Citation Nr: 1448604 Decision Date: 11/03/14 Archive Date: 11/10/14 DOCKET NO. 10-33 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a bilateral hip disability, including as due to a service-connected disability. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to a disability rating greater than 10 percent for a cervical spine disability. 4. Entitlement to a disability rating greater than 20 percent for a lumbosacral spine disability. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January 1999 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied, in pertinent part, the Veteran's claim of service connection for PTSD. Although the Veteran did not timely disagree with this decision, she submitted additional relevant evidence in support of this claim within 1 year of the September 2008 rating decision which renders this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). This matter also is on appeal from a March 2009 rating decision in which the RO denied the Veteran's claims for disability ratings greater than 10 percent for a cervical spine disability and greater than 20 percent for a lumbosacral spine disability. The RO also readjudicated the Veteran's service connection claim for PTSD on the basis of whether new and material evidence had been received to reopen this claim. This was error procedurally under Buie. Id. The Veteran disagreed with this decision in April 2009. She perfected a timely appeal in August 2010. Having reviewed the record evidence, and especially in light of the Court's decision in Buie, the Board finds that the issues on appeal are as stated on the title page of this decision. Id. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran, without good cause, failed to report for multiple VA examinations scheduled in April 2014 for the purpose of determining the nature and etiology of her bilateral hip disability and PTSD and to determine the current nature and severity of her service-connected cervical spine and lumbosacral spine disabilities. 2. The record evidence does not show that the Veteran's claimed bilateral hip disability is related to active service. 3. The Veteran's in-service personal assault is conceded. 4. The record evidence does not show that the Veteran's current PTSD is related to active service. CONCLUSIONS OF LAW 1. A bilateral hip disability was not incurred in or aggravated by active service, including as due to a service-connected disability, nor may arthritis of the bilateral hips be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.655 (2014). 2. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.303, 3.304, 3.655 (2014). 3. The criteria for a disability rating greater than 10 percent for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71, Diagnostic Code (DC) 5237 (2014). 4. The criteria for a disability rating greater than 20 percent for a lumbosacral spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71, DC 5237 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in October 2007 and in March, April, and October 2008, VA notified the Veteran of the information and evidence needed to substantiate and complete her claims, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of her claims. These letters also informed the Veteran to submit medical evidence showing that her service-connected cervical spine disability and lumbosacral spine disability had worsened. The Veteran further was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of her claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in March and April 2008, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court previously held that to satisfy the first Quartuccio element for an increased compensation claim, section 5103(a) compliant notice must meet a four-part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Vazquez-Flores in part, striking the claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Following the Federal Circuit's decision, the Court subsequently issued an opinion incorporating those surviving portions of the first Vazquez-Flores decision, namely that VA must notify the claimant that 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, and must also notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010) (Vazquez-Flores III). For the following reasons, the Board finds that the elements of the Vazquez-Flores test that remain under Vazquez-Flores III either have been met in this case or that any error in not providing such notice is not prejudicial to the Veteran. The first and third elements were met by the VCAA notice letters issued during the pendency of this appeal. These letters informed the Veteran that she needed to provide information showing her service-connected disabilities had worsened. She was informed that such evidence could be a statement from her doctor or lay statements describing what individuals had observed about her disabilities. She was told that she needed to provide VA information as to where she had received medical treatment or that she could send VA any pertinent treatment records. Examples of evidence needed to support the claims were provided, including laboratory tests, examinations, and statements from other individuals who could describe from their knowledge and personal observations the manner in which her disabilities had worsened. She also was informed of what evidence VA would obtain on her behalf and what she needed to do to help VA process her claims. The Veteran also has submitted personal statements and lay statements from others with respect to her service-connected disabilities. As the Board finds the Veteran had actual knowledge of the requirement to show worsening of the disabilities and the variety of the medical and lay evidence which could support her claims, any failure to provide her with adequate notice as to the first and third Vazquez-Flores elements is not prejudicial. As to the second element of Vazquez-Flores notice, the Board acknowledges that the Veteran was not provided notice that a disability rating would be determined by application of the ratings schedule and relevant diagnostic codes based on the extent and duration of the signs and symptoms of her disability and their impact on her employment. See Vazquez-Flores III, 24 Vet. App. at 107. The Veteran received a statement of the case in June 2010 and a supplemental statement of the case in May 2014 addressing her claims. Specific VCAA notice to the Veteran of the ratings schedule to be applied to the symptomatology of her disabilities is unnecessary in light of repeated correspondence sent to the Veteran by the RO/AMC describing the Rating Schedule and applying the relevant regulations to her claims. The Board finds that the Veteran was on constructive notice of the existence and function of the Ratings Schedule. The Board further finds that any error in the third element of Vazquez-Flores notice is not prejudicial. In summary, the Board concludes that the Veteran was notified and aware of the evidence needed to substantiate her claims, as well as the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. As will be explained below in greater detail, the evidence does not support granting service connection for a bilateral hip disability or for PTSD. The evidence also does not support granting increased ratings for a cervical spine disability or for a lumbosacral spine disability. Because the Veteran was fully informed of the evidence needed to substantiate these claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini, 18 Vet. App. at 112. Here, all of the VCAA notice was provided prior to the currently appealed rating decisions; thus, this notice was timely. Because all of the Veteran's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and her service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording her the opportunity to give testimony before the RO and the Board, although she declined to do so. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed and no relevant evidence was located there. The Veteran also does not contend, and the evidence does not show, that she is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain her SSA records is required. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be explained below in greater detail, the Veteran failed to report for several VA examinations scheduled in April and September 2010 and in April 2014 in connection with her currently appealed claims. In February 2010, the RO notified the Veteran at her correct mailing address that she would be scheduled for VA examinations. Subsequent correspondence from VA dated in March and April 2010 concerning these examinations used an incorrect zip code for the Veteran's mailing address, however. It appears that the Veteran provided good cause for her failure to report for the April and September 2010 VA examinations (VA's failure to use the correct the zip code in March and April 2010 correspondence sent to her concerning these examinations). It also appears that the RO corrected this error and used the Veteran's correct mailing address (including the correct zip code) to notify her of her April 2014 VA examinations. Evidence which was expected from these examinations could not be obtained. Neither the Veteran nor her service representative has shown good cause for her failure to report for the April 2014 VA examinations. A May 2014 supplemental statement of the case (SSOC), which was mailed to the Veteran at her correct mailing address (including the correct zip code), informed her that failure to report for a scheduled VA examination may have adverse consequences, including the possible denial of her claims. The Court has held that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. §§ 3.655(a)-(b) (2014). In view of the foregoing, the Board concludes that there is no duty to attempt to provide another examination or medical opinion. And, as VA has fulfilled the duty to notify and assist to the extent possible, the Board can consider the merits of this appeal without prejudice to the Veteran. See Bernard, 4 Vet. App. at 394. Service Connection Claims The Veteran contends that she incurred a bilateral hip disability and PTSD during active service. She specifically contends that she was assaulted during active service by her then-husband and this in-service personal assault caused or contributed to her PTSD. She alternatively contends that a service-connected disability caused or contributed to her current bilateral hip disability. Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may 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). Certain chronic diseases, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "PTSD is not the type of medical condition that lay evidence...is competent and sufficient to identify." See Young v. McDonald, 2013-7116, 2014 WL 4400766 *4 (Fed. Cir. Sept. 8, 2014). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). If, however, a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor. Examples of such evidence include, but are not limited to, statements from family members, and evidence of behavior changes following the claimed assault. 38 C.F.R. § 3.304(f)(3). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to personal assault PTSD claims. In particular, the Court held in Patton that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). The Board notes that M21-1, Part III, Chapter 5, has been rescinded and replaced, in relevant part, by M21-1MR, Part III, Subpart iv, Chapter 4, Section H30. See generally M21-1MR, Part III, Subpart iv, Chapter 4, Section H30. These M21-1MR provisions on personal assault PTSD claims require that, in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. As to personal assault PTSD claims, more particular requirements are established regarding the development of "alternative sources" of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30b. Further, the relevant provisions of M21-1MR indicate that behavior changes that occurred around the time of the incident may indicate the occurrence of an in-service stressor and that "[s]econdary evidence may need interpretation by a clinician, especially if the claim involves behavior changes" and "[e]vidence that documents behavior changes may require interpretation in relation to the medical diagnosis by a neuropsychiatric physician". See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30c. In July 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by relaxing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010) as amended by 75 Fed. Reg. 41092 (July 15, 2010) (providing the correct effective date of July 13, 2010 for the revised 38 C.F.R. § 3.304(f)). Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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 adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "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. The revised § 3.304(f) applies to claims of service connection for PTSD appealed to the Board on or after July 13, 2010, as in this case. See 38 C.F.R. § 3.304(f) (effective July 13, 2010). The Federal Circuit has limited the applicability of the revised § 3.304(f) to appeals where "a claimed in-service PTSD stressor relates to an event or circumstance that a Veteran experienced, witnessed, or was confronted with and that was perpetrated by a member of an enemy military or by a terrorist." See Hall v. Shinseki, 717 F.3d 1369, 1372 (Fed. Cir. 2013) (emphasis added). Because this appeal involves a claimed in-service stressor that was not "perpetrated by a member of any enemy military or by a terrorist," the Board concludes that the revised § 3.304(f) is not applicable to this claim. Service connection also may be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because PTSD is not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim. By contrast, because arthritis is considered a "chronic" disability under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claim of service connection for a bilateral hip disability to the extent that it includes arthritis. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background & Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a bilateral hip disability, including as due to a service-connected disability. The Board notes initially that, because the Veteran, without good cause, failed to report for VA examinations scheduled in April 2014, her service connection claim will be rated on the evidence of record. See 38 C.F.R. § 3.655 (2014). The Veteran contends that she incurred a bilateral hip disability during active service or, alternatively, a service-connected disability caused or aggravated (permanently worsened) her bilateral hip disability. The record evidence does not support the Veteran's assertions. It shows instead that, at her enlistment physical examination in January 1999, the Veteran denied all relevant pre-service medical history. Clinical evaluation was normal. On outpatient treatment in October 2001, the Veteran's complaints included left thigh pain for the previous 6 months. She stated that her pain began soon after giving birth to her child. The assessment was muscle spasm. In November 2001, the Veteran's complaints included hip pain down to the mid-thigh and a continued popping sensation in that area. Objective examination showed pain on palpation of the left thigh down to the middle thigh area and a possible cyst present, 5/5 muscle strength, and pain on palpation of the sacroiliac joint. The assessment included possible sacroiliac joint inflammation. At her separation physical examination in May 2005, the Veteran reported an in-service history of swollen or painful joints. She stated that her "right hip pops." Clinical evaluation of the lower extremities was normal. The post-service evidence indicates that, although she continues to complain of bilateral hip pain, she has failed to report for multiple VA examinations scheduled for the purpose of determining the nature and etiology of her claimed bilateral hip disability. The Board notes in this regard that the presence of a mere symptom (such as hip pain) alone, absent evidence of a diagnosed medical pathology or other identifiable underlying malady or condition that causes the symptom, does not qualify as disability for which service connection is available. See generally Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). As noted elsewhere, the Veteran failed to report for several VA examinations scheduled in April and September 2010 and in April 2014. In February 2010, the RO notified the Veteran at her correct mailing address that she would be scheduled for VA examinations. Subsequent correspondence from VA dated in March and April 2010 concerning these examinations used an incorrect zip code for the Veteran's mailing address, however. It appears that the Veteran provided good cause for her failure to report for the April and September 2010 VA examinations (VA's failure to use the correct the zip code in March and April 2010 correspondence sent to her concerning these examinations). It also appears that the RO corrected this error and used the Veteran's correct mailing address to notify her of her April 2014 VA examinations. Evidence which was expected to be obtained at these examinations, including a nexus opinion concerning the contended etiological link between the Veteran's claimed bilateral hip disability and active service, could not be obtained. The remaining evidence of record does not indicate that any claimed bilateral hip disability is related to active service or was caused or aggravated (permanently worsened) by a service-connected disability. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a bilateral hip disability at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence of a bilateral hip disability at any time during the pendency of this appeal. The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which relates her claimed bilateral hip disability to active service, including as due to a service-connected disability. In summary, the Board finds that service connection for a bilateral hip disability, including as due to a service-connected disability, is not warranted. The Veteran also is not entitled to service connection for arthritis of the bilateral hips. See 38 C.F.R. §§ 3.307, 3.309. The evidence does not indicate, and the Veteran does not contend, that she experienced arthritis of the bilateral hips during active service or within the first post-service year (i.e., by August 2006) such that service connection is warranted for this disability on a presumptive basis as a chronic disease. Id. Thus, the Board finds that service connection for arthritis of the bilateral hips is not warranted. The Board next finds that the preponderance of the evidence is against the Veteran's claim of service connection for PTSD. The Veteran contends that her ex-husband assaulted her while they were married and she was on active service and this in-service personal assault caused or contributed to her PTSD. The Board notes initially that, because the Veteran, without good cause, failed to report for VA examinations scheduled in April 2014, her service connection claim will be rated on the evidence of record. See 38 C.F.R. § 3.655. The record evidence indicates that, although the Veteran was assaulted by her husband while they were married and she was on active service and although she has a diagnosis of PTSD, it is not related to active service or any incident of service. It shows that, in July 2004, the Veteran's then-husband, J.G., was convicted in the District Court of the State of Alaska at Fairbanks of fourth-degree assault after pleading no contest to assaulting his wife. Thus, the Board concedes that the Veteran's claimed in-service stressor, in fact, occurred. The Veteran's service treatment records show that she was not diagnosed as having or treated for PTSD during active service. The Board acknowledges in this regard that the lack of in-service complaints of or treatment for PTSD does not preclude granting service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The service treatment records show that, at her enlistment physical examination in January 1999, she denied all relevant pre-service medical history. Clinical evaluation was normal. On outpatient treatment in July 2002, the Veteran complained that "her marriage is 'ready to fail.' Husband states that it is because she is uninterested in sex. He has accused her of 'horrible' things." She also complained of trouble sleeping, awakening after falling asleep with "her mind racing," and decreased appetite. She stated that her husband was "unsupportive." She had been married for 2 years. The assessment was situational stress and marital conflict. At her separation physical examination in May 2005, the Veteran reported an in-service history of nervous trouble and depression. She also reported being seen during service for marital counseling and personal counseling. She stated that she had been diagnosed as having depression and obsessive compulsive disorder, "and was having anxiety attacks that affected my breathing. I couldn't sleep at night and my heart would beat so fast that I felt I was going to pass out." She also stated that she had been prescribed a variety of medications to treat these mental health problems. Clinical evaluation showed that her psychiatric system was normal. The post-service evidence shows that, although the Veteran continues to complain of PTSD and has been diagnosed as having PTSD, this disability is not related to active service or any incident of service, to include her conceded in-service stressor. For example, in a letter received by VA in September 2007, the Veteran stated: PTSD is my most serious disability. The experiences I had after the operations changed my life forever. I have a very embarrassing and uncomfortable condition, as a result of 2 anal operations, which causes me constant worry and anxiety...I cannot get over the fear, anger, anxiety, embarrassment, nightmares, panic attacks, suicidal thoughts, sleeplessness and numerous other serious mental problems because of these incidents. I've been unable to hold a steady job...I've also had difficulty establishing and maintaining meaningful relationships. I've been divorced once and have had numerous other failed relationships. In fact my life has been such a mess ever since the Army I've wanted to just end it all. But I found that not as easy to do as I thought. I've considered suicide nearly every day since my discharge and I just don't quite have the nerve to do it. (Emphasis in original). On private outpatient treatment in October 2007, the Veteran's complaints included suicidal thoughts and "just feels she's getting worse with lack of interest, guilt over everything, energy dropping, concentration is good at work, at home not so good." A history of physical abuse by ex-boyfriends and her ex-husband "physically beating her" was noted. Objective examination of the Veteran showed she was "[t]earful in the office." The assessment was PTSD/depression with a question of hypomania although this was doubted by the private physician. The Veteran's PTSD screen was positive on VA outpatient treatment in June 2009. On VA primary care outpatient visit that same month, the Veteran's complaints included occasional nightmares and poor sleep. She admitted to drinking too much alcohol at least 3 days a week. She stated that her ex-husband had been abusive and her daughter had witnessed the abuse. She "feels unable to 'let go of' her past history and experiences." The impressions included depression/PTSD with anxiety. The Veteran was referred to another VA clinician for mental health outpatient treatment. It appears that the Veteran failed to report for VA mental health outpatient treatment when it was scheduled in July 2009. As noted elsewhere, the Veteran failed to report for several VA examinations scheduled in April and September 2010 and in April 2014. In February 2010, the RO notified the Veteran at her correct mailing address that she would be scheduled for VA examinations. Subsequent correspondence from VA dated in March and April 2010 concerning these examinations used an incorrect zip code for the Veteran's mailing address. It appears that the Veteran provided good cause for her failure to report for the April and September 2010 VA examinations (VA's failure to use the correct the zip code in March and April 2010 correspondence sent to her concerning these examinations). It also appears that the RO corrected this error and used the Veteran's correct mailing address to notify her of her April 2014 VA examinations. Evidence which was expected to be obtained at these examinations, including a nexus opinion concerning the contended etiological link between the Veteran's PTSD and active service, could not be obtained. The remaining evidence of record does not indicate that the Veteran's PTSD is related to active service. The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which relates her PTSD to active service. In summary, the Board finds that service connection for PTSD is not warranted. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309 (holding that, 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). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claims, in recent statements, the Veteran has asserted that her symptoms of a bilateral hip disability and PTSD have been continuous since service. She asserts that she continued to experience symptoms relating to the hips (bilateral hip pain) and PTSD (anxiety and depression) after she was discharged from service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a bilateral hip disability or PTSD after service separation. Further, the Board concludes that her assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continued symptoms of a bilateral hip disability and PTSD since active service is inconsistent with the other lay and medical evidence of record. Indeed, while she now asserts that these disorders began in service, in the more contemporaneous medical history she gave at the service separation examination, although she reported an in-service history of depression and that her "right hip pops," clinical evaluation of her lower extremities and psychiatric system was normal. Her in-service history of symptoms at the time of service separation is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). As noted above, the post-service medical evidence does not reflect complaints or treatment related to a bilateral hip disability at any time following active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including a cervical spine disability and a lumbosacral spine disability. Significantly, during that treatment, when she specifically complained of other problems, she never reported complaints related to the hips or PTSD. Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran filed multiple VA disability compensation claims in September 2005, approximately 1 month after her discharged from service, but did not claim service connection for a bilateral hip disability or make any mention of any relevant hip symptomatology. She did not claim that symptoms of her disorders began in (or soon after) service until she filed her current VA disability compensation claims. Such statements made for VA disability compensation purposes are of lesser probative value than her previous more contemporaneous in-service histories. See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than her previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, and the record evidence showing no bilateral hip disability which could be attributed to active service, including as due to a service-connected disability, and no etiological link between PTSD and active service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Increased Rating Claims for Cervical Spine and Lumbosacral Spine The Veteran contends that her service-connected cervical spine and lumbosacral spine disabilities are more disabling than currently evaluated. Laws and Regulations In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran's service-connected cervical spine disability currently is evaluated as 10 percent disabling effective August 9, 2005, under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (lumbosacral or cervical strain). The Veteran's service-connected lumbosacral spine disability currently is evaluated as 20 percent disabling effective August 9, 2005, under 38 C.F.R. § 4.71a, DC 5237. See 38 C.F.R. § 4.71a, DC 5237 (2014). Under the General Rating Formula, a 10 percent rating is assigned for lumbosacral or cervical spine disability manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees or a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for cervical spine disability with forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2014). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2014). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. For the purpose of rating disability from arthritis, the cervical vertebrae and the lumbar vertebrae are both considered major joints. 38 C.F.R. § 4.45 (2014). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." If a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The evaluation, however, of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2014). The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, citing Brady v. Brown, 4 Vet. App. 203 (1993). In Johnson, the Federal Circuit recently held that 38 C.F.R. § 3.321 required consideration of whether a Veteran is entitled to referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating based on the impact of his or her service-connected disabilities, individually or collectively, on the Veteran's "average earning capacity impairment" due to such factors as marked interference with employment or frequent periods of hospitalization. See Johnson v. McDonald, No. 2013-7104 (Fed. Cir. Aug. 6, 2014); see also 38 C.F.R. § 3.321(b)(1). As is explained below in greater detail, following a review of the record evidence, the Board concludes that the symptomatology experienced by the Veteran as a result of his service-connected disabilities, individually or collectively, does not merit referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating. In other words, the record evidence does not indicate that the Veteran's service-connected disabilities, individually or collectively, show marked interference with employment or frequent periods of hospitalization or otherwise indicate that the symptomatology associated with them is not contemplated within the relevant rating criteria found in the Rating Schedule. Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59, the Veteran's complaints of pain have been considered in the Board's review of the diagnostic codes for limitation of motion. Factual Background & Analysis The Board finds that the preponderance of the evidence is against assigning a disability rating greater than 10 percent for a cervical spine disability and a disability rating greater than 20 percent for a lumbosacral spine disability. As noted elsewhere, the Veteran failed to report for several VA examinations scheduled in April and September 2010 and in April 2014. In February 2010, the RO notified the Veteran at her correct mailing address that she would be scheduled for VA examinations. Subsequent correspondence from VA dated in March and April 2010 concerning these examinations used an incorrect zip code for the Veteran's mailing address. It appears that the Veteran provided good cause for her failure to report for the April and September 2010 VA examinations (VA's failure to use the correct the zip code in March and April 2010 correspondence sent to her concerning these examinations). It also appears that the RO corrected this error and used the Veteran's correct mailing address to notify her of her April 2014 VA examinations. Evidence which was expected to be obtained at these examinations, including the current nature and severity of the Veteran's service-connected cervical spine disability and lumbosacral spine disability, could not be obtained. The Board notes that the regulations provide that when a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or death of an immediate family member. In this case, neither the Veteran nor her service representative has explained why she failed to report without good cause for VA examinations. Any notice error regarding the April and September 2010 VA examinations was corrected in subsequent correspondence which notified the Veteran at her correct mailing address of additional VA examinations scheduled in April 2014 to which she did not report without good cause. There is insufficient medical evidence of record to adjudicate the Veteran's increased rating claims for a cervical spine disability and for a lumbosacral spine disability. Current examination findings are necessary to assess her cervical spine and lumbosacral spine disabilities and whether they are more disabling than currently evaluated. As noted above, VA's duty to assist the Veteran is not a one-way street. The Veteran also has an obligation to assist in the adjudication of his claims. The Veteran must be prepared to meet her obligations by cooperating with VA efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting her claim. Olson v. Principi, 3 Vet. App. 480 (1992). Individuals for whom examinations have been authorized and scheduled are required to report for same. 38 C.F.R. §§ 3.326, 3.327 (2014). In summary, the Board finds that the Veteran failed to report, without good cause, for VA examinations scheduled in connection with her increased rating claims for a cervical spine disability and for a lumbosacral spine disability. Consistent with 38 C.F.R. § 3.655(b), these claims must be denied. 38 C.F.R. § 3.655(b). Because the law is dispositive in this case, these claims must be denied on the basis of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also VAOPGCPREC 5-04. ORDER Entitlement to service connection for a bilateral hip disability, including as due to a service-connected disability, is denied. Entitlement to service connection for PTSD is denied. Entitlement to a disability rating greater than 10 percent for a cervical spine disability is denied. Entitlement to a disability rating greater than 20 percent for a lumbosacral spine disability is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs