Citation Nr: 0522332 Decision Date: 08/17/05 Archive Date: 08/25/05 DOCKET NO. 98-19 515A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 10 percent for post- traumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for chronic low back pain. 3. Entitlement to a compensable rating for musculoskeletal headaches. 4. Entitlement to a compensable rating for obstructive sleep apnea. 5. Entitlement to service connection for residuals of exposure to asbestos. 6. Entitlement to service connection for residuals of exposure to toxic fumes. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty from April 1965 to February 1968, and from August 1985 to June 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. As a procedural matter, the Board notes that the claim for exposure to fumes was certified on appeal as part and parcel of exposure to asbestos; however, exposure to asbestos and asbestosis-related medical disorders is a distinct medical claim which require separate consideration under a particular administrative protocol. Therefore, the Board will address the issue of residuals of exposure to fumes separate from a claim for residuals of asbestos exposure. The issues of an increased rating for sleep apnea, service connection for residuals from asbestos exposure, and service connection for residuals from exposure to fumes are addressed in the decision below. The remaining issues of increased ratings for PTSD, low back disability, and headaches, are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. The veteran's sleep apnea is manifested by persistent day- time hypersomnolence. 2. The veteran has been prescribed, but refuses to use, an assistive breathing device. 3. A diagnosis of asbestosis or any asbestos-related disorder has not been shown. 4. A chronic respiratory disability as a result of exposure to fumes has not been shown. 5. A chronic cough alone is not a disability for which compensation is payable. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 30 percent for a sleep disorder, but no more, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2004); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.97, 4.124a, Diagnostic Codes (DCs) 6847, 8108, 8911 (2004). 2. Residuals of exposure to asbestos were not incurred in or aggravated by the veteran's period of active duty. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. § 3.303 (2004). 3. Residuals of exposure to toxic fumes were not incurred in or aggravated by military service; there is no evidence of an underlying respiratory disorder manifested by a chronic cough; chronic bronchitis has not been shown. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to a Compensable Rating for Obstructive Sleep Apnea Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2004). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2004). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2004). The RO rated the veteran's sleep apnea under DC 6847. Under DC 6847, a noncompensable evaluation is assigned for an asymptomatic condition, but with documented sleep disorder breathing. A 30 percent evaluation is assigned when there are symptoms of persistent daytime hypersomnolence. The assignment of a 50 percent rating requires the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) machine. And, a 100 percent evaluation is warranted when there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or if a tracheostomy is required. See 38 C.F.R. § 4.97, DC 6847. In this case, the Board finds that the evidence supports a 30 percent evaluation for the veteran's sleep disorder, but no higher. Of note, the veteran reported daytime hypersomnolence in a March 1998 VA examination. Moreover, in a January 2001 neurological examination he described "excessive daytime sleepiness, snoring and dry mouth in the morning." Therefore, the medical evidence supports a rating of 30 percent for sleep apnea under the regulations. However, the Board finds that a higher than 30 percent rating is not warranted. In essence, the veteran contends that he has been prescribed a CPAP machine which is, in and of itself, sufficient to assign a 50 percent rating. The Board disagrees. The medical evidence is overwhelming that the veteran has refused to use the machine. Specifically, in a July 2002 respiratory examination, the examiner noted that the veteran was initially placed on CPAP and BIPAP in 1995 but "stopped using them for a long time now . . ." Moreover, in a November 2000 respiratory examination, he indicated that he did not use his CPAP machine. Similarly, he stated that he "doesn't want to take medication or CPAP" in a March 1998 VA examination. While the veteran related on one occasion that he used CPAP "intermittently" - in a January 2001 VA neurological examination - this level of use, particularly given the greater weight of evidence that he essentially refuses to use it, suggests to the Board that he does not, in fact, "require use" of the machine. Therefore, the Board questions whether the machine is "required" as provided in the regulation. It is not simply that he has a machine in his possession or has been recommended or prescribed to use it; rather, the regulation anticipates that he needs (i.e. "requires use") of the breathing assistance device, such as CPAP. As he is, of his own accord, not using the machine, the Board finds this persuasive evidence does he does not require its use. Given that the veteran has reported daytime hypersomnolence, the Board finds that a 30 percent rating for sleep apnea is warranted. However, the Board rejects the proposition that simply being prescribed use of a breathing assistance device, such as CPAP, is sufficient to warrant a higher rating. Therefore, a 30 percent rating, but no more, will be granted. II. Entitlement to Service Connection for Residuals of Exposure to Asbestos The Board notes that there is no current specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases nor has VA promulgated any regulations regarding asbestos-related diseases. However, VA has issued procedures on asbestos- related diseases which provide some guidelines for considering compensation claims based on exposure to asbestos in VA ADJUDICATION PROCEDURE MANUAL M21-1 (formerly Department of Veteran's Benefits, DVB, Circular 21-88-8, Asbestos-Related Disease (May 11, 1988)). In addition, the Board will consider the guidance in VAOPGCPREC 4-2000. VA must analyze the claim of entitlement to service connection for asbestosis under these administrative protocols. Subparagraph 7.21a(1) of the M21-1 recognizes that inhalation of asbestos fibers can produce fibrosis and tumors, interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the larynx and pharynx. Subparagraph 7.21a(3) points out that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. The risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. Mesotheliomas are not associated with cigarette smoking. Lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. About 50 percent of persons with asbestosis eventually develop lung cancer, about 17 percent develop mesothelioma, and about 10 percent develop gastrointestinal and urogenital cancers. All persons with significant asbestosis develop cor pulmonale and those who do not die from cancer often die from heart failure secondary to cor pulmonale. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, Ch. 7.21. An asbestos-related disease can develop from brief exposure (as little as a month or two) to asbestos or indirectly (bystander disease). Id. There is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. Id. It is a fact that many U.S. Navy veterans during World War II were exposed to chrysotile products, as well as amosite and crocidolite, since these varieties of African asbestos were used extensively in military ship construction. Id.; see also Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, the Board must determine whether the claim-development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Veterans Claims Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). With these claims, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. See M21-1, Part VI, Ch. 7.21. The Veterans Claims Court has held that neither MANUAL M21-1 nor the CIRCULAR create a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, 287 F.3d 1377 (Fed. Cir. 2002); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. The Board notes that the veteran worked in a building while on active duty which was the subject of an investigation due to an overwhelming diesel/petroleum smell, and which eventually was found to contain asbestos. Specifically, in September 1991, the Occupational Safety and Health Administration (OSHA) received a complaint about the building from the veteran, reporting headaches, watery eyes, and upper respiratory problems. In a December 1991 report, the Army's Environmental Science Officer who conducted a Health Hazard Assessment of the building in question, related that the building had a strong odor of diesel fumes. Bulk samples were taken from insulation around a piece of equipment to test for asbestos. The results indicated 5 percent chrysotile asbestos and 95 percent fiber. It was reported that the exposure level was below the OSHA recommended level and there was no immediate health hazard but corresponding air samples were to be conducted. The site was also to be included in the overall Asbestos Abatement Plan. The building was abandoned for clean-up, and eventually completely gutted and remodeled. The veteran maintains that he was exposed to asbestos while working in this building. There was confirmed evidence of asbestos in the building and the issue of exposure will be conceded. The threshold question, however, is whether the veteran developed asbestosis or an asbestosis-related disorder (defined in M21-1) due to asbestos exposure while on active duty. After a review of the evidence, the Board finds that the claim must be denied. Specifically, service medical records are negative for asbestosis or an asbestosis-related illness. Of note, April 1997 and March 1998 chest X-rays were normal. Moreover, a private June 2000 CT scan of the chest showed "no evidence of a pulmonary mass or hilar/mediastinal lymphadenopathy." In the November 2000 VA examination, the veteran reported that the building he worked in the 1980s and 1990s was condemned due to asbestos. Nonetheless, his chest X-ray at that time was normal. This indicates to the Board that there was no medical evidence of asbestosis or any of the asbestosis-related disorders, such as pleural effusion, fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, or lung cancer. In a July 2002 VA examination, undertaken to specifically address the asbestosis issue, the veteran related a history of exposure to asbestos. After a physical examination, the examiner concluded that there was "no evidence of asbestosis." In addition, there was no evidence of chronic obstructive pulmonary disease (COPD), or chronic bronchitis. He was reported to have a chronic cough of unknown origin. However, even if shown, neither COPD or bronchitis, nor chronic cough are disorders associated with asbestos exposure. As noted above, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Notwithstanding the veteran's exposure to asbestos, the Board finds that he does not, in fact, have a disorder which can be reasonably attributable to asbestos exposure. While he has been diagnosed with a chronic cough, that disorder is not listed in subparagraph 7.21a(1) as one of the disorders attributable to inhalation of asbestos fibers. In addition, while persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer, there is no evidence that the veteran has been treated for any of these disorder, nor has he so asserted. Thus, even assuming exposure to asbestos, there is no evidence of asbestosis or an asbestosis-related disorder. As noted above, the veteran's additional respiratory complaints (bronchitis, chronic cough, etc.) are addressed in a more generalized claim for a chronic respiratory disorder. Since there is no current diagnosis of asbestosis or an asbestosis- related disorder, the Board finds that the claim for residuals associated with asbestos exposure must be denied. III. Entitlement to Service Connection for Residuals of Exposure to Toxic Fumes Under the relevant regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2004). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2004). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2004). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran contends that he developed a chronic cough as a result of exposure to toxic fumes while serving on active duty. As noted above, the evidence is uncontroverted that the veteran was exposed to petroleum and diesel fumes. However, the threshold question is whether he suffered a disability or injury as a result of that exposure. For definitional purposes only, "cough" is defined as 1. a sudden explosive forcing of air through the glottis, occurring immediately on opening the previously closed glottis, and excited by mechanical or chemical irritation of the trachea or bronchi, or by pressure from adjacent structures. 2. To force air through the glottis by a series of expiratory efforts. Stedman's Medical Dictionary, 26th ed. Service medical records reflect the veteran sought treatment for complaints of weakness, cough, diarrhea, sore throat and congestion in December 1990. He was diagnosed with acute bronchitis. As noted above, he worked in a building which was the subject of a 1991 investigation due to an overwhelming diesel/petroleum smell. An environmental evaluation was conducted and the building was eventually closed. In March 1992, he was treated for sinusitis. He was also diagnosed with rule/out allergic rhinitis. June 1992 allergy testing was negative. In August 1992, he related that he was still in the building and complained of headaches and runny eyes. The clinical assessment included rhinitis secondary to work place environment. In October 1992, it was reported that his cough may be toxin induced. In December 1992, he was diagnosed with clinical asthma, allergic rhinitis, and questionable bronchitis. It was noted that if there was no response clinically to his asthma that histamine challenge testing may be needed to rule/in or rule/out asthma. A diagnosis of rule/out mycoplasma pneumonia vs. bronchitis was noted. In May 1993, he was diagnosed with an upper respiratory infection after seeking treatment for a running nose and fever with cough. At the time of a January 1994 physical, the veteran's multiple complaints included a 4-5 year history of sinusitis, a 2-3 year history of shortness of breath during running and sometimes walking, a 4-5 year history of chronic cough, and a 4 year history of chronic or frequent colds. In essence, he dated his respiratory difficulties to exposure to fumes in 1990-1991. In an August 1994 Pulmonary consultation, the veteran related a history of recurrent cough, dyspnea on exertion, decreased exercise tolerance, and nasal congestion. The clinical impressions included exercise induced asthma, rule/out obstructive sleep apnea syndrome, chronic sinusitis. In a July 1995 Medical Board proceeding, he was diagnosed with, among other things, obstructive sleep apnea and chronic cough. It was recommended that he be separated from military duty. In a rebuttal statement, he asserted that he had chronic respiratory problems related to exposure to fumes and from exposure to Agent Orange. He was discharged from active duty in June 1996. In January 1997, the veteran filed the current claim. He maintains, in essence, that the exposure to fumes while on active duty cause a chronic respiratory disorder, to include bronchitis and chronic cough. The post-service medical work-up is extensive. His primary complaints have related to a persistent cough. Nonetheless, the results have been completely negative for underlying respiratory pathology for his cough. Medical evidence reflects the following diagnoses/statements: ? Chronic cough with no obvious source. (VA General Medical Examination, April 1997). ? Normal chest radiograph. (VA X-ray, April 1997). ? No evid[ence] of sinusitis. (VA Nose and Sinus Examination, April 1997). ? Normal pulmonary function test. (VA Examination, March 1998). ? Normal paranasal sinuses . . . Normal chest. (Private X-ray, December 1998). ? Bronchitis. Bibasilar interstitial changes. (Private X-ray, December 1999). ? No evidence of pulmonary mass or hilar/mediastinal lymphadenopathy. (Private CT scan of chest with contrast, June 2000). ? [H]as undergone an [endoscopy] . . . which was negative to evaluate his cough. (Self-reported in VA Respiratory, Miscellaneous Examination Report, November 2000). ? It is my opinion that it is not as likely as not that the veteran has a chronic respiratory condition related to his exposure to fumes and/or asbestos while on active duty. (VA Respiratory, Miscellaneous Examination Report, November 2000). ? Chronic cough of unknown etiology. No evidence of COPD or chronic bronchitis. No evidence of asbestosis. It is my opinion that in view of extensive negative work- ups for chronic cough, it is at least as likely as not that the chronic cough is caused by psychological disorder. (VA Respiratory Obstructive Examination Report, July 2002). ? [The veteran's] current [chronic] cough is more likely than not to be related to [chronic] cough noted in the service medical record, but not likely to be related to acute bronchitis, asbestos exposure or chemical fumes while in the military service. (VA Respiratory Miscellaneous Examination, July 2002 -same examiner as above). ? No evidence of sinonasal disease. Chronic cough not related to sinonasal disease. (VA ENT Examination Report, July 2002). ? Normal spirometry, lung volumes, gas diffusion. Since previous PFTs dated March 25, 1998, there has been a reduction in vital capacity possibly due to weight gain. (PFTs, June 2002). As noted previously, service connection is granted only for disability, not on the basis of symptomatology which may suggest the presence of an underlying disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, chronic cough, as a clinical finding only, is not deemed to be a disability for which compensation is payable; rather, a cough is a symptom. In order to be awarded service-connection, there must be some underlying disability shown. As there is no underlying respiratory disorder attributable to fumes, the claim for service-connection must necessarily be denied. Nonetheless, even considering the veteran's assertions, the medical evidence is undeniable that his symptom of a cough is not, in fact, related to exposure to fumes. As noted above, the two VA examiners who have directly addressed the issue of causation have concluded that his cough is not related to the fume exposure while on active duty (November 2000 and July 2002). It is also indicated that there is no known cause of the veteran's symptoms (April 1997 and July 2002). The uncertainty in the etiology of the veteran's cough cannot necessarily support the conclusion that it must have been due to military service. Additional work-ups have found no evidence of COPD, bronchitis, a sinus origin, a gastrointestinal cause, or allergies as a basis for the reported chronic cough. Because there is no underlying disability shown for compensation purposes, the current claim for entitlement to service connection for a chronic cough as a symptom only must be denied. In addition, as there is no evidence of chronic bronchitis (although there was a single mention of bronchitis in December 1999) or other upper respiratory disorder shown, the claim for entitlement to service connection for the residuals of fumes exposure must be denied. Finally, the Board notes that on November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law. Regulations implementing the VCAA have been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The veteran was notified of the VCAA as it applies to his present appeal by correspondence dated in June 2001 and May 2002. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notices provided to the veteran were not given prior to the first AOJ adjudication of the claims, the notice was provided by the AOJ prior to the transfer and certification of the veteran's case to the Board and notice complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The issues on appeal were re-adjudicated and a supplemental statement of the case was provided to the veteran in November 2002. The veteran has been provided every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. The VCAA notice letters provided to the veteran generally informed him of the evidence not of record that was necessary to substantiate his claims and identified which parties were expected to provide such evidence. The veteran was notified of the need to give to VA any evidence pertaining to his claims. In addition, 38 C.F.R. § 3.159(b)(1) was cited in the November 2002 supplemental statement of the case. In light of the actual notice provided, the Board finds that any content deficiency in the notice letters was non-prejudicial error. All the VCAA requires is that the duty to notify be satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Here, because each of the content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the veteran covering all content requirements is harmless error. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. See 38 C.F.R. § 3.159. In this case, the veteran's service medical records and all identified and authorized post-service medical records relevant to the issues on appeal have been requested or obtained. In claims for disability compensation, the VCAA duty to assist requires VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. The Board notes that specific VA medical opinions pertinent to the issues on appeal were obtained in April 1997, November 2000, and July 2002. The available medical evidence is sufficient for adequate determinations. Therefore, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled. ORDER A 30 percent disability rating for obstructive sleep apnea, but no more, is granted, subject to the law and regulations governing the payment of monetary benefits. The claim for entitlement to service connection for residuals of exposure to asbestos is denied. The claim for entitlement to service connection for residuals of exposure to toxic fumes is denied. REMAND With respect to the remaining issues, the Board finds that due process considerations mandate a remand. Increased Rating PTSD. In recent correspondence, the veteran indicated that his symptoms have gotten progressively worse. Further, the Board notes that the veteran has not undergone a VA examination since 2000. Given his assertions that his PTSD disability has increased in severity, and that it has been a number of years since his last examination, the Board finds that a remanded is needed. Increased Rating Low Back Pain. In addition, while this appeal was pending, the applicable rating criteria for intervertebral disc disease, 38 C.F.R. § 4.72, DC 5293, were revised effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug. 22, 2002). Further, the remaining spinal regulations were amended in September 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). However, the veteran has not undergone a VA examination in light of the new criteria. Increased Rating Headaches. The representative has requested that the veteran undergo a current examination on the basis that he has not been examined since 1997. The Board agrees and the claim will be remanded accordingly. Moreover, in order to make certain that all records are on file, while the case is undergoing other development, a determination should be made as to whether there are any additional records that should be obtained. Finally, the veteran is advised that while the case is on remand status, he is free to submit additional evidence and argument. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). Accordingly, further appellate consideration will be deferred and this case is REMANDED for the following actions: 1. Obtain outpatient treatment records related to the claims on appeal from the VA Medical Center (VAMC) Hines for the period from January 2001 to the present. 2. Make arrangements with the appropriate VA medical facility for the veteran to be afforded an examination to determine the current severity of his service-connected PTSD. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner should obtain a clinical history from the veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. The examiner should complete the appropriate examination worksheet for PTSD. 3. Make arrangements with the appropriate VA medical facility for the veteran to be afforded an examination to determine the nature and extent of his service-connected low back disability. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner should obtain a clinical history from the veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. The examiner should complete the appropriate disability examination worksheets for the appellant's low back disability. 4. Make arrangements with the appropriate VA medical facility for the veteran to be afforded an examination to determine the nature and extent of his service-connected headaches. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner should obtain a clinical history from the veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. The examiner should complete the appropriate disability examination worksheets for the appellant's headache disability. 5. Thereafter, the RO should re- adjudicate the issues on appeal. If any benefit sought remains denied, the veteran and the representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issues as well as a summary of the evidence received since the issuance of the last SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs