Citation Nr: 1128201 Decision Date: 07/28/11 Archive Date: 08/04/11 DOCKET NO. 07-00 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, claimed as degenerative disc disease (DDD) of the spine. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), dysthymia, psychotic disorder, and mood disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the claims for entitlement to service connection. In May 2009, the Veteran testified at a videoconference hearing before the undersigned at the RO; a transcript of that hearing is of record. In August 2009, the Board remanded these matters to the RO via the Appeals Management Center (AMC) for additional development. As noted on the title page, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, dysthymia, psychotic disorder, and mood disorder. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. The competent and credible evidence fails to establish that a lumbar spine disorder, claimed as DDD of the spine, was manifested during active service, was manifested within the first post-service year, or causally related to an established event, injury, or disease during active service. 2. The competent and credible evidence supports the Veteran's claimed in-service stressor (military sexual trauma). 3. The Veteran has been diagnosed with PTSD as the result of a physical assault and military sexual trauma during his active duty service. CONCLUSIONS OF LAW 1. A lumbar spine disorder (claimed as DDD of the spine) was not incurred in or aggravated by service, and is not presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1154, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 2. Resolving doubt in the Veteran's favor, PTSD was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Regarding the claim of entitlement to service connection for PTSD, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Regarding the claim for entitlement to service connection for a lumbar spine disorder, the VCAA duty to notify was satisfied by way of letters sent to the Veteran by the RO in November 2005 and March 2006 that fully addressed all notice elements. The November 2005 pre-adjudication letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Further, since the Board has concluded that the totality of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. Next, VA has a duty to assist a veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). First, the RO has obtained service treatment records, service personnel records, VA treatment records, private treatment records, and records from the Social Security Administration (SSA). The Veteran submitted written statements discussing his contentions. The Veteran was also provided an opportunity to set forth his contentions during a Board videoconference hearing before the undersigned in May 2009. In Bryant v. Shinseki, the Court recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the May 2009 videoconference hearing, the undersigned Veterans Law Judge identified the issue on appeal. Also, information was solicited regarding onset of the Veteran's claimed lumbar spine disorder, his current symptoms, and any causal link between the claimed disorder and active service. In addition, the hearing focused on the elements necessary to substantiate the Veteran's claim, to include the necessity of a causal connection between his claimed lumbar spine disorder and service. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted by the Veteran. A VA examination with respect to the service connection issue on appeal was obtained in July 2010. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2010 VA examination obtained in this case is more than adequate, as it is predicated on a full reading of the Veteran's claims file. The opinion considered all of the pertinent evidence of record, to include service records, VA, SSA, and private treatment records, and the statements and testimony of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Notably, the examiner provided clear explanation as to why it would be pure speculation to state that the Veteran's current back problems were directly related to his military service. He essentially stated that the Veteran's post-service history of being involved in a motor vehicle accident and undergoing back surgery precluded him from attributing the Veteran's back disorder to his active service without resorting to mere speculation. It is noted that a VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382 (2010). Thus, while VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. Nevertheless, the Court of Appeals for Veterans Claims (Court) did find in Jones that simply concluding that the etiology of a disability could not be resolved without speculation without providing any explanation why, was inadequate. The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Further, the Court indicated the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. Here, the July 2010 VA examiner clearly indicated that the actual cause of the Veteran's claimed lumbar spine could not be selected from multiple potential causes (events in service, a post-service motor vehicle accident, and a post-service surgical procedure). The Board therefore finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2010). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to Service Connection for DDD of the Spine Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2010). For certain chronic disorders, to include arthritis and psychosis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2010). Service treatment notes, including the November 1963 entrance and November 1967 exit examination reports, do not show any complaints, findings, or diagnosis of any lumbar spine disorder. In August 1966, January 1967, and August 1967, the Veteran complained of having back pain and the examiners listed impressions of back strain as well as low back pain with muscle spasm. There was no reference to any injury or degenerative disc or joint disease. Post-service private treatment records dated in 1976 from Santa Clara Valley Medical Center reflected that the Veteran was injured in a motor vehicle accident when he was hit on the roadway and thrown approximately 10 feet. A June 1976 history and physical report noted that the Veteran suffered pain in his left leg and also in his lower back where he had previously had a laminectomy. A June 1976 discharge summary listed discharge diagnoses of left comminuted compound tibial fibular fracture and pulmonary embolus. The Veteran was hospitalized several times in 1976 and 1977 for wound infections of the leg. VA treatment records and radiology reports dated from 2002 to 2006 showed complaints of chronic back pain and findings of DDD, degenerative scoliosis, severe spinal canal stenosis, HNP, disc space narrowing, and degenerative arthritic changes. VA MRI reports dated in September 2003 and December 2004 of the lumbar spine revealed post-surgical changes at the L5-S1 level due to laminectomy with a left lateral disc herniation, causing stenosis of the left lateral recess. In an April 2004 VA orthopedic consult, the Veteran complained of back pain. It was indicated that he had no previous injury and had a remote back surgery of L5-S1 which was a discectomy with partial laminectomy. A November 2004 treatment record detailed that the Veteran had received shots in his back. In February 2005, the Veteran asserted that he hurt his back in the war. Records from SSA were associated with the file in November 2009. A June 1976 disability determination listed a diagnosis of osteomylitis and delayed union of left tibia and fibula fractures. In a February 1982 evaluation report, the Veteran complained of left leg pain and back pain. It was indicated that he was bothered by severe shortening of the left leg (after a 1976 injury with multiple required surgeries for severe left leg fracture) which was noted to aggravate "previously problem with back pain". In the past medical history section of the report, the Veteran was noted to have undergone back surgery in 1967. On physical examination, the lumbosacral spine was noted to have a well healed midline scar that was nontender. The examiner listed a diagnosis of degenerative disc disease of the lumbosacral spine. Additional records included in the SSA record indicated that the Veteran received emergency room treatment for neck and back pain as well as stiffness in 2000 and 2001 at St. Elizabeth Clinic after an auto accident. A June 2000 emergency room treatment note revealed complaints of lower back pain for a few days prior to arrival and it was noted that the Veteran was without any known history of trauma. The examiner listed a diagnosis of lumbar spine strain. A June 2000 X-ray showed moderate right concave rotoscolosis of the lower lumbar spine with slight to moderate degenerative changes as well as moderate narrowing of the intervertebral disc space at L5-S1 and slight narrowing of the intervertebral disc space at L4-5. During his May 2009 hearing, the Veteran asserted that he was given shots of cortisone for a slipped disc after he injured his back while pushing and moving planes around the aircraft carrier he was stationed on during active duty. It was further asserted that the Veteran's back disorder had existed since service, specifically during the years between separation and his 1976 motor vehicle injury. In a July 2010 VA spine examination report, the Veteran was noted to give a history of having an in-service back injury on the USS Lexington in 1966. He reported that he injured his back when pushing an airplane on the aircraft carrier, was seen medically on two or three different occasions, was diagnosed with back pain, and treated conservatively. The Veteran stated that over the years his back pains were progressively worse. He detailed that he was involved in a motor vehicle accident sometime in 1975 and 1976, indicating that he had back surgery and left lower extremity surgery at that time. A July 2010 VA X-ray report listed an impression of DDD with mild levoscoliosis. After reviewing the claims file, interviewing the Veteran, and conducting a physical examination, the examiner, a VA physician's assistant, listed a diagnosis of DDD. Considering the Veteran did have a motor vehicle accident and surgery after his military service, the examiner (as well as a reviewing internist) opined that it would be pure speculation to state that the Veteran's current back problems were directly related to his military service. Put another way, because the Veteran was injured in a motor vehicle accident and underwent back surgery after his military service, which essentially amounted to intercurrent injuries, the examiner stated that it was not possible to relate any current back problem to his active service. The Board notes that this finding is supported by the record. There is no evidence, other than the Veteran's personal statements, documenting complaints, treatment, or diagnosis of a low back problems prior to 1976. As an initial matter, the Board notes that the post-service VA and private treatment records and examination reports have reflected diagnoses of DDD, spinal stenosis, lumbar strain, and herniated nucleus pulposus. Shedden element (1) is therefore met. The Board is cognizant that service treatment records document complaints of back pain as well as findings of back strain in 1966 and 1967. It has also considered the Veteran's statements concerning an in-service back injury when he was pushing an airplane across deck in 1966 as well as his documented duty assignments. Under 38 U.S.C.A. § 1154(a), in-service incurrence of injury is met as to a lumbar spine disorder. Accordingly, Shedden element (2) is satisfied as to this claim. A finding of a nexus between the Veteran's current, claimed lumbar spine disorder and in-service injury and/or disease is still needed to satisfy Shedden element (3). In this case, evidence of diagnoses of a current lumbar spine disorder was first shown in 1976 many years after separation from active service in 1967 and cannot be presumed to have been incurred during service. The Board also notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The record also includes no competent medical opinion establishing a causal relationship between the post-service lumbar spine diagnoses and the Veteran has not identified or even alluded to the existence of any such opinion. In fact, the Board places significant probative value on a July 2010 VA spine examination undertaken specifically to address the issue on appeal. In the July 2010 VA examination report, the VA examiner clearly opined that it would be pure speculation to state that the Veteran's current back problems were directly related to his military service. Unfortunately, the law provides that service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). As discussed above, the July 2010 VA examiner's opinion was drafted by a medical professional who is competent to offer an opinion in the matter, and who reviewed the Veteran's service treatment records, service personnel records, private treatment records, VA treatment records, and all other evidence in the claims file. Therefore, it is also probative evidence in this matter. The Board finds that the procurable and assembled data were fully considered, as reflected by references in the examination report of the Veteran. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). For the foregoing reasons, the Board finds the opinion adequate for adjudicative purposes. Shedden element (3) is therefore not met. Consequently, the Board finds that entitlement to service connection for a lumbar spine disorder is not warranted. Evidence of record also includes the Veteran's statements asserting an in-service back injury, in-service treatment for back strain, continuity of lumbar spine symptomatology since service, and a causal connection between his claimed lumbar spine disorder and service. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). The Federal Circuit recently held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) that the Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. In this case, the Veteran is competent and credible to describe his in-service lumbar spine complaints (as mirrored in his service treatment records) as well as his in-service back injury and his current manifestations of a lumbar spine disorder because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, to the extent that the Veteran has contended that he has experienced lumbar spine symptomatology since his service, the Board finds such statements to lack credibility and, therefore, accords no probative weight to such assertions. Here, the Board has determined that the Veteran's statements regarding continuity of symptomatology to be not credible as they are inconsistent with the other evidence of record. While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may, however, in the present case, consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this regard, the Board notes that, while the evidence of record reflected that the Veteran initially complained of back pain during service, the evidence revealed no chronic lumbar spine disorder. As noted above, his November 1967 service exit examination report did not show any complaints, findings, or diagnosis of any lumbar spine disorder. The Board finds that the Veteran's current statements, made in connection with his pending claim for VA benefits, that he has had a lumbar spine disorder since service are inconsistent with the contemporaneous evidence. Reference is made to a 1982 treatment note in the SSA records wherein the Veteran provided a history of back surgery in 1967, the year the Veteran was discharged from service. However, the Board must also note that the Veteran has contradictorily asserted that his back surgery took place in the same time frame as his left leg surgery in 1975 or 1976. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). Thus, the Veteran's lay assertions of continuity of lumbar spine symptomatology are less credible and persuasive in light of the other evidence of record, and are, in fact, outweighed by this evidence. Further, the Board accords the Veteran's statements and testimony regarding the etiology of this disorder no probative value as he is not competent to opine on such complex medical questions. The Board does not find the Veteran's statements concerning the etiology of his claimed disorder to be credible, as they are inconsistent with probative and objective medical evidence of record which showed that is not possible to relate his claimed lumbar spine disorder to events in service without resorting to speculation. Thus, the Veteran's statements are afforded minimal probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). For the foregoing reasons, the claim of entitlement to service connection for a lumbar spine disorder, claimed as DDD of the spine, must be denied. The criteria to establish entitlement to service connection for the claimed disorder have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the appeal is denied. Entitlement to Service Connection for an Acquired Psychiatric Disorder In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); 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. 38 C.F.R. § 3.304(f) (2010). The law provides that "[i]f the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor." 38 C.F.R. § 3.304(f)(2) (2010). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is unrelated to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the reported stressor. Instead, the record must contain evidence that corroborates the veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d),(f); West v. Brown, 7 Vet. App. 70, 76 (1994). Further, there are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(4), provides that PTSD based on a personal assault in service permits evidence from sources other than the veteran's service records which may corroborate his or her 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. 38 C.F.R. § 3.304(f)(4) (2010). The M21-1MR also 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. M21-1MR, Part IV, Subpart ii, 1.D.17.g. 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. 38 C.F.R. § 3.304(f)(4) (2010). VA will not deny a PTSD 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. In addition, 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)(4) (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2010). The Veteran's claim of service connection for PTSD is based his allegations of physical assault and sexual trauma in service. During active service, he contends that he and two other African American males were physically beaten and then had axle grease put in their rectums during some sort of initiation or hazing ritual by Caucasian sailors one night while aboard the USS Lexington in the summer of 1964. He has indicated that his perpetrators were brought to Captain's Mast, that he was treated like a "squealer", that his attitude turned negative, and that his performance and proficiency decreased after the incident occurred in 1964. As an initial matter, the Board notes that the evidence does not show, nor does the Veteran report, that he engaged in combat with the enemy. According to his Form DD Form 214, he was not awarded any combat medals or decorations. In addition, his military occupation specialty (MOS) was listed as Aviation Boatswain's Mate, and service treatment and personnel records do not contain any reports of combat incidents in service. For these reasons, the Board finds that the Veteran did not engage in combat with the enemy within the meaning of 38 U.S.C.A. § 1154(b). Gaines v. West, 11 Vet. App. 353, 359 (1998). Accordingly, his statements and testimony concerning the reported stressors may not be accepted, standing alone, as sufficient proof of their occurrence. Therefore, independent evidence is necessary to corroborate his statement as to the occurrence of the claimed stressors. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). VA has defined personal assault very broadly to include an event of human design that threatens or inflicts harm. Examples of personal assault include rape, physical assault, domestic battery, robbery, mugging, stalking, and harassment. See VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iv., Ch. 4, Section H, part 30(a) (Aug. 1, 2006); VA Adjudication Procedure Manual M21-1MR, Part IV, Subpart ii., Ch. 1, Section D, part 17(a), (c) (Dec. 13, 2005). As the Veteran has claimed that he was sexually harassed and assaulted in service, as detailed above, the Board will consider the provisions of 38 C.F.R. § 3.304(f)(4), which provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records to corroborate his account of the stressor incident. Service treatment notes, including the November 1963 entrance and November 1967 exit examination reports, do not show any complaints, findings, or diagnosis of any psychiatric disorder. From March 31, 1964, to April 2, 1964, and in October 1964, the Veteran was treated for fatigue, dizzy spells, headaches, malaise, and nausea. Service personnel records reflected that the Veteran had a period of active duty from November 1963 to November 1967 in the Navy, serving aboard the USS Lexington from February 1964 to November 1967. As noted above, the Veteran's DD Form 214 noted that his MOS was Aviation Boatswain's Mate (ABH). The Veteran received non-judicial punishment (NJP) on multiple occasions, including in July 1964 for larceny, in December 1964 for unauthorized absence, and in May 1965 for being absent from his appointed place of duty as well as for failure to obey a lawful order or regulation. The Veteran's Enlisted Performance Record detailed that he was not recommended for reenlistment in November 1967. Administrative remarks dated in November 1967 showed that the Veteran's military behavior had been less than expected of a good Navy man, that he rebelled against authority, and does not observe military etiquette. In this case, the Board is cognizant that service personnel or service treatment records do not provide direct confirmation of the Veteran's alleged stressors. However, the Veteran submitted several statements and hearing testimony regarding the nature of the physical assault and sexual trauma in service during 1964 as well as his decline in proficiency after the incident took place. Further, service personal records verified that he was aboard the USS Lexington in 1964 as well as showed that the Veteran was given multiple NJP in late 1964 and early 1965. In rendering a decision on appeal, however, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Here, the Veteran consistently reported a history of physical assault and military sexual trauma occurring in service. He has supplied detailed written statements as well as hearing testimony. In addition, as noted above, the Veteran's post-service VA treatment records dated from 2003 to 2006 indicated that he has been variously diagnosed as having PTSD, mood disorder, psychotic disorder, dysthymic disorder, schizophrenia, and dysthymia. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In adjudicating the Veteran's claim, the Board has considered the possibility of service connection for the other acquired psychiatric disorders. Post-service VA treatment records dated from 2003 to 2006 showed treatment for cocaine abuse, PTSD, mood disorder, psychotic disorder NOS, dysthymic disorder, and dysthymia. Treatment notes dated in 2006 repeatedly detailed that the Veteran had symptoms of PTSD (as evidenced by traumatic experiences of being initiated by Southerners with a stick with axle grease). In a July 2010 VA PTSD examination report, the Veteran described being a victim of racially motivated harassment and sexual assault during service in July 1964. Following the incident, the Veteran reported that his attitude became completely negative, that he had received a number of NJPs, and had never been promoted above a low rank. The examiner, a VA psychologist, reported that this change in attitude and time course of such was verified in the Veteran's service personnel records. After reviewing the claims file and interviewing the Veteran, the examiner listed diagnoses of PTSD, major depressive disorder, panic disorder, alcohol dependence (in sustained full remission), and cocaine dependence (in sustained full remission), opining that the Veteran's PTSD was related to the sexual assault while in the Navy. He further opined, as evident from his review of the claims file, that it was at least as likely as not that the Veteran was sexually assaulted while in the Navy. As discussed above, beginning in 2006, the Veteran was noted to exhibit PTSD symptoms as a result of traumatic in-service experiences, and this diagnosis was confirmed in a subsequent July 2010 VA PTSD examination report. The diagnosis of PTSD due to military sexual assault during service contained in the July 2010 VA PTSD examination report in particular was rendered as a result of the examiner's thorough review of the claims file as well as the Veteran's detailed report of his in-service stressor. It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion can also serve as the credible supporting evidence of the reported stressor. Patton v. West, 12 Vet. App. 272, 280. Indeed, during the pendency of this appeal, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in Menegassi v. Shinseki, No. 2010-7091 (Fed. Cir. Apr. 21, 2011), expressly holding that, in PTSD cases where the alleged in-service stressor is a sexual assault, "under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether occurrence of the stressor is corroborated." Accordingly, the Federal Circuit held that favorable medical opinions that diagnose PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. In this case, after carefully reviewing all the evidence on file, the Board finds no adequate basis to reject the competent lay statements and medical evidence of record that is favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). The evidence is not unequivocal. The fact that the Veteran first filed a claim for service connection for PTSD in January 2006, over 30 years after leaving service, and after filing a claims for pension and other disabilities after separation from service, weighs against his claim. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). However, the Board nevertheless finds that the evidence is at least in equipoise. Given the circumstantial evidence of record corroborating the reported physical assault and military sexual trauma, as well as evidence of record showing a current diagnosis of PTSD related to the claimed assault, the Board finds that the in-service stressor identified by the Veteran has been verified as is necessary to establish a claim for PTSD based on a personal assault pursuant to 38 C.F.R. § 3.304(f). Accordingly, the Board resolves doubt in the Veteran's favor and finds that the evidence supports service connection for PTSD. 38 U.S.C.A. § 5107(b). As such, the appeal is granted. ORDER Entitlement to service connection for a lumbar spine disorder, claimed as DDD of the spine, is denied. Entitlement to service connection for PTSD is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs