Citation Nr: 0005516 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 94-05 314 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Whether there is new and material evidence to reopen a claim for entitlement to service connection for congenital deformity of the lumbar spine. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine, including post-operative herniated nucleus pulposus. 3. Whether there is new and material evidence to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The appellant had active military service from March 14, 1962 to August 10, 1962. He was discharged Under Honorable Conditions, and this was subsequently upgraded to Honorable. The Board, in a decision in November 1976, denied service connection for a psychiatric disorder and a low back condition. The Board concluded that the veteran's low back disability preexisted service and did not increase in severity during service. The Board further concluded that the veteran's personality disorder was not a disease or injury for compensation purposes and that he did not have an acquired psychiatric disorder. The veteran, in May 1990, filed a claim for compensation benefits for a psychiatric disorder and low back condition. He submitted evidence including documents associated with his discharge up-grade. Included therein was a July 19, 1962, record of psychiatric evaluation, with a diagnosis of passive-dependent personality with multiple somatic symptoms and mild depression, EPTS (existing prior to service). In July 1990 he filed a notice of disagreement (NOD) to the RO's finding that new and material evidence had not been submitted, and a statement of the case was issued in August 1991. The veteran, in a certified statement dated in September 1991, indicated that he wanted to "discontinue" his appeal for service connection for a back condition and a "nervous condition." He also indicated that he was filing a "reopen[ed]" claim for service connection for multiple acquired psychiatric disorders, including disorders he identified by their diagnostic code numbers as atypical psychosis, schizophrenia, major depression and bipolar disorder. In October 1992, the veteran again referred to this list of psychiatric disorders. The RO subsequently developed for appeal the issue of whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder. After "withdrawing" the claim for service connection for a back disability in 1991, the veteran reported in October 1992, that he sustained a severe low back injury in service. The RO thereafter developed for appeal the issue of whether new and material evidence had been submitted to reopen a claim for service connection for a low back condition. In the course of the appeal medical evidence was provided showing degenerative disc disease of the lumbar spine, and surgery for herniated nucleus pulposus (HNP) of the lumbar spine. The Hearing Officer decision of February 1996 included regulations for service incurrence, as well as those addressing new and material evidence. The 1976 Board determination concerning the low back addressed only the preexisting back disorder, and not degenerative disc disease and HNP, which are separate and distinct disabilities. Accordingly, the Board finds that a threshold question is presented as to whether new and material evidence has been submitted to reopen the claim for the preexisting back disorder, but that the other diagnosed back disabilities should be addressed on a de novo basis. This case was previously before the Board and remanded for due process purposes in June 1996, and additional development in May 1997. The case has been returned to the Board for further appellate consideration. The appellant provided testimony before a traveling member of the Board of Veterans' Appeals, sitting at San Antonio, Texas, in January 1997. It was pointed out in the May 1997 remand, that the reference to 38 U.S.C.A. § 1154(b) in the January 1997 hearing was presumed to be reference to § 1154(a), as it is not shown or contended that the veteran engaged in combat with the enemy. The issue of whether there is new and material evidence to reopen a claim for entitlement to service connection for congenital deformity of the lumbar spine is the subject of a remand contained herein. The issue of entitlement to service connection for degenerative disc disease of the lumbar spine, including post-operative herniated nucleus pulposus, is deferred, pending the aforementioned remand. FINDINGS OF FACT 1. The Board, in a decision in November 1976, denied service connection for a psychiatric disorder, on the basis that he did not have an acquired psychiatric disorder; the low back disorder issue was denied on the basis that the appellant had low back disability prior to service, and there was no increase in severity during service. 2. Evidence submitted since the November 1976 decision consists essentially of parole and written statements from the appellant, medical evidence of diagnoses of an acquired psychiatric disorders and a medical statement that the appellant's congenital variation of the lumbar spine was aggravated by military service. 4. The medical evidence is new, and material to the issue of service connection for a congenital defect of the lumbar spine, as there is a medical opinion addressing nexus to service. 5. The additional evidence submitted to support the application to reopen comprises evidence previously submitted to agency decision makers or evidence that does not bear directly and substantially upon the specific matter under consideration, evidence which is cumulative nor redundant, and or evidence which by itself or in connection with evidence previously assembled is not so significant that it must be considered in order to fairly decide the merits of the claim. 6. There is no competent medical evidence diagnosing an acquired psychiatric disability productive of current disability that is causally related to service or to service connected disability. 7. The clear weight of the competent medical evidence fails to show a current acquired psychiatric disorder related to military service or to service connected disability. CONCLUSIONS OF LAW 1. The evidence submitted since the Board decision of November 1976 is new and material and the claim for service connection for a congenital defect of the lumbar spine is reopened. 38 U.S.C.A. §§ 5107(a), 5108, 7104(b) (West 1991 & Supp. 1999). 2. The veteran's claim for service connection for an a congenital defect of the lumbar spine is well-grounded and the VA has a duty to assist by obtaining or attempting to obtain all relevant evidence. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). 3. The evidence submitted since the Board decision of November 1976 is not new and material and the claim for service connection for an acquired psychiatric disorder is not reopened. 38 U.S.C.A. §§ 5107(a), 5108, 7104(b) (West 1991 & Supp. 1999). 4. The claim for service connection for an acquired psychiatric disability is not well grounded. 38 U.S.C.A. §§ 5107(a). 5. An acquired psychiatric disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence to Reopen a Claim Generally, in a case for determination of whether new and material evidence had been submitted, there is a review of evidence available at the time of the final determination, and then a recitation of evidence submitted since that time. In this instance, given the interlocking nature of the back disabilities that are subject to this appeal, and the expanse of evidence that often contains material germane to both issues, the Board will present the evidence, chronologically, in one body, to preserve continuity and for ease of review. Pertinent elements of evidence will then be discussed with review and analysis of the issues. While this case was pending before the Board, the United States Court of Appeals for the Federal Circuit entered a decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) concerning the definition of the term "new and material evidence" found in 38 U.S.C.A. § 5108 (West 1991). In that determination, the Court of Appeals for the Federal Circuit held that the United States Court of Veterans Appeals (Court) in Colvin v. Derwinski, 1 Vet. App. 171 (1991), had "overstepped its judicial authority" by adopting a social security case law definition of "new and material evidence," rather than deferring to the "reasonable interpretation of an ambiguous statutory term established by [VA] regulation." Hodge, 155 F.3d at 1364. The Court of Appeals for the Federal Circuit further held that the Court's "legal analysis may impose a higher burden on the veteran before a disallowed claim is reopened" as to what constitutes "material evidence" Id. at 1363, and remanded the case for review under the Secretary's regulatory definition of "new and material evidence." In Hodge, Court of Appeals for the Federal Circuit found that the definition of "new and material evidence" applied by the Court under Colvin was as follows: Evidence is 'new and material' if: (i) it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (ii) it is probative of the issue at hand; and if it is 'new' and 'probative' (iii) it is reasonably likely to change the outcome when viewed in light of all the evidence of record. Hodge, 155 F.3d at 1359 (hereafter Colvin definition). The Court of Appeals for the Federal Circuit found that part (iii) imposed a higher burden on claimants than the VA regulatory definition because it: . . . specifically focuses on the likely impact the new evidence submitted will have on the outcome of the veteran's claim; it requires that 'there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome.' (citations omitted). Id. at 1361. Citing the regulatory history, the Court of Appeals of the Federal Circuit held that: . . . the purpose behind the [VA] definition was not to require the veteran to demonstrate that the new evidence would probably change the outcome of the claim; rather it emphasizes the importance of a complete record for evaluation of the veteran's claim. Id. at 1363. Pursuant to 38 U.S.C.A. § 7105 (West 1991), where an appeal from a determination by the RO is not perfected, that determination becomes final, and a final decision by the RO on a given claim "may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered." The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Therefore, once a decision becomes final, absent the submission of new and material evidence, the claim cannot be reopened or readjudicated by the VA. 38 U.S.C.A. §§ 5108, 7105; see also McGinnis v. Brown, 4 Vet. App. 239, 243-45 (1993). 38 C.F.R. § 3.156(a) (1999) provides a definition of "new and material evidence." New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See Hodge v. West, supra. Following Hodge, the Court, in Elkins v. West, 12 Vet. App. 209 (1999), announced a three-step analysis to apply in determining whether to reopen previously and finally denied claims. Under the Elkins test, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (1991). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. In Winters v. West, 12 Vet. App. 203 (1999), the Court held that even assuming the Board had committed error in refusing to reopen a claim by application of the now invalid Colvin test of materiality, such error would not be prejudicial if it is clear on the record that claim would not be well grounded. In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court further concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, that should end the Board's analysis as to whether the evidence is "new and material." Accordingly, if the evidence is not new, it is not necessary to go on and determine whether it is material, and thus any error arising from the application of the now invalid Colvin test of materiality would be harmless and a remand for readjudication consistent with Hodge would not be warranted. Congenital Deformity of the Lumbar Spine Evidence at the time of the November 1976 Board decision Service medical records disclose that the February 1962 examination for entry into service was negative for a psychiatric disorder and back disability. Back complaints were noted March 29, 1962. Mild back strain was noted. Bactrim and cold spray were prescribed. On March 29, 1962, x-rays of the lumbar spine showed normal alignment with a partial sacralization, L-5 and what "appears to be evidence of arthritic changes between the partially formed right transverse process of L-5 and the sacrum." On April 2, 1962, he was seen for back complains, "as above." Cold spray was again prescribed. When he was seen April 6, 1962 for complaints, "back old injury" was noted. It was recorded that x-rays were negative, and there was a wide area of dull aching. ASA (aspirin) was prescribed. An April 10, 1962, notation concerned back complaints. It was reported that the veteran was in the second week of BCT (basic combat training), and this was the 4th time on sick call because of back pain. It was noted that x-rays and examination were negative. APC (aspirin, phenacetin, and caffeine), and Robaxin for pain were prescribed, along with hot showers. On April 13, 1962, he was see for his back and it was noted that he had vague onset of back pain 3 years ago and stated there was no unusual trauma. He "has had variable history of dorsal and lumbar aching." Lumbar spinal series were negative. The veteran stated that he could not carry his pack any more because it hurt his back too much. On examination, there was subjective L-S (lumbar sacral) pain without radiation. DTR (deep tendon reflexes) were intact, there was no hyperesthesias, and FROM (full range of motion) without pain. Straight leg raising was negative, and the impression was no orthopedic disease, "will send to ortho clinic" for final evaluation. ASA was prescribed. It was also noted that the veteran was an only child, his father separated from "them" at age 8 years, and his mother was sickly. A May 7, 1962, dispensary record reflects back complaints, and mental hygiene requests further check up on the back before discharge. He was to be sent to an orthopedic clinic. Orthopedic clinic examination on May 7, 1962, noted a 21- year-old in the 6th week of BCT, with recurrent low back pain the past 3 years. There was no radiation, or history of trauma. The pain was said to occur after prolonged exertion and with heavy lifting or strong flexion of the spine. The veteran was an only child of a broken home, and he was partly supporting his mother. Examination reveal normal spine ROM (range of motion) with no asymmetry, spasm, or tenderness. Straight leg raising was negative, motor, sensory and reflex examination of the LE's (lower extremities) as unremarkable. There was no thigh or calf atrophy. X-rays of the L-S spine revealed sacralization of L5 (partial) with pseudoarthrosis of the left transverse process, L5 with the sacrum. The impression was backache due to pseudoarthrosis with considerable psychological overlay. The recommendation was instruction in Williams' exercises, trial of full duty, and continued evaluation by MHC (mental health clinic). A July 2, 1962, record noted that he was depressed, "MHC consult." He was seen for anxiety on July 9. He had crying fits, some confusion of thought for 2 months. The impression was schizoid personality, anxiety. The veteran was seen at the emergency room July 13, 1962, after taking a hand full of ASA. He vomited and was to be seen by mental hygiene. When he was seen on July 14, 1962, it was noted that he had taken 10 aspirin last night because he wanted to get some rest. He denied any suicidal intentions. He was to be seen on July 18 for psychiatric consultation due to his numerous difficulties in adjusting to the service. A July 18, 1962, medical examination for RAD (release from active duty) noted "MHCS Eval-209." The examination for release from active duty, July 18, 1962, showed no back or psychiatric disorder. The veteran's contemporaneously prepared Report of Medical History reflects that he reported frequent pain in the lower part of the back, and that he was in good health except for lost sleep and pain on lower part of my back. The lost sleep caused weakness. He checked that he had or had in the past, arthritis or rheumatism, dizziness or fainting spells, frequent trouble sleeping, and depression or excessive worry. He noted that Doctor Johnson of Mercedes, Texas had treated him for back injury, for lots of pain in the back. In the physician's summary it was recorded that arthritis of the knees was unproven, dizziness was occasional, he had trouble sleeping, and his back disease was thoroughly evaluated and the diagnosis was "pseudo arthritis with considerable emotion overlay." The veteran's original application for disability benefits in April 1975, noted "arthritis" of the lumbar spine three weeks after being in service, and a nervous condition. Private treatment for arthritis and nervous condition, by R. Panzer, M. D., in September 1962, was shown. It was also noted that he received treatment for a nervous condition by L. Irurita, M. D., in August 1974, and 1975, and T. Kinder, M. D., in August 1974. Received in January 1975 were copies of records of private medical treatment dated in July and August 1974. When he was seen on July 22, 1974, apparently on referral from a doctor in Mexico, the veteran complained of low back pain, and stated he hand muscular low back pain for "12 years duration." He stated it had been much worse the last six months, aggravated by standing and "elevated" by bed rest. He was taking Darvon 32 mgs without much relief, and he had been told that he needs a fusion of his low back. Physical examination showed fairly full range of motion except there was pain on extension located in the low back and just to the right side of the midline. On palpation, especially about the S1 area, there was pain on direct palpation, also pain in the right para spinal muscles adjacent to S1. Straight leg raising was negative; popliteal compression test was negative; and there was no sensory deficit. Reflexes were 2 plus bilaterally and knee and ankle jerks were equal. Measurement of the lower extremities were equal, and x-rays brought with the veteran and made in Mexico revealed possibility of a lumbarization of the 1st sacral segment or possibility of sacralization of the 1st lumbar segment. There was some blurring of the facet join at L5-S1 but the x- rays were not of proper quality to make a definitive diagnosis. The impression was congenital abnormality in low back with possible lumbarization of the S1 segment; also postural backache. The August 9, 1974, record noted that x-rays made at "M & C" revealed either a sacralization of the L5 fragment or a lumbarization of the S1 fragment. Six lumbar vertebrae were seen on the AP (anterior-posterior) of the lumbar spine. The possibility that T12 had a poor residual rib and appears as a lumbar vertebra was entertained. The entire thoracical lumbar spines were repeated by Martin & Chap that revealed the probable lumbarization of the S1 fragment. There was asymmetrical lumbarization, and it was much more solid on the left with a poor joint formation on this left side. On the right, there was more complete differentiation with articulation with the non-movable 1st sacral segment. This was considered to be a better facet join; it was noted that the veteran had had problems in the military, was on extended sick leave for numerous occasions and was told he had nothing wrong with his back. However, it is obvious from studies brought with the veteran, taken in Mexico, and the new x-rays taken at this time, that the veteran has an obvious congenital deformity or more properly termed, an irregularity of vertebral differentiation in the low back. This could certainly explain his episodic periods of low back pain. The inequality of the facet formation between the last moveable vertebra and the 1st sacral segment could certainly be a cause of facet joint arthritis with secondary muscle spasm in the area to prevent excess motion. It was believed that the veteran's prognosis was guarded, and that he may have problems in the future. He was to be given medication and flexion exercises. Temporarily he should restrict his activity, especially twisting or severe bending, but he may engage in ordinary work where he does not have to bend or twist to extreme degrees. Physical examination revealed ROM to be within normal limits to all parameters, with no guarding on ROM. Palpation of the back was negative for pain and reflexes were 1 plus bilaterally with depressed but equal knee and ankle jerk. Straight leg raising showed hamstring tightness on straight leg raising but no radiation of pain. Sensory examination showed no deficit. A corset with rigid stays to be worn while working was recommended, and Indocin was to be instituted. At the bottom of the August report were the initials H.J.K., MD. A July 1974 report from R. C., D.C., also received in January 1975, indicates the veteran had been a patient for two months. X-rays revealed that the articulation between the right transverse process of the 5th lumbar vertebra with the right base of the sacrum bone completely welded (sacralization) plus chronic subluxation of the 4th lumbar vertebra. It was noted in a private psychiatric report by L. Irurita, M. D., dated May 26, 1975, that the veteran first came to see him June 18, 1974, mainly for manifestations of depression, severe pain in the lower back especially with rotatory movement of the spine, difficulty sleeping, and feelings of being a failure. He was tearful on and off during the first interview as he talked about the time that he spent in service. It was reported that he entered the Army voluntarily March 14, 1962, and some time after he began to develop severe lower back pain. Apparently he began to complain of this pain and the visits to the dispensary became quite frequent, but no lesion that could explain the pain could be found and then apparently his superiors became rather upset with his behavior and, according to the veteran, began to increase his work load and to put more pressure on him than on the other inductees. The veteran believed that nobody understood his condition and pretty soon began to develop nervousness, inability to sleep, and the pain in his lower back became worse. Soon he developed manifestations of depression. Apparently the condition became intolerable even though the veteran had dreamed to work hard and to become a career man in the Army. This situation became so bad that the veteran believed that his situation was desperate and was ready to leave the service and come home to get treatment for his disability since he apparently could not get it while in the service. He was offered a discharge and he signed it without knowing the conditions under which he was being released. The next day he found these conditions and there were completely unacceptable to him. It was recorded that it was important to note that a report dated July 19, 1962, and signed by the psychiatrist of his unit, stated that the veteran was depressed and had "periodic bouts of crying and self pity." It was also indicted that the veteran had on one occasion taken excessive quantities of medication. In spite of these findings, the veteran did not receive the proper psychiatric treatment indicated for his condition. Dr. Irurita also reported that even though during all his visits to the Army doctor nothing was found, an examination performed by H. Keillor, M. D., on July 22, 1974, revealed "either a sacralization of the L5 fragment or a lumbarization of the S1 fragment. There are 6 lumbar vertebrae seen on the AP of the lumbar spine. The possibility that T12 has a poor residual rib and appears as a lumbar vertebra is entertained." Further, the orthopedist entertained as the most probable condition, lumbarization of the S1 fragment. There was further recitation of the findings by Dr. K. Dr. K. concluded that it was obvious from prior and current studies that the appellant has an obvious congenital deformity, or more properly termed, an irregularity of vertebra differentiation in the low back, and this could certainly explain his episodic periods of low back pain. Dr. Irurita stated that he firmly believed that the veteran suffered unnecessarily during the time he was in service, mainly due to lack of treatment not only of his back condition, but also of his emotional reaction to it. It was noted by Dr. K., an orthopedist, that the veteran actually suffered from a congenital deformity of the spine that can produce periodic pain. The veteran was "also diagnosed by the psychiatrist of his unit as suffering a disability for which he did not receive any treatment, etc." Dr. Irurita strongly believed that the veteran's condition was service- connected and he should be entitled to medical and psychiatric treatment, medication, financial compensation, and change of the basis for his discharge from service from unsuitability to medical for the reasons given above. It was noted that the veteran had been treated with antidepressants and anti-anxiety medication and painkillers and his condition has improved only slightly. Apparently "he keeps on reliving the ordeal that he suffered while in the service." Also received in June 1975 was a Certificate of Attending Physician, signed by Dr. Irurita, showing treatment from June 18, 1974 to the present. The diagnoses for the veteran were depressive neurosis with severe somatic complaints and crisis of anxiety, and congenital deformity of the spine (irregularity of vertebra differentiation in the low back.) Received in January 1976 was a letter from Dr. R. Panzer, in August 1975, to Dr. Irurita. The letter noted that the appellant was first seen September 10, 1962, reporting a 3- year history of recurring episodes of lumbar and mid-dorsal back pain accentuated by exercise. He gave no history of injury, and it was interesting that he was recently discharged after only five moths of service in the Army. Examination in the Army apparently did not reveal any pathology. The veteran was seen at periodic intervals between 1962 and 1965, and continued to have low back pain. There was consultation with Dr. Milan, an orthopedic surgeon, in 1964, who stated that his pain was not due to any recent injury. Dr. Panzer indicted that a complete study of the back was not done because of the infrequent visits of the veteran, and because of financial consideration. Dr. Panzer was more concerned about the appellant's mental disturbance than his physical disability. The appellant, in a statement in August 1976, agreed that he had a congenital back abnormality; however he maintained that he should have been treated for the pain, and not told that it was just in his head. Evidence since November 1976 Received in August 1978 were copies of records of private treatment for the veteran's complaints of back pain in 1974. Range of motion was within normal limits, there was no guarding, and palpation of the back was negative for pain. Reflexes were 1 plus bilaterally, ankle jerks were equal, and straight leg raising showed no radiation of pain. There was no sensory defect. The impression in July 1974 was congenital abnormality in low back with possible lumbarization of the S-1 segment; also postural backache. The physician was apparently Dr. K. Also received in August 1978 was another statement from Dr. Irurita, which was repetitious of the 1975 statement. It was noted that Dr. K. had stated that the congenital condition of the appellant's spine could produce periodic episodes of pain, especially with certain kinds of movement. Received in October 1982 were a host of documents submitted on behalf of the veteran, to include a copy of an April 1962 letter from the appellant to his mother, in which reference was made to the appellant's back hurting once in a while, and that the training was not hard except he was having trouble with his back. There was a copy of a July 19, 1962, psychiatric evaluation noting that repeated medical examinations did not unearth any actual physical disability. A copy of a July 23, 1962, certificate concerning the appellant's training, noted his complaints of back pains, lack of an organic basis for the complaints, academic failure and poor acceptance of discipline. Other documents concerned awards in school, including a letter award for football in junior high school. Also received was a statement dated in October 1982, from the appellant's mother. She noted that in the 10th grade the appellant complained of back pain, was seen by a doctor, received medication and the pain never returned. She reported that he played football and was not hurt. In July 1990 the veteran submitted a statement from a pre- service employer, attesting to the veteran's ability to carry out a 7 day a week job. An August 1990 VA MRI (magnetic resonance imaging) of the appellant's lumbar spine, revealed flattening and degeneration of the L4-L5 disc, probably the site of previous surgery. There was no finding of recurrent disc herniation, and no other abnormalities were demonstrated. The VA hospital discharge summary dated June 1991, noted that he reported being treated poorly after back injury in service which was not diagnosed. His complaints included chronic low back pain. His medical history was significant for a laminectomy in March 1990. In was recorded that he held a government job for 13 years, was retired medically in 1980, and lost a substitute teaching job after about 4 years, secondary to a back injury. He currently had a workmen's compensation law suit pending. The discharge diagnoses include chronic low back pain. The veteran, in a statement in October 1992, reported that he developed a severe lower lumbosacral injury in service that was operated on after service. VA out patient clinic records from 1990 to 1992, include references to the appellant's complaints of back pain and back surgery. Received in April 1993 were copies of receipts from a drug company, variously dated in the 1960's, showing payment on prescriptions. In hearing testimony in January 1996, the appellant reported experiencing pain in high school, treated conservatively and it resolved. In service he bent over and experienced real bad pain either from bending down or moving heavy rocks. He saw a doctor but was not given any pain pills. He noted that he was still having problems, Transcript (T.) p. 2. He questioned whether he had a disc problem in service, and noted that he was working on the job when picked up a child, felt a strain, received chiropractor treatment and later an MRI showed a bulging disc, T. p. 3. The appellant noted that it took a MRI to show the disc problem, T. p. 4. It was opined that the military did not properly treat the veteran's back after the injury, and that he as prescribed medication shortly after service, T. p. 6. The veteran, in a statement in June 1996, set forth the reasons he believed he should be service connected for his back condition, and he submitted copies of numerous documents, a great number of which had been submitted previously. The documents covered a range including college transcripts, school awards, medical receipts, and his upgraded discharge. All of these documents have been reviewed and considered in his claim. The documents included a medical center CT (computed tomography) of the lumbar spine, in April 1996, showing scaring related to disc surgery, and nerve root impingement bilaterally at L4-L5. In file are VA out patient clinic records for the veteran from 1994 to 1996. Those records show reference to his complaints of back pain. The veteran, in Travel Board hearing testimony in January 1997, noted his pre-service back pain, the circumstances of his initial back pain in service, and that he was treated for back problems shortly after service, T. pp. 4, 5, and 8. Reference was made to his current back problems, T. p. 12. Per the May 1997 remand, the RO, later that same month, requested that the appellant provide additional information and records of treatment concerning his post-service back injuries. He did not respond in this regard. In September 1997 he was requested to provide additional information concerning his post-service private treatment, to include his civil service retirement. There was no apparent response. In a statement in September 1997, the appellant pointed out that his entrance examination was negative, and reported that his second day in service he pulled a back muscle when twisting and throwing his duffel bag into a truck. A few days later when picking up heavy rocks in a ditch he had no problems with his back. A few days later, on "police call" he experienced pain in his back when he bent down. He also noted his back problems in 1989 and 1990. Received in file, apparently in January 1998, was a copy of a June 1974 medical certificate, in Spanish. Dr. Ramirez noted the transitional lumbosacral vertebrae, 12 years of chronic pain, and the need for bone fusion. Also received was a copy of the operative report for the disc herniation with spinal instability, in June 1997. G. S., D. C., in a statement dated in August 1998, reported that the appellant had been under his care for conservative management of his low back condition. The appellant's congenital variation in his lumbar spine anatomy was noted, and it was opined that this condition was know to be biomechanically unstable, and could lead to premature osteoarthritis, degenerative disc lesions, and nerve root irritation. It was concluded that the veteran's condition "was aggravated by service related activity." VA orthopedic examination was provided in January 1999. The appellant's service medical records were reviewed, and the mild back strain, and backache due to pseudoarthrosis of the left L-5 transverse process were noted. The post-service back injuries were also noted. It was recorded that a moderate amount of symptom embellishment was encountered during the course of the interview and review of history. The appellant's claims file was also available for review, with reference to the post-service back surgeries. There was physical examination, x-ray studies of the lumbar spine, and comparison with previous x-rays, thought to be from Mexico in 1974. The diagnoses were lumbar strain, mild, resolved; degenerative disc disease of the lumbar spine, mild, post- operative L4-5 arthrodesis with instrumentation for herniated nucleus pulposus, questionable spinal instability; and enlarged right L-5 transverse process with an arthritic pseudoarthrosis. The appellant, during VA psychiatric examination in December 1998, reported that his symptoms in service included severe constipation and right leg swelling, in addition to back pain. The January 1999 VA examiner noted that the veteran's current back problems were quite significant, and that it was also quite clear that the time line from the original complaints of low back pain in 1962, and the subsequent initial surgical procedure in 1990 showed no correlation. It was recorded that "[t]here is no evidence, in fact there is evidence to the contrary, that he did not have a disc herniation at the time of his original complaint of back pain." It was the opinion of the examiner that the appellant's "current back complaints are related to a significant disc pathology at L4- 5, and that they have no relationship to a twisting type injury, throwing a duffel bag onto a truck." The examiner noted that his opinion was explained in great detail to the appellant, to include how significant trauma to the lower back does led to discogenic pathology at a later time but such was not the case with the appellant. Further, the "pseudoarthrosis and articulation of the L5 transverse process, may have caused some mild exacerbation, but that process did not result in any surgical procedures and it is clear from his military as well as his VA history, that he did not experience any discogenic pathology at the time of the original injury." Analysis The greater part of the evidence since the denial of service connection for congenital back disability in 1976, is cumulative or redundant, except for the opinion by the chiropractor, in August 1998. While it appears that the chiropractor relied on history as provided by the appellant, the congenital deformity of the lumbar spine was addressed directly, its relationship to other back disabilities apparently was implied, and the unequivocal opinion was that at least the congenital condition was aggravated by service related activities. For the limited purpose of determining whether evidence is new and material, its credibility must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This medical opinion is significant as it links at least the congenital deformity to military service by way of aggravation, and it must be considered in order to fairly decide the merits of the claim. In other words, there is new and material evidence to reopen the appellant's claim for service connection for congenital back abnormality. The next step is to determine if the claim is well-grounded, and if so, has the duty to assist been fulfilled. Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). For the limited purpose of determining whether a claim is well grounded, evidentiary assertions must be accepted as true. In order for a claim for claim for service connection to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Caluza v. Brown, 7 Vet. App. 498 (1995); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. In Rabideau v. Derwinski, 2 Vet. App. 141 (1992), the Court held that the failure to demonstrate that a disability is currently manifested constitutes failure to present a plausible or well-grounded claim. In this instance while the congenital defect of the appellant's spine is not a disease of injury for VA compensation benefit purposes, it can be aggravated, and that aggravation would represent a disability for VA purposes.. The private chiropractor in August 1998 referred to the appellant's back condition as congenital variation involving the lumbar spine. While a congenital defect itself may not be service connected on the basis of incurrence, consideration must still be given as to whether the congenital defect was subject to superimposed disease or injury. If such superimposed disease or injury occurs during service, service connection may be granted for the resultant disability. VAOPGCPREC 82-90. The private chiropractor opinion, based on history as provided by the appellant, and not on review of the claims file, was to the effect the congenital lumbar abnormality was aggravated by service. The chiropractor did not address the quantum of increase due to service-related activities, or the objective manifestations demonstrating an increase in the underlying disorder. He also stated that the congenital variation influenced the biomechanics of the lumbar spine and could lead to arthritis and disc disease. The Board finds that this report is sufficient to satisfy the elements of a well-grounded claim, in regard to aggravation of the congenital defect, with resultant increased disability. The Board further finds that the duty to assist under 5107(b) has not been fulfilled. Service Connection for an Acquired Psychiatric Disorder Evidence at the time of the November 1976 Board decision Service medical records disclose that the February 1962 examination for entry into service was negative for a psychiatric disorder. During service the veteran was treated for back complaints. A May 7, 1962, dispensary record reflects back complaints, and mental hygiene requests further check up on the back before discharge. He was to be sent to an orthopedic clinic. A July 2, 1962, record noted that he was depressed, "MHC consult." He was seen for anxiety on July 9. He had crying fits, some confusion of thought for 2 months. The impression was schizoid personality, anxiety. The veteran was seen at the emergency room July 13, 1962, after taking a hand full of ASA. He vomited and was to be seen by mental hygiene. When he was seen on July 14, 1962, it was noted that he had taken 10 aspirin last night because he wanted to get some rest. He denied any suicidal intentions. He was to be seen on July 18 for psychiatric consultation due to his numerous difficulties in adjusting to the service. A July 18, 1962, medical examination for RAD (release from active duty) noted "MHCS Eval-209." The examination for release from active duty, July 18, 1962, showed no back or psychiatric disorder. The veteran's contemporaneously prepared Report of Medical History reflects that he reported frequent pain in the lower part of the back, and that he was in good health except for lost sleep and pain on lower part of my back. The lost sleep caused weakness. He checked that he had or had in the past, arthritis or rheumatism, dizziness or fainting spells, frequent trouble sleeping, and depression or excessive worry. He noted that Doctor Johnson of Mercedes, Texas had treated him for back injury, for lots of pain in the back. In the physician's summary it was recorded that arthritis of the knees was unproven, dizziness was occasional, he had trouble sleeping, and his back disease was thoroughly evaluated and the diagnosis was "pseudo arthritis with considerable emotion overlay." When the veteran originally applied for disability benefits in April 1975, he reported a nervous condition in service, and private treatment for arthritis and nervous condition, by R. Panzer, M. D., in September 1962, was shown. It was also noted that he received treatment for a nervous condition by L. Irurita, M. D., in August 1974, and 1975, and T. Kinder, M. D., in August 1974. Received in January 1975 is a receipt from Dr. Irurita, dated in September 1974, showing psychiatric consultation for the veteran. It was noted in a private psychiatric report by L. Irurita, M. D., dated May 26, 1975, that the veteran first came to see him June 18, 1974, mainly for manifestations of depression, severe pain in the lower back especially with rotatory movement of the spine, difficulty sleeping, and feelings of being a failure. He was tearful on and off during the first interview as he talked about the time that he spent in service. It was reported that he entered the Army voluntarily March 14, 1962, and some time after he began to develop severe lower back pain. Apparently he began to complain of this pain and the visits to the dispensary became quite frequent, but no lesion that could explain the pain could be found and then apparently his superiors became rather upset with his behavior and in according to the veteran, began to increase his work load and to put more pressure on him than on the other inductees. The veteran believed that nobody understood his condition and pretty soon began to develop nervousness, inability to sleep, and the pain in his lower back became worse. Soon he developed manifestations of depression. Apparently the condition became intolerable even though the veteran had dreamed to work hard and to become a career man in the Army. This situation became so bad that the veteran believed that his situation was desperate and was ready to leave the service and come home to get treatment for his disability since he apparently could not get it while in the service. He was offered a discharge and he signed it without knowing the conditions under which he was being released. The next day he found these conditions and there were completely unacceptable to him. Dr. Irurita. opined that the appellant suffered unnecessarily in service due to lack of treatment for his back and emotional reaction to it. He strongly believed that the appellant's condition was "service connected." He treated the veteran with anti-depressants and anti-anxiety medication and painkillers and his condition improved only slightly. Apparently the veteran "keeps on reliving the ordeal that he suffered while in the service." Also received in June 1975 was a Certificate of Attending Physician, signed by Dr. Irurita, showing treatment from June 18, 1974 to the present. The diagnoses for the veteran were depressive neurosis with severe somatic complaints and crisis of anxiety, and congenital deformity of the spine. Dr. R. Panzer, in August 1975, noted seeing the appellant in September 1962, with a 3-year history of recurring episodes of lumbar and mid-dorsal back pain accentuated by exercise. Reference was made tot he veteran's military service, and that his main complaint during this time was nervousness and insomnia. Dr. Panzer was more concerned about the appellant's mental disturbance than his physical disability. The veteran was provided VA psychiatric examination in January 1976. His past medical records were available and reviewed. The veteran reported that he signed some papers but did not realize what he was signing, and when he found out that signed papers indicating that he had no salvageable value to the service he tried to get them reconsidered and to change his type of discharge. When he failed he felt that as though he were a disgrace. Over the years he continued to have difficulty with his back and with nervousness and had consulted a psychiatrist in Texas. At the present time he was seeing a doctor regularly and taking medication. A copy of a letter from his doctor was in file. The veteran primarily complained of depression, fatigue, irritability and inability to sleep. His medication seemed to help to some extent. He was working for the Department of Agriculture in Brownsville, Texas, and had missed some work because of his nervousness. He lived with his mother, he had difficulty sleeping on occasion and his appetite was good. Mental status examination showed some anxiety and tremulousness during the interview. His speech was somewhat less than spontaneous, however he answered questions relevantly and coherently. His mood was that of depression and his affect was slightly flattened. He did not describe any delusions or hallucinations, and he was oriented as to time, place, and person. His memory seemed good for both recent and remote events, his insight was somewhat superficial but his judgment seemed to be good. The diagnosis was schizoid personality. The examiner noted that from history he was able to obtain that the veteran had never had a psychotic episode and was competent to handle his own affairs. The appellant, in a statement in August 1976, agreed that he had a congenital back abnormality; however he maintained that he should have been treated for the pain, and not told that it was just in his head. He felt that he spent too many weeks with pain day and night, that it made him a nervous wreck, and now he needed treatment for his nervous condition. Evidence since November 1976 Dr. Irurita, in a statement in July 1978, referred to his May 1975 report, and that on review of information available to him, including a 1962 diagnosis of passive-dependent personality, with multiple somatic symptoms and mild depression, that he considered it important that the appellant was still being treated for repeated episodes of depression which he never showed before service. It was further opined that "[I]n the sense the depression that he is suffering at the present time and for which he had to receive electroshock treatment in 1976 by another psychiatrist and not by me is service connected." Dr. I. believed that if more facts were objectively investigated, it would be obvious that the appellant had a nervous condition that was service connected. Received in October 1982 was a copy of a July 19, 1962 consultation by mental hygiene service for the appellant. It was noted that he was referred for administrative psychiatric evaluation because of repeated and excessive somatic complaints resulting in a number of dispensary visits. It was recorded that repeated medical examination had not been unable to unearth any actual physical disability and repeated efforts at supportive psychiatric and medical therapy had been to no avail. The patient stated that he was generally unable to function or perform because of his multiple physical complaints and he indicated that he had no real interest in performing his duties effectively. He was tired, disinterested, and could not tolerate the pressure and excessive harassment which he felt was being placed on him. The diagnosis was passive-dependent personality, with multiple somatic symptoms and mild depression, EPTS (existing prior to service). The Board notes that the copy submitted by the appellant indicates that additional information was on the other side, but such information was not included. There was also a July 23, 1962 certificate from the commander of the appellant's training unit. This certificate noted that the appellant was going on sick-call excessively, with complaints of back pain, that examination failed to show anything wrong, and as a result mental hygiene consultation had been requested. It was reported that since his arrival for Advanced Individual raining (AIT), the appellant had been a complete academic failure. He was unwilling to make an effort to learn, he accepted discipline poorly for superiors, did not mix well, and did not have any salvage value. Also received was a statement dated in October 1982, from the appellant's mother, who noted that when the appellant went into service there was no evidence of any illness, and when he returned she noticed he was very ill with emotional problems. He was depressed and nervous since that time, saw doctors after his discharge, and had gotten worse. His school grades and Army physical were good when he entered service, and his problems began in service. The appellant, in a statement in May 1990, noted that he first felt his mental deterioration in basic training. He went to a dispensary for treatment of his low back pain, and afterwards felt very depressed and could not sleep or relax. His condition worsened, and he told his commanding officer that he needed medical help and was the officer threatened to send the appellant to the stockade, "and I took off running." He was then sent to a psychiatrist who informed him that he needed to function or be discharged. He signed a piece of paper and was given a general discharge. Received in July 1990 was a copy of a November 1982 statement from a former employer of the appellant (1958-1960), to the effect the appellant was dependable employee. The appellant was hospitalized at a VA medical facility in June 1991. It was recorded that he had a long history of depressive episodes with interludes of "normal mood." He felt he had been treated poorly in the military, and suffered from chronic low back pain, depressive episodes, crying spells, decreased sleep, and decreased appetite in service. After his discharge he began a long history of depressive mood swings, feelings of guilt, shame, confusion, and low self-esteem. There were also periods of suicidal ideation, decreased sleep, decreased eating, anhedonia, and angry outbursts. He was seeing a VA physician. Various psychiatric diagnoses included bipolar disorder, depressed, anxiety disorder, and schizoaffective disorder. Treatment of ECT (electroconvulsive therapy) in 1985, and sodium Amytal from 1976 to 1978 were noted. The appellant was well groomed, his eye contact was good, and his speech was without deficit. His mood did not appear depressed although he complained of depression. His affect was appropriate with the exception of seeming somewhat euthymic while complaining of depression. His affect was not labile or abnormal and his sensorium was clear. He was alert and oriented times three. His thought processes were coherent, logical and goal- directed, although he was somewhat circumstantial. His reports were consistent with paranoid feeling involving the insurance company. His thought content revealed that he had suffered auditory hallucinations in the past. The appellant was admitted with the diagnosis of schizoaffective versus bipolar depressed. He exhibited no characteristics consistent with a bipolar disorder. He was mildly to moderately depressed on admission and very preoccupied with injury in service and the dishonor done to him. The pertinent discharge diagnosis was schizoaffective disorder, depressed. In file are copies of VA clinical records for the appellant from 1990 into 1992. Information recorded for clinical purposes in April 1990, noted a psychiatric history of depression and EST (electroshock therapy, 13 times) in 1975, and hospitalization for evaluation in 1980. The examiner had seen him for 3 years for treatment. The assessment was dysthymia, secondary insomnia, and anxiety. A July 16, 1991 record noted that the veteran had carried numerous diagnoses, to include bipolar disorder, schizoid personality, anxiety disorder, and schizo-affective disorder of the bipolar type with severe paranoid features. It was noted on July 24, 1991, that the results from psychological testing, and a diagnosis of schizoaffective disorder were discussed. In February 1992 there was an assessment of bipolar disorder. Received in October 1992 were copies of material, most of which had been submitted previously. The appellant annotated the material. The copies of photographs were to contest the assertion that he did not have friends in service. A statement from L. E., dated in March 1993, was to the effect that as a mail carrier, he was aware that the appellant had a nervous condition "when he came out of service." In hearing testimony in January 1996, the appellant discussed his mental health treatment in the 1970's, and how he was not properly treated in the service, T. pp. 7-12. He felt his anxiety in service came from the back pain, T. p. 12. The appellant, in a statement in June 1996, again recounted his back problems and pain in service, asserting that his pain was not treated. The appellant, in testimony before a traveling member of the Board, in January 1997, reported that the psychological factors in service included insomnia, not eating well, anger because they didn't believe him, and a lot of pain, T. p. 6. He did not agree with the diagnosis of schizoid personality, or that he didn't have close friends, T. p. 7. The appellant stated that every since service he had never been able to get his life together, T. p. 10. In file are VA out patient clinic records for the appellant, from 1992 into 1997. An August 1992 treatment plan showed a diagnosis of schizoaffective disorder, bipolar type with paranoid features. In January 1994 there was a diagnosis of adjustment disorder with depressed mood, in remission, and history of schizoaffective. The May 1995 assessments were dysthymia, and personality disorder. The diagnostic impressions in August 1997 were dysthymic disorder with anxious mood; bipolar disorder, prior history; and personality disorder. A July 1997 psychological assessment noting psychological testing and clinical interview the appellant and spouse, noted current treatment for depressive disorder. Behavioral observations and evaluation findings showed no active psychotic thought processes, and the appellant was alert, well oriented and exhibited no significant cognitive deficits. Attention, concentration, memory function, and language use were all within normal limits. The appellant exhibited poor insight into his presenting problems and poor to fair judgment in his efforts to resolve these problems. It was noted that emotionally the veteran exhibited depressed mood, and that "[D]epressive disorder is evidenced through self-reported symptoms involving feelings of depression, tearfulness, feelings of worthlessness, and difficulty sleeping." The Axis I diagnosis was major depression, recurrent (with some symptoms under remission). The Axis II diagnosis was obsessive- compulsive features. The appellant, in a statement dated in September 1997 again recounted his back problems in service and his treatment by the Army. Accompanying his statement were copies of records associated with is employment in the late 1970's. A March 1979 report noted the appellant's "sickness cycles" wherein the appellant seemed very disturbed by past events, memories of people he identified as hurting or affecting his career, and very dramatic depressed feeling with a great sense of insecurity and anxiety. Psychiatric treatment for over 5 years was reported. There were also copies of records of prescribed medication for the appellant in the 1960's. VA psychosocial evaluation of the appellant was performed in May 1998. It was recorded that the appellant claimed that his untreated back condition while in service led to mental health problems in a later day. The appellant recounted his problems in service. His work history and psychiatric history were also given. The information was not entirely consistent with previous history. The assessment was that the appellant suffered and continued to suffer with anxiety and depression symptoms such as depressed mood, fatigue, feeling nervous, mood swings, irritability, and trouble staying asleep. VA psychiatric examination was conducted in December 1998. A background on the appellant, from the record, was given. The appellant reported that his depressive symptoms were directly related to the military not being able to realize that he had a medical problem. Objective findings included angry mood, and impaired recent memory, with no other abnormal findings. There was reference to auditory and visual hallucinations in the past. No psychological testing was deemed necessary. The Axis I diagnosis was "[r]ule out external incentive. He does not meet any criteria for schizoaffective disorder; he has not had a manic episode in the past or a major depressive episode in the past." The Axis II diagnosis was personality disorder not otherwise specified. The appellant feels very entitled to receiving compensation. His stressor's were said to include bankruptcy 4 months before. The Global Assessment of Functioning was 70 to 80, and it was noted that if symptoms were present they were transient and expectable reactions to psychosocial stressors. He was not impaired occupationally. He is able to work as a security officer and appeared to have a stable marriage. Analysis In the statement of the case of September 1993, the RO provided the veteran with the provisions of 38 C.F.R. § 3.156(a), and held that the veteran had not submitted evidence to "well ground" his claim and therefore it was not "new and material." The Hearing Officer in February 1996 found that the veteran had not reopened his claim because most of his additional evidence was cumulative or redundant, and that recent medical evidence reflecting current disability did not link the current disability with service. In the March 1999 supplemental statement of the case, the RO again cited the provisions of 38 C.F.R. § 3.156(a), however, the RO also cited to the now invalidated Colvin standard for new and material evidence. The RO pointed out that the most recent examination failed to show the presence of an acquired psychiatric disability. In the June 1999 supplemental statement of the case, the RO referred to the now invalidated Colvin standard and held that while the veteran had submitted new evidence, is was not material because it was not directly relevant to the issue being considered. The RO then went on to find that a depressive neurosis was not incurred or aggravated in service as the service medical records were entirely negative for complaints, treatment or diagnoses of a depressive neurosis. The RO further held that the post service nervous conditions, identified as schizoaffective disorder and "anxiety and depression," were too remote from service to support a grant of service connection. The Board finds that the RO has effectively ruled in every possible alternative in this case. See Holbrook v. Brown, 8 Vet. App. 91 (1995). The original statement of the case, as well as part of the Hearing Officer's determination finding no competent evidence establishing a link between post service disability and service, effectively denied the claim as not well grounded. The March 1999 supplemental statement of the case, noting there was no current acquired psychiatric disability demonstrated, was also consistent with a finding that the claim was not well grounded on the basis of the lack of current disability. The Hearing Officer held that the additional evidence was cumulative or redundant, and thus not new. Winters, supra. The June 1999 supplemental statement of the case effectively ruled in the alternative that the evidence was not material and then went on to make findings consistent with a review on the merits. While the RO has referred to the now invalidated Colvin standard on new and material evidence, the veteran was also provided with the correct standard repeatedly, has had adjudications consistent with the correct standard, and has exercised his right to a hearings on appeal. Accordingly, the Board concludes that it is not prejudicial for the Board to review the claim without further procedural development. Bernard v. Brown, 4 Vet. App. 384 (1993). The greater part of the evidence since the denial of service connection for a psychiatric disorder in 1976, is new in the sense that it was not of record at the time of the 1976 determination. The Board would rule first, however, that the only significant piece of evidence addressing the question of service connection submitted to support the veteran's claim is fundamentally cumulative or redundant, and thus not new evidence under 38 C.F.R. § 3.156(a). The opinion of Dr. Irurita in 1978 simply repeats the opinion that was before the Board in 1976, without any substantive change in fact or analysis; thus, it is cumulative. The remaining evidence, while it shows that various diagnoses of an acquired psychiatric disorder have been entered, does not provide any indication of a relationship of such a disability to service. The veteran is not competent to provide either a medical diagnosis or a medical opinion as to causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, under 38 C.F.R. § 3.156(a) the remaining evidence is not material. The Board would next rule in the alternative that even assuming the claim was reopened, it is not well grounded. The Court has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1997) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. The first requirement of a well-grounded claim is current disability. The most recent examination of record of December 1998 shows no acquired psychiatric disability. While the examiner diagnosed a personality disorder, such a disorder is not a disease or disability for VA compensation benefit purposes. 38 C.F.R. § 3.303(c), 4.9, (1999). The Board would point out that the various reports of Dr. Irurita discuss psychiatric pathology in generalized terms and do not clearly indicate a psychiatric diagnosis. Complaints, even recorded complaints, of depression and anxiety, by themselves are merely symptoms, and must be linked to an identifiable underlying malady or condition to establish a diagnosis. See Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999). Evidence prior to December 1998 provide a number of diagnoses of various acquired psychiatric disabilities, however, there is no competent medical evidence linking any of these disabilities to service or service connected disability. Therefore, with regard to these disabilities, the third element of a well-grounded claim is not satisfied. In this regard, the veteran is not competent to satisfy this element with his lay evidence because even if he is competent to describe certain symptoms, he is not competent to link them to an underlying disability that is not susceptible to lay observation. None of the psychiatric disabilities at issue here is susceptible to lay observation. Savage, supra. Even were the Board to assume that the claim was well grounded, it would make no difference. The RO has fully developed the record and satisfied the duty to assist. There is no indication of any outstanding records that would provide evidence relevant to the claim for service connection for an acquired psychiatric disability. The RO has even provided the veteran with a contemporaneous examination. In a merits review, the Board finds that the clear weight of the most probative evidence is against the claim. The service department medical providers diagnosed a personality disorder. The VA examination in 1976, proximate to service and based upon a review of the record, also resulted in a diagnosis of a personality disorder. The most recent evaluation, where the examiner reviewed the record, again produced a diagnosis of a personality disorder. The most recent examiner further case serious doubt upon the validity of any prior diagnosis of an acquired disability. The Board recognizes that the claims file contains various pieces of evidence indicating diagnoses of acquired psychiatric disability, however, the greatest weight must be assigned to those medical opinions founded upon an examination of the claimant, an actual review of the record and supported by a rationale. In this case, the VA examination of December 1998 is entitled to by far the greatest weight, followed by the VA examination in 1976. None of the putative favorable evidence in this case individually or collectively comes remotely close to being of approximately equal probative weight. Therefore, the benefit of the doubt doctrine is not for application. ORDER The claim for service connection for a back disability is reopened and well grounded. Service connection for an acquired psychiatric disorder is denied. REMAND The veteran had multiple episodes of back complaints in service. In March 1962, it was noted that there was what "appears to be evidence of arthritic changes between the partially formed right transverse process of L-5 and the sacrum." X-rays of the L-S spine in May 1962 revealed sacralization of L5 (partial) with pseudoarthrosis of the left transverse process, L5 with the sacrum. Post-service private records show that in July 1974, x-rays brought with the veteran and made in Mexico revealed possibility of a lumbarization of the 1st sacral segment or possibility of sacralization of the 1st lumbar segment. There was some blurring of the facet join at L5-S1 but the x- rays were not of proper quality to make a definitive diagnosis. The impression was congenital abnormality in low back with possible lumbarization of the S1 segment; also postural backache. The August 1974, x-rays made at "M & C" revealed either a sacralization of the L5 fragment or a lumbarization of the S1 fragment. Six lumbar vertebrae were seen on the AP (anterior-posterior) of the lumbar spine. The possibility that T12 had a poor residual rib and appears as a lumbar vertebra was entertained. The entire thoracical lumbar spines were repeated by Martin & Chap that revealed the probable lumbarization of the S1 fragment. There was asymmetrical lumbarization, and it was much more solid on the left with a poor joint formation on this left side. On the right, there was more complete differentiation with articulation with the non-movable 1st sacral segment. This was considered to be a better facet join. It was noted that the veteran has an obvious congenital deformity or more properly termed, an irregularity of vertebral differentiation in the low back. This could certainly explain his episodic periods of low back pain. The inequality of the facet formation between the last moveable vertebra and the 1st sacral segment could certainly be a cause of facet joint arthritis with secondary muscle spasm in the area to prevent excess motion. A July 1974 report from R. C., D.C., also received in January 1975, indicates the veteran had been a patient for two months. X-rays revealed that the articulation between the right transverse process of the 5th lumbar vertebra with the right base of the sacrum bone completely welded (sacralization) plus chronic subluxation of the 4th lumbar vertebra. Dr. Irurita reported that an examination performed by H. Keillor, M. D., on July 22, 1974, revealed "either a sacralization of the L5 fragment or a lumbarization of the S1 fragment. There are 6 lumbar vertebrae seen on the AP of the lumbar spine. The possibility that T12 has a poor residual rib and appears as a lumbar vertebra is entertained." Further, the orthopedist entertained as the most probable condition, lumbarization of the S1 fragment. G. S., D. C., in a statement dated in August 1998, opined that the veteran's pre-service back condition was know to be biomechanically unstable, and could lead to premature osteoarthritis, degenerative disc lesions, and nerve root irritation. It was concluded that the veteran's condition "was aggravated by service related activity." The January 1999 VA examiner noted that the veteran's current back problems were quite significant, and that "[t]here is no evidence, in fact there is evidence to the contrary, that he did not have a disc herniation at the time of his original complaint of back pain." It was the opinion of the examiner that the appellant's "current back complaints are related to a significant disc pathology at L4-5, and that they have no relationship to a twisting type injury, throwing a duffel bag onto a truck." Further, the "pseudoarthrosis and articulation of the L5 transverse process, may have caused some mild exacerbation, but that process did not result in any surgical procedures and it is clear from his military as well as his VA history, that he did not experience any discogenic pathology at the time of the original injury." While the VA medical opinion addresses the origins of disc pathology demonstrated after 1975, the record shows a number of back disorders other than disc pathology were identified in service and through 1975. There are numerous references to disorders of congenital origin. What the record does not reflect, however, is a clear medical opinion explaining the classification of the various types of back pathology shown in service and prior to 1975, as to whether the pathology was acquired, or if congenital, whether it was the product of a disease or defect, and if the product of a congenital disorder or defect whether it increased in severity in service. While a congenital defect itself may not be service connected on the basis of incurrence, consideration must still be given as to whether the congenital defect was subject to superimposed disease or injury. In order to obtain clarifying medical information on these matters, the case is remanded for the following development: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. Following the above, the RO should contact VA physician, L. Collie, if available, in regard to the January 4, 1999 evaluation and opinion. The physician should be requested to review any additional evidence added to the record and then provide clarification as to whether the variously described pathology of the back demonstrated during service and at least through 1975 as summarized above can be classified medically as: 1) an acquired back disability; 2) the product of a congenital disease, or 3) the product of a congenital defect. The physician should then address the degree of medical probability that any of this pathology manifestly and obviously pre-existed the appellant's active military service. If any of the pathology manifestly and obviously pre- existed service, what is the degree of medical probability that it increased in severity in service beyond the normal progression of the underlying disability, if any, in light of all the evidence of record concerning the condition before, during, and after service? A complete rationale for any opinion expressed must be provided. The claims folder and a separate copy of this remand should be made available to the examiner prior to the review. If any opinion can not be provided without resort to speculation, the examiner should so note. If the same VA physician is not available, the RO is respectfully requested to secure an opinion on these questions from an appropriate VA physician, and that physician must be provided an opportunity to review the record in this case to form a background upon which to formulate such an opinion. 3. The RO should then review any opinion obtained and assure that it is responsive to all of these questions. If not, corrective action should be taken. Stegall v. West, 11 Vet. App. 262 (1998). If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Richard B. Frank Member, Board of Veterans' Appeals