06-12 168

• Court: Board of Veterans' Appeals
• Decided: December 6, 2010
• Docket: 06-12 168
• Status: Unpublished

Opinion

Citation Nr: 1045639 Decision Date: 12/06/10 Archive Date: 12/14/10

DOCKET NO. 06-12 168 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUES

1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a cervical spine disorder, and if so, whether service connection may be granted.

2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a lumbar spine disorder, and if so, whether service connection may be granted.

3. Entitlement to service connection for head injury residuals.

4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel

INTRODUCTION

The appellant served in the Army Air Force from December 1943 to April 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2004 and July 2006 by the Department of Veterans Affairs (VA) Regional Office (RO), in Oakland, California.

In connection with this appeal, the appellant testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in October 2009; a transcript of that hearing is associated with the claims file. At the time of the hearing, the appellant submitted additional evidence consisting of a drawing of the camp where he was stationed in Iceland. A waiver of agency of original jurisdiction (AOJ) consideration accompanied the submission of such evidence. See 38 C.F.R. § 20.1304 (2009).

With respect to the issue of entitlement to service connection for an acquired psychiatric disorder, the Board notes that the RO originally adjudicated the issue as entitlement to service connection for PTSD. However, medical evidence of record reveals additional diagnoses of various acquired psychiatric disorders, to include anxiety disorder and depressive disorder. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the issue as shown on the first page of this decision and acknowledges that such description includes a claim of entitlement to service connection for all currently diagnosed acquired psychiatric disorders.

During the October 2009 Board hearing, the appellant indicated that he was in receipt of Social Security Administration (SSA) disability benefits, and documentation in the claims file confirms this. This documentation shows that his disability onset date was 1976. However, as the appellant was born in 1925, he is 84 years old. Under 38 U.S.C § 402, his SSA disability award was automatically converted to "old age" benefits when he turned 65 years old. In light of this, and the fact that the Social Security's Document Retention Schedule requires the destruction of any disability records when a beneficiary turns 72 years of age, there is no duty on the part of VA to secure any records from that agency.

The claim was subsequently remanded by the Board in January 2010. The remand was sent to the RO via the Appeals Management Center (AMC), in Washington, DC. The purpose of that remand was to provide the appellant additional information concerning the type of evidence he needed to submit in order to reopen his previously denied claims involving the cervical and lumbar segments of the spine. The claim was also remanded so that additional medical records could be obtained and included in the claims folder for review. The claim has since been returned to the Board for further review.

Upon reviewing the development that has occurred since January 2010, the Board finds there has been substantial compliance with its remand instructions. The Board notes that the Court has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The record indicates that the AMC sent a letter to the appellant asking that he provide any additional evidence concerning his disabilities of the back and neck, including statements by individuals who may witnessed any injuries incurred by the appellant. The appellant was also asked to provide additional information concerning treatment he had received in the 1940s and 1950s, along with the names of the institutions that provided him care. Finally, the appellant was informed about how he could reopen his claim. Unfortunately, additional information was not forthcoming from the appellant although the appellant's more recent VA medical treatment records were obtained and included in the claims folder for review. The AMC then issued a Supplemental Statement of the Case (SSOC) after reviewing the results of the information obtained. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's January 2010 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2010).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).

FINDINGS OF FACT

1. In a June 1998 rating decision, the RO denied service connection for disabilities of the cervical and lumbar segments of the spine, and notified the appellant of the determination and of his appellate rights, but he did not appeal the determination. Hence, that decision became final.

2. The evidence received since the June 1998 rating decision is duplicative or cumulative of evidence previously of record and does not raise a reasonable possibility of substantiating the appellant's lower back and neck disabilities claim.

3. The appellant's service medical records do not show treatment for or complaints involving a head injury.

4. Post-service medical records do not contain any competent medical evidence etiologically linking the appellant's purported head injury residuals with his military service.

5. The appellant was not in combat nor did he suffer an assault on his persons while he was on active duty. Moreover, he does not have a competent diagnosis of PTSD based on a verified stressor in service.

6. The service medical treatment records do not show treatment for or complaints involving an acquired psychiatric disorder.

7. While the appellant has been diagnosed as suffering from an acquired psychiatric disorder, competent medical evidence etiologically linking such a mental disorder with the appellant's military service has not been proffered.

CONCLUSIONS OF LAW

1. The June 1998 RO decision denying entitlement to service connection for a disability of the cervical segment of the spine is final. 38 U.S.C.A. § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

2. The June 1998 RO decision denying entitlement to service connection for a disability of the lumbar segment of the spine is final. 38 U.S.C.A. § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

3. New and material evidence has not been submitted, and the claim of entitlement to service connection for a disability of the cervical segment of the spine has not been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (a) (2010).

4. New and material evidence has not been submitted, and the claim of entitlement to service connection for a disability of the lumbar segment of the spine has not been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (a) (2010).

5. Service connection for a head injury and the residuals thereof is not warranted. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2010).

6. Service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. New and Material Evidence

The appellant has come before the Board asking that his claim for service connection for disabilities of the cervical and lumbar segments of the spine be reopened and that a decision be issued on the merits of the issues.

Concerning the duty to notify the appellant regarding his claim, the appellant received the Board's Remand of January 2010, along with letters from the AMC and the Supplemental Statement of the Case of September 2010, that explained to him the requirement that in order to reopen his claim, the VA needed to have received new and material evidence. Accordingly, the duty to notify was fulfilled in this case. See Kent v. Nicholson, 20 Vet. App. 1 (2006).

Regarding the duty to assist in claim development, in August 2001, VA issued regulations to implement the Veterans Claims Assistance Act of 2000 (VCAA). See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments, which apply only to claims governed by Part 3 of the Code of Federal Regulations, were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which was made effective August 29, 2001. The VCAA and the regulations implementing the VCAA provide in some circumstances for VA to obtain an additional medical examination or opinion. However, special provisions apply to claims to reopen finally adjudicated claims filed after November 9, 2000, such as this one, allowing such development only if new and material evidence is presented or secured, given that the claim was previously finally denied. Additionally, the appellant here has not averred that there are existing, available records that, if received, would be new and material to reopen this claim. Accordingly, any duty to assist in claim development has been satisfied in this case. See 38 C.F.R. §§ 3.156(a), 3.159(c) (2010).

As will be detailed below, the appellant's claims involving entitlement to service connection for disabilities of the cervical and lumbar segments of the spine have been the subject of an adverse prior final decision. As a result, service connection for this disorder may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996).

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

For claims to reopen filed on or after August 29, 2001, such as this one, evidence is considered "new" if it was not previously submitted to agency decision makers. Duty to Assist, 66 Fed. Reg. 45,620 (Aug. 29, 2001) (Applicability Dates); 38 C.F.R. § 3.156(a) (2010). "Material" evidence is existing 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) (2009). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered, in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id.

The record indicates that the appellant entered onto active duty from Toledo, Ohio, in December 1943. He was trained to be a rifleman and ultimately became an orderly where he achieved the rank of corporal. The service records show that appellant's stations of duty included those in Indiana, Texas, and Iceland (a colonial possession of the Kingdom of Denmark). He was then released from active duty in April 1946. The service medical treatment records show that during his period of active duty, the appellant received treatment for colds, respiratory infections, and syphilis. The same records did not and do not show treatment for or complaints involving the lower back or neck.

After the appellant was released from active duty, he returned to Ohio. Then he moved to Texas where it appears he performed migrant work of picking cotton. He relocated to California where he worked in the California wine vineyards. In August 1980, the appellant submitted a claim asking that he be awarded a "pension". He did not request service connection for any specific disability. Subsequently, a VA nonservice-connected pension was awarded in February 1981.

Approximately seventeen years later, the appellant submitted a claim to the VA asking that service connection be granted for disabilities of the cervical and lumbar segments of the spine. He claimed that while he was on maneuvers at Fort Polk, Louisiana, he fell from a bridge into water and suffered an injury. He further contended that when he was stationed in Iceland, he was going to his barracks and fell into a machine- gun-nest type of hole, and injured his neck and lower back.

Following his submission of his claim, the RO reviewed the appellant's available medical records and his service records (including the medical treatment records). The RO acknowledged that the appellant did suffer from limitation of motion of the neck and lower back. However, it was also noted by the RO that the service medical treatment records were negative for any treatment for or complaints involving the lower back or neck. Moreover, there was no indication in those same service medical treatment records that the appellant ever fell from a bridge or fell into a hole while he was on active duty. The RO requested that the appellant provide additional information, including the names and addresses of individuals who had treated the appellant for the claimed disorders. Despite the request, the appellant failed to respond. Subsequently, the RO concluded that service connection for either disability could not be granted. It was determined that since there was no medical evidence suggesting or proving that the current disorders were related to or caused by or incurred during the appellant's military service, service connection could not be granted.

Hence, a rating action denying the appellant's claim was issued in May 1998. The appellant was informed of that decision but he did not appeal that action. Hence, that decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 3.385, 20.302, 20.1103 (1997); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

When the RO denied service connection, it based its decision on the appellant's service medical records, the available post- service VA medical treatment records, and the appellant's application for benefits. Since then, the appellant has submitted his own written statements and he has provided testimony before the Board. His relevant testimony was essentially that he injured his back and neck while in service and that after service, he sought treatment from private treating physicians since leaving service. He further testified that he continued to suffer from conditions affecting the cervical and lumbar segments of the spine. The VA has also obtained the appellant's available VA medical treatment records and any additional records it was made aware thereof.

Other than as specified above, the additional evidence is new. It was not of record prior to May 1998. The additional evidence, however, is cumulative. It does not substantiate a previously unestablished fact necessary for the appellant to prevail. For both the cervical segment of the spine and the lumbar segment of the spine, the evidence would need to suggest that the appellant was suffering from disabilities that were incurred in or the result of the appellant's military service. This evidence could be in the form of medical opinion indicating as such or "buddy" statements suggesting that the appellant actually injured his back and neck while on active duty. See 38 C.F.R. § 3.385 (2010). Hence, because this type of evidence has not been proffered, it is the conclusion of the Board that this evidence is not material, because it does not relate to a previously unestablished fact necessary to substantiate the claim.

Accordingly, the Board concludes that the appellant has not submitted evidence that is new and material, and the denial of service connection for disabilities of the lumbar and cervical segments of the spine remains final. See generally Manio v. Derwinski, supra. The appellant's claim is thus denied.

II. Service Connection

The other two issues on appeal involve whether the appellant now suffers from the residuals of a head injury and a psychiatric disorder that as incurred in or was caused by or the result of his military service. With respect to the head condition, the appellant has averred that sometime while on active duty, he injured his head when he fell into the hole in Iceland. Concerning the psychiatric disorder, the appellant has asserted that he now suffers from a psychiatric disorder, possibly classified as PTSD, or some other mental condition that was caused by or the result of his military service. He has averred that he suffers from nightmares involving his falling into the water from the bridge while at Fort Polk or falling into the machine-gun-nest hole in Iceland. He maintains that he has long experienced depression, anxiety, and other manifestations of a mental disorder that he associates with his long-ago military service. In both instances the appellant has requested that service connection benefits be awarded to him.

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).

VA satisfied its duty to notify by means of letters sent to him in March 2004 and April 2006. These letters informed the appellant of what evidence was required to substantiate the claim for service connection, and of his, and VA's, respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the agency of jurisdiction (AOJ). These letters were followed by adjudication of the claim, and then further readjudication of the claim by way of the issuance of two SOCs and a supplemental statement of the case (SSOC) of September 2010.

In March 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) appellant status; 2) existence of a disability; (3) a connection between the appellant's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. Although the appellant was not specifically provided such notice with respect to the issues now on appeal, the error is harmless as the claim is herein denied and as no rating and effective date will be assigned.

VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). The claimant's available service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. Id. It is noted that the appellant has indicated that additional private medical records may have been available and supportive of his claim. In response to his general assertions, the RO contacted the appellant and asked that he provide additional information concerning the names and locations of those purported private medical care providers. Despite repeated requests for the information, the appellant has failed to respond to any of the letters asking for the information that could be beneficial the appellant's claim. The Board recognizes that it has a duty to assist the appellant in obtaining additional information that may benefit or support his claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). However, the duty to assist is not a one-way street, and it is the conclusion of the Board that the appellant has not fulfilled his duty to cooperate in this matter. If an appellant wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Ibid; Hayes v. Brown, 5 Vet. App. 60, 68 (1993). In this instance, and given the foregoing, the Board finds that the VA has complied with the duty to assist.

The Board also finds that a VA examination is not necessary to determine whether the appellant's current psychiatric and purported head injury residuals are related to his period of honorable service, as the standards of the recent decision of the Court in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. Under McLendon, VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Id at 81.

In this case, the service medical records do not show that he was treated for a psychiatric disorder or an injury to the head. Moreover, there is no competent evidence indicating that the purported disorders may be related to his service. In light of these findings, the prongs of McLendon have not been met. Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or the Court.

Under 38 U.S.C.A. §38 U.S.C.A. §§ 1110, 1131 (West 2002) and 38 C.F.R. § 3.303(b) (2010), service connection may be awarded for a "chronic" condition when:

(1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or

(2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition.

Savage v Gober, 10 Vet. App. 488, 495-98 (1997).

To grant service connection, it is required that the evidence shows the existence of a current disability, an in-service disease or injury, and a link between the disability and the in- service disease or injury. Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which has stated that ". . . a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

Moreover, service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993).

A. Residuals of a Head Injury

As previously noted, the appellant's service medical treatment records are negative for any treatment for a head injury. While the records show that he was given medications for a cold and sore throat, they do not show complaints involving a head injury. They do not show that he was treated for an injury that purported occurred either at Fort Polk or in Iceland. Moreover, the appellant's end-of-service physical is silent for any findings or prognostications concerning any head injury or the residuals thereof.

Contained in the multi-volume claims folders are the appellant's private and VA medical treatment records. The records for the time period immediately following or shortly after the appellant left the service do not show any type of treatment for the residuals of a head injury. If the Board then goes to the records that were obtained in conjunction with the appellant's claim for a VA pension, circa 1980, a review of those records is also negative for any treatment for or complaints involving some type of head injury. It is not until the appellant submitted his claim for benefits in 2004, and shortly before, that the appellant even raised the specter of suffering from the residuals of a head injury that was service-related.

The Board would further note that the appellant's available Social Security Administration (SSA) records and other governmental records are negative for any treatment for the residuals of a head injury.

The VA medical treatment records from March 2004 to the present are replete with complaints involving a head injury. Some of the records show the appellant complaining of headache-like pain or throbbing or pain extending from the head to the neck and shoulders. While the appellant did receive treatment for the complaints involving pain and discomfort, none of those same medical records suggest, insinuate, or hypothesize that the pain is a residual of a head injury that may have occurred many years ago while the appellant was on active duty.

Unfortunately, the appellant's assertions are the only positive evidence in support of his claim. Even if the Board accepts the appellant's assertions that he may have suffered from a head injury while in service, he has not been diagnosed as suffering from the residuals of such an injury. In other words, none of the medical evidence suggests that he now has a head injury residual that began in or was caused by his military service. Alternatively, none of the medical evidence establishes an etiological link between the claimed condition with his military service.

Notwithstanding the lack of conclusive supporting medical evidence, the appellant, along with his accredited representative, has continued to assert that the appellant now suffers from a disorder that is somehow related to service. With regard to specific evidence, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997).

In this instance, the only opinion provided is that of the appellant and endorsed by the accredited representative. Yet, merely the claim has been made that the appellant is now suffering from a head injury residual that is somehow related to the appellant's military service. There has not been a discussion of the salient facts nor has there been provided any type of rationale that would corroborate any of the appellant's conclusions. The Board finds that the generalized statements provided by the appellant are too general in nature to provide, alone, the necessary evidence to show that the appellant now has a diagnosed condition that resulted from his military service many years ago. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998).

The Board would further address the statements made by the appellant. The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements.

In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the appellant's lay testimony regarding varicose vein symptomatology in service represented competent evidence.

The Federal Circuit, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue.

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994), supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr.

The Board does not doubt the credibility of the appellant in reporting his beliefs that he now suffers from the residuals of a head injury that were caused by or the result of his military service. However, the matter at hand involves complex medical assessments that require medical expertise. See Jandreau. The appellant is not competent to provide more than simple medical observations. He is not competent to provide complex medical opinions regarding the etiology of the purported disorder. See Barr. Thus, the lay assertions are not competent or sufficient.

In determining whether service connection is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, no complaints or symptoms of a head injury were noted in service. Nor does competent and probative medical evidence relate the appellant's current symptoms, first shown many years after service, with the appellant's military service or any incident therein. Therefore, after reviewing the appellant's claims folder, the Board finds that the record is without sufficient competent evidence supportive of a finding that the purported disability in question became manifest or otherwise originated during his active duty service. Moreover, the record does not show the purported disorder is etiologically related to his military service, or any incident therein. Therefore, it is the conclusion of the Board that the preponderance of the evidence is against the appellant's claim.

However, even if the Board found that the appellant was competent to provide etiological opinions, and that his statements are credible, he has not provided any type of rationale for his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, his statements are not entitled to any probative value. Moreover, the Board finds the lapse in time of many decades after discharge from service to the showing of the current disorders to be highly probative evidence against the appellant's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post- service medical treatment may be considered as part of the analysis of a service connection claim). Therefore, as stated previously, it is the conclusion of the Board that the preponderance of the evidence is against the appellant's claim.

B. Psychiatric Disorder to Include PTSD

With respect to PTSD, eligibility for a PTSD service connection award requires that three elements must be present according to VA regulations:

(1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.l25(a);

(2) credible supporting evidence that the claimed inservice stressor actually occurred; and

(3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor.

38 C.F.R. § 3.304(f) (2010). See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If the evidence establishes that the service member 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 service member's service, the service member's lay testimony alone may establish the occurrence of the claimed in-service stressor. See also 38 U.S.C.A. § 1154(b) (West 2002).

If the claimed stressor is related to combat, service department evidence that the service member engaged in combat or that the service member was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(t) (2010).

In the case of Cohen, supra, 10 Vet. App. 128 (1997), the United States Court of Veterans Appeals, hereinafter the Court, took judicial notice of the mental health profession's adoption of the DSM-IV in May 1994 (first printing) and its more liberalizing standards to establish a diagnosis of PTSD, specifically, a change from an objective "would evoke. . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard - would a person's exposure to a traumatic event and response involving intense fear, helplessness, or horror. Hence, the Court noted that a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140- 41 (1997). .

For the purposes of establishing service connection, a stressor is an event experienced by the service member during active service that is outside the range of normal human experience and that would be markedly disturbing to almost anyone. Examples of such events are experiencing an immediate threat to one's life, or witnessing another person being seriously injured or killed. It is the distressing event, rather than the mere presence in a "combat zone" that may constitute a valid stressor for the purposes of supporting a diagnosis of PTSD. See Zarycki v. Brown, 6 Vet. App. 91, 99 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

Relative to PTSD, if the evidence shows that the service member was engaged in combat with the enemy and the claimed stressor was related to combat, no further development for evidence of a stressor is necessary. If the claimed stressor is not related to combat with the enemy, a history of a stressor as related by the service member is, in itself, insufficient. Service records must support the assertion that the service member was subjected to a stressor of sufficient gravity to evoke the symptoms in almost anyone. Thus, the existence of a recognizable stressor or accumulation of stressors must be supported. It is important that the stressor be described as to its nature, severity, and date of occurrence. Manual M21-1, Part VI, para. 7 .46(e),(f) (Dec. 21, 1992).

Additionally, with regard to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether the service member "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002). "Where it is determined, through recognized military citations or other supportive evidence, that the appellant was engaged in combat with the enemy and the claimed stressors are related to such combat, the appellant's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the appellant's testimony is found to be 'satisfactory,' e.g., credible, and 'consistent with the circumstances, conditions, or hardships of [combat] service.'" Zarycki, supra; 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f) (2010).

VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination whether evidence establishes that a veteran engaged in combat with the enemy is resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256-58 (Feb. 8, 2000).

Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). Previously, VA was required to undertake extensive development to determine whether a non-combat veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396.

The amended version of 38 C.F.R. § 3.304(f)(3) eliminated the need for stressor corroboration in circumstances in which the veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states:

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 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.

See 38 C.F.R. § 3.304(f)(3) (codified in 75 Fed. Reg. 39,843- 39,852). The VA General Counsel has held that where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the veteran had prior to enactment of the new rule. See VAOPGCPREC 7-2003 (Nov. 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g), can be no earlier than the effective date of that change. VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. The amended version of 38 C.F.R. § 3.304(f) is not applicable to the claim now before the Board.

Additionally, in Patton v. West, 12 Vet. App. 272, 278 (1999), the Court pointed out that there are special evidentiary procedures for PTSD claims based on personal assault contained in VA ADJUDICATION MANUAL M21-1, Part III, para. 5.14c (February 20, 1996), and former M21-1, Part III, para. 7.46(c)(2) (October 11, 1995). In personal assault cases, more particularized 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." VA ADJUDICATION PROCEDURAL MANUAL M21-1, Part III, para. 5.14c(5).

With respect to personal assaults, 38 C.F.R. § 3.304(f) was amended in March 2002, to add the following: If a PTSD claim is based on in-service personal assault, evidence from sources other than the appellant's service records may corroborate the appellant's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the appellant's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3) (2010).

As previously indicated, the appellant had service in the continental United States and in Iceland during and immediately following World War II. He was not in combat and he did not fire his weapon against the enemy during the war. Instead, the appellant trained to as a basic rifleman and when he was shipped to the European Theatre of Operations, he was an orderly in Iceland. The appellant's service records show that the appellant was given a valour award.

Instead, the appellant claims that he now suffers from a psychiatric disorder that was caused by or related to his military service. He has alternatively classified the condition as PTSD and says that he suffers from repeated nightmares and intrusive thoughts of his time while on active duty. He has not said that he was exposed to enemy fire or dead bodies. He has not contended that he experienced an assault on his persons while he was performing his military duties.

Yet, despite the appellant's assertions, he has not provided any documents or statements from members of his Army unit that could verify his claimed stressors. He did not provide names of individuals who might have witnessed the purported fall from the bridge into the water where he almost drowned or the fall into the machine-gun-nest hole where he remained for many hours. There is no military record or chaplain's statement that would indicate an investigation occurred as a result of the appellant's fall or falls or that the claimed events even occurred. There is just a lack of evidence, including letters to family or friends, which would corroborate the appellant's assertions.

To make sure that the appellant fully understands what the Board is saying - none of the incidents claimed by the appellant could be verified. With respect to either incident he asserts was stressful, the appellant has remained vague with regard to such pertinent facts as names, dates, and locations. He has never commented on whether any verifiable person was with him at the time any of the "stressful" events occurred, the date it happened, or other information that would help in the confirmation of his stories. Moreover, the file contains no other independent credible evidence, such as statements from fellow soldiers, as to the occurrence of the alleged events.

The Board recognizes that it has a duty to assist the veteran in obtaining additional information that may benefit or support his claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The claims folder indicates that, on numerous occasions, the VA has attempted to obtain additional information from the appellant concerning his claimed stressors. However, the veteran has remained vague in providing the needed information. To the Board, it appears that the appellant has not provided information that is essential in obtaining the verifying evidence he eludes thereto. See also Gobber v. Derwinski, 2 Vet. App. 470 (1992); Olson v. Principi, 3 Vet. App. 480 (1992).

The appellant may assert that because an examiner has provided a diagnosis of PTSD, this should be enough to prevail on his claim. It is true that the appellant does have a diagnosis of PTSD and he has received treatment for other psychiatric disorders. However, the diagnosis of PTSD was apparently made following a recitation by the appellant of his alleged stressors, which may or may not have resulted from actions while in the Army. Of interest to the Board are the other medical reports that indicate that the appellant has suffered from a number of other psychiatric conditions that began many years after service and were not related to his years on active duty.

Because the PTSD diagnosis has been based on the appellant's own recitation of his alleged service history (stressors), it is uncertain to what extent the appellant actually meets the criteria for PTSD. Where the VA determines that the appellant did not engage in combat with the enemy, or that the appellant did engage in combat with the enemy but the claimed stressor is not related to such combat, the appellant's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Zarycki, supra.

The Court held in West, supra, in effect, that a psychiatric evaluation that is based on an incomplete or questionable history is inadequate for rating purposes and frustrates the efforts of judicial review. Reviewing Zarycki and West together, it appears that in approaching a claim for service connection for PTSD, the question of the existence of an event claimed as a recognizable stressor must be resolved by adjudicatory personnel and, once such a stressor is established, whether it is sufficient to give rise to PTSD is a medical determination. Thus, if an examiner renders a diagnosis of PTSD that is not clearly based upon stressors in service whose existence the adjudicators have accepted, the examination would be inadequate for rating purposes. Because the Board can find no verifiable stressor, it would be pointless to conduct "ancillary testing" to further corroborate his diagnostic condition. The Board further concludes that any attempts to corroborate claimed stressors through other government agencies would also be fruitless.

The Board is cognizant of the case of Pentecost v. Principi, 16 Vet. App. 124 (2002), and the change in 38 C.F.R. 3.304(f). In Pentecost, the Court reversed the Board's denial of a claim for service connection for PTSD on the basis of an unconfirmed in- service stressor. However, in Pentecost, supra, the claimant submitted evidence that his unit was subjected to rocket attacks. The Court pointed out that corroboration of every detail of a stressor under such circumstances, such as the claimant's own personal involvement, is not necessary. See, also, Suozzi v. Brown, 10 Vet. App. 307 (1997). The facts in this case are distinguishable because the appellant has submitted no independent evidence of the occurrence of the claimed in-service stressors. Indeed, as noted above, VA has been unable to confirm his allegations.

In determining whether service connection is warranted, the Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event. If, however, the preponderance of the evidence is against the claim, service connection must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, a verifiable stressor to support a diagnosis of PTSD has not been shown. While PTSD has been diagnosed, the appellant has not provided sufficiently detailed information relating to his examples of stressors to allow for corroboration, and, a diagnosis of PTSD, without verified stressors relating the disorder to military service, is insufficient to establish entitlement to service connection. The Board finds therefore that there is not sufficient evidence to place the evidence in equipoise as to whether the appellant suffers from PTSD related to his military service. On the basis of these findings and following a full review of the record, the Board concludes that the record does not show that the appellant has PTSD related to his experiences while in the US Army, and service connection for PTSD is not warranted.

With respect to the alternative contention by the appellant that he now suffers from an acquired psychiatric disorder, not to include PTSD, and that such a condition began in or was caused by or the result of his military service. A review of the service medical treatment records reveals that while on active duty, the appellant did not receive any type of treatment for a mental disorder or disability. Additionally, the post-service medical records do not contain an opinion or assertion or even a supposition that the appellant now suffers from a psychiatric disorder that was caused by or the result of or began while he was on active duty.

Notwithstanding the lack of conclusive supporting medical evidence, the appellant, along with his accredited representative, has continued to assert that the appellant now suffers from a psychiatric disorder that is somehow related to service. With regard to specific evidence, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997).

In this instance, the only opinion provided is that of the appellant and endorsed by the accredited representative. Yet, merely the claim has been made that the appellant now suffers from a psychiatric disorder or disability that is somehow related to the appellant's military service. There has not been a discussion of the salient facts nor has there been provided any type of rationale that would corroborate any of the appellant's conclusions. The Board finds that the generalized statements provided by the appellant are too general in nature to provide, alone, the necessary evidence to show that the appellant now has a diagnosed condition that resulted from his military service many years ago. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998).

The Board would further address the statements made by the appellant. The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). T his would include weighing the absence of contemporary medical evidence against lay statements.

In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the appellant's lay testimony regarding varicose vein symptomatology in service represented competent evidence.

The Federal Circuit, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue.

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994), supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr.

The Board does not doubt the credibility of the appellant in reporting his beliefs that he now suffers from a psychiatric disability that was caused by or the result of his military service. However, the matter at hand involves complex medical assessments that require medical expertise. See Jandreau. The appellant is not competent to provide more than simple medical observations. He is not competent to provide complex medical opinions regarding the etiology of the claimed disorder. See Barr. Thus, the lay assertions are not competent or sufficient.

In determining whether service connection is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, no complaints or symptoms of a psychiatric disorder were noted in service. Nor does competent and probative medical evidence relate any current psychiatric disorder, first shown many years after service, with the appellant's military service or any incident therein. Therefore, after reviewing the appellant's claims folder, the Board finds that the record is without sufficient competent evidence supportive of a finding that the purported disability in question became manifest or otherwise originated during his active duty service. Moreover, the record does not show the purported disorder is etiologically related to his military service, or any incident therein.

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Therefore, it is the conclusion of the Board that the preponderance of the evidence is against the appellant's claim.

ORDER

New and material evidence has not been received sufficient to reopen the appellant's claim for entitlement to service connection for a disability of the cervical segment of the spine, and as such, the claim is denied.

New and material evidence has not been received sufficient to reopen the appellant's claim for entitlement to service connection for a disability of the lumbar segment of the spine, and as such, the claim is denied.

Entitlement to service connection for the residuals of a head injury is denied.

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied.

____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs