Citation Nr: 1331404 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-19 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include a psychosis, depression, generalized anxiety disorder, and posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for an acquired psychiatric disability, however, diagnosed, to include PTSD. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1973 to June 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board notes that the appeal to reopen a claim for service connection for a psychiatric disability developed for certification to the Board has referenced only a diagnosis of PTSD. The record reflects that the prior final adjudication encompassed all then diagnosed psychiatric disabilities, namely a psychosis, depression, anxiety and PTSD. In light of the holding in Clemons v. Shinseki, 23 Vet App 1 (2009), the new and material evidence issue as to a psychiatric disability claim has been expanded to include all such psychiatric diagnoses previously considered. As explained below, the Veteran is not prejudiced in this regard as the claim for service connection for a psychiatric disability is reopened herein, and as such, the benefit sought to that extent is granted in full. The now reopened claim of entitlement to service connection for an acquired psychiatric disability, however diagnosed, to include PTSD, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The claim for entitlement to service connection for a low back disability was denied by an unappealed rating decision in August 2007. 2. Additional evidence received since August 2007 does not raise a reasonable possibility of substantiating the claim for service connection for a low back disability 3. The claim for entitlement to service connection for a psychiatric disability, to include a psychosis, depression, anxiety and PTSD, was denied by an unappealed rating decision in August 2007. 4. Evidence received since the August 2007 rating decision raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, however diagnosed, to include PTSD. 5. The most probative, competent, and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a cervical spine disability that is causally related to active service. 6. The most probative, competent, and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has TBI that is causally related to active service. CONCLUSIONS OF LAW 1. The August 2007 rating decision that denied entitlement to service connection for low back disability has become final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has not been received to reopen a claim for service connection for a low back disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012). 3. The August 2007 rating decision that denied entitlement to service connection for a psychiatric disability, to include a psychosis, depression, anxiety and PTSD, has become final. 38 U.S.C.A. § 7105(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 4. Evidence received since the August 2007 rating decision that denied entitlement to service connection for a psychiatric disability, to include a psychosis, depression, anxiety and PTSD, is new and material; and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 5. A cervical spine disability was not incurred in or aggravated by active military service, nor may arthritis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 6. TBI was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. With respect to a claim of whether new and material evidence has been presented to reopen a claim for service connection, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must notify a veteran of the evidence and information that is necessary to reopen the claim and VA must notify a veteran of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought. The Court also held that VA's obligation to provide a veteran with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, VA to examine the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. VCAA notice should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in February 2009, prior to adjudication, which informed him of the requirements needed to reopen a claim for, and to establish a claim of, entitlement to service connection. The letter informed the Veteran of what evidence and information he was responsible for and the evidence that was considered VA's responsibility. He was letter informed that his claim for service connection for a low back disability was previously denied because the evidence did not show treatment for a low back disability in service or within a year of service discharge. He was informed that the claim for service connection for PTSD was previously denied because medical records did not show treatment or complaints of PTSD, there was no verifiable stressor, and there was no diagnosis of PTSD. See Kent v. Nicholson, 20 Vet. App. 1 (2006). To the extent that the VCAA notice did not reference all psychiatric disabilities that had been the subject of the prior final denial, the Board finds that the Veteran has not been prejudiced in this regard. As the decision herein reopens the claim as to all psychiatric diagnoses, any inadequacy of the VCAA notice is rendered moot and of no effect. In compliance with the duty to notify, the Veteran was informed in the February 2009 letter of the criteria for assignment of a disability rating and/or effective date, in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The Board finds that VA's duty to assist the Veteran has also been satisfied in this case. The record includes the Veteran's available service treatment records, as well as his post service medical records, and the Veteran's lay statements. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not identified any outstanding evidence to obtain. 38 U.S.C.A. § 5103A. In cases, such as the present case, where the claimant's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the claimant in developing facts pertinent to his claim in a case where service records are presumed destroyed includes the obligation to search for alternative medical records and alternative sources of evidence to substantiate the claim. Dixon v. Derwinski, 3 Vet. App. 261 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). According to a January 2006 Formal Finding on the Unavailability of Service Records, unsuccessful attempts were made to obtain the Veteran's service treatment records from the Department of the Navy Records Management Center. Telephone calls and letters to the Veteran informing him of the unavailability of his service treatment records were also noted. According to a March 2007 Formal Finding on the Unavailability of Service Records, an attempt to obtain service treatment records dated from June 17, 1976 to June 17, 1977 from the Long Beach Naval Regional Medical Center did not produce any records. There is evidence on file that letters were sent to the Veteran in January 2006 and March 2007 informing him of the unavailability of his service treatment records. The Veteran was informed in a February 2009 letter from VA of other possible sources of evidence to support his claims, such as lay statements from people who knew him in service. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. VA is not required to provide a medical examination in a new and material evidence case unless it is first determined that the claim is reopened. Although no nexus opinion has been obtained in this case, none is needed. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Because not all of these conditions have been met, as will be discussed below, a VA examination is not necessary. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, an indication that the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. There is no medical evidence of either a cervical spine disability or TBI until many years after service discharge and the evidence indicates that the Veteran did not incur a cervical spine injury or head injury until after a post-service motor vehicle accident. Consequently, the Veteran has not presented evidence indicating a possible nexus between a current condition and service. Thus, there exists no reasonable possibility that a VA examination would result in findings favorable to the Veteran. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Veteran has been given ample opportunity to present evidence and argument in support of his claims. General due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claims Service Connection - General Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2011). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain disabilities, including arthritis, brain hemorrhage, and brain thrombosis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). New and Material Evidence Claims The Veteran seeks to establish service connection for a low back disability and for an acquired psychiatric disability, however diagnosed, to include PTSD. The RO has declined to reopen the claims and has continued the denials issued in a previous final decision. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). In general, unappealed rating decisions are final. See 38 U.S.C.A. § 7104. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, VA must reopen a finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. "If new and material evidence is presented or secured with respect to a claim that has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); see also Knightly v. Brown, 6 Vet. App. 200 (1994). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unsubstantiated fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). There must be new and material evidence as to any aspect of the Veteran's claim that was lacking at the time of the last final denial in order to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In a January 2006 rating decision, the RO denied entitlement to service connection for a back condition because there was no medical evidence of a chronic low back disorder, and denied service connection for a psychosis, depression, anxiety and PTSD because a psychiatric disability was not demonstrated in service, a psychosis was not demonstrated within one year of separation from service, there was no credible evidence of record linking a psychosis, depression, or anxiety to service, no credible evidence of a service stressor and no diagnosis of PTSD. Notice of the determination was issued later that same month. Within one year of notice of the determination, additional evidence was received pertinent to the claims for service connection for a low back disability and a psychiatric disability. As such, those issues were readjudicated in an August 2007 rating decision. See 38 C.F.R. § 3.156(b). In the August 2007 rating decision, the RO continued the denial of service connection for a back condition because there was no medical evidence of a chronic low back disorder in service or for many years after service discharge. The August 2007 decision also continued the denial of service connection for a psychosis, depression, anxiety and PTSD, including because there was no credible evidence of a service stressor and no clear diagnosis of PTSD as opposed to a self-reported history thereof by the Veteran. The Veteran was notified of the decision later in August 2007 and did not timely appeal. As such, that determination is final. 38 U.S.C.A. § 7105. The Veteran filed a claim to reopen the claims for service connection for a low back disability and for PTSD in February 2009; and this appeal ensues from an April 2009 rating decision, which declined to reopen the claims for service connection for a low back disability and for PTSD. Low Back Disability The evidence on file at the time of the August 2007 rating decision consisted of the Veteran's service treatment records and private and VA treatment records dated from August 2004 to May 2007. The only service medical records on file are the Veteran's entrance medical history and medical examination reports, completed in May 1973, which do not contain any complaints or findings of a low back disability. Denver Injury Evaluation and Treatment Center records from August to November 2004 reveal an impression in August 2004 of lumbosacral strain. It was noted that the Veteran had been in a motor vehicle accident on August 5, 2004. It was noted on a VA general medical examination in December 2004 that the Veteran's back was normal. The examiner noted the Veteran reported a history of having sustained lumbar strain in a motor vehicle accident in August 2004. Status post lumbar strain was diagnosed. A VA outpatient mental health treatment note, dated in February 2005, indicates the Veteran and his ex-wife reported that the Veteran's current musculoskeletal problems started after he underwent back surgery in 1999. They further reported that the Veteran had suffered a T-7 fracture while working as a licensed practical nurse (LPN) and had had surgery. It was reported that the Veteran had continued to work after healing from his back surgery until August 2004 when he was involved in a motor vehicle accident. The evidence received by VA since the August 2007 rating decision consists of VA and private treatment records dated from October 2003 to May 2013 and the Veteran's written statements. The assessment provided in an October 2003 report from E. Manring, M.D., was mechanical low back pain postoperative. It was reported in August 2004 records from the Swedish Medical Center that the Veteran had been in a minor motor vehicle accident. He complained of severe neck and back pain. Lumbar spine X-rays dated in August 2004 were reported to be within normal limits. The medical evidence added to the record since August 2007 is new because it had not previously been submitted; however, it is not considered material because the evidence could not reasonably substantiate the claim were it to be reopened. More specifically, the new medical evidence remains devoid of any indication that the Veteran has a chronic low back disability that may be due to service. This evidence does not contain medical evidence dated prior to October 2003, which is 26 years after service discharge. This evidence shows that the Veteran complained of back pain after he was in a motor vehicle accident in August 2004. The new evidence does not include any nexus opinion in favor of the claim. The Veteran's contentions are cumulative of contentions previously on file. For the foregoing reasons, the Board finds that the record does not contain new and material evidence to reopen the claim for entitlement to service connection for a low back disability, and that the claim to reopen must be denied. Acquired psychiatric disability, however diagnosed, to include PTSD The evidence on file at the time of the August 2007 rating decision consisted of the Veteran's service treatment records and private and VA treatment records dated from August 2004 to May 2007. The only service medical records on file are the Veteran's entrance medical history and medical examination reports, completed in May 1973, which do not contain any complaints or findings of a psychiatric disability. A November 2004 letter signed by a private licensed clinical social worker reported the Veteran had been seen that day with significant symptoms of anxiety, depression, and anger, and that he reported a history of PTSD. A VA outpatient treatment note dated in January 2005 reflects the Veteran was diagnosed with major depression, and panic disorder without agoraphobia. The Veteran reported a history of severe childhood abuse, and that he had been suffering from PTSD. The examiner noted that further assessment of that diagnosis was needed. A February 2005 VA outpatient mental health treatment note indicates that the Veteran reported PTSD symptoms from childhood abuse. He also reported a history of military sexual trauma of having been raped while in the Navy. Following mental status examination, the diagnoses included recurrent major depression with psychotic features. A VA health care provider concluded in May 2005 that he was not sure that the Veteran's psychiatric problems clearly met the criteria for PTSD; it was also noted that the current symptoms did not support active PTSD. The examiner thought a better diagnosis was anxiety, not otherwise specified. In an August 2007 VA clinical report, the listed active problems were recurrent major depression, psychotic disorder, not otherwise specified, PTSD and generalized anxiety disorder. The evidence received by VA since the August 2007 rating decision consists of VA and private treatment records dated from October 2003 to May 2013 and the Veteran's written statements. These treatment records continued to reflect the psychiatric diagnoses identified and considered at the time of the August 2007 RO denial, but additionally contain a diagnosis of PTSD, following clinical examination, including in a March 2005 medical report from T. Cucich, M.D., in treatment records dated in December 2008, and in a March 2009 VA Aid and Attendance evaluation. The Board has reviewed the evidence received into the record since the August 2007 RO denial and finds that new and material evidence has been received sufficient to reopen the claim for service connection for an acquired psychiatric disability, however diagnosed, to include PTSD. Evidence received since the August 2007 RO denial is new because it had not previously been received by VA, and it is material because it relates to an element of service connection that was missing at the time of the prior final denial, specifically, that the Veteran has a current clear clinical diagnosis of PTSD. Such raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability, however diagnosed, to include PTSD, as it bears upon one element of a claim for service connection. Therefore, new and material evidence has been received and the claim for service connection for an acquired psychiatric disability, however diagnosed, to include PTSD, is reopened. Cervical spine disability and TBI The Veteran seeks service connection for cervical spine disability and for TBI. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's entrance medical history and medical examination reports, completed in May 1973, do not reveal any complaints or findings of a neck disability or TBI. According to August 2004 treatment records from the Swedish Medical Center, the Veteran was in a minor motor vehicle accident and complained of headaches, neck pain, left ear pain, left shoulder pain, chest pain, and some upper and lower back pain. He was described as a lap belt only restrained driver of a vehicle that was reported to be rear-ended to a complete stop. He said that he was not knocked unconscious. It was noted that, according to the paramedics, there was no reported damage to the vehicle. The Veteran noted a history of T-7 and L-5 surgery but indicated that he had not had any pain in his back over the previous few months. A September 2004 CT scan of the neck from Denver Injury Evaluation and Treatment Center showed mild degenerative spondylosis. The Veteran's August 2004 motor vehicle accident was noted, and it was reported that the Veteran had a head injury with residual depression and memory loss as a result of a motor vehicle accident. On general VA evaluation in December 2004, it was reported that the Veteran incurred cervical strain in a motor vehicle accident in August 2004; status post cervical strain was diagnosed. VA treatment reports for February 2005 reveal that physical findings of a left hemisensory deficit were probably due to a cerebral contusion sustained during a recent motor vehicle accident. The Veteran complained on a March 2007 private CT scan of the neck of cervical pain and left arm numbness status post injury on January 5, 2007. The scan showed multilevel degenerative disc disease and multilevel stenosis. As noted above, despite documented VA efforts to obtain the Veteran's service treatment records, the only service treatment records on file are his entrance medical history and medical examination reports, which do not contain any complaints or clinical findings of a neck disability or brain trauma. The initial post-service medical evidence of either disability was not until after a motor vehicle accident in August 2004. Moreover, it was concluded by the Denver Injury Evaluation and Treatment Center in September 2004 that the Veteran's head injury with memory loss was the result of his motor vehicle accident; and it reported in VA treatment records for February 2005 that the Veteran's left hemisensory deficit was probably due to the cerebral contusion he sustained during his recent motor vehicle accident. There is no medical evidence linking either the Veteran's post-service cervical disability, including degenerative disease, or his TBI to service. The Board acknowledges that service connection may also be established on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), such as the Veteran's degenerative spondylosis (arthritis) of the cervical spine. A veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."(emphasis added)); see38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). A lay person is competent to provide evidence on the occurrence of observable symptoms during and following service. In the present case, the Veteran has asserted that his current cervical arthritis and TBI are the result of a motor vehicle accident in service, with continued problems since service. The Board recognizes that the record reflects that the Veteran has had some medical training as he has an occupational history of having worked as a LPN. Although the Veteran is competent to report symptoms of cervical disability, such as pain, and symptoms of TBI, such as headaches and memory loss, he has not been shown to have the requisite degree of medical training necessary to diagnosis that he has either a cervical spine disability, to include degenerative disease, or TBI, due to service. Laypersons are not competent to provide evidence in certain medical situations, to include in a case involving degenerative disease or TBI. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, the Board does not find the Veteran's contentions to be credible because they are inconsistent with his prior assertions, and are inconsistent with objective clinical evidence of record. There are no complaints or medical evidence on file of a cervical spine disability or of TBI until after the Veteran was in a post-service motor vehicle accident in August 2004. Additionally, he reported on VA evaluation in December 2004 that his cervical strain began after his August 2004 motor vehicle accident; and it was concluded in September 2004 that his head injury was the result of the recent motor vehicle accident. Based on the above, the Board finds that, because all of the requirements for service connection are not shown, the preponderance of the evidence is against the Veteran's claims for service connection for a cervical spine disability and for TBI; and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER New and material evidence has not been received to reopen the claim for service connection for a low back disability. The appeal to reopen this claim is denied. New and material evidence having been received, the Veteran's claim for entitlement to service connection for an acquired psychiatric disability, however diagnosed, to include PTSD, is reopened, and to that extent only, the appeal is granted. Service connection for a cervical spine disability is denied. Service connection for TBI is denied. REMAND The Board has found that new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, however diagnosed, to include PTSD. The Board finds, however, that adjudication of the reopened claim on a de novo basis is inappropriate at this juncture. In Hickson v. Shinseki, 23 Vet. App. 394 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits because the RO should, in the first instance, consider that new evidence, as well as laws and regulations not previously considered, and decide the matter so as to preserve for that claimant the one review on appeal. In the present case, the RO has not "de facto" reopened the claim and/or considered such on the merits de novo. Accordingly, this issue must be remanded to the RO for consideration of such in the first instance on the merits. Accordingly, the case is REMANDED for the following action: Adjudicate the Veteran's reopened claim for service connection for an acquired psychiatric disability, however diagnosed, to include PTSD on a de novo basis, with consideration of the Court's holding in McClain v. Nichols, 21 Vet App 319 (2007) (as to a psychiatric disability diagnosed at any time during the appeal, even if ultimately resolved) and Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013) (considering the application of McClain on a recent diagnosis predating the filing of a claim). If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative, and an appropriate period of time in which to respond. Thereafter, return the appeal to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B , 7112 (West Supp. 2012). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs