VA has established special procedures for evidentiary development. See VA Adjudication Procedure Manual M21-1 (hereinafter Manual M21-1), Part III, paragraph 5.14c (Feb. 20, 1996) (substantially enlarging on the former Manual M21-1, Part III, paragraph 7.47c(2) (Oct. 11, 1995)). These procedures take into account the difficulty establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. The provisions of M21-1 dealing with PTSD are substantive rules that are the equivalent of VA regulations; VA is therefore required to follow these provisions. Patton v. West, 12 Vet.App. 272, 277 (1999); YR, 11 Vet.App. at 398-99; Cohen, 10 Vet.App. at 139. The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. In cases of claimed personal assault, VA recognizes that some evidence may require interpretation by a clinician to establish a relationship to the diagnosis, per Manual M21-1, Part III, paragraph 5.14c(9). Accordingly, the general rule that post-service medical nexus evidence cannot be used to establish the occurrence of the stressor is not operative in such cases. Patton, 12 Vet.App. at 280. See Cohen, 10 Vet.App. at 145; Moreau, 9 Vet.App. at 396. The starting point for any determination with regard to PTSD is whether there is a "stressor." Under the controlling regulation, there must be credible supporting evidence that the claimed inservice stressor(s) actually occurred. 38 C.F.R. § 3.304(f). The question of whether the veteran was exposed to a stressor in service is a factual determination, and VA adjudicators are not bound to accept such statements simply because treating medical providers have done so. Wood v. Derwinski, 1 Vet.App. 190 (1991), aff'd on reconsideration, 1 Vet.App. 406 (1991); Wilson v. Derwinski, 2 Vet.App. 614 (1992).The existence of an event alleged as a stressor that results in PTSD (though not the adequacy of the alleged event to cause PTSD) is an adjudicative, not a medical determination. See Zarycki v. Brown, 6 Vet.App. 91 (1993). As the veteran does not allege that she engaged in combat, and as her reported stressor is not related to combat, her assertions, standing alone, cannot as a matter of law provide evidence to establish that an in-service event claimed as a stressor occurred. See Dizoglio v. Brown, 9 Vet.App. 163 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet.App. 283 (1994). This does not mean that she cannot establish that the alleged in- service events occurred, it only means that other "credible supporting evidence from any source" is necessary. See Cohen. Since there is a diagnosis of PTSD here, it must be determined whether there is credible supporting evidence of the veteran's alleged stressor, i.e., whether service records or other independent credible evidence corroborates the alleged stressor. See Dizolgio, supra. Based upon a review of the entire record in this case, and in view of the factors discussed above, the Board finds that the veteran's allegation of a rape has not been corroborated by the evidence of record. The record contains a statement from a clinical chaplain who treated the veteran at the psychiatric unit of the Dorn VAMC, indicating that the veteran suffered from extreme depression and suicidal ideations as a result of a rape in service. The record also contains a statement from the veteran's husband attesting to the fact that he was called by the American Red Cross and informed that the veteran had been raped in September 1992. Contravening the above evidence is the veteran's admission, noted in October 1992 near the time of her separation from service, that she had engaged in consensual sexual relations with the same individual, not her husband, on several occasions, to "get back" at her husband for reported infidelity on his part. The Board does not presume that the mere fact of an ongoing illicit sexual relationship with a man other than her husband would preclude the possibility of the veteran's being raped by him at a later time. However, further rebuttal of her rape allegation appears in the report of the investigation conducted by the United States Army Criminal Investigation Command Office, which determined that there was insufficient evidence to believe that the individual named by the veteran had committed the crime of rape. Moreover, the chronology of the above events indicates that, the month after the alleged rape, the veteran was telling a clinician that she had engaged in sexual activity with the same man, on three occasions, because she was angry with her husband, and she did not state that any rape had taken place. Likewise, medical statements that accept a claimant's reports as credible and relate his/her PTSD to events experienced in service do not constitute the requisite credible evidence of a stressor. Moreau v. Brown, 9 Vet.App. 389 (1996). As noted above, several VA treatment reports reflect that the examiners have related that the veteran's currently diagnosed psychiatric disorders, particularly PTSD, were due to sexual assault/rape. The filtering of the veteran's account of her military service through her physician does not transform the veteran's account into competent medical evidence, or an accurate account of those experiences, merely because the transcriber happens to be a medical professional. See Leshore v. Brown, 8 Vet.App. 406, 409 (1995). In light of the foregoing, the Board finds that the record does not support the veteran's assertion that she was raped in service. Thus, although the foundation for the diagnosis of PTSD in this case was the veteran's account of having been raped, we must conclude that the claimed stressor has not been satisfactorly established as having occurred. The veteran may very well consider events which occurred in conjunction with her sexual relationship with the individual in service to have been stressful, but no medical professional has indicated that such a situation qualifies as a valid PTSD stressor under pertinent diagnostic criteria. Thus, while the veteran does have a diagnosis of PTSD related to purported in-service stressor, that stressor is not shown by satisfactory evidence to have occurred. We find that the veteran's testimony in this claim is not reliable, and is of little evidentiary weight. Having so concluded, the Board finds that the preponderance of the credible evidence is against the claim, and that neither a VA psychiatric examination nor further interpretation by a clinician of the in-service symptoms/behavior is necessary. See M21-1, Part III, 5.14(c); Patton v. West, supra, at 280. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER New and material evidence not having been submitted to reopen a claim for service connection for a nervous disorder, to include major depression, the appeal is denied. Entitlement to service connection for PTSD is denied. REMAND The veteran has contended, in substance, that her lumbar spine disorder is becoming progressively more severe, with flare-ups, pain, radiation of pain to the lower extremities, muscle spasms, limitation of motion, and exacerbations brought on by prolonged sitting and chronic use. She has argued that the current manifestations of her low back disability more nearly approximate the criteria for a higher rating under 38 C.F.R. § 4.7 (1999). In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. In determining the current level of impairment, the disability must be viewed in relation to its history. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When the veteran was last examined in July 1995, she complained of daily back pain, which is exacerbated with prolonged sitting and standing; she also reported occasional radiation of pain into the right leg. She denied paresthesias or weakness; however, she indicated that she experienced occasional urinary incontinence. On examination, there was no visible abnormality of the spine. She was exquisitely tender to palpation from approximately T8 down to her sacrum; she was also tender over both her spinous processes and paraspinous muscles. She had pain in the back with straight leg raising. No X-ray findings were reported. The pertinent diagnosis was chronic low back pain. VA outpatient treatment reports dated for the period of April to November 1997 reflect that the veteran complained of recurrent back pain with radiation to both legs. A treatment report dated in October 1997 indicates that she was seen in the emergency room for complaints of recurrent episodes of back pain; she stated that she was unable to do any housework. It was noted that she came to the hospital by ambulance and was given Percocet, which had not relieved pain. On examination, the veteran was bent over moaning and groaning loudly, especially upon being touched on the lumbar area, right side. The diagnosis was CT diffuse bulging disc, L4-5 and L5-S1, right greater than left. During a clinical visit in November 1997, the veteran complained of severe low back pain with incontinence of urine and stool; it was noted that she had severe pain to palpation on the lower back, with severe to right leg raising. It was also noted that x-ray study of the back revealed mild convexed left thoracolumbar scoliosis and minimal disc space narrowing at L5-S1. Another treatment note dated in November 1997 observed that the veteran was using a Canadian crutch. In the informal hearing presentation dated in February 2000, the veteran's representative maintained that the veteran's low back disorder has affected her employment. He requests that the veteran be accorded a social and industrial survey to determine the impact of the back disorder on the veteran's ability to work and carry out other activities of daily living. The representative also requests that the veteran be accorded another VA examination, and that the examiner render an opinion as to the veteran's functional impairment due to her service-connected back disorder, pursuant to the provisions of 38 C.F.R. §§ 4.40, 4.59. The Board notes that the veteran's disability has been rated by the RO under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5293. Mild intervertebral disc syndrome is rated 10 percent disabling. When intervertebral disc syndrome is moderate and manifested by recurring attacks, a 20 percent rating is assigned. Severe intervertebral disc syndrome productive of recurring attacks with intermittent relief is rated 40 percent disabling. Pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, and with little intermittent relief, is rated 60 percent disabling. 38 C.F.R. § 4.71a, DC 5293. In a December 1997 General Counsel opinion, it was specifically held that 38 C.F.R. §§ 4.40, 4.45 must be considered when a disability is evaluated under DC 5293 pertaining to intervertebral disc syndrome. VAOPGCPREC 36- 97. The Court of Appeals for Veterans Claims has held that medical evidence is required as to the degree of functional loss caused by the veteran's pain from this disability. See DeLuca v. Brown, 8 Vet.App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). This is especially so in light of the veteran's complaints of increased problems with certain activities. When rating musculoskeletal disability, it must be remembered that "a part which becomes painful on use must be regarded as seriously disabled." 38 C.F.R. § 4.40 (1999). In DeLuca, supra, the Court cited the case of Bierman v. Brown, 6 Vet. App. 125, 129 (1994) in which 38 C.F.R. § 4.10 was quoted for the proposition that a rating examination must include a "full description of the effects of disability upon the person's ordinary activity." DeLuca, at 206 (emphasis added). In order to effectuate this requirement, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional loss are to be "'portray[ed]' (§ 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare- ups." Id. This is what is required in the context of a VA medical examination concerning the veteran's disability. Given the number of years that have elapsed since the last VA compensation examination and the latest records of medical treatment, and the veteran's claim of increased disablement, the Board agrees with the representative, and finds that a remand is required so that the veteran may be afforded VA orthopedic and neurological examinations for the purpose of determining the current degree of mechanical low back pain with a history of bulging disc. Caffrey v. Brown, 6 Vet. App. 377 (1994); Green v. Derwinski, 1 Vet.App. 121 (1991). In further support of the need for a more current and thorough examination, the Board notes that the September 1995 VA examination did not include all relevant clinical findings pertaining to the low back, including the presence or absence of painful motion, muscle fatigue, and muscle strength. That is, the VA examination report does not answer some of the points raised in DeLuca v. Brown, supra, which requires that functional loss be fully portrayed. It is essential that the examination adequately portray the degree of functional loss. 38 C.F.R. §§ 4.40, 4.45 (1997); DeLuca, supra. To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to her claims and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The veteran should be requested to identify all sources of recent treatment received for her service-connected low back disability, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source she identifies. Copies of the medical records from all sources she identifies, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. Following the receipt of the above- requested evidence, if any, the RO should schedule the veteran for VA orthopedic and neurological examinations, in order to determine the current nature and severity of the back disorder. The examiner should review the claims folder, including a copy of this Remand, and should indicate that a review of the claims folder was accomplished. The examiner's report should fully set forth all current complaints, pertinent clinical findings, including ranges of motion, and diagnoses. X-ray studies of the veteran's spine should be accomplished, if indicated. Following examination of the veteran, the VA examiner should comment on whether the veteran's back disorder (rated as intervertebral disc syndrome) is mild, moderate with recurring attacks, severe with recurring attacks and intermittent relief, or pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc(s). Thereafter, the VA examiner should specifically provide findings that take into account all functional impairments identified in 38 C.F.R. §§ 4.40, 4.45 (1999), including pain, incoordination, weakness, fatigability, abnormal movements, etc. The examiner should identify each functional disability legitimately experienced by the veteran. Functional loss due to such difficulties should be described in terms of additional range- of-motion loss beyond that which is clinically observed. See DeLuca, supra. If such analysis is not possible, the reasons for this impossibility should be set forth. 3. 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, to include a review of the examination report and any requested medical opinion. If the requested development is not in complete compliance with the instructions provided above, appropriate action should be taken. 38 C.F.R. § 4.2 (1999). 4. Thereafter, the RO should re- adjudicate the issue of entitlement to an increased evaluation for mechanical low back pain with a history of bulging disc, in light of the additional evidence. If any determination remains adverse to the veteran, both she and her representative should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, all applicable law and regulations, including the provisions of 38 C.F.R. §§ 4.40 and 4.45, and reflects detailed reasons and bases for the decision. They should then be afforded the applicable time period in which to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until she receives further notice. By this REMAND, the Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case. The purposes of this REMAND are to further develop the record and to accord the veteran due process of law. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet.App. 369 (1999). 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 Appeals for Veterans Claims 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. 1999) (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. ANDREW J. MULLEN Member, Board of Veterans' Appeals