Citation Nr: 1307465 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-21 945 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to an evaluation in excess of 20 percent for the service-connected degenerative disc disease (DDD) of the lumbar spine, to include whether a separate rating is warranted for radiculopathy of the left lower extremity. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the VA RO in New York. The Veteran relocated and the Columbia VA RO is now the agency of original jurisdiction (AOJ). In August 2010, a personal hearing was held at the RO before the undersigned Acting Veterans Law Judge, and a transcript of the hearing is of record. In March 2011, the Board reopened the previously denied claim for service connection for PTSD, and remanded the claims to the RO via the Appeals Management Center (AMC) for additional development. The case was subsequently returned to the Board. By a letter to the Veteran dated in December 2012, the Board informed him that his former representative had revoked its representation of him, and asked him if he wanted to appoint another representative. He did not respond. Hence, the Board will proceed with adjudication. The Board is obligated to construe a claim for an acquired psychiatric disorder liberally and thus, the claim for service connection for PTSD has been recharacterized as it appears on the cover page of the instant decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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. Some of the Veteran's claimed in-service stressors have been verified. 2. There is an approximate balance of evidence for and against the claim as to whether the Veteran's current PTSD was incurred during his military service. 3. The Veteran's service-connected degenerative disc disease of the lumbar spine is manifested by some painful limitation of motion; his remaining functional range of motion is significantly better than 30 degrees of flexion; and incapacitating episodes in association with intervertebral disc syndrome as defined by VA are not shown. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the Veteran's current PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012). 2. The criteria for a rating in excess of 20 percent for the service-connected degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating these claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate this claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a SOC or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, a May 2006 letter was sent prior to initially adjudicating the claims for an increased rating for a back disability and the application to reopen the previously denied claim for service connection for PTSD in the August 2006 rating decision on appeal. This letter informed the Veteran of the type of information and evidence required to substantiate these claims and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence, and he was advised of the downstream disability rating and effective date elements of these claims. See Dingess/Hartman, supra. Additional notice was provided in letters dated in May 2008, March 2011, and May 2011. So he has received all required VCAA notice concerning these claims. Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial - meaning outcome determinative of his claims. Thus, absent this pleading or showing, the duty to notify has been satisfied. And as for the duty to assist, the RO obtained the Veteran's available service treatment records (STRs), service personnel records, private medical records, and VA treatment records. VA examinations were conducted in May 2006, March 2009, July 2010, April 2011, and May 2012. Only if the record is inadequate or there is suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination. 38 C.F.R. § 3.327(a) (2012). Here, the most recent VA compensation examinations for the service-connected back disability were done rather recently in July 2010 and April 2011. The mere passage of time since does not, in and of itself, necessitate another examination. Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (discussing this in the alternative context of a claim for service connection). The Board finds that the most recent VA examination is adequate as it provides the information needed to properly rate his disability. 38 C.F.R. §§ 3.327(a), 4.2. The Board previously remanded this case in order for the AMC to attempt to verify the Veteran's claimed stressors, for VA examinations and for VA medical records. The requested remand actions have been completed. The Board is therefore satisfied there was sufficient compliance with these remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board concludes that all the available records and medical evidence have been obtained in order to make a determination as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for PTSD The Veteran seeks service connection for PTSD. He contends that he incurred this disorder due to traumatic experiences in Vietnam. During the pendency of this appeal, the Veteran has reported multiple in-service stressors, in his written statements and hearing testimony, including the following: being attacked by snipers; unit members who died because their chopper was shot down; having to dodge grenades and traps set to blow up his transport; being subject to mortar and rocket attacks nightly while stationed in Long Binh; witnessing a person blown up on a land mine in January or February 1970; his bunker was attacked the first night he landed in Cam Ranh Bay on December 10, 1969; and while picking up his colonel in Saigon, he was ambushed on Highway 1. Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes 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 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). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d). The Board notes that effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2012). If, on the other hand, there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is unrelated to that combat, then there generally must be independent evidence corroborating the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). His testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). That is to say, a stressor cannot be established as having occurred by after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Psychoses will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The term "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder, not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. Under 38 C.F.R. § 4.125(a) (2012), for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). If chronicity (i.e., permanency) of disease or injury in service is not shown, or is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Fed. Cir. February 21, 2013). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In rendering a decision on appeal, the Board must 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. See 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. The medical evidence on file demonstrates that the Veteran has been diagnosed with a psychiatric disorder, including generalized anxiety disorder and PTSD, on VA psychiatric examination in April 2011. Therefore, there is competent medical evidence establishing the Veteran has a current acquired psychiatric disorder, which has been variously diagnosed as noted above. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). But see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). So resolution of his appeal turns on whether any current acquired psychiatric disorder is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). And as to the PTSD claim, even though he has been diagnosed with this disorder, there still has to be confirmation of a stressor in service and attribution of the PTSD diagnosis to that stressor. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Veteran filed a petition to reopen a previously denied claim for service connection for PTSD in April 2006. The Veteran's DD Form 214 reflects that he served in the Army from June 1968 to June 1971, and his primary military occupational specialty was that of a unit and org. supply specialist. He did not receive any combat citations or awards. He served in Vietnam from December 1969 to December 1970. The Veteran's service treatment records show that in September 1968, the Veteran fell on his left knee while running to the chow line. Subsequent service treatment records reflect treatment for complaints of left knee pain. He also injured his left knee falling down the stairs in September 1969, while stationed in Texas. In January 1970, he complained of poor sleeping and dizziness in the morning. The diagnostic impression was job stress. In a February 1971 separation report of medical history, he reported nervous trouble, frequent trouble sleeping, depression, and worry. The reviewing examiner indicated that these complaints were due to nervousness. On separation medical examination in February 1971, the Veteran's psychiatric system was listed as normal, and a psychiatric disorder was not diagnosed. The Veteran's physical profile (PULHES) included S-1 (normal) for the psychiatric system. Service treatment records are negative for any combat wounds and for a diagnosis of a psychiatric disorder. On VA general medical examination in November 1972, a psychiatric evaluation was conducted, and a psychiatric disorder was not diagnosed. The examiner indicated that he had a normal affect. The Veteran reported that he injured his left knee while playing basketball. In March 1973, the Veteran claimed service connection for "nerves." The RO denied service connection for this condition in a March 1973 rating decision. VA outpatient treatment records reflect that in April 1973, the Veteran complained of nervousness; he said he started to shake without any reason. On psychiatric consultation in April 1973, he reported that he saw a psychiatrist several times after returning from Vietnam for complaints of insomnia, restlessness, and episodes of shaking. Currently, he complained of the same symptoms, as well as being short-tempered with occasional loss of control, inability to sleep with vivid nightmares of combat experience, and some anxiety. However, he was able to work. After a mental status examination, the examiner diagnosed acute situational reaction with anxiety. He was referred to the eligibility section for neuropsychiatric treatment. In a June 1977 statement, the Veteran said his nerves were shot and he got the shakes for no reason. VA outpatient treatment records dated in January 1982 reflect that the Veteran complained of nervousness, nightmares, and bad dreams about Vietnam. A January 1982 mental hygiene note reflects that the Veteran reported that he began to have nightmares one month ago. The diagnosis was generalized anxiety disorder. He failed to report for follow-up care. A report of a January 1998 VA psychiatric examination reflects that the Veteran denied seeing much combat because he was in supply. He indicated that he was wounded by rocket and mortar, and said this is when he injured his knee. The examiner felt the Veteran minimized his Vietnam experiences. The Veteran endorsed nightmares, sleeping problems, nervousness, depression, and difficulty concentrating. He said that since he came home from Vietnam, he got the shakes and was quite nervous for no apparent reason. He reported that he had ten children, and his current stressors were his job at the post office and the child support payments for which he was responsible. The examiner opined that the Veteran had an underlying anxiety disorder with panic attacks and PTSD. The diagnoses were anxiety disorder with panic attacks, and PTSD. The examiner noted that the claims file was not available for review. VA medical records dated in 2000 and 2001 reflect a diagnosis of alcohol abuse. A May 2000 VA primary care note reflects that a psychiatric examination was normal. A November 2001 VA outpatient treatment record questioned the diagnosis of PTSD as there were no current reported symptoms or complaints. A May 2002 psychiatric evaluation reflects that the Veteran had a long history of alcohol dependence and had been drinking a pint a day. He stopped abruptly a few days ago and had been feeling shaky and nervous. He had a noticeable tremor and anxious affect. He reported homicidal ideation. The Axis I diagnoses were alcohol dependence and rule out substance induced mood disorder versus depression. He was hospitalized for three days. VA outpatient treatment records dated in 2006 contain diagnoses of PTSD. An April 2006 VA psychiatry outpatient consult note reflects that the Veteran complained of recurrent combat nightmares about Vietnam since he returned. He said he was a heavy alcohol user in the past, but stopped two years ago. After a psychiatric examination, the examiner diagnosed chronic PTSD. A May 2006 VA psychosocial assessment reflects that the Veteran complained of poor sleep, nightmares, intrusive memories, anxiety, and exaggerated startle response. He said his symptoms began as soon as he got home from Vietnam. He said that in Vietnam, his MOS was supply sergeant. He said he was sometimes in the field and sometimes in base camps. He said his base camp was overrun early in his tour of duty, and that one time while traveling they were hit by sniper fire. The social worker indicated that he presented with symptoms of PTSD. In an October 2006 written statement, he reported that he was primarily stationed at Long Binh in Vietnam, and most nights the enemy mortared their camp. An October 2008 VA primary care note reflects that the Veteran reported that he was drinking 1 pint of brandy daily until two weeks ago, when he stopped. A PTSD screen in October 2008 was negative, as was a depression screen. His problem list did not include PTSD, but did include diagnoses of alcohol dependence and alcohol abuse. An October 2009 VA nursing note reflects a negative depression screen and a positive alcohol screen, but the Veteran declined a referral to mental health or substance abuse treatment. Subsequent VA medical records are negative for treatment of PTSD or a psychiatric disorder. In a March 2011 decision, the Board reopened and remanded the claim for service connection for PTSD, partly to attempt to verify the Veteran's reported in-service stressors, to obtain VA medical records, and for a VA examination to determine whether the Veteran has current PTSD that is related to service. On VA psychiatric examination in April 2011, the Veteran reported several traumatic events in service, including being shot at by snipers while crossing a bridge, other unit members dying in a helicopter crash, seeing someone blown up in front of him, and his unit being attacked all the time. He said that during his service in Vietnam, he was fearful on a daily basis that he would be killed and he would have to kill others. He complained of nightmares, daily intrusive thoughts of the traumatic events, flashbacks, and hallucinations. He said he was unable to sleep unless he drank alcohol. He also reported that alcohol kept him calm, and he drank daily. The examiner diagnosed chronic PTSD, and opined that it was more likely than not that the Veteran's claimed stressors were related to his fear of hostile military or terrorist activity. The examiner noted that the claims file was reviewed. In a September 2011 memorandum, the Appeals Management Center stated that the Veteran's reports of mortar and rocket attacks at Long Binh had been corroborated. A VA psychological examination was conducted in May 2012. The examiner stated that the claims file was reviewed. She noted that the Veteran had not received mental health treatment. Psychological testing was conducted, but the examiner indicated that the results were invalid. The Veteran had a very high report of negative symptoms as well as infrequently endorsed symptoms even in clinical population. There was also some inconsistency in the Veteran's reported history when compared with his reported history in his treatment notes. She indicated that the Veteran did not have a psychological test profile that provided a diagnosis of PTSD, and PTSD was not shown. She concluded that at this point, there was no mental health diagnosis for the Veteran based on the psychological evaluation. In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) the Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records. The Board cannot determine lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See also Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (rejecting broad-sweeping, categorical, rejections of lay evidence and testimony without discussing the underlying reasons and bases). But in Buchanan and other precedent cases, the Federal Circuit Court also has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." See, e.g., Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Moreover, for non-combat Veterans providing non-medical related lay testimony regarding an event during service and what has occurred during the years since, Buchanan is distinguishable; the lack of documentation in service records and records since service must be weighed against the Veteran's statements. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The record contains evidence weighing both for and against the claim. Evidence weighing against the claim includes the fact that some PTSD screens have been negative. Moreover, some of his statements have been incredible, specifically his assertion of in-service wounds from mortars and rockets. He asserted that he incurred his current left knee disability from these alleged injuries. However, his service treatment records are negative for such wounds, and moreover, show that he hurt his knee while running for the chow line and again after falling down the stairs. He has not received any combat citations, to include the Purple Heart, and he has at times denied combat service. Such contradictions weigh against the credibility of these statements. The May 2012 VA psychological examiner found no current psychiatric disorder, due to invalid test results and inconsistencies in the Veteran's reported history. Evidence weighing for the claim includes the Veteran's episodic reports of nervousness and shakiness, and sleep impairment for many years, even at the time of service separation, although the evidence suggests that some of these symptoms may be related to non-service-connected alcohol abuse. Additionally, the Veteran has been diagnosed with generalized anxiety disorder in the past, and more recently with PTSD. Although the May 2012 VA psychological examiner found that no psychiatric disorder could be diagnosed due to the invalid results of the Veteran's psychological testing, the April 2011 VA examiner reviewed the claims file and diagnosed chronic PTSD, and opined that it was more likely than not that the Veteran's claimed stressors were related to his fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3). The VA examiner is competent to render such an opinion. Moreover, she reviewed the file, including prior relevant examinations, although she did not provide a supporting rationale for her positive nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). In view of the totality of the evidence, and bearing in mind the benefit-of-the-doubt rule, the Board finds that the evidence of record is at least in equipoise, and PTSD was as likely as not incurred during his service. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Consequently, service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert, 1 Vet. App. at 49. Increased Rating for a Service-Connected Low Back Disability The RO has rated the Veteran's service-connected low back disability as 20 percent disabling throughout the rating period on appeal, under Diagnostic Code 5242, pertaining to degenerative arthritis of the spine. The RO has characterized this disability as degenerative disc disease of the lumbar spine. The Veteran contends that his low back disability is more disabling than currently evaluated. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is appropriate for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Note (1) requires consideration also of any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, backward extension from zero to 30 degrees, left and right lateral flexion (side bending) from zero to 30 degrees, and left and right lateral rotation (twisting) from zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, backward extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Note (4) provides that each range of motion measurement is rounded to the nearest five degrees. Having carefully considered the Veteran's contentions in light of the evidence of record and applicable law, and for the reasons and bases discussed below, the Board finds that his low back disability is appropriately evaluated as 20 percent disabling throughout the rating period on appeal. On VA spine examination in May 2006, the Veteran complained of low back pain. He denied treatment or flare-ups. He reported left foot numbness at times. He walked unaided, and said he could walk one to one and one-half blocks. He said he was frequently unsteady. On examination, range of motion of the thoracolumbar spine was from 0 to 60 degrees, with pain at 50 degrees. Extension was from 0 to 10 degrees, with pain at 10 degrees. Left and right lateral flexion was to 20 degrees bilaterally, and left and right lateral rotation was to 20 degrees bilaterally. There was pain on motion to the right, at the end of the range of motion. There was intermittent low back pain. There was tenderness at the right lumbosacral paraspinals, with no spasm or weakness. There was straightening of the lumbar lordosis. A neurological examination was performed. Sensation was intact, motor strength was 5/5 bilaterally, reflexes were symmetrical, and Lasegue's sign was negative. There were no incapacitating episodes in the past 12 months. The examiner noted that a 2002 magnetic resonance imaging (MRI) scan of the lumbosacral spine showed degenerative disc disease at L4-5 and L5-S1. The diagnosis was degenerative disc disease of the lower thoracic spine and lower lumbosacral spine. In a May 2006 VA brain and spinal cord examination, the Veteran complained of low back pain with occasional left lower extremity numbness and radicular pain in the left and less often in the right leg. He denied weakness. He had degenerative joint disease of the knees. On examination, strength was 5/5, except for left extensor hallucis longus/anterior tibialis which was 4/5. Deep tendon reflexes were 2 bilaterally throughout. Sensation to touch and pinprick was OK, and heel-toe walk was OK. There was no atrophy, and gait was normal. The examiner indicated that there was full lumbosacral range of motion for extension and lateral rotation, but flexion was limited to 80 degrees. The diagnosis was lumbosacral spondylosis with bilateral radiculopathy and left lower extremity weakness. In his June 2007 VA Form 9 (substantive appeal), the Veteran reported that he had frequent low back pain and limitation of motion. He said it affected his ability to walk and he had pain from his hip down through his left leg, all the way to his foot. On VA spine examination in March 2009, the Veteran complained of worsening back pain, with a severity of 9/10. He reported occasional flare-ups occurring one to two times per week lasting approximately a day. He reported that the pain radiated to the groin, his back and his neck. He denied any incapacitating episodes in the past 12 months. He said he retired from the post office in July 2008 due to back pain, after 27 years there. He said his back pain caused difficulty sitting, lifting and walking. He denied using any assistive devices. On examination, thoracolumbar flexion was to 60 degrees, extension was to 15 degrees, right lateral flexion was to 30 degrees, left lateral flexion was to 20 degrees, and right and left rotation was to 30 degrees, all with end-range pain. Range of motion was not additionally limited following repetitive use. He did not have any palpable spasms or tenderness to palpation. Straight leg raising was negative bilaterally. A neurological examination showed normal strength and sensation in both lower extremities, and reflexes were 2+ bilaterally at the knees and ankles. The diagnosis was degenerative disc disease of the lumbar spine. The examiner opined that actual functional impairment occurred at the end of the range of motion described above. A March 2009 X-ray study of the lumbosacral spine showed a transitional sixth lumbar vertebra, mild retrolisthesis of L6, facet hypertrophy, normal height vertebrae and disc spaces, and intact pedicles. On VA peripheral nerves examination in July 2010, the Veteran complained of low back pain. He did not describe any radiation into a nerve root distribution. He said that his pain was worsened by sitting for a long time, walking, climbing or standing. A motor examination showed normal muscle mass, tone, strength, station, gait and coordination. Tendon reflexes were symmetrical and there were no pathological reflexes. Sensation was intact to monofilament, light touch and vibratory sense. The diagnosis was chronic lumbosacral back pain without radiculopathy or neuropathy. At an August 2010 Board hearing, the Veteran testified that his back pain was worse. He stated that a doctor told him to rest in bed in 2000, but not in the past two or three years. He said he had left knee and back pain, and sometimes had pain down into his left foot, as well as numbness of the foot. Subsequent VA outpatient treatment records reflect episodic treatment for low back pain. A July 2010 VA outpatient treatment record reflects that the Veteran complained of chronic low back pain without radiation. An August 2010 note reflects that an area of concern in the lumbar spine appeared normal on a bone scan. In January 2011 he was treated for lumbar back pain and muscle spasms. On VA spine examination in April 2011, the examiner stated that the claims file was available for review. The Veteran complained of low back pain, and said it could reach the level of 10/10. It occasionally radiated to his groin area. He could not walk farther than one block without stopping to rest. He denied a history of incapacitating episodes. He said he was retired. He reported that his back pain affected his activities of daily living, and he had trouble with prolonged standing. He said flare-ups occurred two to three times per week and lasted a few hours. On examination, range of motion was as follows: forward flexion to 80 degrees, which decreased to 50 degrees with repetition, extension to 5 degrees which was unchanged after repetition, right lateral flexion to 15 degrees, left lateral flexion to 30 degrees, and right and left rotation to 5 degrees, which was unchanged after repetition. He reported pain throughout lateral flexion, and pain at the terminal points of flexion and extension. He had palpable spasm in the right paraspinal musculature, and tenderness to palpation at L5. Straight leg raising was negative. It did induce pain in the left leg over the knee on the left, and low back pain on the right. Motor examination showed 4/5 strength in the left quadriceps and hamstring; other muscles had full strength. Deep tendon reflexes were 2+ patellar and Achilles. Sensation was normal, and gait was within normal limits. The diagnosis was lumbar spondylosis without evidence of lumbar radiculopathy. It did appear to increase in severity with repetition. In order to be entitled to the next-higher 40 percent rating for orthopedic manifestations under Diagnostic Codes 5242, the evidence must show that the forward flexion of the thoracolumbar spine is restricted to 30 degrees or less; or, that there is favorable ankylosis of the entire thoracolumbar spine. The Board finds no support for a 40 percent rating under Diagnostic Code 5242 based on the orthopedic manifestations of the Veteran's low back disability. Indeed, the Veteran's April 2011 VA examination revealed forward flexion of the lumbar spine to no worse than 50 degrees, after repetition, and he could forward flex to 80 degrees, prior to repetition. Ankylosis was not shown. Even considering additional functional limitation due to factors such as pain and fatigue, the overall evidence does not indicate a disability picture comparable to the criteria for the next-higher 40 percent evaluation during the rating period on appeal. The objective findings show forward flexion well in excess of 30 degrees, with no ankylosis. Although some limitation of function has been demonstrated, such is found to be appropriately contemplated in the 20 percent evaluation currently in effect. The Board has also considered whether an increased rating is warranted via application of Diagnostic Code 5243, concerning intervertebral disc syndrome. That code section provides that intervertebral disc syndrome may be rated under the general rating formula for diseases and injuries of the spine, outlined above, or it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. The rating criteria for intervertebral disc syndrome based on incapacitating episodes provides for a 20 percent rating where the evidence demonstrates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the last 12 months. A 40 percent rating applies where the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. Note (1) to Diagnostic Code 5243 defines an "incapacitating episode" as "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 evidence here does not establish incapacitating episodes, as defined by Note 1 to Diagnostic Code 5243, at any time during the appellate period. Such episodes have not been shown, and the Veteran has denied having such episodes at his VA examinations. As such, Diagnostic Code 5243 cannot serve as a basis for an increased rating on the basis of incapacitating episodes at any time during the appellate period. There are no other relevant code sections for consideration. While the Veteran has reported subjective complaints including pain, the objective medical findings on examination are of greater probative value than his allegations regarding the severity of his lumbar spine disability. The 20 percent rating already in effect makes provision for his pain, and most of the other relevant factors in rating his disability, including the measurement of his range of motion, whether he has associated neurological manifestations, etc., are based on objective testing and the results. In sum, there is no basis for a rating in excess of 20 percent throughout the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Other Considerations The Board has also considered whether a separate evaluation is warranted for neurological symptoms associated with the Veteran's service-connected degenerative disc disease of the lumbar spine throughout the rating period on appeal. In this regard, as discussed above, Note (1) of the general rating formula instructs the rater to separately evaluate any associated objective neurological abnormalities under an appropriate diagnostic code. In the present case the Board notes that the medical evidence of record reveals no chronic neurological abnormalities due to the service-connected low back disability. Although some records show slightly decreased strength in the left leg, several subsequent neurological examinations of the lower extremities were normal. Specifically, strength, sensation and reflexes were normal in the lower extremities, and straight leg raise was negative on every examination. On VA neurological examination in July 2010, the diagnosis was chronic lumbosacral back pain without radiculopathy or neuropathy. Similarly, the April 2011 VA examiner diagnosed lumbar spondylosis without evidence of lumbar radiculopathy. Given the foregoing, the overall evidence reveals an essentially normal neurologic disability picture throughout the entire rating period on appeal. Accordingly, assignment of a separate evaluation for neurologic manifestations of the low back disability is not warranted here. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's low back disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability (i.e., pain, limited motion, and spasm) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER Service connection for PTSD is granted, subject to the statutes and regulations governing the payment of VA compensation. An increased rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. ______________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs