Citation Nr: 0126391 Decision Date: 11/15/01 Archive Date: 11/27/01 DOCKET NO. 99-13 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a disability of the low back as secondary to a service-connected disability of the right knee. 3. Entitlement to compensation benefits for a disability of the low back pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 2001). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active military service from July 1982 to October 1985. This matter is on appeal to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The veteran provided oral testimony before the undersigned Member of the Board in August 2001, a transcript of which has been associated with the claims file. The issues of entitlement to compensation benefits for a disability of the cervical spine pursuant to the provisions of 38 U.S.C.A. § 1151, and service connection for PTSD are addressed in the remand portion of this decision. FINDINGS OF FACT 1. Service connection is in effect for a disability of the right knee rated as chronic patellofemoral arthralgia and arthroscopic and lateral retinacular release. 2. A disability of the low back is not shown by competent evidence to be causally related to the service-connected disability of the right knee. 3. The veteran is not shown to have additional disability of the low back that is the result of VA medical treatment, reasonably related thereto or an unintended consequence of VA medical treatment for recurrent unstable gait and low back pain. CONCLUSIONS OF LAW 1. A disability of the low back is not proximately due to, the result of, or aggravated by a service-connected disability of the right knee. 38 U.S.C.A. § 5107 (West 1991 & Supp. 2001); 38 C.F.R. § 3.310(a) (2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3,159 and 3.326(a)); Allen v. Brown, 7 Vet. App. 439 (1995). 2. The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 based on VA medical treatment have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 1991 & Supp. 2001); 38 C.F.R. § 3.358 (2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3,159 and 3.326(a)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual background The record shows that the RO in October 1988 granted service connection for a disability of the right knee. The disability was described as chronic patellofemoral arthralgia, status post injury, arthrotomy and lateral retinacular release. The RO assigned a 10 percent rating under Diagnostic Code 5257. There was no reference to the low back in the initial VA benefit application in July 1988 or on the initial VA examination of the right knee later in 1988. Her argument regarding the severity of the right knee disability on appeal did not mention any low back pain complaints. The Board in 1990 reviewed the record, found the disability was no more than slight and affirmed the initial 10 percent rating. The veteran filed an application for an increase in the disability rating for the right knee in late 1992, stating that she needed a brace, and that the knee had worsened. The contemporaneous record included an X-ray of the knee that was interpreted as normal. She told a VA examiner that she had a recent reinjury when the knee gave way. She complained of swelling and difficulty with stairs. The examiner reported a slight limp, no significant pain and marked patellofemoral tenderness. The examiner said there was no other evidence of instability and that she bore most of the weight on the left. The examiner's impression was chronic patellofemoral syndrome with synovitis. The record showed no reference was made to the low back on the VA examination or in her correspondence to the RO in April 1993 and January 1994. In the 1994 correspondence she said that she had injured her right shoulder in 1991 when the right knee locked and caused the shoulder to separate. She did not respond to a VA request for pertinent treatment records and a description of the accident. Her next correspondence to VA in mid 1995 discussed the severity of her right knee disability. She noted a recent right ankle injury and recent surgery. In seeking an extended convalescence rating for the right knee, she reported in August 1995 that she was unable to do her job as a horse trainer. Her subsequent correspondence in mid 1996 wherein she sought a rating increase was also directed to the right knee exclusively. On a VA examination early in 1997 the veteran reported that her right knee gave out and that she had to shift weigh to the left knee. She reported that she had back pain for the previous seven or eight months that was secondary to the right knee pain. The examiner noted that she had a full range of motion of the right knee, an unremarkable gait, no swelling and no significant deformity. The diagnosis was status post right knee surgeries. Other VA records were unremarkable regarding the low back except for a reference in May 1997 to back pain of six months and right shoulder pain since 1989 when she was in a motor vehicle accident. The assessment included low back pain. In her notice of disagreement regarding the continuation of the present rating for the right knee, the veteran contended the problem with her back was from her knees, and that nothing was said about a "sc rating" for the back due to the knees. At an August 1997 RO hearing she mentioned treatment for the knee and the back (Transcript at 6). Argument regarding the back was included in the appeal of the right knee disability rating. The Board in October 1998 granted a 20 percent rating for the right knee disability. The RO obtained the report of VA hospitalization in 1998 that was unremarkable regarding the low back. A VA examiner in late 1998 reported her complaint of worsening chronic low back pain that started five years previously. She reportedly had no history of back injury or surgery, but did report two surgeries on the right knee. The examiner found tenderness of the lower paraspinal muscles, and that she complained of pain with motion of the lumbosacral spine. The examiner also examined the right knee and reported that X-rays of the knee and the lumbosacral spine were normal. The diagnoses included chronic low back pain with normal X-ray findings. The examiner opined that the veteran's low back pain was not related to her right knee disability. In disagreement with the decision wherein the RO denied service connection on a secondary basis, the veteran argued that a VA physician had given her a heat pad, and that she had twisted her back on account of her right knee. In her appeal she argued that she could not see how her back problem could not be the direct result of the right knee disability. The record contains a hand written statement in August 1999 wherein the veteran said that on July 4, 1999, she reinjured her back when her right knee had given out as she walked down steps. She stated that she was admitted to a VA hospital on July 7th , and physical therapy was started for her neck and back. She reported that a physical therapist came to get her to walk with a walker, that the therapist did not use a belt, and stepped away when she attempted to use the walker. She stated that she fell and the bottom of the walker went across her back, and thereafter the physical therapy clinic issued her a wheel chair, back brace and a TENS unit for pain, and a heating pad. There is a report of contact on file regarding the transcription of the veteran's statement. The RO obtained records that corresponded to several VA hospital admissions the veteran had in 1999. She was admitted to the Birmingham VA Medical Center on July 6, 1999, for complaints of chronic back pain and lower extremity weakness. The inpatient notes show a consultation report dated July 6, that noted the veteran needed a walker since she was to be discharged on this date (apparently from the Montgomery VA Medical Center). The report noted that she had been seen at bedside for ambulating training, that she was able to stand without assistance with a walker, and that when asked, she responded that there was no complaint of dizziness. When she was asked to take a few steps with the walker, both knees appeared to "give away" and she fell forward. The therapist reported being able to hold on to the veteran and cushion her fall. She was placed in bed with the assistance of several other personnel. A report dated July 7 noted that she had no neurologic evidence to support her weakness and no evidence of spinal stenosis. It was reported that she had a significant psychiatric component that accounted for poor pain tolerance. Other records included X-rays of the lumbosacral spine that were read as normal. A magnetic resonance imaging (MRI) the next day was read as showing no significant abnormalities, and a conjoined root sleeve at L5- S1 that was a normal variant. The summary for a July 8-14, 1999 admission to the Montgomery VA Medical Center shows that she fell on staircase a week prior to admission and that she had a history of chronic back pain, multiple joint pain and arthritis of both knees. Past medical history was significant for chronic back pain, which she reported after a fall from a horse in 1996. It was explained to her that the weakness could be due to chronic back pain and arthritis. The summary mentioned that a walker was requested prior to her discharge and that, according to the veteran, while she was being trained for its use, she apparently fell and complained of left shoulder pain and left rib cage pain. The radiology report showed a normal lumbar spine. The final diagnoses included chronic back pain, depression, and arthritis of the knees and lower extremity weakness. A note on July 8 reported that her husband blamed a physical therapist for causing her to fall. According to this summary she was transferred to the Birmingham VA Medical Center after the fall and her complaint of shoulder and rib cage pain. Consultation dated on July 9 shows the veteran was evaluated for a back injury complained of as the result of her right knee giving out in late June. It was reported that she had waked out of her room the previous day, that she complained of extreme pain, but had no localizing deficit and had localizing tenderness to light touch. She was to have a transcutaneous electrical nerve stimulating (TENS) unit, hot packs and a thermoform. The summary of the July 18-24, 1999 admission to another VA hospital shows the veteran was admitted for chronic low back pain, unstable gait and vision loss. It was reported that she said that she had injured the right knee prior to admission, but had suffered subsequent falls, which caused back and neck problems. She was transferred to the psychiatry service on the day prior to her discharge, but reportedly left before an assessment could be completed. The diagnoses included generalized anxiety disorder with depression, degenerative joint disease (low back and neck pain) and history of falls. A note dated July 20 shows complaints of chronic back pain, inability to walk and neck pain. There was a July 23 reference to right ankle trauma and a private record on the same day noting low back pain and neck pain. Records show that a right knee x-ray on July 23 was read as normal. The summary of the veteran's readmission to the Montgomery VA Medical Center from July 29 to August 4, 1999, notes right knee weakness and pain, and a previous evaluation earlier in the month. According to the veteran, the right knee was "going out on her" and she could not keep balance with crutches. There was a history of chronic back pain and depression. The right knee was noted to be tender with healed scar and mild crepitus, but an orthopedic consultant reportedly did not note any acute findings. It was reported that bed rest was advised because of a recurrent fall history, but that she consistently remained noncompliant, and went outside several times a day for smoking. The final diagnoses included history of chronic back pain. An inpatient note of July 29 reported that she stated that negligence of a VA worker and physical therapy caused a fall during hospitalization. There was also a reference to the fall and a contusion of the lower back. On July 30 an orthopedic consultant noted history of seven falls in the past week, but that examination showed no right knee effusion, medial or lateral instability, negative posterior and anterior drawer sign, and no patellar crepitus. The physician stated he was unable to explain repeated falls on clinical findings of the right knee. Inpatient records show on August 3 the veteran had complaints of right knee pain and weakness, but that an examination found no detectable motor weakness, no instability or effusion, and an unremarkable X-ray and MRI of the right knee. It was reported that the active range of motion was limited due to pain. The examiner stated that multiple sclerosis was for consideration in light of the diffuse and multiple weakness episodes of varied symptoms. Another note from August 3 reports that she desired physical therapy for weakness of knees to prevent falling, and that she was admitted with diagnosis of low back pain. The summary of a seven-day VA hospitalization August 6-13, 1999 at another VA facility shows no diagnosis of a chronic low back disability. The principal diagnosis was mood disorder, not otherwise specified. Another right knee x-ray on August 7, after a fall from a wheelchair, noted minimal medial joint space narrowing and an impression of arthritis. An outpatient report dated in late August 1999 notes her complaint of falling down steps at home and injuring the right knee and ankle. Examination showed no instability, swelling, limitation of motion of either joint and negative X-ray for acute injury. She was prescribed exercises for right quadriceps atrophy of long standing. Another August 25 note reports that she fell when her right knee gave way a week earlier. A record entry from the previous day noted that she complained of a swollen knee, and an examiner reported no obvious swelling, warmth or erythema of the right knee. The RO obtained additional records in connection with the claim based on medical treatment that did not add any information to that previously of record. A report from September 1999 noted that she recalled a neck injury as inpatient in July 1999. In October 1999 she said that in July 1999 she had fallen against a walker injuring her neck when being taught how to use the walker. Other VA outpatient reports noted that in November 1999, she complained of right knee pain since July 1999 that had increased in recent weeks. An examiner noted that she had minimal laxity and minimal effusion. The assessment was right knee arthralgia with minimal instability and minimal effusion. In December 1999 it was reported that she was advised a MRI of the right knee was negative, and she was described as quite hostile and feeling that she was not getting proper attention because of the "7/99 incident". Her VA hospital admission from December 1999 to January 2000 was for major depression after an overdose of medication. VA neurological examination in May 2000 reported no evidence of entrapment syndromes in right lower limb and left upper limb. An orthopedic examiner in May 2000 reported the veteran complained of a dull ache in the low back, and gave a history of a fall on July 6, 1999, at a VA medical center with sustention of injury to the low back and neck. The examiner reviewed previous records and mentioned a traction spur on L4-L5, and a conjoined root sleeve at L5-S1 on the right side. The examiner also noted the recent normal electrodiagnostic test findings. The examiner's diagnosis was chronic low back pain secondary to small anterior traction spurs of L4-L5. The examiner opined that she had pain on bending and lifting, but that she had no additional disability due to the fall on "7/6/00". The examiner said that the conjoined root sleeve could not be due to the fall. A neurology examiner opined that the complained of numbness in the lateral aspect of the right knee was not due to the fall in July 1999. An examination of the right knee noted her complaint of pain and buckling of the right knee. On examination there was mild tenderness, no swelling, a normal gait, and independent walking with mild mediolateral instability of the right knee. An X-ray was read as being within normal limits. The diagnosis was right knee arthralgia, status post arthroscopic surgery and mild mediolateral instability. The RO in August 2000 denied the claim for compensation based on medical treatment. The veteran disagreed arguing that her lower back pain did not start until she hit and twisted it in 1993. when her knee gave out. She reported that the knee gave way in June 1999, and she hit her lower back on steps. She recalled that when hospitalized at the Montgomery facility, the therapist brought a walker, that she fell, and the therapist did not cushion her fall. She stated that she reinjured her back and injured her neck. She stated that if the therapist had used a belt around her waist she would not have fallen. She said that she did not fall forward, but to the right side, and fell on the backside when she tried to reach up. At the Board hearing, the veteran testified that she could not recall the physician who told her that her back problem could be related to the right knee disability, but related that if she had a severe knee disability with problems of twisting, bending and falling, then she would have a back problem. She recalled this was related to her at the time she was treated for the right shoulder, and not for the back. She asked if the medication for the shoulder would help her back. The representative asked for a medical opinion (Transcript (T), inter alia, 6-8, 11). Criteria Service connection may be granted 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); Allen v. Brown, 7 Vet. App. 439 (1995). Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). Although the claim need not be conclusive, it must be accompanied by supporting evidence. An allegation alone is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In general to establish service connection there must be (1) competent evidence of a current disability (a medical diagnosis); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus between the in-service disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); as applicable to claims of secondary service connection, see Reiber v. Brown, 7 Vet. App. 513 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West Supp. 2001); 38 C.F.R. §§ 3.102, 4.3 (2001). In Gardner v. Derwinski, the United States Court of Appeals for Veterans Claims (known as the United State Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") declared invalid the provisions of 38 C.F.R. § 3.358(c)(3) (1994), requiring VA fault or accident prior to recovery under 38 C.F.R. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), add'd sub nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), Brown v. Gardner, 115 S.Ct. 552 (1994). The United States Supreme Court held that VA is not authorized by § 1151 to exclude from compensation the "contemplated or foreseeable" results of non negligent medical treatment, as was provided by 38 C.F.R. § 3.358(c)(3). Subsequently, the VA Secretary sought an opinion from the Attorney General as to the scope of the exclusion from § 1151 coverage contemplated by the Supreme Court's decision. In a memorandum to the Secretary dated January 20, 1995, the Deputy Assistant Attorney General, Office of the Legal Counsel, U.S. Department of Justice, indicated that the Supreme Court's holding is read most accurately as excluding from coverage under § 1151 only those injuries that are "certain, or perhaps the very nearly certain, result of proper medical treatment." In March 1995, amended regulations were published deleting the fault or accident requirement of 38 C.F.R. § 3.358, in order to conform the regulations to the Supreme Court's decision. As provided under 38 C.F.R. § 3.358(a), where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, compensation will be payable for such additional disability. In determining that additional disability exists, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. (i) As applied to examinations, the physical condition prior to the disease or injury will be the condition at time of beginning the physical examination as a result of which the disease or injury was sustained. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. Compensation will not be payable under 38 U.S.C. A. § 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. 38 C.F.R. § 3.358(b). In determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. When the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, it will bar him (or her) from receipt of compensation hereunder except in the case of incompetent veterans. 38 C.F.R. § 3.358(c). In pertinent part, 38 U.S.C.A. § 1151 mandates that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment...awarded under any of the laws administered by the Secretary of VA, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of the veteran, disability or death compensation...shall be awarded in the same manner as if such disability, aggravation or death were service-connected. However, effective October 1, 1997, 38 U.S.C.A. § 1151, relating to benefits for persons disabled by treatment or vocational rehabilitation, was amended by Congress. See section 422(a) of Pub. L. No. 104-204. The purpose of the amendment is, in effect, to overrule the Supreme Court's decision in the Gardner case, which held that no showing of negligence is necessary for recovery under section 1151. In pertinent part, § 1151 is amended as follows: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. However, these amendments apply only to claims filed on or after the effective date of the statute, October 1, 1997. Since the veteran's appeal was pending prior to this date, it continues to be subject to review under the prior statutory language and interpretation. VAOPGCPREC 40-97. Analysis Duty to assist There have been changes in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Among other things, this law redefines the obligations of VA with respect to the duty to assist and supersedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order). The Board observes that the appellant has not indicated at any stage in this appeal that pertinent evidence likely exists, or was brought to the attention of the RO or the Board, but not requested. The RO notified the appellant of the evidence needed to substantiate the claims through statements of the case, and other correspondence pertinent to the current claim. The appellant was afforded the opportunity to submit arguments in support of the claim, and in fact did so. The appellant was also afforded the opportunity to present hearing testimony before a Member of the Board. The argument for compensation is not a purely legal question, which the VCAA would not affect. See for example Dela Cruz v. Principi, 15 Vet. App. 143 (2001). However, the veteran was given ample opportunity to identify evidence that could support the claims, but she did not identify or provide such evidence. Thus, the Board finds that the relevant evidence available for an equitable resolution of the appellant's claim has been identified and obtained. The Board finds that VA can provide no further assistance that would aid in substantiating the claim. The veteran has not indicated the likely existence of any evidence that has not already been obtained that would be crucial in the claim from the standpoint of substantiating the claims under applicable law or VA regulations. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). No other relevant but outstanding records have been mentioned to warrant expenditure of additional adjudication resources. Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Further, the veteran has not disputed that VA has completed the development required. See Dixon v, Gober, 14 Vet. App. 168, 173 (2000); Davis v. West, 13 Vet. App. 178, 184 (1999); Earle v. Brown, 6 Vet. App. 558, 562 (1994). As noted previously, the representative at the Board hearing requested medical examinations. However, the record contains VA medical examinations on the question of secondary service connection and compensation under section 1151. The Board finds, therefore, that VA has fulfilled its obligation to the appellant, informing her of the reasoning against the claims and providing the pertinent VA regulations. The Board has not overlooked the recently published VA regulations that implement the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3,159 and 3.326(a)). However, these provisions do not provide any rights other than those provided by the VCAA. In view of the foregoing, the Board finds that the appellant will not be prejudiced by its actions, and that a remand for adjudication of her claims for secondary service connection of a low back disability and for compensation under section 1151 by the RO under the new law would only serve to further delay resolution of the claims. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Service connection for disability of the low back as secondary to the service- connected disability of the right knee. The appellant is service connected for a disability of the right knee. Under 38 C.F.R. § 3.310(a) secondary service connection is to be awarded when a disability is proximately due to or the result of a service-connected disease or injury. See Evans v. West, 12 Vet. App. 22, 29 (1998) (establishing secondary service connection requires evidence that the alleged current disorder is proximately due to or the result of the service-connected condition). The Board has thoroughly reviewed the record on appeal and, for the following reasons, concludes that the appellant is not entitled to service connection as the evidence preponderates against the claim. Although the record contains several statements by the appellant that her low back difficulties are related to her service-connected right knee disability, these statements, even when contained in examination reports, do not constitute competent evidence of an etiological relationship between a current low back disability and her service-connected disability of the right knee. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The record also contains the report from a November 1998 VA examination for spine disorders, in which the examiner stated that the appellant's low back pain is not related to her right knee condition. The examiner interviewed the veteran and examined her right knee in addition to the lower back, and then opined that there is no relationship between the two disorders. She advised the examiner of the duration of the back pain, having been five years, which was inconsistent with her earlier statements. Based upon the evaluation and information relied on the Board finds no harm in the examiner's apparent evaluation without the veteran's file. The examiner based his assessment against a nexus on the veteran's history and examination of the back and right knee. She did not advise the examiner of any medical information that would be relevant to the examiner to insure an informed determination. In denying the appellant's claim, the Board essentially attributes substantial weight to the opinion rendered by the examiner in 1998. The negative nexus opinion is not speculative, and was rendered in the context of an orthopedic examination. There is no positive nexus opinion or any definitive opinion provided by an examiner in favor of the claim. Even if the Board accepted without corroboration that the veteran were told that a back disorder could result from a severe knee disability, the record shows no clinical opinion of a severe right knee disability. There are references to minimal symptoms recently, and a clinician's opinion in 1999 was based on examination that the right knee could not account for the veteran's complaints of weakness. It appears from the several comprehensive evaluations during VA hospitalizations that clinicians are skeptical of the claimed orthopedic basis for her reported falls. In any event, there is a competent medical opinion against the claim which is not refuted. Thus, it is not implausible from the record to conclude the probative evidence preponderates against the claim. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to assess the credibility and weight to be given to evidence.). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service- connected disease or injury. Libertine v. Brown, 9 Vet. App. 521, 522 (1996). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence is generally required for the claimant to prevail. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay testimony cannot provide such medical evidence because lay persons are not competent to offer medical opinions. See Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Grottveit, 5 Vet. App. at 93. The credibility of the evidence presented in support of a claim is generally presumed. See Elkins, 12 Vet. App. at 219 (citing Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995)). In summary, the veteran cannot prevail on the merits because there is no competent evidence that her claimed condition of the low back is proximately due to or the result of her service-connected right knee disability, muchless aggravated thereby. Allen, supra. The only competent evidence of such a nexus is the veteran's own belief. Even assuming the truth of a physician's general statement of potential causation, which was apparently general in nature, she is not competent to provide an opinion as to medical nexus. See Stadin, Heuer, and Grottveit, all supra. Thus neither the November 1998 examination report nor any other competent evidence of record indicated a connection between the veteran's service-connected knee condition and her claimed lower back pain. The Board must also point out the obvious credibility issue raised in the record. The veteran asserted recently that the back pain had begun in 1993 after the right knee gave out. Her initial assertion in 1997 was that it was present for several months and, at that time, she supported this with her own opinion of causation which referenced both knees rather than exclusively focusing on the service-connected right knee disability. Again in a May 1997 clinical record she reported the onset of back pain six months earlier. Another inconsistency at that time was her statement that a right shoulder injury occurred in a motor vehicle accident in 1989. Earlier when seeking VA compensation in 1994 she claimed the right knee locked in 1991 and caused a shoulder separation. It is noteworthy that she did not respond to a VA request for records at that time, and she asserted at the Board hearing that she was being treated for the shoulder when a physician (whose names she could not remember) informed her of the potential for a back-knee disability relationship. However, more crucial on the claimed nexus for the low back disability is the appellant's statement recorded in the July 1999 VA hospitalization, at which time she related having had low back pain even since she fell from a horse in 1996. In light of these inconsistencies on material facts, the Board may reasonably assign little credibility to her statements of a link to the service-connected right knee disability. The appellant has failed to show through competent medical evidence that a current low back disability is proximately due to or the result of a service connected disability, muchless aggravated thereby. The November 1998 examination is substantial evidence to the contrary. In any event, the veteran is required to submit medical nexus evidence to support the claim and she is advised that the discrediting of evidence contrary to the granting of service connection does not alone serve as evidence that supports service connection. Wandel v. West, 11 Vet. App. 200, 206 (1998). In obtaining the opinion in 1998, the RO in effect recognized the medical complexity of the case. The Board observes that the RO made a diligent effort to obtain an adequate record. The RO did complete development and the Board has not been alerted to evidence probative in the determination of secondary service connection that is likely available but that has not as yet been obtained. The Board must observe that the VA opinion took into account the veteran's complaints and pertinent history. It appears the examiner responded to the specific question set forth regarding service connection on a secondary basis. In summary, there is no medical opinion to establish a likely nexus between the right knee disability and the development of such disability of the low back. The veteran's often repeated argument of a nexus is not supported in competent nexus evidence that took into account her disability. As with any piece of evidence, which included the veteran's assertions of causation in writing and testimony, the credibility and weight to be attached to specific evidence is an adjudication determination. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). It is well established that lay observation is not sufficient to establish a medical diagnosis or causation. The Board finds for the reasons stated that the competent evidence does preponderate against the claim, and the claim should be denied. Struck v. Brown, 9 Vet. App. 145, 155 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Compensation pursuant to 38 U.S.C.A. § 1151 Initially, the Board observes that continuance or natural progress or willful misconduct which would bar any entitlement do not appear to be relevant considerations that alone would negate a favorable determination. However, the Board finds that the medical evidence preponderates against the claim for compensation as a result of VA medical treatment, as it does not offer a basis supporting that the veteran has additional disability of the low back linked to VA treatment. The record establishes that the fall occurred on July 6, 1999 at the Montgomery VA Medical Center, that she was transferred to the Birmingham VA Medical Center for evaluation after the fall, and then returned to the Montgomery facility for several days until her discharge on July 14, 1999. At the time she filed her August 1999 claim, section 1151 provided for compensation to a veteran for a qualifying additional disability that is the result of an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment and not as a result of such veteran's own willful misconduct. See 38 U.S.C. § 1151 (1999). The appellant's claim was filed after the 1997 effective date for the amendment to section 1151 providing, if applicable, that a claimant must make a showing of fault on the part of VA. A claim for compensation under section 1151 requires medical evidence of an additional disability; medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and medical evidence of a nexus between that asserted injury or disease and an additional disability. See Jones v. West, 12 Vet. App. 460, 463-64 (1999); see also Jimison v. West, 13 Vet. App. 75, 78 (1999). The Board concludes that the appellant has not satisfied the elements of section 1151 claim, because there is no medical evidence of the current additional disability for which she is seeking compensation, and her lay testimony, while competent to establish symptoms, is not competent medical evidence of such disability. See Jimison, 13 Vet. App. at 78. In that regard, the Board notes that, in May 2000 a VA examiner indicated that the record had been reviewed, that the veteran had a chronic low back pain, but that no additional disability as a result of the fall. A neurology examiner similarly found claimed numbness, in light of normal electrodiagnostic testing, to be unrelated to the fall in July 1999. With regard to the second element, the appellant asserts that, during the July 1999 VA hospitalization, the therapist was, in essence, negligent in training her to use a walker, or in any event, should have taken certain precautions to prevent her fall. The appellant and a VA hospital employee have recorded their observations of the incident that occurred during the early July 1999 admission to the Montgomery VA Medical Center. However her lay statement as to what occurred does constitute competent evidence of an injury that is the type of injury that would be subject to lay observation. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995); Heuer v. Brown, 7 Vet. App. 379, 384 (1995). The Board notes that there is no argument that she did not have low back problems prior to entering the VA hospital in early July 1999, and she continued to have such complaints during subsequent VA hospital admissions. Thus, there is sufficient evidence of an injury but also a disability preceding the VA hospitalization. However, the first element of a successful section 1151 claim has not been satisfied and, thus, the appellant's assertion of injury though competent, does not alone serve as sufficient evidence to establish entitlement to compensation. See for example Robinette, 8 Vet. App. at 78-80. With respect to the third element, the record is devoid of any medical nexus evidence. More precisely, there is no medical evidence of additional disability. Further, the appellant's lay assertions in writing, but unenhanced with testimony, that an additional low back disability was caused by the medical treatment is not competent to establish the requisite nexus. See Jimison, 13 Vet. App. at 78; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In summary, the Board finds, that as a result of the development completed in this case, there is no further duty to assist the appellant with regard to the development of her claim. The RO asked for and received VA medical opinions. In obtaining these opinions, the RO in effect recognized the medical issue in the case. The Board observes that the RO made a diligent effort to obtain an adequate record. The Board has not been alerted to evidence probative in the determination that is likely available, but that has not as yet been obtained. The Board must observe that the VA opinions are comprehensive and took into account the veteran's medical history and pertinent treatment history. It appears the examiners responded directly to the RO's request. The opinions rendered appear to have been based upon facts pertinent to the veteran's case, and knowledge of competent medical practice. Competent evidence does not dispute the rationale supporting the conclusions reached. There is no contemporaneous competent opinion to the contrary to reasonably call into question the VA opinions in May 2000. As with any piece of evidence, the credibility and weight to be attached to a medical opinion is an adjudication determination. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). It is well established that lay observation is not sufficient to establish a medical diagnosis or causation. The Board observes that the record is supplemented with the veteran's Board hearing testimony that did not address this matter (T 6-7). The evidence, viewed objectively, is not at least in relative equipoise on the question of whether the veteran has additional disability linked to VA medical treatment. The Board finds that competent evidence does preponderate against the claim, and the claim should be denied. Struck v. Brown, 9 Vet. App. 145, 155 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The specific guidelines for compensation in the veteran's case, found at 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.358, which set forth the essential elements, are not met. The Board is not required to explore the element of VA fault since there is no additional disability of the low back linked to VA medical treatment. ORDER Entitlement to service connection for a disability of the low back as secondary to a service-connected disability of the right knee is denied. Entitlement to compensation benefits for a disability of the low back pursuant to the provisions of 38 U.S.C.A. § 1151 is denied. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. 2001) (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. Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Therefore, for these reasons, a remand is required. In an effort to assist the RO, the Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this case. The Board believes that the RO should obtain relevant treatment records and a medical opinion. This would provide a record that would allow for an informed determination of the issue of service connection for PTSD in light of current adjudication principles and as contemplated in the VCAA. VA recently published final regulations to implement the statutory changes. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3,159 and 3.326(a)). Regarding entitlement to compensation benefits for a disability of the cervical spine pursuant to the provisions of 38 U.S.C.A. § 1151, the record shows that the RO denied the claim in April 2001, and provided the veteran with notice of the decision. The veteran filed a notice of disagreement in May 2001, and addressed the issue at the recent Board hearing. Since the veteran has filed a timely notice of disagreement, the failure to issue a statement of the case in such circumstances is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). However, before the issue is returned to the Board, it must be perfected by filing a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); 38 C.F.R. §§ 20.200, 20.201, 20.300 (2001). Turning to the issue of service connection for PTSD, the veteran's claim is based on a personal assault that she contends occurred during military service. A VA examiner in 1998 linked PTSD to personal trauma. However, more recent VA hospital records show the psychiatric diagnosis is not PTSD. When the claim was denied in February 1999, the rating board noted an apparent credibility issue regarding facts in military service, principally whether the veteran's husband at that time was in military service as she had claimed. She has contested the RO finding and. The RO should develop the claim as provided in the special evidentiary procedures for PTSD claims based on personal assault that were established in February 1996 in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and that are a substantially expanded version of former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The general M21-1 provisions on PTSD claims in 5.14 require: "In cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence." MANUAL M21-1, Part III, 5.14(b)(3). As to personal-assault PTSD claims, more particularized requirements are established regarding the development of "alternative sources" of information as service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." MANUAL M21-1, Part III, 5.14(c)(5). Thus, in view of other pertinent M21-1 provisions in personal- assault cases, the Secretary has undertaken a special obligation to assist a claimant in producing corroborating evidence of an in-service stressor. The veteran reported an incident of sexual assault in service, and there is a diagnosis of PTSD for the veteran. The starting point for any determination with regard to PTSD is one or more "stressors." Under the controlling regulation, there must be credible supporting evidence that the claimed service stressor actually occurred. 38 C.F.R. § 3.304(f). The claimant has alleged a particular event that occurred in service that medical providers have accepted to support the diagnosis of PTSD. There is no statement from the appellant's former husband to confirm some aspects of her story. Previously, as a matter of law, "credible supporting evidence that the claimed in[-]service event actually occurred" cannot be provided by medical opinion based on post-service examination. Moreau v. Brown, 9 Vet. App. 389, 394-96 (1996). As to statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'", and that "[a]n opinion by a mental health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of the stressor," the Court stated recently that these quoted categorical statements were made in the context of discussing PTSD diagnoses other than those arising from personal assault. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau, supra. However, as noted above, VA has provided for special evidentiary-development procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis, for personal-assault cases. To that extent, the above categorical statements in Cohen and Moreau, and other cases where they may have been echoed, are not operative. Patton v. West, 12 Vet. App. 272 (1999). Therefore the Board finds that the belief that the incident actually occurred is an opinion of a clinician entitled to significant probative weight. Any information that could be provided by the veteran's husband is significant. Further she has identified the person involved in her encounter which should also be verified. In addition, the RO must verify the military status of her former husband. Specifically, it must determine if he was on active duty through official records or whether the records the appellant submitted correctly establish his military service as claimed. In addition, the Court in Patton notes that in two places the MANUAL M21-1, Part III, 5.14(c)(3) and (9), appears improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence" and holds that any such requirement, however, would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). Therefore the evidence need only be in relative equipoise to prevail on the question of the existence of the stressor. The veteran's claim does require an assessment of credibility. There is also a competent diagnosis of PTSD attributable to service as well as other coexisting psychiatric disability. The Board has not overlooked the inconsistency in the veteran's presentation at times which it may reasonably weigh in her assertions regarding PTSD based upon a personal assault many years prior. Of course there is the medical professional's belief that the incident actually occurred and it served as the basis for the PTSD diagnosis. And, as noted previously, the veteran's former husband has not been contacted to confirm any elements of her account. Obviously, other individuals having first hand information, the named offender for example, would not likely volunteer it. The recent decision in Patton clearly alters the landscape in the adjudication of claims of service connection for PTSD based upon personal assault. In view of the applicable legal precedent mentioned above, as applied to the facts of this appeal, the case is remanded for the following action: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). In this regard, the RO should ask the veteran to identify the names, addresses, and approximate dates of treatment for all medical care providers, VA and non- VA, inpatient and outpatient, who may have additional records referable to treatment for psychiatric symptomatology since service. After securing any necessary authorization or medical releases, the RO should obtain legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. 38 U.S.C.A. § 5103A(b), (c) (West Supp. 2001); 66 Fed. Reg. 45,620, 45,630-45,631 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159(c)). Regardless of the response to the above inquiry, the RO should obtain all outstanding VA treatment records. All information which is not duplicative of evidence already received should be associated with the claims file. 2. If the RO is unable to obtain any of the relevant records sought, it shall notify the appellant that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C. § 5103A(b)(2); 66 Fed. Reg. 45,630, 45,631 (to be codified at 38 C.F.R. § 3.159(e)). 3. The RO should complete any additional development necessary to comply with the current development guidelines set forth in Manual M21-1, in particular Part III, para. 5.14c in the manner suggested therein for claims such as the veteran's. The RO should attempt to clarify the military status of the veteran's former spouse at the time of the alleged incident during military service, and the person who the veteran has named as committing the personal assault. If possible, the RO should obtain a statement from the veteran's spouse during military service to clarify facts regarding his military status and his supervisor at the time in question. 4. Following the above, the RO should schedule the veteran for a VA examination by a psychiatrist who has not previously examined her, if possible, to determine whether the veteran has PTSD that is related to an inservice stressor. The examiner should conduct the examination with consideration of the current criteria for PTSD. The examination report should include a detailed account of all pathology found to be present. If a diagnosis of PTSD is appropriate, the examiner should specify the stressor(s) that caused the disorder and the evidence relied on to establish the existence of the stressor(s). The examiner must also comment explicitly upon whether there is a link between such inservice stressor or stressors and current symptoms. The examiner should also comment on the significance, if any, of the experiences reported to have occurred in service to any current psychiatric disability found to be present. The report of the examination should include rationale for all opinions expressed. All necessary special studies or tests should be accomplished. The entire claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should annotate the examination report(s) that the claims file was in fact made available for review in conjunction with the examination. The veteran is hereby advised that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of her claim. 38 C.F.R. § 3.655 (2001). 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report(s) and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO 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). The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (see 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2001) are fully complied with and satisfied. See also 66 Fed. Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). 6. The RO should issue a statement of the case covering the issue of entitlement to compensation benefits for a disability of the cervical spine pursuant to the provisions of 38 U.S.C.A. § 1151. The veteran should be advised of the need to timely file a substantive appeal if she wishes appellate review. 7. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the appellant's claim of entitlement to service connection for PTSD. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the issue 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 she is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals