Citation Nr: 1401774 Decision Date: 01/14/14 Archive Date: 01/31/14 DOCKET NO. 09-35 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for patellofemoral syndrome, right knee. 2. Entitlement to an increased disability rating in excess of 10 percent for patellofemoral syndrome, left knee. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) and depression, and if so, whether the reopened claim should be granted. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder, to include as secondary to a service-connected disability, and if so, whether the reopened claim should be granted. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a thoracic spine disorder, to include as secondary to a service-connected disability, and if so, whether the reopened claim should be granted. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hydromyelia of the cervical spine, to include as secondary to a service-connected disability, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and her mother ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active duty training from September 1999 to January 2000, with additional days of active duty for training and inactive duty training throughout February 2000 to June 2000. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which continued 10 percent disability ratings for the Veteran's left and right knee patellofemoral syndrome, and denied reopening the Veteran's claim of entitlement to service connection for PTSD. The Veteran submitted a Notice of Disagreement (NOD) with these determinations in February 2009, and timely perfected her appeal in September 2009. Subsequently, the RO recognized additional claims filed by the Veteran in November 2009 including a claim seeking service connection for a low back disorder notwithstanding the fact that that issue was already before the Board. In a November 2009 rating decision, the RO denied reopening the Veteran's claims of entitlement to service connection for low back, thoracic spine, and cervical spine disabilities. The Veteran filed an NOD with these determinations in December 2009. Meanwhile, in an April 2010 decision, the Board denied service connection for a low back disorder. Then, in an October 2012 statement of the case, the RO reopened the back, thoracic, and cervical spine disabilities claims but denied the claims on the merits. The Veteran timely perfected her appeal in November 2012. The Veteran was afforded a Video Conference Hearing before the undersigned in March 2013. A written transcript of that hearing was prepared and incorporated into the evidence of record. After the RO issued the final statement of the cases (SOC) in September 2009 for the issues of increased ratings for left and right knee disabilities and service connection for PTSD, and in October 2012 for the issues of low back, thoracic spine, and cervical spine disabilities, and after the appeal was transferred to the Board, the Veteran submitted additional evidence pertinent to the appeal. VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a SOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2010). In a July 2013 statement, the Veteran's representative stated that the Veteran waived review by the agency of original jurisdiction (AOJ). Appellate review may proceed. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to service connection for hydromyelia of the cervical spine and increased ratings for bilateral knee patellofemoral syndrome are addressed in the REMAND portion of the decision below and are REMANDED to Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a back condition was last finally denied in an April 2010 Board decision. 2. The evidence associated with the claims file subsequent to the April 2010 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back condition, and does not raise a reasonable possibility of substantiating the claim. 3. The Veteran's claim of entitlement to service connection for PTSD and depression was previously denied in a July 2006 RO rating decision (with continuance of the denial in a July 2007 statement of the case). The Veteran was notified of that decision, but did not file a timely Substantive Appeal. 4. The evidence associated with the claims file subsequent to the July 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PTSD and depression, and raises a reasonable possibility of substantiating the claim. 5. The Veteran's claims of entitlement to service connection for thoracic and cervical spine disabilities were previously denied in a January 2007 RO rating decision. The Veteran was notified of that decision, but did not file a timely Substantive Appeal. 6. The evidence associated with the claims file subsequent to the January 2007 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hydromyelia of the cervical spine, and raises a reasonable possibility of substantiating the claim. 7. The evidence received since the January 2007 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a thoracic spine disability. 8. The Veteran did not engage in combat with the enemy. 9. The Veteran's claimed in-service stressors have not been corroborated; therefore, any current diagnosis of PTSD is not based on a verified stressor. 10. There is competent and credible medical evidence that shows that the Veteran's diagnosed depressive disorder NOS is caused at least in part by her service-connected left and right knee patellofemoral syndrome. CONCLUSIONS OF LAW 1. The April 2010 Board decision that denied the Veteran's claim of entitlement to service connection for a back condition is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2013). 2. Evidence received since the final April 2010 determination wherein the Board denied the Veteran's claim of entitlement to service connection for a back condition, is not new and material, and the Veteran's claim for that benefit is not reopened. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2013). 3. The July 2006 rating decision that denied the Veteran's claim of entitlement to service connection for PTSD and depression is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2013). 4. Evidence received since the final July 2006 determination wherein the RO denied the Veteran's claim of entitlement to service connection for PTSD and depression, is new and material, and the Veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002 & West 2012); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103 (2012). 5. The January 2007 rating decision that denied the Veteran's claims of entitlement to service connection for cervical and thoracic spine disabilities is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012). 6. Evidence received since the final January 2007 determination wherein the RO denied the Veteran's claim of entitlement to service connection for a cervical spine disability, is new and material, and the Veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002 & West 2012); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103 (2012). 7. Evidence received since the final January 2007 determination wherein the RO denied the Veteran's claim of entitlement to service connection for a thoracic spine disability, is not new and material, and the Veteran's claim for that benefit is not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002 & West 2012); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103 (2012). 8. The criteria for a grant of service connection for an acquired psychiatric disorder, to include PTSD, but other than depressive disorder NOS have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 9. The criteria for a grant of service connection for depressive disorder NOS have been met. 38 U.S.C.A. §§ 1110, 1133, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, the duty to notify was satisfied by way of letters sent to the Veteran in November 2007, January 2008, and September 2009 that fully addressed the aforementioned notice elements and was sent prior to the initial AOJ decision in these matters. The letters informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. The letters also completely satisfied the notice criteria for new and material evidence claims, in that the Veteran was informed on how to reopen a previously denied claim and informed of why her claims were previously denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). Additionally, the November 2007 and September 2009 letters provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to her claims for benefits, such as obtaining VA and private medical records pertinent to the period under review. The file contains a February 2008 letter from the Department of the Army in Honolulu, Hawaii. The Veteran's records indicated that she was present for initial active duty training from February 5-6, 2000; March 11-14, 16, 20, 21, and 23, 2000; April 1-2, 2000; May 6, 2000; June 3-4, 2000; and 13 days of active training orders beginning April 10 in Taegu, Korea. Additionally, it was indicated that they had no records of any treatment for the soldier received while assigned to 322d Civil Affairs Brigade. Additionally, a September 2008 note in the file states that Tripler Army Medical Center called to report in response to the RO's request for medical records. They stated that they had no medical records related to the Veteran. Also, proper attempts were made to verify the Veteran's claimed stressors. The Veteran was subsequently provided an opportunity to submit additional evidence relevant to her claims. The record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). As already indicated, in March 2013, the Veteran was provided an opportunity to set forth her contentions during a hearing before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a 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. Here, the undersigned noted the issues on appeal and solicited information regarding the occurrence of injuries and onset and nature of her symptomatology. The Veteran noted her desire to limit her testimony to the issues of whether new and material evidence had been submitted to reopen the claims of service connection for a low back disorder, a thoracic spine disorder, and hydromyelia of the cervical spine. The Veteran was advised of what other types of evidence would help to substantiate her claims, such as providing a connection between her claimed disabilities and service. Therefore, not only were the issues "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. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. II. New and Material Evidence The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD and depression, hydromyelia of the cervical spine, a thoracic spine disability, and a low back disability. The Board last denied the Veteran's claim of entitlement to service connection for a back condition in a decision dated in April 2010. The decision is final. Additionally, the RO last denied the Veteran's claim of entitlement to service connection for PTSD and depression in a decision dated July 2006. The Veteran did not appeal the decision and as such, it is final. 38 U.S.C.A. § 7103(a); 38 C.F.R. § 20.1103. Further, the RO last denied the Veteran's claims of entitlement to service connection for cervical and thoracic spine disabilities in a decision dated January 2007. The Veteran did not appeal the decision and as such, it is final. 38 U.S.C.A. § 7103(a); 38 C.F.R. § 20.1103. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, No. 08-3548 (Vet. App. Nov. 2, 2010). Initially, it is noted that the evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet.App. 271 (1996). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. In the recent case of Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." A. Back Condition The Veteran's claim of entitlement to service connection for a back condition was last denied in an April 2010 Board decision. The claim was denied as there was, among other things, no evidence that the Veteran's back condition was incurred in or was aggravated by service. The evidence of record at the time of the April 2010 Board decision included contentions from the Veteran that her lumbar spine disability was the result of her basic training and that her low back disability was secondary to her service-connected bilateral knee disabilities. Medical evidence of record included a VA examination report dated in April 2005. The examiner noted that the Veteran had low back pain. She gave a history of having two herniated discs. The examiner stated that the Veteran did not have severe injuries to either foot or knee causing antalgia that would significantly aggravate her back. In addition, herniated discs were not caused by lower extremity problems. Severe antalgia at the lower extremities might contribute to degenerative joint disease in the low back under certain circumstances, but this did not apply to the Veteran according to the VA examiner. The Veteran reported that since her training, she had seen countless doctors for her back condition. Private treatment records showed diagnoses of disk herniation at L4-L5, degenerating disk at L4-L5, and mild hypertrophic degenerative change of the lower lumbar facets. A January 2006 Rehabilitation Medicine record noted that that the Veteran had central disk protrusion at L4-L5 causing mild thecal sac compression and no sign of demyelination at any level. The Veteran was afforded another VA examination in June 2006. The examiner noted that regarding her low back pain, onset was years after separation from the service and she had no back injuries and no back complaints while in the service. Her primary lower back and lower extremity pain syndrome was related to her back and was not as likely as not related to the service. Previously considered evidence also included a January 2010 statement from the Veteran's private physician in which he noted the details of the Veteran's training, to include 15-mile marches, multiple sit-ups, three mile runs every other day, push-ups with a backpack on, and a 200 yard low crawl under tracer and live fire. During overnight field actions, she was wearing a 50 to 55 pound backpack and carrying a rifle weighing an estimated 7 to 8 lbs. She also carried a waist pack with four ammunition magazines and two full canteens. During her basic training, she began to experience pain in both lower extremities at her feet and ankles, and at both knees. The Veteran was diagnosed with L4-5 herniated nucleus pulposus with right lateralization, and chronic lumbosacral and lower extremity radiculopathy. The physician noted that the Veteran's back diagnoses developed as a direct consequence of her in-service activities. At 5'4" tall, 130 lbs., she was required to perform activities, which exceeded the strength and resiliency of the intervertebral structures, particularly the subchondral bony end plate and annulus of the vertebral discs at the L4-5 level. Peripheral annular tears developed over the periods of time from her service time through to the present. She had developed a large intervertebral disc herniation causing ongoing radicular pain patterning in both lower extremities. Her primary diagnosis was intervertebral disc herniation and her lower extremity symptoms during her time in-service primarily reference that condition. The physician concluded that there was a direct causal nexus to her present diagnosis of L4-5 disc herniation with radiculopathy, and injuries sustained during her active duty. Evidence associated with the claims file after the April 2010 Board decision consists of testimony from the Veteran and her mother at the Board hearing in March 2013 in which the Veteran reported the onset of her back pain starting around 2000. She indicated that she did not seek care at that point. When she went back home, she started seeking treatment from a Chiropractor. Records from the Social Security Administration (SSA) indicated that the Veteran was disabled due in part to her low back disability. Additional private treatment records that continued to note the presence of the low back disability were associated with the claims file. Crucially, while the foregoing evidence is new in that it was not previously of record, it is not material. The lay statements are cumulative and redundant of statements and contentions previously considered by the Board. The SSA and private treatment records are cumulative and redundant of evidence showing the presence of a chronic low back disability previously considered by the Board. Thus, the evidence does not raise a reasonable possibility of substantiating the claim. There is no new evidence that shows that the Veteran's low back disability is due to service or service connected disability. Therefore, the Board must find that new and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disability. B. PTSD and Depression The Veteran's claim of service connection for PTSD and depression was last denied in a July 2006 rating decision. At the time of the decision, the evidence of record consisted of the Veteran's service treatment records, private treatment records, and lay statements. Subsequently, private treatment records, a private physician statements, hearing testimony, and lay statements have been associated with the claims file. The claim was denied as there was, among other things, no evidence of a diagnosis of PTSD based on a verified stressor and there was no evidence that showed depression in service. The evidence submitted subsequent to the July 2006 decision is new, in that it was not previously of record and is also material. Presumed credible, the additional evidence received since the July 2006 decision, includes a December 2009 private treatment record that noted diagnoses of PTSD, major depressive disorder, and "Victim of Physical, Sexual, Emotional, and Verbal Abuse" on Axis I. Additionally, the Veteran's private physician stated in May 2013 that her depression is in part due to her service-connected bilateral knee disability. Kent v. Nicholson, 20 Vet.App. 1, 10 (2006). Accordingly, new and material evidence has been received, and the claim is reopened. C. Thoracic and Cervical Spine The Veteran's claims of entitlement to service connection for thoracic and cervical spine disabilities were last denied in a January 2007 rating decision. At the time of the decision, the evidence of record consisted of the Veteran's service treatment records, private treatment records, a VA examination report, and lay statements. Subsequently, private treatment records, private physician statements, hearing testimony, and lay statements have been associated with the claims file. The claim of entitlement to service connection for cervical spine hydromyelia was denied as there was, among other things, no evidence that the Veteran's cervical hydromyelia was incurred in-service, resulted from her lower extremity complaints, or due to Anthrax vaccinations. The evidence submitted subsequent to the January 2007 decision in reference to the Veteran's cervical spine disability is new, in that it was not previously of record and is also material. Presumed credible, the additional evidence received since the January 2007 decision, such as the Veteran's hearing testimony, suggests that the Veteran's cervical spine pain started in-service from pushups and sit-ups. Kent v. Nicholson, 20 Vet.App. 1, 10 (2006). The claim of entitlement to service connection for a thoracic spine disability was denied as there was, among other things, no evidence of a diagnosis of a thoracic spine disability, which incurred in-service, resulted from Anthrax vaccinations, or secondary to her lower extremity disabilities. The Board further finds that although the evidence received since the January 2007 decision is "new," in that the records were not previously seen, these VA and private treatment records are not material to the claim of entitlement to service connection for a thoracic spine disability, since they are merely cumulative of medical and lay evidence previously considered by the RO. More importantly, they do not raise a reasonable possibility of substantiating the claim, in that they do not suggest that the Veteran has a current diagnosis of a thoracic spine disability that was incurred during service. Specifically, a December 2010 MRI of the thoracic spine showed no significant findings of the thoracic spine. There was normal alignment of the thoracic vertebrae without subluxation or compression deformity. There were no areas of abnormal signal intensity identified throughout the thoracic vertebrae or thoracic spinal canal or spinal cord. There were also no areas of disc herniation indentified and no findings of stenosis or impingement. Further, there were no significant arthritic changes throughout the thoracic disc levels. Additionally, December 2010 x-rays of the thoracic spine were unremarkable. The Veteran testified at the March 2013 hearing. She did not specifically reference a thoracic spine disability. Additionally, while she did reference the January 2010 private physician letter discussing her back disability, the physician only discussed and gave an etiology opinion for the Veteran's lumbar spine disabilities, to include L4-5 herniated nucleus pulposus with right lateralization and chronic lumbosacral and lower extremity radiculopathy. Additionally, the Veteran's treating physician that has treated her for her lumbar and cervical spine conditions has never diagnosed the Veteran with a thoracic spine disability, or rendered an etiology to any thoracic spine condition. Moreover, it was noted at the hearing that the Veteran's back disabilities were secondary to her service-connected knee disabilities. However, this assertion was already well-established at the time of the previously denied January 2007 rating decision. Therefore, this assertion of secondary service connection is merely duplicative of evidence already of record. In summary, evidence received since the January 2007 rating decision again establishes that the Veteran believes that she has a thoracic spine disability that is due to active duty training or secondary to her service-connected disabilities. However, this fact was well-established previously. The Veteran has not provided any new evidence showing a diagnosis of any thoracic spine disability, and she has not provided VA with any additional evidence to trigger VA's duty to assist her in obtaining a VA examination. See Shade, 24 Vet. App. at 117. As such, the request to reopen a claim of entitlement to service connection for a thoracic spine disability is denied. On the other hand, the evidence submitted since the final July 2006 and January 2007 decisions relate to an unestablished fact necessary to substantiate the claims of entitlement to service connection for PTSD, depression, and cervical spine disability, and raise a reasonable possibility of substantiating the claims. Accordingly, the Board finds that the claim of entitlement to service connection for PTSD, depression, and a cervical spine disability are reopened. III. Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, she can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. See 38 C.F.R. § 3.310(a) (2012). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a), (d) (2012). Active duty training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). Inactive duty training is defined as duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(d) (2012). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty training, or from injury incurred or aggravated while performing inactive duty training. 3 8 U.S.C.A. §§ 101(24), 106, 1110 (West 2002 & Supp. 2012). However, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. A. Acquired Psychiatric Disabilities The Board finds that there is no prejudice to the Veteran in proceeding to decide this issue on the merits. See Bernard v. Brown, 4. Vet. App. 384 (1993). Given the facts of the case, the evidence already of record, and the development already conducted by the RO, there is no further duty to assist the Veteran in substantiating her claim. The Veteran has reported that her acquired psychiatric disabilities, to include PTSD and depression were due to humiliation and harassment by drill sergeants, and seeing several people injured and who died during active duty training. Additionally, her depression has been noted to be a result of her service-connected bilateral patellofemoral syndrome. In April 2006, the Veteran reported multiple in-service stressors. During training activity, including rope climbing and side jumping logs, her platoon had to climb under barbed wire and was being timed because they were competing against the other platoons for a flag. A fellow trainee, Hold, hit his leg and it got caught between some logs. When he got up his leg snapped. He broke his lower right leg bone in half. Another trainee, Wakely, sprained her ankle in the same training course and it looked like someone stuck half of a softball under her skin. Another incident occurred after returning from Christmas and New Years leave. When she went back to base, she had to undergo a urine test. A fellow trainee could not go and was then PT'd for two hours until she dropped on the floor. She was pronounced dead of an enlarged heart. Additionally, she witnessed a new recruit drop 50 feet during basic training when he did not correctly put his Swiss Seat (made out of rope) on correctly. She reported that he died on impact from the fall. She also reported that another girl had a shrapnel cap explode in her face when they were practicing grenade throwing. Of record is a July 2007 CURR request response noting that they coordinated their research with the U.S. Army Combat Readiness Center, Fort Rucker, Alabama. They were able to document two ground incidents in the State of South Carolina during the period of October 1 to October 31, 1999. However, no fatalities were reported. They were unable to locate records that documented the training incident and cardiac condition as described by the Veteran in October 1999. They were unable to document casualties of the U.S. Army Casualty Database during October 1999. In order for them to conduct meaningful research concerning casualties, the Veteran must provide them with the full names of the casualties. Additionally, the file contains an April 2008 formal finding of a lack of information sufficient to corroborate stressors associated with a claim of service connection for PTSD. It was determined that the information required to corroborate the stressful events described by the Veteran was insufficient to allow for meaningful research by the U.S. Army and Joint Services Records Research Center, U.S. Marine Corps, or National Archives and Records Administration. All efforts to obtain the needed information from the Veteran had been properly followed in accordance with VA Manual M21-1MR.IV.ii.1.D.15.n. Evidence of all written and telephonic efforts to obtain the records were in the file. All efforts to obtain the needed military records had been exhausted; any further attempts would be futile. VA treatment records show diagnoses of anxiety, depression, and mild borderline personality disorder. In a May 2008 VA psychiatry note, the physician stated a diagnosis of PTSD, childhood trauma related. A December 2009 private psychiatric evaluation noted diagnoses of Major Depressive disorder, PTSD, and victim of physical, sexual, emotional, or verbal abuse on Axis I. The examiner does not specifically link the diagnoses to the alleged stressor events in military service. At the March 2013 hearing, the Veteran reported that she pushed herself in basic training because she couldn't handle the ridicule about how she was not as good as the other soldier next to her because she was a woman. She reported that she had a mental breakdown, and told her Sergeant she could not do the training. She reported that she told her Drill Sergeant about her physical problems and was told to stop whining and get out of his office. Additionally, she reported that she was told to go home because women were weaker than men. The Veteran underwent a private psychiatric consultation in May 2013. The physician noted the Veteran's psychiatric and medical history. The Veteran was diagnosed with PTSD and Depressive Disorder. By history, she was exposed to significant stressors during her military service. She believed that during her deployment to Korea, she experienced the death of several civilians because of the deployment by the Army of Anthrax poison. However, at times during the interview, the Veteran seemed to be confused about the Anthrax incident and whether it was based in reality or represented material from her dreams. The physician noted that one of her medical records described her as delusional. Another stressful experience involved the death of fellow soldiers during Basic Training, one from a fall and one from a collapse. Any one of these incidents, if accepted as a fact, would qualify under Criterion A for a diagnosis of PTSD based on DSM-IV Criteria. She also met Criteria B through D. Her other diagnosis of Axis I was Depressive Disorder NOS. This condition probably arose at least, in part, from her service-connected knee injuries and their attendant limitation of function and chronic pain. a. PTSD Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy" as established by official records. If VA determines that the Veteran engaged in combat with the enemy and an alleged stressor is combat-related, then the Veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required providing that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, the Board notes that, effective July 13, 2010, the regulations governing service connection for PTSD were amended to relax the adjudicative evidentiary requirements for determining what happened in service where the Veteran's claimed stressor is related to "a fear of hostile military or terrorist activity during service." Specifically, the new 38 C.F.R. § 3.304(f)(3) provides that, if a stressor claimed by a Veteran is "related to the 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 1) adequate to support a diagnosis of PTSD, and 2) that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances 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)(3). Moreover, the amendment provides that, "fear 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. Id. As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy. The Veteran's DD-214 notes active duty training from September 1999 to January 2000. The claims file contains a February 2008 letter from the Department of the Army in Honolulu, Hawaii. The Veteran's records indicated that she was present for active duty training from February 5-6, 2000; March 11-14, 16, 20, 21, and 23, 2000; April 1-2, 2000; May 6, 2000; June 3-4, 2000; and 13 days of active training orders beginning April 10 in Taegu, Korea. The Veteran's active duty training records do not indicate that the Veteran engaged in combat (e.g., no combat awards or decorations). Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. In the present case, the Board finds that the weight of the probative evidence is against the claim of service connection for PTSD, for the reasons set out below. The Veteran contends that she has a diagnosis of PTSD that is based upon stressful events in service. As noted above, the Veteran's stressors include witnessing fellow trainees in her platoon suffer injuries and death during basic training, and deaths of civilians from exposure to Anthrax. Additionally, she reported verbal abuse from her Drill Sergeant for being a woman in the service. The Veteran's service treatment records do not indicate that she suffered from any acquired psychiatric disability, including PTSD, while in service. Significantly, the Veteran served on active duty training and the service treatment and personnel records from the period contain absolutely no suggestion of any psychiatric problem, behavioral abnormality, or traumatic event. As aforementioned, the Veteran has been shown to be a non-combat Veteran as there is no evidence that she actually engaged in combat with the enemy. Thus, as a non-combat Veteran, a veteran's lay statements alone are not sufficient to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the record must contain service records or other corroborative evidence substantiating the Veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). To this end, VA was not able to corroborate and verify the Veteran's alleged stressors, and an April 2008 formal finding was issued to this effect after thorough efforts were undertaken, as noted above. Thus, without a credible, verified stressor in this case, the Veteran fails to meet the criteria for establishing service connection for PTSD. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). The medical and lay evidence of record show that the Veteran has a PTSD diagnosis based upon her alleged stressors which she has relayed to medical professionals in the course of seeking psychiatric treatment. This is evident in the Veteran's private treatment records, indicating a PTSD diagnosis based on the Veteran's claimed in-service stressors. However, every single PTSD diagnosis made of record has been based on the Veteran's unverified, uncorroborated stressor, or to childhood trauma. Thus, the record does not contain a PTSD diagnosis that is based upon consideration of a corroborated stressor. See 38 C.F.R. § 3.304(f). Without such a diagnosis, the Veteran's claim for service connection fails. None of the alleged stressors have been verified, and the Board concludes that no further efforts to attempt verification through official sources would be fruitful. In essence, the Veteran's stressors are based on a history that could not be verified through official sources. Also, as noted above, the Veteran's own statements are not sufficient to verify a non-combat stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In regard to the Veteran's alleged harassment, the Board recognizes that a medical opinion may be used to corroborate a personal-assault stressor. See Menegassi v. Shinseki, 638 F.3d 1379, 1381 (Fed. Cir. 2011). The December 2009 private psychiatric evaluation, however, does not specifically comment on the likely occurrence of the alleged harassment and link the diagnoses to the alleged in-service harassment. With regard to the recent amendment codified at 38 C.F.R. § 3.304(f)(3), no VA or other psychiatrist or psychologist has confirmed that a stressor claimed by the Veteran is related to her fear of hostile military or terrorist activity. As there is no diagnosis of PTSD based on fear of hostile military or terrorist activity, 38 C.F.R. § 3.304(f)(3) is inapplicable. In sum, the evidence does not reflect that the Veteran has been diagnosed with PTSD based on her claimed stressors or based on fear of hostile military or terrorist activity. Accordingly, service connection for PTSD is not in order. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for PTSD. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F. 3d 1282, 1289 (Fed. Cir. 2009). b. Depression In light of the evidence above, the Veteran is entitled to service connection for depression, as secondary to her service-connected left and right knee patellofemoral syndrome. The Veteran's private treatment records show current diagnoses of depression. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes that the May 2013 physician noted that the Veteran's other diagnosis of Axis I was Depressive Disorder NOS. The physician maintained that this condition probably arose at least, in part, from her service-connected knee injuries and their attendant limitation of function and chronic pain. The Board finds that the positive nexus opinion provided by the Veteran's private physician demonstrates that her depression at least arose in part from her service-connected bilateral knee disabilities. Therefore, service connection for depressive disorder NOS is warranted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD and depression, is reopened. To this extent and to this extent only, the appeal is granted. Service connection for an acquired psychiatric disorder, to include PTSD, other than depressive disorder NOS is denied. Service connection for depressive disorder NOS is granted. New and material evidence not having been submitted, the claim of entitlement to service connection for a low back disability, is not reopened. New and material evidence having been submitted, the claim of entitlement to service connection for hydromyelia, cervical spine, is reopened. To this extent and to this extent only, the appeal is granted. New and material evidence not having been submitted, the claim of entitlement to service connection for a thoracic spine disability is not reopened. REMAND A review of the record discloses further development is necessary prior to the adjudication of the Veteran's increased rating claims for left and right knee patellofemoral syndrome and service connection for hydromyelia of the cervical spine. A. Bilateral Knee Patellofemoral Syndrome The Veteran contends that her bilateral knee patellofemoral syndrome is worse than the disability ratings currently assigned. The Veteran was last given a VA examination in August 2008 in order to establish the severity of her service-connected bilateral knee patellofemoral syndrome. In this particular case, the August 2008 VA examination is too remote in time to address the current severity of the Veteran's service-connected bilateral knee disabilities. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand these matters to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of her bilateral knee disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). B. Cervical Spine The Veteran contends that her cervical spine condition is due her active duty training. Specifically, she reported neck pain from sit-ups and push-ups during training. She also contends that her cervical spine condition is secondary to her service-connected bilateral knee disabilities. The Veteran's private treatment records show complaints of neck pain and a diagnosis of hydromyelia. A January 2006 Rehabilitation Medicine record noted that the November 2005 cervical spine MRI demonstrated minimal C6 level hydromyelia, etiology not defined in this examination, with presumed idiopathic hydromyelia so slight, he doubted it had clinical significance. A medical opinion regarding an etiology of the Veteran's cervical spine condition will be procured. Accordingly, the case is REMANDED for the following action: 1) Schedule the Veteran for a VA examination to determine whether any current cervical spine disability, to include hydromyelia, is related to her active duty training. The claims file must be made available to and reviewed by the examiner. All necessary studies should be performed, and all findings should be reported in detail. The examiner should diagnose any current cervical spine disability found, and answer the following: A. For each diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current diagnosis had its onset during active duty training, to include from in-service push-ups and sit-ups. B. Further, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed cervical spine condition was caused by her service-connected bilateral knee disabilities. Additionally, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that her diagnosed cervical spine condition was aggravated (permanently worsened) by her service-connected bilateral knee disabilities. Please specifically address whether there was any increase in severity of the Veteran's diagnosed cervical spine condition that was proximately due to or the result of the Veteran's service-connected bilateral knee disabilities, and not due to the natural progress of the Veteran's diagnosed cervical spine condition. In rendering these opinions, the examiner must review the Veteran's service treatment records, private treatment records, the March 2013 hearing transcript, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2) Schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and extent of all impairment due to the Veteran's service-connected bilateral knee disabilities. The claims folder must be made available to and reviewed by the examiner. All indicated studies, including x-rays and range of motion studies in degrees, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The examiner should note the degree of severity of any instability or subluxation of the knee, determine if the knee locks and if so the frequency of the locking, and note the presence of any effusion into the joints. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. 3) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) Following the completion of the foregoing, the AMC/RO should readjudicate the Veteran's claims. The AMC/RO should then provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs