Citation Nr: 0603858 Decision Date: 02/09/06 Archive Date: 02/22/06 DOCKET NO. 94-39 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD). 2. Entitlement to an increased rating for a cervical spine disability, including arthritis and fusion at C2-3, currently rated as 30 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton INTRODUCTION The veteran had active military service from January 1966 to January 1970. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. With respect to the cervical spine rating claim, the veteran appealed from an April 1990 rating decision in which the RO increased the rating for service-connected cervical strain from 0 to 10 percent. Subsequently in December 1991 the RO declined to reopen a claim of service connection for fusion at C2-3. In a January 1995 rating decision, the RO increased the rating for the service-connected cervical strain from 10 to 20 percent. However, the increased rating claim remained in controversy because the rating remained less than the maximum available benefit awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In a rating November 1995 decision, the RO reopened the claim of service connection for C2-3 fusion and granted service connection for that disability. In that decision the RO continued the rating of 20 percent for the cervical spine disability therein-as a result of the grant of service connection for C2-3 fusion-characterized as chronic neck strain with post traumatic degenerative changes including fusion of C2-3, with limitation of motion. In December 2000, the Board granted a rating of 30 percent for the service-connected cervical spine disability, including arthritis and fusion at C2-3. The veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (CAVC). In May 2001, the General Counsel for the Department of Veterans Affairs (General Counsel) filed a motion to vacate the Board's December 2000 decision and to remand this matter for development and readjudication in light of the recently enacted Veterans Claims Assistance Act of 2000 (VCAA). The CAVC granted the motion in June 2001, vacating and remanding the case to the Board; including vacating the part of the Board decision which denied a rating in excess of 30 percent for cervical spine disability. The issue now before the Board is entitlement to an increased rating for chronic cervical spine disability, including arthritis and fusion at C2-3, currently rated 30 percent disabling. In February 2002, the Board requested further development regarding the veteran's service connected neck disorder. The Board remanded the case to the RO in June 2003. With respect to the PTSD claim, in a July 2000 rating decision, the RO denied on the merits a claim of entitlement to service connection for PTSD. The veteran perfected an appeal as to that decision. Previously, however, in an unappealed December 1995 rating decision, the RO declined to reopen a claim for service connection for PTSD. Previous to that, the RO had denied service connection for PTSD in a January 1995 rating decision. In June 2003, the Board remanded the case with instructions to the RO to adjudicate the issue of whether new and material evidence has been submitted to reopen the claim. In a February 2004 statement of the case, the RO determined that new and material evidence had been submitted to reopen the claim for service connection for PTSD; however, the RO denied the claim for service connection on the merits on the basis that there was no evidence that a claimed stressful experience occurred. Even though the RO reopened the claim, the Board must now first determine that new and material evidence has been presented in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Id. That issue is addressed here below. During the September 2005 Travel Board hearing before the undersigned, the veteran stated that there were other claims which had been timely appealed and were now on appeal before the Board. With respect to those claims, the Board notes the following procedural history. In a rating decision in December 1991, the RO denied service connection for chronic low back disability, blurred vision, "hole in ear," dizziness, nausea, headaches, and numbness of the upper and lower extremities. In a March 1992 rating decision, the RO granted service connection for left ear hearing loss, for which the RO assigned a noncompensable rating, and denied service connection for right ear hearing loss (the RO later granted service connection for right ear hearing in an April 1996 rating decision). In a April 1996 rating decision, the service- connected bilateral hearing loss was assigned a noncompensable rating. The veteran submitted a timely notice of disagreement (NOD) regarding the above issues was in May 1992. In a January 1995 rating decision, the RO denied service connection for peripheral neuropathy. The veteran submitted a timely notice of disagreement (NOD) regarding that claim in May 1995. In a December 1995 rating decision, the RO denied service connection for cyst of the spleen, "butt leakage," loss of toenails, nerve damage, and fungus. The veteran submitted a timely notice of disagreement (NOD) regarding those claims later in December 1995. In April 1996, the RO issued the veteran a statement of the case (SOC) addressing the following service connection claims: numbness of the upper and lower extremities (peripheral neuropathy, also claimed as a residual of Agent Orange exposure), chronic low back disability, "hole in ear," dizziness, nausea, blurred vision, headaches, cyst of the spleen, loss of toenails, nerve damage, fungus, and "butt leakage." The SOC also addressed the claim for a compensable rating of the service-connected bilateral hearing loss. However, timely substantive appeal was not filed by or on behalf of the veteran. 38 U.S.C.A. § 7105 (West 1991). FINDINGS OF FACT 1. VA has given the veteran all required notice and has rendered all required assistance. 2. In a rating decision dated in December 1995, the RO denied the veteran's claim of entitlement to service connection PTSD; and the veteran did not perfect an appeal as to that decision. 3. The evidence submitted since the December 1995 rating decision is not cumulative or redundant, and is so significant that it must be considered in order to fairly decide the claim for service connection for PTSD. 4. The veteran has a current diagnosis of PTSD. 5. There is no credible supporting evidence of the stressors upon which the diagnosis is based. 6. Neither the criteria for evaluating spine disorders, in effect when the veteran filed this claim, nor the revised criteria that became effective September 23, 2002, or effective September 26, 2003, respectively, is more favorable to the veteran's claim. 7. The preponderance of the evidence shows that the veteran's cervical spine disability, including arthritis and fusion at C2-3, is not productive of severe intervertebral disc syndrome with recurring attacks and intermittent relief; ankylosis of the cervical spine; associated objective neurologic abnormalities, including bowel or bladder impairment; and the veteran has not been prescribed bed rest by a physician. CONCLUSIONS OF LAW 1. The RO's December 1995 rating decision that denied the claim for service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1995). 2. Evidence received since the RO's December 1995 denial is new and material; and the requirements to reopen the veteran's claim of entitlement to service connection for PTSD, have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2000). 3. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.304(f) (2005). 4. The criteria for a rating in excess of 30 percent for cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002), Diagnostic Codes 5003, 5290, 5293 (effective prior to September 26, 2003), and Diagnostic Codes 5003, 5237, 5242, 5243 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA and Duty to Notify and Assist The Board must first address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et. seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. The Court has held that a notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Id. In a letter dated in July 2003, in combination with the statement of the case and supplemental statements of the case, the RO notified the appellant of the information and evidence necessary to substantiate the claims, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA-compliant notice was not provided to the appellant prior to the first unfavorable adjudication of this case. However, after VCAA-compliant notice was sent, the claim was readjudicated without "taint" from prior adjudications. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. The claimant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. He was given ample time to respond. VA has requested records from all sources identified by the veteran. The veteran has been afforded pertinent examination. For these reasons, to decide the appeal now would not be prejudicial to the claimant. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board finds that VA has complied with the VCAA duties to notify and assist. II. Decision Below, the Board sets forth the laws and regulations applicable to the claims on appeal and adjudicated here, and in relation to those laws and regulations, analyzes the information and evidence pertinent to this case. In this connection, the Board has reviewed the entire record. The record includes the veteran's contentions including those contained in the transcripts of a December 1991 RO hearing and a September 2005 Travel Board hearing before the undersigned at the RO; military records, such as personnel and medical records; and private and VA medical records, lay statements, and the record of proceedings of the Army Board for Correction of Military Records. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in its entirety, all of the evidence submitted by the veteran or on his behalf. Rather, the Board's analysis below will summarize the relevant evidence, and focus specifically on what the evidence shows, or fails to show, with respect to the claim. A. Application to Reopen Claim for Service Connection Based on New and Material Evidence The veteran seeks to reopen a claim of entitlement to service connection for post-traumatic stress disorder (PTSD). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c). In a January 1995 rating decision, the RO denied service connection for PTSD. In May 1995, the veteran filed a notice of disagreement as to the January 1995 rating decision. In a December 1995 rating decision, the RO denied a claim on the basis that new and material evidence had not been submitted to reopen a claim for service connection for PTSD. The veteran was notified of that decision in December 1995 and of his procedural and appellate rights. The veteran filed a NOD as to the December 1995 rating decision. The RO provided a statement of the case (SOC) in April 1996, which addressed the issue of entitlement to service connection for PTSD, to include whether new and material evidence had been submitted to reopen the claim. The veteran did not file a substantive appeal after receiving the SOC. As the veteran did not file a substantive appeal as to the rating decisions discussed above, they are final. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1995). However, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In December 1999, the RO received the veteran's application to have his claim reopened, claiming service connection for PTSD. The current appeal arises from a July 2000 rating decision. In that decision, the RO denied service connection for PTSD on the merits, on the essential basis that the evidence did not establish that a stressful experience occurred. As discussed above, however, the Board must first determine that new and material evidence has been presented in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). As defined by the regulation in effect when the veteran filed his application to reopen his claim, new and material evidence meant evidence not previously submitted to agency decision makers, which bore directly and substantially upon the specific matter under consideration, which was neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled was so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2000). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "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, 115 F.3d 1356, 1363 (Fed. Cir. 1998) (expressly rejecting the standard for determining whether new and material evidence had been submitted which is sufficient to reopen a claim, as set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)). VA is required to first review the evidence submitted by a claimant since the last final disallowance of a claim on any basis for its newness and materiality. See Evans v. Brown, 9 Vet. App. 273 (1996). In this case, the last final disallowance was the December 1995 RO decision. In addition, in determining whether evidence is "new and material," for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed, unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The veteran's claim for service connection was previously considered and denied by the RO in the January 1995 rating decision on the essential basis that there was no evidence showing that any stressor occurred during service to support a diagnosis of PTSD. In particular, the RO determined that the veteran did not have Vietnam service, and that his contention that he experienced a stressor in Vietnam was unsubstantiated. In the RO's December 1995 rating decision denial-the last final disallowance-of the veteran's attempt to reopen his claim, the RO determined that the veteran failed to submit new and material evidence to reopen a claim, and continued the previous denial. Evidence submitted subsequent to the December 1995 last final disallowance includes private and VA medical records including reports of VA examinations; assertions of the veteran contained in written statements and the transcripts of Travel Board hearings in December 1995 and September 2005; lay statements of others; photographs; a xerox copy of a passport; service personnel and medical records; and records of proceedings of a Board for Correction of Military Records. Most of the private and VA medical records and other materials submitted since the December 1995 rating decision, including reports of VA examinations, are new in that that most were not available at the time of the December 1995 rating decision. Moreover, the new records contain evidence which is material to the claim for the following reasons. The additional evidence provided since the December 1995 decision, includes documents which bear directly and substantially upon the specific matter under consideration, that is, whether there is evidence necessary to establish that the claimed stressor, on which a claim to service connection for PTSD is based, actually occurred. The veteran maintains that his stressor occurred during service when he was in Vietnam. The previous denials were based on the finding that he was never in Vietnam during that conflict, and therefore did not experience a stressor while there. The evidence submitted since December 1995 includes records which bear on that issue. In particular, there are some private medical records submitted since December 1995, in which medical treatment providers state or indicate that the veteran was in Vietnam. In an October 1995 statement, Anthony Dominic, D.O. stated that certain physical conditions were related to the veteran's time spent during the Vietnam Conflict, suggesting service in Vietnam. Also, in an October 2004 report of an independent medical evaluation by Craig N. Bash, M.D., he provided an explicit opinion that the veteran was likely in Vietnam. Additionally submitted are lay statements of others who profess knowledge of the veteran being in Vietnam during the Vietnam Conflict. In statements dated in January 1999 and September 2000, the authors indicated that they had been in Vietnam with the veteran. In another statement dated in November 2003, the author stated that the veteran knew information and details regarding incidents in Vietnam before they were revealed in a television documentary. Also submitted since December 1995, are records associated with proceedings of the Board for Corrections of Military Records, dated in April 2004. All of the above discussed records contain evidence which is new, and which bears directly and substantially upon the specific matter under consideration, that is, whether there is evidence necessary to establish that the claimed stressor, on which a claim to service connection for PTSD is based, actually occurred. Further, these records contain evidence which is neither cumulative nor redundant, and 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) (2000). Furthermore, the evidence discussed above contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even though it may not eventually convince the Board to alter its ratings decision. Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). Therefore, the Board finds that new and material evidence has been submitted to reopen the veteran's claim on appeal here. Having determined that new and material evidence has been added to the record, the veteran's claim of entitlement to service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f). The veteran has been diagnosed with PTSD. With regard to the second PTSD criterion, evidence of in-service stressors, and the evidence necessary to establish that the claimed stressor actually occurred, varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." See Hayes v. Brown , 5 Vet. App. 60, 66 (1993); 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (2005). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, then, 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. 38 C.F.R. § 3.304(f)(1) (2005). 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 evidence of the claimed in-service combat stressor. In the veteran's case, he maintains that he experienced stressful incidents involving combat while in Vietnam during the Vietnam Conflict. Essentially, he predicates the claimed combat-related stressor on his presence in Vietnam during that Conflict. In this regard, the veteran's DD Form 214 indicates that his military occupation specialty was Arts and Craft Specialist, and that he received no decorations, medals, or badges indicating any Vietnam service. He had approximately one year and six months of foreign and/or sea service, which the DD Form 214 indicated was in Europe (USAREUR). The veteran's record of assignments shows that in June 1968 he was enroute to Germany. That record lists the organization and station of assignment in Europe as HQ USASAFS Herzogenaurach (13RA)atchCoB. His duties in sequence were, first, telephone and telegraph interception (T/T Intcp), followed by Arts & Crafts Specialist, and lastly, Duty Soldier beginning in August 1969. He returned to the U.S. in January 1970. All service personnel and medical records dated during the period from August 1969 to January 1970 indicate that the veteran was stationed in Germany; there are no service records indicating that the veteran ever was in Vietnam. Nor do any service personnel or medical records suggest that he was involved in any combat. The record of proceedings in April 2004 shows that after examining the record at that time, the Army Board for Correction of Military Records in the case of the veteran came to the conclusion essentially that the evidence was insufficient to show that the veteran was in Vietnam. The Board concluded in part that "buddy letters" were insufficient evidence to show that the veteran was in Vietnam, noting the authors and their status while in Vietnam were not clearly identifiable. In summary, the evidence does not show that the veteran participated in combat or was even in Vietnam where he claims that the combat occurred which resulted in the stressors associated with his PTSD. In this regard, the veteran is not shown to have received commendations or awards that warrant the conclusion that he participated in combat, see VAOPGCPREC 12-99 at para. 12, 65 Fed. Reg. 6256-6258 (2000); VBA's Adjudication Procedure Manual, M21-1, Part VI, para. 11.38(b)(1), and there is no other evidence sufficient to show participation in combat. In this connection, the Board notes that there are some private medical records submitted in which medical treatment providers profess or suggest that the veteran was in Vietnam. In particular, in an October 1995 statement, Anthony Dominic, D.O. stated that certain physical conditions were related to the veteran's time spent during the Vietnam Conflict, suggesting that the veteran had service in Vietnam (as claimed by the veteran). Also, in an October 2004 report of an independent medical evaluation by Craig N. Bash, M.D., he provides an explicit opinion that the veteran was likely in Vietnam. As a basis for that opinion, he recites a number of medical records, which he essentially purports to establish that the veteran was present in Vietnam. To the extent that these statements assert that the veteran was in Vietnam, both of these records appear to base that opinion on statements made by the veteran; and neither of these statements are credible because they are patently inconsistent with the evidence provided in the veteran's service records. Those service records clearly show that the veteran did not serve in Vietnam, but rather saw overseas service only in Germany. This is confirmed not only by service records including records of assignments, the veteran's DD Form 214, and other service records, but also by the reports associated with treatment during that time period during which the veteran was assigned in Germany. These medical providers have no factual basis on which to state that the veteran had service in Vietnam and it is beyond their competence to make such assertion. The Board finds, therefore, that these two medical statements are inherently false as they contradict all service personnel documents, which clearly show that the veteran had no service in Vietnam. Similarly, in light of service personnel records showing that the veteran never served in Vietnam, the Board does not find credible lay statements of others asserting knowledge of the veteran being in Vietnam during the Vietnam Conflict. Thus, those statements are not sufficient evidence to show that the veteran was in Vietnam as claimed. Based on the foregoing, the Board finds that the veteran did not participate in combat. See Cohen v. Brown, 10 Vet. App. 128, 145 (1997). In reaching this determination, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against a finding of participation in combat, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); VAOPGCPREC 12-99. As it is not shown the veteran engaged in combat, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). Furthermore, the Board notes that the Court has held that a diagnosis of PTSD, related to service, based on an examination which relied upon an unverified history, is inadequate. Cohen, 10 Vet. App. at 140; West v. Brown, 7 Vet. App. 70, 77 (1994). In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994), the U.S. Court of Appeals for Veterans Claims (Court) stated that "the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the BVA of its obligations to assess the credibility and probative value of the other evidence." West, Zarycki and Doran cited a provision of the VA ADJUDICATION PROCEDURE MANUAL M21-1 ("MANUAL 21-1") which has now been revised as to "Evidence of Stressors in Service" to read, in part, ... "[C]orroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources." Since the MANUAL 21-1 October 1995 revision, the Court has held that the requirement in 38 C.F.R. § 3.304(f) for "credible supporting evidence" means that the "appellant's testimony, by itself, cannot establish the occurrence of a noncombat stressor." See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); see also Cohen, 10 Vet. App. at 147. In this case, the Army Board for Correction of Military Records has in essence concluded that the veteran has not provided sufficient evidence to show that he was in Vietnam. The Board here concludes so as well. In summary, there is no credible supporting evidence of the claimed PTSD-related stressors in Vietnam, or that the veteran was ever in Vietnam. Although the Board has considered the veteran's statements, these may not be used to satisfy the "credible supporting evidence" requirement of the regulation. Therefore, all elements for service connection for PTSD are not established. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim, and that the claim for PTSD must be denied. B. Increased Rating for a Cervical Spine Disability The veteran is claiming entitlement to an increased rating in excess of the 30 percent rating currently assigned for his cervical spine disability, including arthritis and fusion at C2-3. The Board has reviewed all the evidence of record, with an emphasis on the more recent evidence dated beginning from the year prior to receipt of the veteran's claim on appeal. During VA medical examinations in February and March 1990, the veteran reported experiencing radiating pain, stiffness, weakness, reduced motion, and functional impairment of the neck, increasing on physical and strenuous activity. On examination, there was no evidence of neurological or sensory impairment of the cervical spine. VA and private medical records from October 1990 to December 1992 document, in pertinent part, treatment for pain and impairment involving the veteran's neck and back. In December 1990, he fell injuring (straining) his neck and back and, in March 1991, he was involved in a motor vehicle accident injuring his neck and back, requiring a period of frequent treatment and therapy following each accident. A June 1992 magnetic resonance imaging (MRI) study of the cervical spine showed a fusion of the C2 and C3 vertebra, osteophytic ridging at C3-4 and C4-5 (without herniated discs, cord compression, flattening, or nerve root compromise), and disc herniation at C5-6 (without cord compression or flattening). During a VA medical examination in August 1994, the veteran reported, in pertinent part, that he was experiencing pain and numbness of the neck. He characterized the severity of pain as 9-10 on a scale 1 to 10 (10 being the most severe), and as 5 when taking medication. On examination, there was evidence of weakness of the upper extremities, but he walked and moved about the examining room in normal fashion. Herniated C5 (by MRI study), fusion at C2-3, and cervical spondylosis were diagnosed. The report of VA neurological examination in August 1994, indicated a history of discogenic disease at C5-6 (without spinal cord involvement) and fusion at C2-3. On examination, there was evidence of pain and range of motion impairment of the cervical spine. Arthropathic disease (of the spine) productive of peripheral neuropathy in the neck and low back was diagnosed. The examiner opined that contemporaneous clinical findings and pertinent medical history were indicative of "moderate" impairment. VA and private medical records from December 1992 to February 1997 document intermittent complaints of pain, numbness, and functional impairment of the veteran's neck and back. A March 1996 MRI study of the cervical spine showed decreased lordosis and bulges at multiple levels, without cord involvement. The report of VA orthopedic examination in July 1999 shows that the veteran reported experiencing daily episodes of radiating neck pain, weakness, and fatigability, but he denied incoordination. He denied using any neck braces or receiving ongoing medical treatment other than taking pain medication. On examination, there was no evidence of definitive pain on compression of the neck and there was no muscle spasm. The neck was slightly tender and grip strength of both hands was "slightly" diminished, without evidence of pain. Ranges of motion was associated with "some" pain at the terminal degrees in all directions. Ranges of motion were as follows. Flexion was to 45 degrees; extension to 45 degrees; right lateral rotation to 55 degrees; left lateral rotation to 30 degrees; right lateral flexion to 30; and left lateral flexion to 20 degrees. The report contains a diagnosis of cervical spine fusion at C2-3, status post injury with residuals, degenerative disc disease at C5-6, and an old healed fracture of odontoid process at C2. The examiner stated that functional impairment was rated as "moderate," and that additional impairment could not be quantified due to the subjective nature of the factors plus the congenital fusion at C2-3. During a VA neurological examination in July 1999, the veteran reported experiencing pain, discomfort, weakness, numbness, and tingling sensation of the neck since his in- service motor vehicle accident. On examination, he held his neck "very stiffly;" range of motion of the cervical spine was reduced and associated with tenderness and muscle spasm; sensation was decreased and neurologic examination demonstrated some weakness. The report contains a clinical impression of degenerative disc disease of the cervical spine and C2-3 fusion, productive of pain and reduced and painful motion. The examiner ordered an electromyography (EMG) study of the upper extremities to explain the veteran's neurological symptoms. An EMG study was performed later in July 1999 and, in an August 1999 addendum to the examination report, the examiner opined that there was no objective evidence of C6 radiculopathy. The report contains a final diagnosis of degenerative disease of the cervical spine, with pain and limited range of motion but no demonstrable concrete neurologic deficit. During a VA orthopedic examination October 2002, the veteran reported complaints of daily constant pain, which varied in intensity and travels up and down the spine, and goes up the right and left sides of the neck to the head. The veteran reported complaints of numbness and tingling of the right upper extremity, sometimes every day. The veteran also complained of numbness and tingling in both lower extremities involving essentially the entirety of both lower extremities. On examination, there was slight tenderness to palpation, of the right and left paracervical region throughout the paracervical muscles with no muscle spasm. There was also a slight tenderness of the right and left trapezius/supraspinatus regions and midline posterior cervical spine. On testing deep tendon reflexes, the findings included biceps 2+ bilaterally; triceps on the right is trace, 1+ on the left. Manual muscle strength testing showed that biceps and triceps on the right and left manifested give-way weakness of 4/5, as opposed to true weakness, with complaints of discomfort in the upper extremities ipsilaterally. On sensory examination to pinwheel from back of head to lower sacrum, plus the entirety of both right and left upper extremities, the veteran reported he felt no sharp sensation, just pressure. Regarding the upper and lower extremities, the examiner noted that there was no fatigue. On range of motion study of the cervical spine, flexion and extension were both to 35 degrees; right and left lateral rotation were to 35 and 40 degrees, respectively; and right and left lateral flexion were to 30 and 15 degrees, respectively. The veteran complained of pain at the terminal degrees of motion. At the conclusion of the examination, the examiner noted that the complaint of numbness and tingling was not substantiated objectively on the neuromuscular electrodiagnostic study of the upper extremities of July 1999. The examination report concludes with a diagnosis of cervical spine with fusion C2- 3, degenerative disk disease C5-6. In an addendum, the examiner indicated that X-rays of the cervical spine showed degenerative disc disease/degenerative joint disease. Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2005). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In evaluating the veteran's claims, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath. Where service connection already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA regulations also require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The veteran's statements and testimony describing the symptoms of his service-connected disorder are deemed competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements and testimony must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. The Court has held that disabilities may be rated separately without violating the prohibition against pyramiding unless the disorder constitutes the same disability or symptom manifestations. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). During the course of this appeal the regulations for rating disabilities of the spine were twice revised effective September 23, 2002, and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002) and 68 Fed. Reg. 51454 (Aug. 27, 2003). The RO has notified the veteran of the former and revised criteria and has evaluated the claim under the former and revised regulations. As such, there is no prejudice to the veteran in the Board's consideration of this case. In this regard, the Board notes that VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (November 19, 2003). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). Prior to September 23, 2002 the Rating Schedule provided evaluations for intervertebral disc syndrome when the disorder is shown to be mild (10 percent), moderate with recurring attacks (20 percent), severe with recurring attacks and intermittent relief (40 percent), 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 with little intermittent relief (60 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective before September 23, 2002). Effective September 23, 2002, Diagnostic Code 5293 was revised to evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Ratings were provided for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months (40 percent), or with incapacitating episodes having a total duration of at least six weeks during the past 12 months (60 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002). For purposes of evaluations, an incapacitating episode was a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" meant orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that were present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1). It was further noted that when evaluating on the basis of chronic manifestations, orthopedic disabilities were to be evaluated using criteria for the most appropriate orthopedic diagnostic code or codes and neurologic disabilities were to be evaluated separately using criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (2). Prior to September 26, 2003, the Rating Schedule provided ratings for limitation of motion of the cervical spine when limitation was slight (10 percent), moderate (20 percent), or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5290 (effective before September 23, 2002). Prior to September 26, 2003, the Rating Schedule provided ratings for ankylosis of the cervical spine, of 30 percent if favorable ankylosis, and 40 percent if unfavorable. 38 C.F.R. § 4.71a, Diagnostic Code 5287 (effective before September 23, 2002). The Rating Schedule provides that traumatic and degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2005). Limitation of motion must be objectively confirmed by findings such a swelling, muscle spasm, or satisfactory evidence of painful motion, but in the absence of limitation of motion a compensable rating for degenerative arthritis can be assigned when there is X-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups (10 percent), or X-ray evidence of the same with occasional incapacitating exacerbations (20 percent). Id. The Court had also held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2003). "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). A VA General Counsel opinion has held that Diagnostic Code 5293, intervertebral disc syndrome, involved loss of range of motion and that consideration of 38 C.F.R. §§ 4.40 and 4.45 was applicable. VAOPGCPREC 37-97 (O.G.C. Prec. 37-97). Effective September 26, 2003, the regulations for rating disabilities of the spine were revised with reclassification of the diagnostic codes. These reclassified diagnostic codes include 5237 (Lumbosacral or cervical strain), 5242 (Degenerative arthritis of the spine), and 5243 (Intervertebral disc syndrome). Reference is made to Diagnostic Code 5003 for degenerative arthritis of the spine and to the formula for rating intervertebral disc syndrome based on incapacitating episodes with instructions to apply the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, The Spine (effective from September 26, 2003). The September 2003 regulation amendments provide a general rating formula for diseases and injuries of the spine (for diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease as follows: For unfavorable ankylosis of the entire spine (100 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); for unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (effective from September 26, 2003). When evaluating diseases and injuries of the spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion as noted. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). Range of motion measurements are to be rounded off to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The veteran's service-connected cervical spine disability is currently rated at a 30 percent level, which under the diagnostic criteria of 38 C.F.R. § 4.71a, Diagnostic Codes 5290 (effective before September 23, 2002), is assignable if range of motion impairment is "severe." This is the maximum rating assignable under that code. On review of the record, the Board finds that the evidence is consistent with that criteria, and with consideration of the level of functional loss he experiences, the Board finds that the veteran is adequately compensated by the existing 30 percent rating assigned, pursuant to Diagnostic Codes 5290. The Board does not find that an evaluation in excess of 30 percent is warranted at any time during the period under review. Reviewing the prior criteria under Diagnostic Codes 5293, as indicated in the review of the evidence above, the Board finds a higher rating cannot be granted under that code. During VA neurologic examinations, neurologic examination findings-as discussed above-did not show that the veteran's disability approximated severe intervertebral disc syndrome with recurring attacks and intermittent relief. On VA neurological examination in August 1994, the examiner opined that contemporaneous findings and medical history were indicative of "moderate" impairment. On VA neurological examination in July 1999, the examiner opined that there was no objective evidence of C6 radiculopathy, and no demonstrable concrete neurologic deficit. The claims file also does not contain a diagnosis of ankylosis of the cervical spine. (Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992)). In the absence of ankylosis, the Board may not rate the veteran's service-connected cervical spine disability as ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997). The service-connected condition is not the result of fractured vertebra. Consequently, a rating higher than 30 percent is not warranted for the veteran's service- connected cervical spine disability under either Diagnostic Code 5287 or Diagnostic Code 5285. 38 C.F.R. § 4.71a (2003). Similarly, in considering the veteran's cervical spine disability under the criteria that became effective September 26, 2003, an evaluation in excess of 30 percent is not appropriate since the evidence does not show unfavorable ankylosis of the entire cervical spine. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5235 to 5243 (2005). Specifically, while the record shows that the veteran's range of cervical spine motion is restricted, and that he experiences additional restriction from pain, he clearly retains a level of cervical motion even when any functional loss due to pain is considered. In the absence of ankylosis of any portion of the spine, an evaluation in excess of 30 percent under the new criteria is not warranted. The medical evidence also does not show that veteran's service-connected cervical spine disability causes any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment so as to warrant a separate rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1) (2005). During recent orthopedic examination, on neurological evaluation, deep tendon reflexes were 2+ at the biceps, and 1+ at the triceps, bilaterally. Motor strength was give-way weakness of 4/5, as opposed to true weakness. The examiner noted that sensory function findings-complaints of numbness and tingling-were not substantiated objectively. The record does not show that the veteran's service-connected cervical spine disability included any other objective neurologic abnormalities. The amended criteria rate intervertebral disc disease (now reclassified as Diagnostic Code 5243) according to the number of incapacitating episodes the veteran experiences in the course of a year. Assignment of a 40 percent rating for intervertebral disc syndrome is warranted when there are incapacitating episodes having a total duration of at least four weeks during the past 12 months. There is no medical evidence showing an incapacitating episode-the veteran has not been prescribed bed rest by a physician, nor does the veteran allege this is so. In reaching the conclusions above, the Board has considered the veteran's arguments. While a lay witness can attest as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under the rating criteria is not probative evidence. This is so because only someone qualified by knowledge, training, expertise, skill, or education, which the veteran is not shown to possess, may provide evidence requiring medical findings. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board has based its decision in this case upon the applicable provisions of VA's Schedule for Rating Disabilities. Although the evidence shows significant limitation of motion of the cervical spine due to the service-connected disability, there is no evidence that the nature and severity of these symptoms are beyond what is contemplated by the applicable criteria. The veteran has submitted no evidence showing that his service-connected cervical spine disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that the disorder has necessitated frequent periods of hospitalization. Based on the foregoing, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Given the nature of the veteran's service-connected cervical spine disability as described above, the Board finds that there is no basis under any of the Diagnostic Codes discussed above for awarding an evaluation higher than the 30 percent rating already in effect, which was granted during the present appeal by the December 2000 Board decision that was vacated by CAVC order except for that grant. Should the veteran's disability picture change in the future, he may be assigned a higher evaluation. See 38 C.F.R. § 4.1 (2005). At present, however, there is no basis for such an evaluation. Because the Board finds that the preponderance of the evidence establishes that the veteran's service-connected cervical spine disability does not meet the criteria for a rating greater than the 30 percent granted here, a higher rating than 30 percent is not warranted, and the reasonable doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The claim of entitlement to service connection for PTSD is reopened; and service connection for PTSD is denied. A rating in excess of 30 percent for cervical spine disability, including arthritis and fusion at C2-3, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs