Citation Nr: 1030769 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 07-17 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of an injury to the coccyx. 2. Entitlement to service connection for a bilateral hip disability. 3. Entitlement to service connection for a lumbar spine disability. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from October 1973 to June 1974, and from January 19, 1985 to February 1, 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which determined that new and material evidence had not been submitted to reopen a claim for service connection for "residuals, coccyx injury," and which denied claims for service connection for "degenerative disease, both hips with acetabular sclerosis and spurring," "degenerative facet changes, L5-S1," and PTSD. The Board has determined that the issues are more accurately characterized as stated on the cover page of this decision. In her appeal (VA Form 9), received in May 2009, the Veteran indicated that she wanted a hearing before a Veterans Law Judge (VLJ) at the RO. She apparently subsequently elected to have a videoconference hearing, and in March 2010, she was notified that she had been scheduled for a videoconference hearing on April 29, 2010. However, she failed to report for her hearing. That same month, she filed a motion for another videoconference hearing. In May 2010, the motion for another hearing was granted. The Veteran was rescheduled for a hearing in June 2010. However, she failed to appear for her scheduled hearing, and there is no record that a request for another hearing was ever made. Without good cause being shown for the failure to appear, no further hearing can be scheduled and appellate review may proceed. The issue of entitlement to service connection for an acquired psychiatric disorder (other than PTSD) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for PTSD is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required. FINDINGS OF FACT 1. In an unappealed decision, dated in July 1989, the RO denied the Veteran's claim for service connection for a tailbone injury. 2. The evidence received since the RO's July 1989 decision denying the Veteran's claim for service connection for a tailbone injury, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claim. 3. The Veteran does not have a hip disability, or a lumbar spine disability, that was caused or aggravated by her service. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the RO's July 1989 decision denying the Veteran's claim for service connection for a tailbone injury; the claim for residuals of an injury to the coccyx is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 2. A hip disability, and a lumbar spine disability, were not caused or aggravated by the Veteran's service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board initially notes that for all claims, subsequent to the most recent supplemental statement of the case, dated in December 2009, several private medical reports have been received. Although this evidence has not been reviewed by the RO, a remand is not required because a waiver of RO review has been received. See 38 C.F.R. § 20.1304 (2009). In addition, the United States Court of Appeals for Veterans Claims (Court) has recently determined that when a claimant makes a claim of entitlement to service connection for a psychiatric disability, (s)he is seeking service connection any acquired psychiatric disability regardless of how those symptoms are labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (emphasis added). In this case, the Veteran has been afforded diagnoses that include major depression, bipolar disorder, and somatoform disorder, as well as a personality disorder. Under the circumstances, the Board has determined that the issue of entitlement to service connection for an acquired psychiatric disorder (other than PTSD) has been raised by the record, and this issue has been referred to the AOJ for adjudication. I. New and Material The Veteran asserts that new and material evidence has been submitted to reopen a claim for service connection for residuals of an injury to the coccyx. In May 1988, the Veteran filed a claim for service connection for a "tailbone injury" which she asserted was incurred in January 1985 at Fort Wainright, Alaska. In July 1989, the RO denied the claim. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2007). In October 2004, the Veteran filed to reopen the claim, specifically listing an "injury to the coccyx and resulting disabilities." In May 2005, the RO denied the claim. The Veteran has appealed. The Veteran asserts that she has residuals of an injury to the coccyx that were caused by her service. She essentially asserts that in January 1985, she sustained an injury to her coccyx while doing sit-ups, and that she was treated at the Bassett Army Community Hospital. She testified that she was profiled (i.e., put on light duty). See transcript of hearing, held at the RO in November 2008. For claims filed on and after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2009). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The most recent and final denial of this claim was in July 1989. Therefore, the Board must determine if new and material evidence has been submitted since that time. See 38 U.S.C.A. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or after December 31, 1946, and specified diseases to include arthritis, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309. The evidence of record at the time of the RO's July 1989 rating decision included her service treatment reports from her first period of active duty, which did not show any relevant treatment. The Veteran's separation examination report, dated in May 1974, showed that her spine was clinically evaluated as normal. In an associated "report of medical history," she denied a history of recurrent back pain. See also October 1984 examination report (associated with entrance into the Army Reserve), and associated "report of medical history" (same). There were no service treatment reports from the Veteran's second period of active duty. A statement from the Veteran's Army Reserve unit, dated in November 1988, it was stated that they had no records for the Veteran, that informal reports indicated that the Veteran served on active duty between January 19, 1985 to February 1, 1985, and that a "line of duty investigation" had not been performed during this time. As for the post-service medical evidence, it consisted of VA reports, dated between 1974 and 1988. This evidence included a VA examination report, dated in July 1988, which showed that the Veteran asserted that in January 1985, she was doing sit-ups when she felt symptoms "like a lightning bolt in my tailbone," with a feeling of "stepping on a bunch of needles" while running. She further stated that it, "Feels like the tailbone swells up and the skin cracks open and I get a watery discharge from that." An associated X-ray of the lumbar spine was normal. The diagnoses noted "patient's history coccygeal trauma - probable coccydynia." At the time of the RO's July 1989 decision, there was no evidence of any relevant treatment during service. The earliest and only evidence of a disorder involving the coccyx was in the July 1988 VA examination report, which was somewhat vague and equivocal, and which came over three years after the Veteran's second period of active duty. In addition, there was no competent evidence to show arthritis involving the coccyx was manifest to a compensable degree within one year of separation from the Veteran's first period of active duty service (as the Veteran's second period of active duty was less than 90 days, the presumptive provisions at 38 C.F.R. § §§ 3.307 and 3.309 are not applicable to this active duty service), or to link residuals of an injury to the coccyx to the Veteran's service. The RO therefore denied the claim. Evidence received since the RO's July 1989 decision consists of VA and non-VA reports, dated between 1988 and 2010, and additional service treatment reports. The service treatment reports include an April 1989 service examination report (apparently performed in association with Army Reserve service), which shows that the Veteran's spine was clinically evaluated as normal. In an associated "report of medical history," she indicated that she had a history of recurrent back pain, and this report indicates that she reported having had low back pain, and "coccygeal trauma." As for the VA reports, this evidence shows that the Veteran received a number of treatments for low back pain, with a few specific references to the coccyx. They note disorders that include fibromyalgia. A decision of the Social Security Administration (SSA), dated in December 1992, shows that the SSA determined that the Veteran was disabled as of April 1991, with diagnoses of "minimal scoliosis," "minimal lumbar degenerative joint disease," "possible degenerative arthritis of the hips," and major depression. Associated documents include a letter from the Veteran, dated in January 1985, in which she stated that she went on sick call after a left foot injury, and that she had neck, hip, and leg pain, which a physician had attributed to "arthritis." A January 2010 report from the Good Samaritan Hospital shows that the Veteran sought treatment after she lost control of a sled going down a hill, and landed on her back. She gave a previous history of a "coccyx fracture," and the examiner indicated that X-rays indicated a fracture of the coccyx. The relevant assessment was possible acute coccyx fracture. However, the actual X-ray report, dated the next day, states, "examination of the sacrum and coccyx in AP and lateral views fails to reveal fracture, dislocation or other osseous abnormality." A memorandum created by the RO, dated in June 2009, shows that the RO determined that service treatment reports for the Veteran's second period of active duty, to include any line of duty report, were not available, and that additional attempts to obtain them would be futile. See 38 C.F.R. § 3.159(d) (2009). The Veteran has submitted photocopies of a prescription bottle which is dated in January 1985, and which indicates that it contained Motrin. This evidence, that was not of record at the time of the July 1989 RO decision, is not cumulative; thus it is "new" within the meaning of 38 C.F.R. § 3.156. However, the Board finds that this evidence is not material. None of this evidence includes competent evidence to show that the Veteran sustained a chronic disorder of the coccyx during service, or that she currently has a disorder of the coccyx that was caused or aggravated by her service, or which shows that arthritis at the coccyx was manifest to a compensable degree within one year of separation from her first period of active duty service. Although she appears to have received a prescription for Motrin in January 1985, she has stated that she had a number of pain symptoms in different joints at that time, the reason for the prescription is not specified, and there is no indication of a diagnosis. The claim is therefore not reopened. The only other pertinent evidence received since the July 1989 denial of the claim consists of written testimony from the Veteran, which does not provide a sufficient basis to reopen the claim. Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108."). Because the appellant has not fulfilled her threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). II. Service Connection The Veteran asserts that service connection is warranted for a bilateral hip disability, and a lumbar spine disability. The Board's discussion of the relevant evidence in Part I of this decision is incorporate herein. A. Bilateral Hip Disability In October 2004, the Veteran filed her claim. In May 2005, the RO denied the claim. The Veteran has appealed. The Veteran's service treatment reports include a May 1973 report which notes treatment for complaints of left groin cramping and chronic constipation. The impression was "muscle, ligament contusion, left hip - etiology chronic constipation." The Veteran's separation examination report, dated in May 1974, shows that her spine and lower extremities were clinically evaluated as normal. Other service treatment reports, dated after the Veteran's first period of active duty, include an October 1984 examination report (performed in association with Army Reserve duty), which shows that her spine and lower extremities were clinically evaluated as normal. In an associated "report of medical history," she indicated that she did not have a history of "arthritis, rheumatism, or bursitis." An April 1989 examination report (also apparently performed in association with Army Reserve duty) also shows that her spine and lower extremities were clinically evaluated as normal. In an associated "report of medical history," she indicated that she had a history of "arthritis, rheumatism, or bursitis," and the report notes, "arthritis & rheumatism of both hips (acetabular sclerosis of both hips w/spurring - coccygeal trauma," and "low back pain w/severe pain in hip, going down into legs," chronic joint pain of the knees, hips, and spine, and osteoarthritis. The post-service medical evidence consists of VA and non-VA reports, dated between 1974 and 2010. The VA reports include a July 1988 VA examination report, which notes that the Veteran asserted that she had symptoms at her tailbone that affected her left hip, to include, "The whole hip and leg will go out." The diagnoses included degenerative disease of both hips with acetabular sclerosis and minor spurring, and noted that this was corroborated by an associated X-ray, taken that same month. Reports, dated in August 1988 and February 1989, notes complaints of pain at joints that included the hips, and contain notations and impressions noting fibrositis syndrome, DJD of the hips, and mild OA (osteoarthritis) of the hips. An associated X-ray report for the pelvis was negative. A May 1990 X-ray report notes "some sclerosis along the roof of the left acetabulum, but the left hip joint is well-maintained." The non-VA reports include a January 1990 report which notes complaints of multiple joint pain, to include the left hip, and which contains an impression noting left hip pain that probably had a "musculoskeletal cause." An August 1991 report notes complaints of bilateral hip pain, and DJD of the hips. An October 2003 X-ray report contains impressions noting hyperostosis at the greater trochanter bilaterally, possibly consistent with greater trochanter bursitis," and an otherwise normal radiographic appearance of the pelvis and both hips. The Board finds that the claim must be denied. During service, in May 1973, the Veteran was noted to have a contusion at her left hip. In this regard, there is no indication of left hip trauma, and associated service treatment reports, dated in May and June of 1973, only discuss gastrointestinal tract symptoms and findings. There are no relevant findings during her remaining first period of service, a period of about one year. Her May 1974 separation examination report does not contain any relevant notations, findings, or diagnoses. The earliest post- service medical evidence of a hip disability is dated no earlier than July 1988. This is a period of over three years following separation from her second period of active duty service. This period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, (Fed. Cir. 2000). Furthermore, there is no competent evidence showing that the Veteran has a hip disability that was caused or aggravated by her service, nor is there any competent evidence to show that the Veteran had arthritis of either hip that was manifested to a compensable degree within one year of separation from the Veteran's first period of active duty service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. B. Lumbar Spine Disability In October 2004, the Veteran filed her claim. In May 2005, the RO denied the claim. The Veteran has appealed. The Veteran's service treatment reports do not show any relevant complaints or treatment. The Veteran's separation examination report, dated in May 1974, shows that her spine was clinically evaluated as normal. Other service treatment reports, dated after the Veteran's first period of active duty, include an October 1984 examination report (performed in association with Army Reserve duty), which shows that her spine was clinically evaluated as normal. In an associated "report of medical history," she indicated that she did not have a history of recurrent back pain. An April 1989 examination report (also performed in association with Army Reserve duty) also shows that her spine was clinically evaluated as normal. In an associated "report of medical history," she indicated that she had a history of recurrent back pain, and the report notes, "low back pain w/severe pain in hip, going down into legs," chronic joint pain of the knees, hips, and spine, and osteoarthritis. The nonservice, post-service medical evidence consists of VA and non-VA reports, dated between 1974 and 2010. The VA reports include an X-ray report for the lumbar spine, dated June 6, 1988, which contains an impression of "normal lumbar spine." A July 1988 VA examination report does not contain any relevant findings or diagnoses. VA progress notes, dated in August and September of 1988, note DJD of the lumbosacral spine. A May 1990 X-ray report for the lumbar spine notes, "The lumbar spine is unremarkable and is unchanged from 6/6/88." A December 1992 magnetic resonance imaging (MRI) study was normal. An August 1993 MRI report contains impressions noting mild degenerative facet changes at L5-S1, and that there was no evidence of disc herniation or neural impingement. A March 2006 MRI study notes multi-level lumbar disc bulges. The non-VA post-service medical evidence includes a January 1990 report which notes a history of two pre-service motor vehicle accidents (MVA's), in 1968 and 1970, but which otherwise does not contain any relevant findings or diagnoses. An X-ray report for the lumbar spine, dated in January 1990, contains an impression noting hyperextension syndrome of the lumbar spine with degenerative joint disease. An August 1991 report from H.D., D.O., notes a history of mild scoliosis. Reports from H.J.M., D.O., dated between 1997 and 2004, note a past history of scoliosis, osteoarthritis, and fibromyalgia, and show treatment for chronic back pain. Overall, the evidence show a number of treatments for low back pain beginning in 1997. An October 2000 X-ray report for the lumbar spine notes minimal degenerative change with no disc interspace abnormality noted. A private X- ray report for the lumbar spine, dated in January 2010, contains an impression noting slight narrowing of the L3-4 disc space, with an otherwise negative lumbosacral spine. The Board finds that the claim must be denied. The Veteran did not receive any relevant treatment during service. Her May 1974 separation examination report does not contain any relevant notations, findings, or diagnoses. X-ray reports and MRI studies are normal though 1992, however, even assuming that the notations of lumbar spine DJD, noted in 1988, are accurate, the earliest post-service medical evidence of a low back disability comes over three years following separation from her second period of active duty service. This period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. Maxson. Furthermore, there is no competent evidence showing that the Veteran has a lumbar spine disability that was caused or aggravated by her service, nor is there any competent evidence to show that the Veteran had arthritis of the lumbar spine that was manifested to a compensable degree within one year of separation from the Veteran's first period of active duty service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. III. Conclusion With respect to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The issues on appeal are based on the contentions that bilateral hip disabilities, and a low back disability, were caused by service that ended in January 1985. The Veteran has asserted that she has had bilateral hip and low back symptoms since her service. Her reports are competent evidence to show that she experienced hip and low back symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, competency of evidence must be distinguished from the weight and credibility of the evidence, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence; if the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds that the Veteran's written testimony is insufficiently probative to warrant a grant of either of the claims. Although the Veteran has asserted that she has had hip and low back symptoms since her service, she does not have the requisite skill, knowledge, or training, to be competent to provide a diagnosis of a hip or low back disability, or to state whether such condition was caused or aggravated by service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this regard, while the Board acknowledges that the absence of any corroborating medical evidence supporting her assertions does not render her statements incredible in and of itself, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of a veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition). In this case, the Veteran's service treatment records do not show any relevant treatment, notwithstanding one report noting a left hip contusion, which has been discussed. The post-service medical records do not show any relevant treatment prior to July 1988, and there is no competent evidence of a nexus between a hip disability, or a low back disability, and the Veteran's service. Given the foregoing, the Board finds that the service treatment reports, and the post- service medical evidence, outweigh the Veteran's contentions to the effect that she has the claimed conditions that are related to her service. In reaching these decisions, the Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in November 2004, January 2005, and May 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006) (in November 2004). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post- service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. In this regard, a memorandum created by the RO, dated in June 2009, shows that the RO determined that service treatment reports for the Veteran's second period of active duty, to include any line of duty report, were not available, and that additional attempts to obtain them would be futile. See 38 C.F.R. § 3.159(d) (2009). The RO has obtained the Veteran's VA and non-VA medical records. With regard to the claim for residuals of an injury to the coccyx, as the Board has determined that new and material evidence has not been presented, a remand for an etiological opinion is not required to decide the claim. See 38 U.S.C.A. § 5103A(f) (West 2002). With regard to the claims for service connection for a bilateral hip disability, and a lumbar spine disability, the Veteran has not been afforded an examination, and etiological opinions have not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. In this case, notwithstanding one treatment involving the left hip, which has been discussed and which was associated with gastrointestinal symptoms, the service treatment reports do not show any relevant treatment. The earliest evidence of either of the claimed conditions is dated in July 1988, which is at over three years after separation from the Veteran's second period of active service. Thus, there are no probative service treatment reports for review, there is no competent evidence to show that either of the claimed conditions are related to the Veteran's service, and there is no competent evidence to show that arthritis of either the hip or the lumbar spine was manifested to a compensable degree within a year of separation from service. Given the foregoing, the Board finds that the standards of McLendon have not been met. See also 38 C.F.R. § 3.159(c)(4) (2009); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Simply stated, the Board finds that the service and post-service medical record provides evidence against these claims. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER New and material evidence not having been submitted, the claim for service connection for residuals of an injury to the coccyx is not reopened. Service connection for a bilateral hip disability, and a lumbar spine disability, is denied. REMAND The Veteran asserts that she has PTSD due to abuse by her spouse during service. Service connection for PTSD, in particular, requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2009). Under 38 C.F.R. § 3.304(f)(3): If a post-traumatic stress disorder claim is based on inservice personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post- traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). The Veteran has been sent duty to assist notices on several occasions. However, a review of these notices shows that the procedures for claims based on allegations of personal assault do not appear to have been followed, specifically, she has not been notified of the evidence of changes of behavior which may indicate the occurrence of his claimed stressor involving personal assault. See generally 38 C.F.R. § 3.304(f)(3); see also VBA's Adjudication Procedure Manual, M21-1MR (hereinafter "M21- 1MR"), Part III.iv.4.H.30.a. On remand, the Veteran should be notified of the evidence of changes of behavior which may indicate the occurrence of her claimed stressors involving personal assault. The changes in the Veteran's observed behavior must have been witnessed "around the time" of the claimed incident. Id. The Board further finds that it is necessary to afford the Veteran an examination to determine the nature, extent, and etiology of any and all psychiatric pathology, to include review of the claims files, including any and all records newly obtained by this remand. See 38 C.F.R. § 3.159(c)(4) (2009). The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2009). Accordingly, the Board has no alternative but to defer further appellate consideration and this case is REMANDED to the RO via the Appeals Management Center in Washington DC for the following actions: 1. The Veteran should be notified of the evidence of changes of behavior which may indicate the occurrence of her claimed stressors involving personal assault. 2. Schedule the Veteran for a psychiatric examination to determine her correct diagnosis(es), to include whether she has PTSD under the criteria as set forth in DSM- IV. The RO should provide the examiner with a summary of the claimed stressors (as well as any evidence pertaining to changes in behavior at the time). The claims files should be provided to the examiner in connection with the examination. All necessary studies or tests, including appropriate psychological testing and evaluation, is to be accomplished. If, and only if, PTSD is found, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that the Veteran's PTSD was caused or aggravated by her service. If PTSD is diagnosed, the examiner must state the stressor(s) relied upon to support the diagnosis, and the examiner must discuss any documented behavior changes following the verified in-service incidents. The report of examination should include the complete rationale for all opinions expressed. 3. After undertaking any other development deemed essential in addition to that specified above, readjudicate the Veteran's claim for service connection for PTSD, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, furnish her with a SSOC and afford a reasonable period of time within which to respond thereto. The Veteran 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. 2009). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs