Citation Nr: 0930807 Decision Date: 08/18/09 Archive Date: 08/27/09 DOCKET NO. 05-28 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for fibromyalgia. 3. Entitlement to a disability rating for lumbar spine strain with degenerative disc disease in excess of 10 percent prior to July 21, 2003, and in excess of 20 percent thereafter. 4. Entitlement to a disability rating for cervical spine strain with degenerative disc disease in excess of 10 percent prior to September 26, 2003, and in excess of 20 percent thereafter. 5. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The appellant had active duty for training and inactive duty for training from June 1989 to April 1993. Her confirmed periods of active duty for training were from July 5 through August 3, September 17 through September 29, and October 9 through November 7, 1989; March 11 through March 24, 1991; and drills on August 18-19 and September 22-23, 1990; and January 11-12, March 21, 25, April 22, 25, June 20- 21, July 25-26, and August 21, 1992. There also is evidence from payroll records, orders and other service department records that the appellant had other periods of inactive duty training (drills) from 1989 to 1992. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal from May 2003 and January 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office in San Diego, California (RO). In the May 2003 rating decision the RO increased the evaluation for cervical spine disability from noncompensable to 10 percent, effective February 18, 2002; continued a 10 percent evaluation for lumbar spine disability; denied service connection for fatigue, fibromyalgia, and anxiety; and declined to reopen service connection claims for PTSD and depression. The RO, in a January 2005 rating decision, increased the evaluation for service connected lumbar spine disability from 10 to 20 percent, effective July 21, 2003; continued a 10 percent evaluation for cervical spine disability; denied the fibromyalgia claim; and denied entitlement to a TDIU. In September 2005, the appellant testified before a Decision Review Officer sitting at the RO, and in February 2008, the appellant testified before the undersigned Veterans Law Judge sitting at the RO. Copies of the hearing transcripts are of record and have been reviewed. The Veteran submitted additional evidence along with a waiver of initial RO consideration, which also covers the additional evidence received by the Board in March 2008, October 2008, February 2009, and March 2009. In July 2006, the RO increased the evaluation for cervical spine disability to 20 percent, effective September 26, 2003; continued the 20 percent for lumbar spine disability; and granted service connection for peripheral neuropathy of the upper extremities, bilaterally. Herein, the Board reopens the service connection claim for an acquired psychiatric disability, to include PTSD. The reopened claim, the service connection claim for fibromyalgia, the increased rating claims for lumbar and cervical spine disabilities, and the TDIU claim, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A July 2002 Board decision denied entitlement to service connection for a chronic psychiatric disability, to include PTSD; the appellant did not file a timely appeal following appropriate notice, and that decision became final. 2. Evidence received since the July 2002 Board decision raises a reasonable possibility of substantiating the service connection claim for an acquired psychiatric disability, to include PTSD. CONCLUSIONS OF LAW 1. The July 2002 Board decision that denied service connection for a chronic psychiatric disability, to include PTSD, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2002); currently, 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2008). 2. Evidence received since the July 2002 Board decision that denied service connection for a psychiatric disability, to include PTSD, is new and material, and the appellant's service connection claim for pertinent disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Claim The appellant is seeking to reopen service connection claims for an acquired psychiatric disability, to include PTSD. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as amended), 3.326(a) (2008). Without deciding whether the notice and development requirements of VCAA have been satisfied with respect to the appellant's new and material evidence claim for an acquired psychiatric disability, the Board concludes that the VCAA does not preclude the Board from adjudicating this portion of the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by reopening her service connection claim for an acquired psychiatric disability, to include PTSD. See Bernard v. Brown, 4 Vet. App. 384 (1993). a. Acquired Psychiatric Disability The appellant originally filed a service connection for an acquired psychiatric disability in October 1992 and such claim was denied by the RO in a July 1994 rating decision on the basis that there was no evidence of a psychiatric disability having its onset during a period of inactive duty for training or active duty for training. The appellant appealed the July 1994 rating decision. The Board, in April 1999, remanded the claim for further development, and ultimately denied the claim in a July 2002 decision, as there was no evidence showing that a chronic psychiatric disability had its onset during any period of active duty for training, or is otherwise related. There was also no evidence showing a diagnosis of PTSD. The appellant did not appeal the July 2002 Board decision and it therefore became final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2002); currently 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2008). In February 2003, the appellant sought to reopen a service connection claim for an acquired psychiatric disability. Where a final Board decision exists on a given claim, that claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered by the Board. 38 U.S.C.A. § 7104(b). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. Therefore, once a Board decision becomes final under § 7104(b), "the Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Since the July 2002 Board decision is the last final decision, the appellant's service connection claim for a psychiatric disability, may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. See 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2008); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Here, "new" evidence is defined as evidence not previously submitted to agency decision- makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a appellant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Evidence considered by the Board in its July 2002 decision includes service records, records from the Social Security Administration, VA medical evidence, private medical evidence, hearing transcript, and the appellant's contentions. In this regard, in June 1990, S. Gabaeff, M.D., reported that the appellant was seen for anxiety associated with the death of her mother three days previously. Acute anxiety and depression secondary to family tragedy was the impression. In June 1991, S. Bolter, M.D., reported that the appellant gave a history of being prone to anxiety and depression all her life. It reportedly got worse when her mother died in June 1990. She had cared for her mother for the last 3 years before her death. She stated that she was still working through the grief. She lived alone in a mobile home. She had difficulty falling asleep and staying asleep. She denied bad dreams or nightmares. She attended reserves once a month. The diagnoses were adjustment disorder with mixed emotional features and panic disorder without agoraphobia. Dr. Bolter stated that she had a long history of recurrent emotional disturbances and was undergoing a prolonged grief reaction which he referred to as an adjustment disorder. There had been an element of dysthymia for many years and he supposed that this could be an additional diagnosis of chronic dysthymic disorder. Her panic attacks reportedly occurred frequently enough to diagnose a panic disorder. Her occupation, social and personal adjustment were moderately impaired. In June 1991, H. Hurwitz, M.D., reported that the appellant had an anxiety disorder. Dr. C. Grody, M.D., reported in August 1991 that the appellant had been referred to him the first time by a friend who was a patient of his, for worsening depression since the death of her mother for whom she had been the caretaker for many years. The appellant had a history of intermittent anxiety and low grade depression for many years, which was apparently lost in her addiction to her mother. Medication had been prescribed for her symptoms, including depression, but she had not taken them for a long time. She admitted still grieving intensely for her mother and having a sense of disorientation and meaninglessness to her life. She experienced severe fatigue, anhedonia and dysphoria with social withdrawal and guilt. She expressed a fear for all medication. She showed a very depressed affect with mild psychomotor retardation and a reluctance to talk without direct questioning. The diagnoses were a dependent personality with chronic low grade depression, pre-existing, and a severe grief reaction and major depression. In January 1992, M. Bronzo, M.D., reported a psychiatric and limited neurological examination of the appellant for Social Security disability benefit purposes. The appellant reportedly felt that she had had periods of depression at least dating back to her teens, some of which lasted months at a time, but she was in the midst of one of her worst bouts, which began in June 1990, with the death of her mother. She also had a low energy level, and had spent 5 or 6 months in 1991 on the couch due to the low energy level. Her psychiatric history included 5 periods of depression in the past, some lasting several months, and none of which was formally treated except that she was prescribed Tranxene in 1982. The diagnoses were major depressive episode, recurrent; and moderate panic disorder. The examiner's prognosis was that she appeared to be suffering from a moderate, major depressive episode which appeared to be recurrent in nature. The assessment was that the appellant would have moderate difficulty in understanding, carrying out and remembering simple instructions due to difficulty concentrating due to depression. It was recorded that she would have moderate difficulty responding appropriately to co-workers, supervisors and the general public due to her somewhat flattened affect, depressed mood and difficulty concentrating. It also was recorded that she would have difficulty maintaining a work pace or performing repetitive tasks or paying attention to safety given her speech slowness, difficulty concentrating, and depressed mood. In February 1992, E. Giraldi, M.D., reported that the appellant had an affective disorder. Dr. Grody reported in May 1992 that the appellant had been scheduled for active reserve duty from June 29 to July 12, 1992, of a particularly rigorous nature. He believed that her medical condition that included depression prevented her from performing this duty without the risk of setting her back significantly. He did believe that she could perform lighter duty that involved less mentally demanding work. In June 1992, Dr. Grody reported that he first saw the appellant in April 1991 for depression. He had seen her two more times, the last having been in April 1992. Based on history, examinations and follow-up visits, the impression was that she was suffering from a major depressive disorder of the unipolar type, which had had a partial response to as yet inadequate doses of medication. She had been the caretaker of her chronically ill mother upon whose death her depression became decompensated, with a significantly additional component of anxiety. She reportedly had been employed part-time in the Naval Reserves and had had to leave her other job in retail when her depression worsened. She had been unable to find employment since then. On a service department questionnaire in November 1992, the appellant stated that she had had to go on antidepressants around January 1991 for stress, anxiety, and depression she had encountered in the Reserves. She reported unfair treatment with mental, psychological and emotional distress. She referred to harassment and false accusations. She described sexual harassment from her military superiors over a 3-year period that had resulted in depression, anxiety and extreme stress. She stated that she was unable to work because of this. A service department psychiatric evaluation in December 1992 showed that the appellant had been referred by her commanding officer in the Reserves because of possible major depression and to determine her fitness for continued service in the Reserves. She reportedly had a history of treatment for major depressive disorder of the unipolar type and had been prescribed an anti-depressant medication. She stated that she was unable to work because of down days when her depression was at its worst with uncontrollable crying spells, a feeling of helplessness, bed confinement when she would not get up or get dressed for 3-4 days, loss of appetite and thoughts of hurting herself to the extent that she had decided on the method and written a note. Her last acute depression reportedly had been during the preceding month. She stated that she had been refused release that she requested because of her claim of sexual harassment by her executive officer. Episodes of depression reportedly began in January 1991 and she first sought help in April 1991 through a civilian psychiatrist, whom she had seen three times, but no longer could afford to see him. She showed poor eye contact. Affect was constricted but termed congruent with thought. Major depression, chronic, severe, without psychotic features was diagnosed. A service department examination in January 1993 showed that the appellant had or had had depression or excessive worry and nervous trouble. She reported that, due to stress in the reserves, she had had to go on antidepressants for depression and anxiety around February 1991. Situational depression and anxiety were reported and the final diagnosis was major depression, chronic, severe, without psychotic features. A report of a decision on Social Security Administration (SSA) disability benefits in February 1993 showed that the appellant testified about being unable to continue her last previous job as a sales person at a naval exchange store because of anxiety attacks and depression. She reportedly had experienced such attacks most of her life, including during her school years. The attacks were manifested by sweating and heart pounding. She also reported suicidal tendencies, including thoughts about overdosing on pills. The medical evidence showed a longstanding history of recurrent depression, recurrent panic attacks, a dependent personality disorder, a severe grief reaction related to the death of her mother in June 1990, an acute anxiety attack with depression secondary to the death of her mother, which required emergency room treatment, prescribed medication for anxiety and depression, an anxiety disorder that was moderate in degree, lack of follow through for treatment on the appellant's part that was characterized as malingering, which cast doubt on her description of the severity of depression and anxiety-related symptomatology. It was determined that she suffered from a severe dependent personality, an adjustment disorder with mixed emotional features versus major depression, and a mild panic disorder without agoraphobia. Dr. S. Bolter, reported in September 1993 that the appellant had been examined pursuant to a claim for Social Security disability benefits. She had been seen by Dr. Bolter before, in June 1991. She reportedly had been unable to work since June 1992, because of depression. She reportedly had sought psychiatric help in 1990 at which time it was indicated that she had been depressed intermittently many, many years, with worsening depression over three or four years, and much worsening since her mother's death. Her activities had decreased since 1991, with none during her depressive episodes. Since her mother's death in 1990, she had lingering and more severe depressive periods. She also had typical anxiety symptoms which remained a great deal of the time. She did not have panic attacks, but described chest tightness, shoulder tightness, shortness of breath, heart racing and perspiring. On the mental status examination, the appellant was tearful at times and had a resigned, depressed continence. Eye contact was between 50 and 75 percent. She talked about being depressed. Depression lasted two or three weeks at a time and had forced her to stop her attempts at work during the previous year. She had definite suicidal ideas with the idea that life was not worth living. She had made no actual attempts because she guessed that she still had hope and a couple of good friends. Affect was constricted resulting in restriction of the range of emotional expression. Memory was described as spotty, when she would forget what she was talking about in the middle of a conversation. The diagnoses were major depression, chronic, single episode, severe without psychotic features, chronic dysthymia, going back many years, and generalized anxiety disorder. Psychosocial and environmental problems that might have affected her diagnoses included her mother's death and a preoccupation with depression and dysfunction with both enduring and acute circumstances. Dr. Bolter stated that she needed psychiatric treatment to manage her medication, and psychotherapy. Without assistance, she would tend to have more frequent depressions superimposed upon her underlying chronic dysthymia. She seemed to have decreasing interests, loss of energy, sleep disturbance, appetite disturbance, difficulty in concentration, suicidal ideation, and lowered self worth. Her activities were limited with her staying in her apartment mostly and difficulty following her interests through. She had gone down hill over the previous two years with markedly impaired occupational adjustment, moderately to markedly impaired social adjustment and personal adjustment that had certainly been affected. Dr. Bolter was not certain of the dynamics in her change for the worse but stated that it probably had something to do with unresolved conflict about her mother's death and it was important that she had never married and had taken care of her mother during the final years of her mother's illness while her brother and sister married and carried on with their lives. This was described as speculation that would be clarified by psychotherapy. On a VA examination in January 1994, history was presented by the appellant that she had chronic depression dating from sexual abuse she experienced when she was on active duty. She stated that she was groped, grabbed, insulted, fondled (in her breast areas), and touched (in her buttocks and genital areas). She indicated that she had not been raped. She reportedly had had psychotherapy but had not been hospitalized for psychiatric reasons. She described occasional suicidal thoughts. She recalled that her first depression was in 1990 and it had not changed. She had broken sleep, up to 5 hours daily. The report of the objective findings reflected that there was a lot of blocking and anxiety. Affect was somewhat bland. Mood was bland and not clinically depressed. She seemed to have a chronic, smoldering, low grade, major depression that had only been adequately treated. The mental status examination was termed compatible with the overall impression of major depression. Major depression without psychotic features was diagnosed. The appellant testified at a personal hearing before a hearing officer at the RO in August 1995. She indicated that she had mild depression due to circumstantial things prior to her reserve duty. She reportedly suffered extreme sexual harassment during active duty for training. She described repeated urinalyses, copying of her file for which she was blamed, grabbing, and petty officers' putting their hands on her, trying to kiss her, and exposing themselves to her. She stated that another superior officer refused to let her see a doctor for back pain. She testified that, due to the harassment, she had terrible insomnia and cried on her way to drills. On a VA examination in December 1995, the appellant presented a history of having been sexually molested as a child by a boarder in her home and raped, as a teenager, by a boy friend on one occasion and by a foster brother on another. She also reported that she suffered sexual harassment during her active duty for training periods. This occurred in 1991 when she was a reservist. She described "them" kidding with her about sexual subjects, grabbing her breasts and grabbing her buttocks. On another occasion during this period of time a guy reportedly stopped his car near her and exposed his erect penis to her. It was noted that she was 31 when she enlisted in the reserves in 1989. The examiner stated that the appellant's accounts of sexual harassment during her active duty for training were insignificant in terms of the development of any recurrent symptomatology when compared to the sexual abuse and rapes she suffered as a child and teenager. The way she described the service events did not impress the examiner as being significantly traumatic for a woman who was over 30 years old. The examiner found nothing that occurred from a psychiatric standpoint during the appellant's service period that in any way would have affected her status considering her pre-existing problems. She did not describe nightmares, flashbacks, intrusive thoughts, emotional blunting, or other symptoms of PTSD. Energy and concentration varied from day to day. She had a low sex drive. There were no symptoms of suicidal preoccupation, survivor's guilt, amnesia, a sense of a foreshortened future, or any other significant symptom of PTSD on any level. The examiner was impressed by her being the third child in her family and having been the caregiver to her aging and physically ill mother. She never left the family home until her father died. She then moved into a mobile home with her mother, where she continued to reside since her mother's death. Her mother's death seemed to have precipitated whatever degree of depression that eventually led to her examination and treatment by Dr. Bolter. There reportedly was a strong suggestion that she was significantly dysfunctional prior to reserve service with a history of child sexual molestation, teenage rapes and then sexual harassment with fondling and exposure during her reserve service. The examiner saw no evidence of schizophrenia, bipolar disorder, or organic brain dysfunction. She did not impress the examiner as being anxious, hypervigilant or paranoid. She did not impress the examiner as a significantly disturbed person and it was recorded, certainly, that no evidence was seen of PTSD or other major psychiatric condition. The examiner felt that she was in remission from an affective disorder best described as major depression as described by Dr. Bolter and by this examiner in January 1994. She did not appear to be overly stressed. She indicated that she had not discussed depression with her therapist the last time she had seen him. The examiner saw no reason for psychiatric testing. The final diagnosis was major depression in significant remission secondary to appropriate medication. It was recorded that the appellant did not have PTSD in the examiner's judgment. Passive dependent personality traits were prominent. In July 1997, the appellant completed a questionnaire for a claim for Social Security disability benefits indicating that her anxiety had worsened from a car accident she had had in January 1997. The appellant testified at a personal hearing before a hearing officer at the RO in August 1997. She testified that she had problems for teasing and harassment during her weekend drills. She specified that she was subjected to grabbing, groping, headlocks, attempted kissing, grabbing in the front and in her crotch, genital exposure, and being asked out by her military superiors, including those who were married. She also was subjected to repeated duties such as picking up trash all the time or to having to have urinalyses all the time. Her treatment was described as humiliating and causal of a lot of grief, aggravation, and anxiety. She felt that she was singled out. She felt that her separation from the service due to disability and what happened to her during her service had caused a lot of mental and emotional stress and strain. The appellant was examined by G. R. Hudak, M.D., in September 1997 at the request of the state Department of Social Services. History was recorded that she had had anxiety and depression since the onset of fibromyalgia in 1990. A psychiatric evaluation was accomplished and the final diagnoses were adjustment disorder with depressed and anxious mood, chronic, secondary to physical complaints, and dysthymia (considered). It was noted that fibromyalgia had been reported in conjunction with a motor vehicle accident with contusion to the neck and the chest. Her recorded stressors were moderate and manifested by unemployment, financial stressors and stressors of raising a child as a single parent. Dr. Hudak's review of the records noted a September 1993 diagnosis of major depression, chronic, single episode, severe, without psychotic features, chronic dysthymia, and generalized anxiety disorder. During the appellant's personal hearing before a Board member sitting at the RO in October 1998, she testified that she had been subjected to harassment and frame-ups during her service which caused her stress and prevented her from pursuing her goal of a career in the service. She specified the names of several military superiors who had harassed and treated her unfairly. She detailed various incidents of sexual and job harassment to which she was subjected. The way she was treated caused her distress, sleep problems and to cry over the last two years she was in the reserves. She tried to complain but her superiors were responsible for the harassment and she was obligated to use the chain of command, so it was very difficult for her. The service mistreatment she received reportedly caused sleep disturbance, chronic anxiety attacks, and fluctuating depression. Prior to service, she described depression and anxiety, and had been prescribed medication for anxiety attacks before her service, but not as much as was needed since then. She testified that her anxiety and depression fell under the category of PTSD. In November 1998, Dr. Kater reported that the appellant had been followed for anxiety and depression since 1989. Copies of his records showed that the appellant had stress from her mother's death in 1990 and circumstantial as well as chronic anxiety and depression in July 1997. On a VA examination in September 1999, the appellant stated that she had experienced progressive problems with anxiety and depression related to "chronic sexual harassment" during her military years. She specified frequent, inappropriate sexual remarks, grabbing of a sexual nature, and an occasion when a man exposed himself to her. She stated that she first sought treatment in 1990. She also stated that, during her service, she was frequently blamed for things she had not done and was written up unfairly. She specified that she had received no psychological evaluations or treatment prior to her military service. A psychiatric evaluation was completed and the final diagnoses were anxiety disorder with depressive features in partial remission with moderate stress. The examiner commented that the appellant presented with a mixed picture of significant anxiety and depression with an apparent onset in 1990, during military service. The Board, in its July 2002 decision, noted that the appellant had been granted service connection for a back injury sustained during a period of inactive duty training in February 1992; therefore, that specific period is considered active military service under 38 C.F.R. § 3.6. As such, the presumption of soundness provided for in 38 C.F.R. § 3.304 applies to that specific period of duty. The Board also noted that a psychiatric disability existed prior to 1992, thus rebutting the presumption of soundness. The Board ultimately denied the appellant's claim on the bases that a chronic psychiatric disability was not shown to have its onset during any period of active duty for training, nor to have chronically worsened during active duty for training, and nor to have resulted from any disease or injury during active duty for training. There was also no evidence of PTSD. Evidence received since the adjudication of the July 2002 Board decision includes additional VA and private medical evidence, SSA records, and hearing transcripts Significantly, correspondence dated in March 2002 but received in March 2003 from Dr. Kater reflects that the appellant has PTSD caused by stress incurred during her service from 1989 to 1993. Moreover, according to another letter from Dr. Kater, which was received in March 2008 (dated February 2008), the appellant reported that her depression is related to her military service. Dr. Kater stated that he "does not have her service records, nor had I seen her the first year after her discharge, so I do not have proof of an in-service occurrence. Likewise, I have no proof or evidence to the contrary, so taking her word; I would have to say it is as likely as not that the psychological trauma she endured in the military led to her depression." This newly-received evidence is material in that it shows a current diagnosis of PTSD and suggests a relationship between a current psychiatric disability and service. This evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. §3.156 (2008). Accordingly, the appellant's claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is reopened. ORDER New and material evidence having been received to reopen the appellant's service connection claim for an acquired psychiatric disability, to include PTSD, the claim is reopened, and to that extent only, the claim is granted. REMAND Herein, the Board has reopened the appellant's service connection claim for an acquired psychiatric disability, to include PTSD. Prior to analyzing this claim on the merits, the Board finds that further development is necessary. The record contains etiology opinions with respect to the service connection claims for an acquired psychiatric disability and fibromyalgia. The appellant has not yet been afforded a VA examination to ascertain the etiology of fibromyalgia. With regard to her service connection claim for PTSD, the appellant asserts that any current diagnosis of PTSD is related to in-service sexual harassment. Following a review of the record, the Board finds that there is an additional duty to assist her with the development of her service connection claim for PTSD based on the claimed sexual assault. Specifically, the RO must consider all of the special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault. M21-1 notes that: "Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the appellant's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or under eating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). See also 38 C.F.R. § 3.304(f)(3) (2003); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in PTSD personal assault cases). Further, with regard to the increased rating claims for lumbar and cervical spine disabilities, the Board notes that the appellant was originally granted service connection for lumbar and cervical strains. However, in a January 2005 rating decision, the RO recharacterized those disabilities to include degenerative disc disease. Review of the record shows that the RO has not advised the appellant of the criteria for rating disc disease of the spine and has not yet evaluated the spinal disabilities with such criteria. Finally, the Court recently held in Vazquez-Flores v. Peak, 22 Vet. App. 37 (2008), that for an increased rating claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Further, under Vazquez, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, supra. Here, a review of the claims folder shows that sufficient notice has not been sent to the appellant with regard to her increased rating claims. Thus, on remand the RO should provide corrective VCAA notice. Additionally, the Board notes that as the adjudication of these claims may have an impact on the appellant's claim for TDIU, consideration of that matter is deferred pending completion of the above development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims folder and ensure that all notification and development action required by the VCAA are fully complied with and satisfied. Specifically, the RO should: (a) Notify the appellant of the information and evidence necessary to substantiate her increased rating claims for service-connected lumbar and cervical spine disabilities. (b) Notify the appellant of the information and evidence she is responsible for providing; (c) Notify the appellant of the information and evidence VA will attempt to obtain, e.g., that VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency and will make as many requests as are necessary to obtain relevant records from a Federal department or agency; and (d) The notice should advise the appellant that to substantiate her increased rating claims, she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or an increase in severity of the pertinent disabilities, and the effect that the worsening has on her employment and daily life (e) The RO should provide examples of the types of medical and lay evidence that the appellant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, for example, competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. (f) The appellant should be afforded a copy of the applicable criteria needed for increased (higher) evaluations under the applicable Diagnostic Codes for rating the disability on appeal. (g) The appellant should also be advised that if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0 percent to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. (h) Request that the appellant provide any evidence in her possession that pertains to her claims. 2. The appellant should be afforded the opportunity to identify potential alternative sources of information to verify the claimed sexual harassment as set forth in M21-1, part III, 5.14(c). She should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals. 3. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to a stressor(s) in service, and if so, what was the nature of the specific stressor(s). If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the appellant's allegations of stressors occurring, the RO should specify that information. In reaching this determination, the RO should address any credibility questions raised by the record. 4. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disabilities that are present. The examiner should review the entire claims folder. A copy of this remand must be provided to the examiner prior to the examination. The examiner should indicate all acquired psychiatric disabilities currently shown. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disability as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. If the RO has determined that the record establishes the existence of a stressor(s), and a current diagnosis of PTSD is deemed appropriate, the examiner should specify whether each alleged stressor found to be established by the record is sufficient to produce PTSD. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. Thereafter, the examiner should provide an opinion as to whether psychiatric disability that pre-existed the February 1992 INACDUTRA period was aggravated during that INACDUTRA period. The examiner should also provide an opinion as to whether there is a 50 percent probability or greater that any currently diagnosed psychiatric disability is otherwise related to any verified period of ACDUTRA. The examiner should reconcile any opinion with the clinical records dated in the 1990's; SSA records; VA psychiatric examination reports dated in January 1994, December 1995, and September 1999; and Dr. Kater's February 2008 statement. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 5. The appellant should also be afforded a VA examination to determine the etiology of any currently diagnosed fibromyalgia. The claims folder should be made available to the examiner for review prior to the examination. The examiner should note whether the appellant currently has fibromyalgia. The examiner should specifically note whether the musculoskeletal pain the appellant experiences is separate from the pain associated with her service- connected lumbar and cervical spine disabilities. If a distinct diagnosis of fibromyalgia is made, the examiner should provide an opinion as to whether there is a 50 percent probability or greater that any currently diagnosed fibromyalgia is related to any verified period of ACDUTRA. The examiner is asked to reconcile any opinion with the February 2008 statement from Dr. V.P.K. If a diagnosis of fibromyalgia is not rendered, such finding should be reconciled with the private medical evidence showing such a diagnosis. A complete rationale for all opinions expressed must be provided. 6. The appellant should be afforded VA examination to determine the current nature and extent of her service-connected lumbar and cervical spine disabilities. The claims folder should be reviewed by the examiner prior to the examination. All necessary tests and studies should be performed. The examiner is requested to: Describe applicable ranges of motion in terms of degrees of the lumbar and cervical spine, and comment on whether there is functional loss due to pain, weakened movement, excess fatigability, or incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiner should also confirm whether the appellant currently has degenerative disc disease of the lumbar spine. See February 2006 VA examination report and associated x-rays. Disc disease of the cervical spine is currently shown on MRI studies. For any currently shown disc disease of the lumbar and cervical spine, the examiner should indicate whether the appellant has experienced any incapacitating episodes of disc disease over the past year, and indicate the number and duration of those episodes (if any). (An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician). The examiner should also report any neurological impairment associated with the service connected lumbar and cervical spine disabilities. 7. Upon completion of the above-requested development, the RO should readjudicate the appellant's service connection claims for an acquired psychiatric disability, to include PTSD, and fibromyalgia; increased rating claims for lumbar and cervical spine disabilities; and the TDIU claim. All applicable laws and regulations, to include the criteria for rating degenerative disc disease, should be considered. If any benefits sought on appeal remain denied, the appellant and her representative should be provided with a supplemental statement of the case and given the opportunity to respond thereto. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2008). Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs